As filed with the Securities and Exchange Commission on April
24, 2002.
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED COMMUNITY BANKS, INC.
(Exact Name of Issuer as Specified in its Charter)
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Georgia |
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58-1807304 |
P.O. Box 398
63 Highway 515
Blairsville, Georgia 30512
(706)745-2151
(Address and Telephone Number of Issuer's Principal Executive Offices)
United Community Banks, Inc. Profit Sharing Plan
(Full Title of the Plan)
Mr. Jimmy C. Tallent
President and Chief Executive Officer
P.O. Box 398
63 Highway 515
Blairsville, Georgia 30512
(706)745-2151
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Jan M. Davidson, Esq.
KILPATRICK STOCKTON LLP
1100 Peachtree Street, N.E., Suite 2800
Atlanta, Georgia 30309-4530
(404) 815-6500
(404) 815-6555 (fax)
Calculation of Registration Fee
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Amount to |
Proposed Maximum |
Proposed Maximum |
Amount of |
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Participation Interests in United |
(3) |
(4) |
(4) |
(4) |
(1) Pursuant to Rule 416, this Registration Statement shall be deemed to cover any additional securities to be offered or issued from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) of the Securities Act of 1933. The proposed maximum aggregate offering price and amount of registration fee are based on $54.35 the average of the high and low price on the Naqdaq on April 19, 2002.
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.
(4) Not applicable.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this registration statement (the “Registration Statement”) and are deemed to be a part hereof from the date of the filing of such documents with the Securities and Exchange Commission:
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(1) |
The Registrant’s Form 10-K for the year ended December 31, 2001 (File Number 000-21656). |
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(2) |
All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2001. |
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(3) |
The description of the Common Stock contained in the Registrant's registration statement filed under Section 12 of the Exchange Act, including all amendments or reports filed for the purpose of updating such description. |
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(4) |
All other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities that remain unsold. |
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Richard Cheatham, a partner at Kilpatrick Stockton LLP, owns 4,122 shares of the Registrant’s common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant’s Restated Articles of Incorporation provide that no director shall be personally liable to the corporation or its shareholders for monetary damages for breach of a duty of care or other duty as a director to the extent permissible under the Georgia Business Corporation Code or any successor laws.
In addition, consistent with the Georgia Business Corporation Code, the Registrant’s Bylaws provide for indemnification of any current or former director, officer, employee or agent against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement reasonably incurred by the party for any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Registrant) if such party acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The Bylaws further state that indemnification will be granted in an action by or in the right of the Registrant only if the appropriate Georgia court or such other court in which such action was brought determines that, despite the adjudication of liability, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity. Determination of a grant of indemnification, unless ordered by a court, shall be made: (1) by the majority vote of a quorum of the Board of Directors of the Registrant, (2) if such quorum is not obtainable or in the event that such quorum directs,
2
the written opinion of independent legal counsel, or (3) by the stockholders. Georgia law provides that the liability for a director may not be eliminated or limited (a) for any appropriation, in violation of his duties, of any business opportunity of the Registrant, (b) for acts or omissions which involve intentional misconduct or a knowing violation of law, (c) for unlawful corporate distributions, or (d) for any transaction from which the director received and improper personal benefit.
Registrant’s directors and officers are insured against losses arising from any claim against them as such for wrongful acts or omissions, subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The exhibits included as part of this Registration Statement are as follows:
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Exhibit Number |
Description |
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4.1 |
Restated Articles of Incorporation, as amended, incorporated herein by reference to Exhibit 3.1 of Registrant’s Quarterly Report on Form 10Q for the period ended June 30, 2001 (filed on August 14, 2001) (File No. 000-21656) |
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4.2 |
Amended and Restated Bylaws, incorporated herein by reference to Exhibit 3.1 of Registrant’s Annual Report on Form 10-K for the year ended December 31, 1997 (filed on March 27, 1998) (File No. 000-21656) |
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4.3 |
United Community Banks, Inc. Profit Sharing Plan (the “Plan”), dated as of March 9, 2001 |
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4.4 |
Amendment No.1 to the United Community Banks, Inc. Profit Sharing Plan, dated as of March 15, 2002 |
| 5 | Opinion of Kilpatrick Stockton LLP |
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23.1 |
Consent of Porter Keadle Moore, LLP |
| 23.2 | Consent of Kilpatrick Stockton LLP (included on Exhibit 5) |
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24 |
Power of Attorney (included on the Signature Page of this Registration Statement) |
In addition to the above Exhibits and with respect to Item 601(b)(5) of Regulation S-K, the Registrant has undertaken to submit the Plan and any amendments thereto to the Internal Revenue Service (“IRS”) and has made or will make all changes required by the IRS in order for the Plan to qualify under the requirements of the Employee Retirement Income Security Act of 1974 and Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
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(1) |
To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement: |
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| (a) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”); | ||
3
| (b) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and the price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | ||
| (c) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. | ||
| provided, however, that paragraphs (1)(a) and (1)(b) of this section do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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. | ||
| (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. | ||
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 the employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
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 SEC, 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 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.
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SIGNATURES OF REGISTRANT
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 Blairsville, State of Georgia, on this 18th day of April, 2002.
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UNITED COMMUNITY BANKS, INC.
By: /s/ Jimmy C. Tallent
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Jimmy C. Tallent and Robert L. Head, Jr., and either of them, his or her true and lawful attorney-in-fact with full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to cause the same to be filed, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby granting to said attorneys-in-fact and agents full power and authority to do so and perform each and every act and thing whatsoever requisite or desirable to be done in and about the premises, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all acts and things that said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on April 18, 2002.
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Jimmy C. Tallent |
President, Chief Executive Officer, and Director |
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Rex S. Schuette |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
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Robert L. Head, Jr. |
Chairman of the Board |
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Thomas C. Gilliland |
Executive Vice President, Secretary and Director |
5
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Harold Brewer |
Executive Vice President and Director |
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Guy W. Freeman |
Director |
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Charles Hill |
Director |
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Hoyt O. Holloway |
Director |
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Clarence William Mason, Sr. |
Director |
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Clarence William Mason, Sr. |
Director |
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W. C. Nelson, Jr. |
Director |
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Charles E. Parks |
Director |
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Tim Wallis |
Director |
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Robert H. Blaylock |
Director |
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SIGNATURES OF PLAN
Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on 19th day of April, 2002.
UNITED COMMUNITY BANK, INC. PROFIT SHARING PLAN
BY INTRUST BANK, N.A.
By: /s/ John
Goff
John M.
Goff
Vice President and Trust
Officer
7
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
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Exhibit Number |
Description |
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4.1 |
Restated Articles of Incorporation, as amended, incorporated herein by reference to Exhibit 3.1 of Registrant’s Quarterly Report on Form 10Q for the period ended June 30, 2001 (filed on August 14, 2001) (File No. 000-21656) |
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4.2 |
Amended and Restated Bylaws, incorporated herein by reference to Exhibit 3.1 of Registrant’s Annual Report on Form 10-K for the year ended December 31, 1997 (filed on March 27, 1998) (File No. 000-21656) |
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4.3 |
United Community Banks, Inc. Profit Sharing Plan (the “Plan”), dated as of March 9, 2001 |
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4.4 |
Amendment No.1 to the United Community Banks, Inc. Profit Sharing Plan, dated as of March 15, 2002 |
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5 |
Opinion of Kilpatrick Stockton LLP |
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23.1 |
Consent of Porter Keadle Moore, LLP |
| 23.2 | Consent of Kilpatrick Stockton LLP (included in Exhibit 5) |
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24 |
Power of Attorney (included on the Signature Page of this Registration Statement) |
8
Exhibit 4.3
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
Amended and Restated as of January 1, 2001, Except Where Otherwise Noted
[Subject To Approval by the Internal Revenue Service]
Table of Contents
PAGE
ARTICLE I DEFINITIONS..........................................................3
ARTICLE II ELIGIBILITY, PARTICIPATION AND SERVICE.............................12
2.1 Eligibility - Subject to Section 2.2 below, any Eligible
Employee who as of the date immediately preceding the
effective date was a Participant in the Plan shall continue
as a Participant in the Plan on the Effective Date. All
other Employees of an Employer shall be eligible to
participate upon completion of the requirements set forth in
Section 2.2 below, except the following Employees shall not
be eligible to participate in the Plan: (i) Employees whose
terms and conditions of Employment are determined by
collective bargaining with a union or an affiliate thereof
representing such persons and with respect to whom inclusion
in the Plan has not been expressly provided for in the
collective bargaining agreement; (ii) non-resident aliens
who receive no earned income from the Employer from sources
within the United States; (iii) leased Employees; (iv)
independent contractors; and (v) Employees classified by the
Employer as temporary or
casual..............................................................12
2.2 Participation.......................................................12
2.3 Enrollment for Elective Deferrals - In order to participate
in the Elective Deferral portion of the Plan, an Employee
must complete the election form described in Section 3.1(b)
in the manner provided for therein (or otherwise enroll
through a telephone communications or other electronic
arrangement). If the date an Employee submits an election
form designating a portion of his Annual Compensation to be
contributed to the Plan (and indicating the manner in which
such amounts shall be invested) is later than the date he
would otherwise
i
Table of Contents
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(continued)
PAGE
become a Participant, then his participation in the Elective
Deferral portion shall commence as soon as practical thereafter.....13
2.4 Return to Employment................................................13
2.5 Maternity or Paternity Leave........................................13
2.6 Military Service - If a Participant is reemployed after a
period of qualified military service, the years, or partial
years, of qualified military service will be credited as
Years of Service under the Plan, in accordance with Section
414(u) of the Code. Effective as of December 12, 1994,
absence from employment on account of a leave of absence for
service in the uniformed armed services of the United States
will be counted as employment with the Employer if, and only
if, that leave of absence does not extend beyond the end of
the period during which the Employee's reemployment rights
are protected under Veterans' Reemployment Act (as modified
by the Uniformed Services Employment and Reemployment Rights
Act) (herein referred to as "USERRA") and the Employee
presents himself for employment with an entity constituting
the Employer at or prior to the end of such leave. In
addition, if the Employee presents himself for return to
service with the Employer within the period during which his
reemployment rights are protected under USERRA, the period
of his absence from employment between the end of his active
duty period and his return to employment with the Employer
will be considered service with the Employer. If the
Employee does not return to active employment with the
Employer, his Service will be deemed to have ceased on the
earliest date permitted under applicable law. The Employer's
leave policy shall be applied in a uniform and
nondiscriminatory manner to all Participants under similar
circumstances.......................................................14
ii
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(continued)
PAGE
2.7 Transfers of Employment Among Employers - In determining
Years of Service for any purpose under the Plan, the
following rules shall apply:........................................14
2.8 Eligibility to Participate, Service and Annual Compensation
for Employees of Acquired Companies or Business
Units...............................................................14
ARTICLE III CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS....................17
3.1 Elective Deferrals..................................................17
3.2 Limitation of Total Deferrals; Return of Contributions -
Notwithstanding any other provision of this Plan, in no
event shall the Total Deferrals of any individual with
respect to any taxable year of such individual exceed
$10,500, or such adjusted amount as is established by the
Secretary from time to time in accordance with cost of
living adjustments under Section 401(a)(17)(B) of Code, for
all plans in which such individual is a participant, whether
or not maintained by the Employer. In the event such Total
Deferrals of a Participant or former Participant exceed such
limitation for any taxable year of such Participant, such
Participant or former Participant shall, not later than
March 1 following the close of, and with respect to, the
taxable year in which such excess Total Deferrals were made,
(i) notify the Plan Administrator in writing of the Total
Deferrals made under any plan other than this Plan, (ii)
allocate in writing such excess Total Deferrals between or
among such other plans and this Plan, and (iii) state in
writing that if such excess Total Deferrals allocable to the
Plan are not distributed, the deferral limitations of
Section 402(g) of the Code will be exceeded for the
Participant's taxable year with respect to which such Total
Deferrals occurred. Upon such notification the Plan
iii
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-----------------
(continued)
PAGE
Administrator shall distribute any excess Total Deferrals
(and any income allocable thereto) allocable to the Plan to
the relevant Participant not later than April 15 of the
calendar year following the close of the taxable year of the
Participant with respect to which such excess Total
Deferrals were made. Solely for purposes of the preceding
sentence, the income deemed allocable to any such excess
Total Deferrals shall be determined in accordance with
Regulations issued by the Secretary. The amount of excess
Total Deferrals to be distributed for a taxable year shall
be reduced by any Excess Contributions previously
distributed to the Participant during the Plan Year
beginning in such taxable
year............................................................... 18
3.3 Limitation on Elective Deferrals....................................19
3.4 Matching Contributions - The Employer (or the Company on
behalf of the Employer) will make a Matching Contribution to
the Plan for the credit of each Participant who is eligible
to receive Matching Contributions in accordance with Section
2.2, and who has deferred a portion of his Annual
Compensation as an Elective Deferral as provided in Section
3.1. Subject to the provisions of Sections 3.5 and 4.5, the
amount of the Matching Contribution to be made under this
Section shall be 100% of the Participant's Elective
Deferrals up to a total of 5% of a Participant's Annual
Compensation. Notwithstanding anything in the Plan to the
contrary, the Employer (or the Company) may elect, in its
sole discretion, to make Matching Contributions each pay
period or at such other times during the Plan Year as it
deems appropriate...................................................22
3.5 Limitation on Matchin Contributions.................................22
3.6 Profit Sharing Contributions - For each Plan Year, each
Employer (or the Company on behalf of the Employer if
permitted by law) may in its
iv
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(continued)
PAGE
sole discretion elect to make a Profit Sharing Contribution
to the Plan, in the amount determined by the Employer (or
the Company), for the credit of each Participant who is
eligible to receive Profit Sharing Contributions in
accordance with Section 2.2 and who is an Employee on the
last day of the Plan Year to which such Profit Sharing
Contribution relates. Any such Profit Sharing Contribution
shall be allocated in accordance with Section 4.3. In no
event shall the contribution by the Company or the Employer
under this Section 3.6 be greater than the amount
permissible under Section 4.3 or deductible by the Company
or Employer for federal income tax purposes for the taxable
year with respect to which the contribution is made, plus
such additional amount as may be deductible by reason of a
deduction carry forward from any prior year (or years) when
less than the maximum deductible amount was actually
contributed. Prior to January 1, 2001, the Profit Sharing
Contribution shall be administered in accordance with
Section 11.13. Notwithstanding anything in the Plan to the
contrary, the Employer (or the Company) may elect, in its
sole discretion, to make Profit Sharing Contributions (if
any) more frequently or less frequently than each Plan
Year................................................................26
3.7 Rollover Contributions - With the consent of the Plan
Administrator, the Trustee may receive and invest any
amounts received from an Employee, from another qualified
plan, whether in the form of a rollover or in the form of a
trust-to-trust transfer (within the time prescribed by law
for such rollovers). Such amounts shall be held for the
benefit of a Participant in a Rollover Account established
for his benefit. The Plan Administrator and the Trustee may
request such information from the Participant as they deem
necessary to determine
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(continued)
PAGE
that a proper rollover contribution is being made. Upon
termination of Employment, the Participant's Rollover
Account shall be distributed in accordance with Article
V...................................................................26
3.8 Contributions on Account of Veteran's Reemployment Rights -
An Employee reemployed after a period of qualified military
service in accordance with Section 414(u) of the Code shall
be credited with Matching Contributions for his period of
qualified military service to the extent that he contributes
an amount up to the total Elective Deferrals attributable to
his period of qualified military service in accordance with
(a), within the period determined under (b), and based on
the assumptions in (c):.............................................26
3.9 Qualified Non-Elective Contributions - Subject to all the
terms and conditions of the Plan, the Employer may, in lieu
of distributing Excess Contributions as provided in Section
3.3 or Excess Aggregate Contributions as provided in Section
3.5 for any Plan Year, make Qualified Non-Elective
Contributions for such Plan Year on behalf of Participants
who are Nonhighly Compensated Employees in an amount
sufficient to satisfy the limitations under Section 401(k)
of the Code described in Section 3.3 or the limitations
under Section 401(m) of the Code described in Section 3.5,
or both. The Qualified Non-Elective Contributions, if any,
made on a Participant's behalf for a Plan Year will be
allocated to his Qualified Non-Elective Account as of the
last day of that Plan Year..........................................27
3.10 Fund for Exclusive Benefit of Participants - All assets of
the Trust Fund shall be held hereunder and in accordance
with Article VIII for the exclusive benefit of the
Participants and their Beneficiaries for the purpose of
distributing to such Participants and Beneficiaries both the
vi
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-----------------
(continued)
PAGE
corpus and income of the Trust Fund in accordance with the
provisions of Article V hereof. No part of the Trust Fund
corpus or income shall be used for or diverted to purposes
other than for the exclusive benefit of Participants and
Beneficiaries under the Plan (other than such part as is
required to pay taxes and expenses of administration);
provided that the Company hereby reserves the right to amend
or terminate the Plan at any time as provided in Articles IX
and X hereof........................................................28
3.11 Special 1993 Employer Contribution for Certain Participants
in the Former Citizens Bank Employee 401(k) Plan - The
Employer has made a "Special 1993 Employer Contribution" for
certain Participants (as defined below) who participated in
the former Citizens Bank Employee 401(k) Plan (the "Former
Citizens Plan"). The amount of such contribution was equal
to the allocable amount for such Participants of the
"Contingent Withdrawal Charge," which was imposed by the
Equitable on the assets of the Former Citizens Plan upon the
cessation of the investment relationship with the Equitable.
The contribution was made on behalf of all Participants who:
(1) were participants in the Former Citizens Plan, (2) had
their account balances in the Former Citizens Plan
transferred to the Plan, and (3) were actively employed by
the Employer on January 1, 1993. Participants who terminated
employment prior to January 1, 1993 were not eligible to
receive an allocation under this Section. The contribution
was allocated among such eligible Participants in the same
proportion as the total account balance of each such
Participant in the Former Citizens Plan as of December 31,
1992 beared to the total account balances of such
Participants in the Former Citizens Plan as of December 31,
1992. Upon allocation, such contribution was directed to be
held in the
vii
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(continued)
PAGE
Employer Contribution Account of each Participant and
invested as provided in Article VIII of the Plan. Further,
such contribution is subject to the provisions of Section
5.5 of the Plan, which governs the determination of a
Participant's Vested Interest.......................................28
ARTICLE IV INTEREST OF PARTICIPANTS...........................................29
4.1 Accounts of Participants - The Plan Administrator, or its
agent, shall maintain separate accounts on its books, for
record keeping purposes only, for each Participant. A given
Participant may have multiple accounts (which may be further
divided by the Plan Administrator into subaccounts): (i) a
Pre-Tax Account to record any portion of his Annual
Compensation which he defers pursuant to Section 3.1; (ii) a
Matching Contribution Account to record any Matching
Contributions with which he may be credited pursuant to
Section 3.4; (iii) a Profit Sharing Account to record any
Profit Sharing Contributions with which he may be credited
pursuant to Section 3.6; (iv) a Rollover Account to record
any rollover contributions and transfers made pursuant to
Section 3.7; (v) a Qualified Non-Elective Contribution
Account to record any Non-Elective Contributions made
pursuant to Section 3.9; and (vi) a Prior Plan Account to
record a Participant's interest from a Prior Plan. The
maintenance of accounts or subaccounts for individual
Participants is only for recordkeeping purposes, and a
segregation of the assets of the Trust Fund to each
Participant's accounts shall not be required........................29
4.2 Allocation of Income, Expense, Fluctuations in Asset Value,
Etc. - As of the close of business on each Valuation Date,
the Trustee shall:..................................................29
viii
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PAGE
4.3 Allocations of Employer Profit Sharing Contributions - As of
each Annual Valuation Date, and after the allocation
provided in Section 4.2, the Employer Profit Sharing
Contribution for the then ending Plan Year shall be
allocated to the respective Profit Sharing Accounts of each
Qualifying Participant of the Employer who is eligible to
receive a Profit Sharing contribution as provided in Section
2.2, in the same proportion that his Annual compensation for
the Plan Year bears to the total Annual Compensation of all
such eligible Qualifying Participants for that Plan Year. An
eligible Participant shall be a Qualifying Participant if he
is employed on the last day of the applicable Plan Year and
completes a Year of Service for such Plan Year. Further,
part-time Employees who otherwise satisfied the eligibility
requirements of Section 2.2 as of June 30, 1994, who
completed a Year of Service for the Plan Year ending
December 31, 1994, and who are employed on the last day of
such Plan Year shall be deemed Qualifying Participants for
such Plan Year and shall be eligible to receive a Profit
Sharing Contribution for such Plan Year.............................29
4.4 Disposition of Forfeitures and Amounts Subject to Buy-Back
Option..............................................................30
4.5 Maximum Allocations - Notwithstanding anything contained
herein to the contrary, the annual addition made to the
account(s) of a Participant for any limitation year shall
not exceed the lesser of $35,000, as adjusted for cost of
living increases in accordance with Section 415(d) of the
Code, or 25% of the Participant's Annual compensation within
the meaning of Section 415(c)(3) of the Code for the
relevant limitation year. Such annual additions shall
include the sum of Employer contributions (excluding,
however, any Employer contribution distributed to a
Participant as an excess contribution, to the extent such
ix
Table of Contents
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(continued)
PAGE
exclusion is permissible under the Code and Regulations
issued by the Secretary), Elective Deferrals, Forfeitures
(and any other amounts allocated to an account in the same
manner as a forfeiture), Employee contributions (other than
any contribution distributed to the relevant individual to
the extent such exclusion is permissible under the Code and
Regulations issued by the Secretary), and, any amount
described in Section 419(A)(d)(2) of the Code attributable
to post-retirement medical benefit coverage, but shall not
include any rollover contributions made pursuant to Section
3.7.................................................................31
4.6 Excess Allocations..................................................31
4.7 Investment of Participant Accounts - The investment of a
Participant's accounts shall be governed by the provisions
of Article VIII of the Plan.........................................32
ARTICLE V DISTRIBUTIONS TO PARTICIPANTS.......................................33
5.1 Normal Retirement - A Participant who retires under the Plan
at his Normal Retirement Date shall be entitled to receive
the entire amount of his interest in the Plan, computed as
of the Valuation Date coincident with or next preceding such
Normal Retirement Date, plus any Elective Deferrals and
Matching Contributions made since the preceding Valuation
Date. The Participant's interest at Normal Retirement shall
be payable to the Participant in accordance with Section
5.6.................................................................33
5.2 Postponed Retirement - In the event a Participant remains
Employed after his Normal Retirement Date, provided he does
not incur a Break in Service, he shall continue to be a
Participant just as if he had not yet attained his Normal
Retirement Date. When such a Participant actually retires,
he shall be entitled to receive the entire amount of his
interest in
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the Plan upon his actual retirement computed as of the
Valuation Date coincident with or next preceding the date of
his actual retirement, plus any Elective Deferrals and
Matching Contributions made since the preceding Valuation
Date. The Participant's interest upon Postponed Retirement
shall be payable to the Participant in accordance with
Section 5.6.........................................................33
5.3 Death Benefits - In the event of the death of a Participant
while he is actively Employed, the Participant shall become
100% vested in his Account. The entire amount of the
Participant's interest in the Plan, computed as of the
Valuation Date coincident with or next preceding the date of
his death, plus any Elective Deferrals and Matching
Contributions made since the preceding Valuation Date, shall
be payable to his Beneficiary, the payment of such benefits
to be made in such manner as may be determined under the
provisions of Section 5.6...........................................33
5.4 Disability - In the event a Participant becomes Totally and
Permanently Disabled while actively Employed, he shall
become 100% vested in his Account. He shall be entitled to
retire under the Plan for disability and to receive the
entire amount of his interest in the Plan, computed as of
the Valuation Date coincident with or next preceding the
date he is determined to be disabled by the Plan
Administrator, plus any Elective Deferrals and Matching
Contributions made since the preceding Valuation Date. The
Participant's interest upon disability shall be payable to
the Participant in accordance with Section 5.6......................33
5.5 Termination of Employment...........................................33
5.6 Payment of Benefits.......................................35
5.7 Maintenance of Accounts Prior to Payout - After a
Participant's Employment terminates and prior to the
distribution of all of his
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benefits to him or to his Beneficiary, as the case may be,
the balance of his Account, as it may exist from time to
time, shall be maintained, subject to Section 5.6, in the
manner described in this Section 5.7. The Trustee shall
segregate the account(s) credited to such former Participant
as of the date his Employment terminated, and such
segregated account(s) shall not thereafter share in any
allocations pursuant to Section 4.3. The Participant will
continue to direct the investment of the balance in such
segregated account(s) in accordance with Sections 8.2 and
8.3 to the same extent as if such account had not been
segregated; provided, however, that in the event, the Vested
Interest of a former Participant is distributed on a date
other than a Valuation Date, the amount of such distribution
shall be the Vested Interest of the former Participant's
Account as determined on the Valuation Date next preceding
the date of such distribution.......................................36
5.8 Errors in Participant's Accounts - When an error or omission
is discovered in an account of a Participant, the Plan
Administrator shall be authorized to make such equitable
adjustments as may be appropriate as of the Plan Year in
which the error or omission is discovered...........................37
5.9 Commencement of Payments and Period of Distribution.................37
5.10 Payment of Benefits of Disabled or Incapacitated Person -
Whenever, in the opinion of the Plan Administrator or its
agent, a person entitled to receive any payment of a benefit
hereunder is under a legal disability or is incapacitated in
any way so as to be unable to manage his financial affairs,
the Plan Administrator or its agent may direct the Trustee
to make payments to such person or to his legal
representative or to a relative or friend of such person for
his benefit, or the Plan Administrator or its agent may
direct the Trustee to apply the payment
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for the benefit of such person in such manner as the Plan
Administrator or its agent considers advisable. Any payment
of a benefit or installment thereof in accordance with the
provisions of this Section shall be a complete discharge of
any liability for the making of such payment under the
provisions of the Plan..............................................39
5.11 Hardship Withdrawals................................................39
5.12 Direct Transfer of Eligible Rollover Distributions..................41
5.13 No Other Benefit or Withdrawals - Except as expressly
provided for in this Article V, for so long as this Plan
continues in effect no individual, whether a Participant,
former Participant, Beneficiary or otherwise, shall be
entitled to any distribution or withdrawal of funds from the
Trust Fund. This prohibition applies to Trust Funds
attributable to individual contributions as well as those
attributable to other sources.......................................43
ARTICLE VI DESIGNATION OF A BENEFICIARY.......................................44
ARTICLE VII ADMINISTRATION....................................................45
7.1 Allocation of Responsibility Among Fiduciaries for Plan and
Trust Administration - The Fiduciaries shall have only those
specific powers, duties, responsibilities, and obligations
as are specifically given or delegated to them under this
Plan and the Trust. The Company and the Employer shall have
the sole responsibility for making the contributions under
the Plan as specified in Article III, and the Company shall
have the sole authority to appoint and remove the Plan
Administrator, any Trustee or Trustees, and to amend or
terminate, in whole or in part, this Plan. The Plan
Administrator shall have the sole responsibility for the
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administration of the Plan. Except where Participants direct
the investment of their Accounts as provided in Sections 8.2
and 8.3 below, or as otherwise specified in the Trust
Agreement between the Company and the Trustee, the Trustee
shall have the responsibility for the administration of the
Trust and the management of the assets held under the Trust
in accordance with the Trust Agreement. Each Fiduciary
warrants that any directions given, information furnished,
or action taken by it shall be in accordance with the
provisions of the Plan authorizing or providing for such
direction, information or action. Furthermore, each
Fiduciary may rely upon any direction, information or action
of another Fiduciary as being proper under this Plan, and is
not required under this Plan to inquire into the propriety
of any direction, information or action. It is intended
under this Plan that each Fiduciary shall be responsible for
the proper exercise of its own powers, duties,
responsibilities and obligations under this Plan and shall
not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust in any manner
against investment loss or depreciation in asset value.
Whenever a notice or election is required to be given
hereunder by a Participant to the Plan Administrator or the
Trustee, such notice or election may be given to an agent
designated for such purpose by such entity..........................45
7.2 Administration - The Plan shall be administered by an
Employee Benefit Committee appointed by the Board, or by the
Company for any period for which a Committee has not been
appointed. Any member of such Committee may be removed at
any time by action of the Board and resign at any time by
giving notice in writing to the Board of his resignation. In
the event of the removal or resignation of a member of
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the Committee, a new member thereof shall be designated by
the Board. All usual and reasonable expenses of the
Committee may be paid in whole or in part by the Company,
and any expenses not paid by the Company shall be paid by
the Trustee out of the principal or income of the Trust
Fund. Any members of the Committee who are Employees shall
not receive compensation with respect to their service for
the Committee. The President of the Company (or in the event
of the President's inability or failure to act, any Vice
President) shall certify in writing to the Trustee, as
promptly as practicable after any change of the Committee
the names of the persons then serving as the Committee. The
Trustee shall be entitled to rely on the name so certified
as being the authorized and acting Committee until notified
of any change by subsequent certification. The Committee may
appoint or employ persons to assist in the administration of
the Plan and may appoint or employ any other agents it deems
advisable, including legal counsel, actuaries, auditors,
bookkeepers and recordkeepers to serve at the Plan
Administrator's direction...........................................45
7.3 Claims Procedure - The Plan Administrator shall have the
exclusive discretionary power to construe and interpret the
Plan, and to determine all questions that may arise
thereunder relating to (a) the eligibility of individuals to
participate in the Plan, (b) the amount of benefits to which
any Participant or Beneficiary may become entitled
hereunder, and (c) any situation not specifically covered by
the provisions of the Plan, and the Plan Administrator's
decisions on such matters shall be final and binding on all
parties. Without limiting the generality of the foregoing,
benefits under the Plan will be provided only if the Plan
Administrator decides in its discretion that the Participant
or other
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applicant is entitled to them. Any interpretation or
determination made pursuant to such discretionary authority
will be upheld on judicial review, unless it is shown to be
an abuse of discretion or arbitrary and capricious..................46
7.4 Records and Reports - The Company, the Employer, and the
Plan Administrator shall exercise such authority and
responsibility as it deems appropriate in order to comply
with ERISA and government regulations issued thereunder
relating to records of Participants' service and Account
balances; notifications to Participants; reports to, or
registration with, the Internal Revenue Service; reports to
the Department of Labor; and such other documents and
reports as may be required by ERISA. The Employer shall from
time to time make available to the Plan Administrator such
information with respect to the Employees, their dates of
Employment, their compensation, and other matters as may be
necessary or desirable in connection with the performance by
the Plan Administrator of its duties with respect to the
Plan. The Plan Administrator shall, in turn, furnish to the
Trustee such information and such rulings and decisions as
the Trustee may require or may request in connection with
its performance of its duties as Trustee of the Trust Fund
hereby created......................................................46
7.5 Other Administrative Powers and Duties - The Plan
Administrator shall have such powers and duties as may be
necessary to discharge its functions hereunder,
including:..........................................................47
7.6 Authorization of Benefit Distributions - The Plan
Administrator or its agent shall issue directions to the
Trustee concerning all distributions which are to be made
from the Trust pursuant to the provisions of the
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Plan, and shall warrant that all such directions are in
accordance with this Plan...........................................47
7.7 Application and Forms for Distributions - The Plan
Administrator may require a Participant to complete . and
file with the Plan Administrator an application for a
distribution, and all other forms approved by the Plan
Administrator, and to furnish all pertinent information
requested by the Plan Administrator. When making a
determination or calculation, the Plan Administrator shall
be entitled to rely upon information furnished by a
Participant or Beneficiary, the legal counsel of the Plan
Administrator, or the Trustee.......................................48
7.8 Notices to Trustee - All notices and instructions from the
Plan Administrator or the Company to the Trustee shall be
made in writing, by electronic means, or by such other
method as the Company and the Trustee may agree upon, and
the Trustee may rely thereon in carrying out its duties and
responsibilities under the Trust Agreement..........................48
7.9 Indemnification of the Plan Administrator - No member of the
Plan Administrator (of a Committee or individual) shall be
liable for any act or omission of any other member of the
Plan Administrator (as applicable), or for any act or
omission on his own part, excepting only his own willful
misconduct, or unless such liability is imposed by ERISA.
The Company shall indemnify and hold harmless each member of
the Plan Administrator against any and all expenses and
liabilities arising out of his membership on the Plan
Administrator, except expenses and liabilities arising out
of his own willful misconduct, or unless such
indemnification is not permissible under ERISA. The Company
shall be entitled to defend or maintain, either in its own
name or in the name of the Plan Administrator, or in the
name of any member
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thereof, any suit or litigation arising hereunder with
respect to such Plan Administrator or any member thereof,
and may employ its own counsel......................................48
7.10 Expenses of Plan - All usual and reasonable expenses of
maintaining, operating and administering the Plan, including
the expenses of the Plan Administrator or the Trustee, shall
be paid from the Trust (whether directly or by reimbursement
to the Company or the Employer), except to the extent the
Employer or the Company elects to pay such expenses and
except that the Company will pay the expenses related to the
Investment Fund which is invested in Holding Company Stock.
Any Plan expenses may be paid from any Forfeiture account
maintained under the Trust Fund.....................................48
7.11 Rules and Decisions - The Plan Administrator may adopt such
by-laws, rules and regulations as it deems necessary,
desirable, or appropriate, provided that same shall not be
inconsistent with or contrary to the express terms of this
agreement. All such by-laws, rules regulations and decisions
of the Plan Administrator shall be uniformly and
consistently applied to all Participants in similar
circumstances. When making a determination or calculation,
the Plan Administrator shall be entitled to rely upon
information furnished by a Participant or Beneficiary, the
Employer, the legal or actuarial counsel of the Employer, or
the Trustee.........................................................48
7.12 Committee Procedures - If a Committee is appointed, the
Committee may act at a meeting or by unanimous written
consent without a meeting. The Committee shall elect one of
its members as Chairman, appoint a Secretary, who may or may
not be a Committee Member, establish procedures for its
meetings, and advise the Trustee of such actions in writing.
The Secretary shall keep a record of all meetings
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and forward all necessary communications to the Employer or
the Trustee.........................................................48
ARTICLE VIII INVESTMENT OF CONTRIBUTIONS......................................50
8.1 Trust - All assets of and contributions to the Plan shall be
held in trust by the Trustee, pursuant to the terms of the
Trust Agreement. The Trustee shall invest the assets of the
Plan, in accordance with the directions of the Participants,
pursuant to Sections 8.2 and 8.3 below, and to the right of
the Company to designate an investment manager as provided
in the Trust Agreement..............................................50
8.2 Participant Directed Investments - In accordance with the
rules set forth in this Section 8.2 and subject to Section
8.3, a Participant's Account will be subject to the
investment direction of the Participant. A Participant shall
be required to submit an investment election form to the
Trustee.............................................................50
8.3 Investment in Holding Company Stock.................................51
ARTICLE IX AMENDMENT OF THE PLAN..............................................53
ARTICLE X DISCONTINUANCE OF CONTRIBUTIONS AND
TERMINATION OF THE PLAN.............................................54
10.1 Intention to Continue Plan - The Plan herein provided for
has been established by the Company with the bona fide
intention that it shall be continued in operation
indefinitely and that the Employer's contributions hereunder
shall continue for an indefinite period.
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However, the Company reserves the right at any time to
discontinue contributions or to terminate the
Plan................................................................54
10.2 Termination or Partial Termination of Plan - Should the
Company decide to terminate or partially terminate the Plan,
the accounts of all Participants who are active Employees
who are affected thereby, shall become fully vested and
nonforfeitable. The Trustee shall be notified of any
termination or partial termination in writing and shall
proceed at the direction of the Plan Administrator to
liquidate the assets of the Trust. Upon termination of the
Plan by the Company, the Company and the Employer shall not
thereafter make any further contributions under the Plan,
and no amount shall thereafter be payable under the Plan to
or in respect of any Participants then Employed by such
Employer, except as provided in this Article or except as
amounts may become payable under the Plan as a result of
such Participants continuing their participation in the Plan
as a result of being Employed by other participating
Employers. To the maximum extent permitted by ERISA,
transfers, distributions or other dispositions of assets of
the Plan as provided in this Article shall constitute a
complete discharge of all liabilities under the Plan.
Promptly upon any such termination the Company and the
Trustee shall pay any due and accrued expenses and
liabilities of the Trust and any expenses involved in the
termination of the Plan and appropriately adjust, as may be
required, all accounts of Participants for such expenses and
charges. The interest of each such Participant who is then
actively Employed by such Employer in the adjusted amount
then credited to his Employer Contribution Accounts shall be
nonforfeitable as of such date. The full current value of
each adjusted account shall be paid, transferred, or
otherwise distributed
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from the Trust to or on behalf of the Participant for whom
such account is maintained..........................................54
10.3 Discontinuance of Contributions - In the event of a complete
discontinuance by the Company and the Employer of the
contributions to be made by it hereunder, the accounts of
Participants who are actively employed shall be treated, and
the rights of Participants shall be, as if the Plan was
terminated as contemplated under Section 10.2 on the
effective date of such discontinuance or the date such
discontinuance is deemed to have been effective, including,
but not limited to, nonforfeitability of all amounts
credited to the Employer Contribution Accounts of
Participants who are then actively Employed by such
Employer............................................................54
10.4 Internal Revenue Service Approval - Notwithstanding the
foregoing, unless the Plan Administrator otherwise directs,
in the event the Plan is terminated or contributions are
completely discontinued, no distribution from the Plan shall
be required until such time as the Internal Revenue Service
shall have determined in writing that such termination or
discontinuance will not adversely affect the qualification
of the Plan.........................................................55
ARTICLE XI MISCELLANEOUS......................................................56
11.1 Participants' Rights; Acquittance - Except to the extent
required or provided for by mandatorily imposed law as in
effect and applicable hereto from time to time, neither the
establishment of the Trust hereby created, nor any
modification thereof, nor the creation of any fund or
account, nor the payment of any distributions, shall be
construed as giving to any Participant or other person any
legal or equitable right
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against the Company, the Employer or any Affiliated
Employer, or any officer or employee thereof, or the Trustee
or the Plan Administrator except as herein provided; nor
shall any Participant have any legal right, title or
interest in this Trust or any of its assets, except in the
event and to the extent that amounts may actually be
distributable to him hereunder, and the same limitations
shall be applicable with respect to distributions upon death
which may be payable to the Beneficiaries of a Participant.
Under no circumstances shall the terms of Employment of any
Participant be modified or in any way affected hereby. This
Plan shall not constitute a contract of Employment nor
afford any individual any right to be retained in the employ
of the Company or the Employer......................................56
11.2 Spendthrift - To the extent permitted by law, Participants
are prohibited from anticipating, encumbering, alienating or
assigning any of their rights, claims or interest in this
Trust or in any of the assets thereof, and no undertaking or
attempt to do so shall in any way bind the Plan
Administrator or the Trustee or be of any force or effect
whatsoever. Furthermore, to the extent permitted by law, no
such rights, claims or interest of a Participant in this
Trust or in any of the assets thereof shall in any way be
subject to such Participant's debts, contracts or
engagements, nor to attachment, garnishment, levy or other
legal or equitable process; provided, however, anything to
the contrary herein notwithstanding, to the extent
permissible under applicable law, a Participant's interest
hereunder is subject to all bona fide and existing debts
owed by such Participant to the Plan and Trust, if any, and
upon such Participant or the Beneficiary of such Participant
becoming entitled to receive a distribution hereunder, the
Trustee, if it shall prior to disbursement have received
certified notice or confirmation from the
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Plan Administrator in such form as it may reasonably require
of the fact and amount of such indebtedness, shall pay first
from the distribution so payable the amount of such
indebtedness to the Plan and Trust with the remainder, if
any, being payable as otherwise provided herein.................... 56
11.3 Qualification of Plan as a Condition - This Plan is based
upon the condition subsequent that it shall be approved and
qualified by the Internal Revenue Service as meeting the
requirements of the Internal Revenue Code and regulations
issued thereunder with respect to employees' plans and
trusts, including a salary reduction arrangement, so as to
permit, among other incidents to such qualified plans, the
Company and the Employer to deduct for income tax purposes
the amount of its contributions to the Plan as set forth
herein, and so that such contributions will not be taxable
at the time of contribution to the Participants as income.
Therefore, if when this Plan is submitted for qualification
and approval by the Internal Revenue Service, the Internal
Revenue Service rules that the Plan does not meet the
qualification requirements of the Internal Revenue Code for
the purposes specified in the preceding sentence, and the
deficiencies precluding qualification may not be corrected
by amendment effective as of the Effective Date, then
regardless of any other provision herein contained, this
amended and restated Plan shall be and become null and void
ab initio, and any contributions under the Plan for any
fiscal year of the Company commencing on or after the
Effective Date shall be returned to the Company or the
Employer for the benefit of the Employees on whose behalf
the contribution was made to the Trust..............................57
11.4 Successor to the Company - In the event of the dissolution,
merger, consolidation or reorganization of the Company,
provision may be
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made by which the Plan and Trust will be continued by the
successor; and, in that event, such successor shall be
substituted for the Company under the Plan. The substitution
of the successor shall constitute an assumption of Plan
liabilities by the successor and the successor shall have
all the powers, duties and responsibilities of the Company
under the Plan......................................................57
11.5 Transfer of Plan Assets - In the event of any merger or
consolidation of the Plan with, or transfer in whole or in
part of the assets and liabilities of the Trust Fund to
another trust fund, held under any other plan of deferred
compensation maintained or to be established for the benefit
of all or some of the Participants of this Plan, the assets
of the Trust Fund applicable to such Participants shall be
transferred to the other trust fund only if:........................57
11.6 Delegation of Authority by the Company - Whenever the
Company under the terms of this Agreement is permitted or
required to do or perform any act or matter or thing, it may
be done and performed by any officer or individual thereunto
duly authorized by the Board........................................58
11.7 Construction of Agreement - This Plan shall be construed and
administered according to the provisions of ERISA, and its
validity and enforceability shall be determined under such
law. In the event ERISA is not applicable or does not
preempt state law, the laws of the State of Georgia shall
apply...............................................................58
11.8 Merger of Prior Plan - Except as may be provided in any
Schedule with respect to any Prior Plan, the stated
provisions of the Plan shall apply to all Participants. An
Appendix designated "Prior Plans," as may be amended from
time to time, shall be attached to the Plan indicating the
names of all the Prior Plans and the date each such Prior
Plan merged
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into or consolidated with, or had any part of its assets and
liabilities otherwise transferred to, this Plan. The merger
and transfer of assets and liabilities of any Prior Plan
shall be accomplished in a manner consistent with Section
414(l) of the Code. The merger and transfer of assets and
liabilities of any Prior Plan shall be subject to the
condition precedent that they do not adversely affect the
tax qualified status of the Plan. The Plan Administrator
shall have the authority (a) to take such additional actions
as may be necessary or desirable to fully effectuate any
merger (that has been authorized by the Company) of any
Prior Plan with and into the Plan and the related transfer
of assets and liabilities, and (b) to take such action as
are required to preserve the participants' benefits and
rights accrued under a Prior Plan to the extent required
under Section 411(d)(6) of the Code.................................58
11.9 Headings - The headings of Sections and Subsections are for
ease of reference only and shall not be construed to limit
or modify the detailed provisions hereof............................58
11.10 Compliance With Distribution Method and Timing Regulations
- Notwithstanding any other provision of this Plan, if, and
solely to the extent that, any provision of the Plan becomes
a material violation of Sections 401 or 411 of the Code as
an impermissible restriction on an individual's rights with
respect to the timing or method of any alternative form of
benefit, then such Plan provision(s) shall thereafter be
construed and administered in a manner which grants to each
Participant or his Beneficiary(ies), as applicable, such
additional rights, and only such additional rights, as will
satisfy such Code Sections..........................................58
11.11 Participation of Adopting Employer and Its Employees - With
the written consent of the Company, an adopting Employer may
become a
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party to this Agreement pursuant to authorization by its
Board of Directors. An Appendix designated "Adopting
Employers," as may be amended from time to time, shall be
attached to the Plan indicating the names of the Employers
who have adopted the Plan, the effective date of each such
adoption, and the eligible Employee group, as applicable. In
the event an adopting Employer does so become a party, it
shall contribute to the Plan, and its Employees shall be
entitled to benefits thereunder, in accordance with the
terms of the Plan and any Adoption Agreement executed by
such Employer. In computing the Service of a person who is
in the employ of more than one of the adopting Employers at
the same time, the period of Service of such person with any
of the adopting Employers shall be counted, and a transfer
of an Employee from the Employment of another shall not
interrupt his Service, nor shall such a transfer constitute
a termination of Employment under the terms of the
Plan...............................................................59
11.12 Service for Employment with Related Employers and Transfers
of Employment Among Employers - In determining Years of
Service and any period of Employment for purposes of
eligibility to participate in the Plan as provided for in
Section 2.2, the period of an Employee's Employment with any
other member of a group of related employers which includes
the Company shall be counted and a transfer of an Employee
from the Employment of one such member to the Employment of
another member shall not interrupt Employment. For purposes
of determining an Employer's Vested Interest under the Plan
the following special rules shall apply:............................59
11.13 Administration of Profit Sharing Contributions - The
following provisions apply to Plan Years ending on or before
December 31, 2000.
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The provisions of this Section 11.13 shall not apply to Plan
Years commencing on or after January 1, 2001........................60
11.14 Gender and Number - The masculine gender wherever used will
be deemed to include the feminine gender. Words in the
singular will be read and construed as though used in the
plural in all cases where they would apply and vice
versa...............................................................60
ARTICLE XII TOP-HEAVY PLAN PROVISIONS.........................................61
12.1 Application - In the event that the Plan is determined to be
a Top-Heavy Plan as hereinafter defined, this Article XII
shall become effective as of the first day of the Plan Year
in which the Plan is a Top-Heavy Plan...............................61
12.2 Definitions........................................................61
12.3 Allocation of Minimum Contribution - For any year in which
the Plan is a Top-Heavy Plan, the Minimum Contribution as
defined in Section 12.2(c) hereof shall be made to the
account of each Participant who is a non-Key Employee,
unless the Minimum Contribution for the Participant is made
under another defined contribution plan maintained by the
Employer. Such Minimum Contribution shall be made to the
Employer Contribution Account of each non-Key Employee
Participant who has not separated from service on the last
day of such Plan Year without regard to such Participant's
Hours of Service during such Plan Year, and without regard
to such Participant's compensation for such Plan Year. The
Employer shall determine under which plan a Participant
shall receive the Minimum Contribution if the Employee is a
Participant in more than one plan maintained by the
Employer. Such
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Minimum Contribution shall be made without
consideration of the Employer's contributions under Section
3111 of the Code....................................................62
xxvii
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
(Amended and Restated As of January 1, 2001)
THIS AMENDMENT AND RESTATEMENT made as of the ____ day of __________,
2001, by UNITED COMMUNITY BANKS, INC. (the "Company");
W I T N E S S E T H:
WHEREAS, United Community Bank d/b/a Union County Bank ("Union County
Bank"), a wholly owned subsidiary of the Company, previously established a
qualified retirement plan for the benefit of eligible employees of the Company
and designated affiliated employers originally known as the Union County Bank
Profit Sharing Plan and Trust and now (effective as of January 1, 1995) known as
the United Community Banks, Inc. Profit Sharing Plan (the "Plan"); and
WHEREAS, the Plan was originally adopted on January 1,
1967 and subsequently amended and restated effective as of
January 1, 1993;
WHEREAS, the Plan has been amended from time to time to reflect tax law
changes, and for certain other purposes, including the substitution of the
Company for Union County Bank as the plan sponsor;
WHEREAS, the Company now desires to amend and restate the Plan to
reflect recent tax law changes, to incorporate prior amendments and to make
certain other changes; and
WHEREAS, the Company desires to remove Union County Bank as trustee of
the Plan and to designate INTRUST Bank, N.A. as successor trustee pursuant to a
separate Trust Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants
herein contained, the Plan is amended and restated, effective as of January 1,
2001, as follows:
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ARTICLE I
DEFINITIONS
Where the following words and phrases appear in this Plan they shall
have the meaning set forth below, unless a different meaning is plainly required
by the context:
1.1 Accounts - With respect to each Participant, the combination of all
accounts maintained on his behalf pursuant to Section 4.1.
1.2 Affiliated Employer - Any entity which is a member of a controlled
group of corporations that includes the Employer within the meaning of Section
414(b) of the Code, or related employers under common control within the meaning
of Section 414(c) of the Code, or related employers which constitute an
affiliated service group under Section 414(m) of the Code, or employers related
through the leasing of Employees under Section 414(n) of the Code, or any other
entity required to be aggregated under Section 414(o) of the Code.
1.3 Annual Compensation - For purposes of determining the amount an
Employee may elect to contribute to the Plan as an Elective Deferral under
Section 3.1 and the allocation of Matching Contributions and Employer Profit
Sharing Contributions, if any, under Sections 3.4 and 3.6, Annual Compensation
means the Participant's base salary from the Employer for the portion of the
plan year during which the Employee is eligible to participate in each part
(Elective Deferral Matching Contribution or Profit Sharing Contribution) of the
Plan, excluding bonuses, commissions and overtime, plus all elective
contributions made by the Employer on behalf of the Employee to any Plan under
Sections 125, 402(e)(3), 402(h) or 403(b) of the Code; provided, however, for
Plan Years beginning on or after January 1, 2001, commissions shall be included
for purposes of calculating the Annual Compensation. Notwithstanding the
foregoing, for purposes of calculating the limitations in Sections 3.3, 3.5, and
4.5, and any other similar limitations under the Code, the Employer may elect to
use any method of determining Annual Compensation under the Plan, provided that
such method is permissible under Regulations issued by the Secretary. The Annual
Compensation of any Employee taken into account under the Plan for any Plan Year
shall not exceed $170,000, as adjusted under Section 401(a)(17)(B) of the Code.
For purposes of determining the amount a Participant may elect to contribute to
the Plan as an Elective Deferral and the amount of any Profit Sharing
Contribution, Matching Contribution, or Qualified Non-Elective Contribution,
only Annual Compensation earned while the Participant is eligible to participate
in the portion of the Plan relating to that type of contribution shall be
considered.
1.4 Authorized Leave of Absence - Any absence authorized by the Employer
under the Employer's standard personnel practices, provided that all persons
under similar circumstances must be treated alike in the granting of such
Authorized Leave of Absence, and provided further that the Participant returns
within the period specified in the Authorized Leave of Absence (or retires). An
absence due to service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the Employee returns to
Employment with the Employer within the period during which his right to
reemployment is preserved by law.
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1.5 Beneficiary - Any person or persons (natural or otherwise) designated
by a Participant on a form supplied by the Plan Administrator in accordance with
Article VI hereof to receive benefits payable in the event of the death of the
Participant, or in the absence of any such designated person, the person or
entity determined to be a Beneficiary under Article VI hereof.
1.6 Board - The Board of Directors of United Community Banks, Inc.
1.7 Break in Service - A Plan Year in which the individual completes no
more than 500 Hours of Service, unless such individual is (a) on an Authorized
Leave of Absence, or (b) absent from work due to (i) the individual's pregnancy,
(ii) the birth of a child of the individual, (iii) the placement of a child with
the individual in connection with the adoption of such child by such individual,
or (iv) the individual's caring for such child for a period beginning
immediately following such birth or placement. Notwithstanding anything herein
to the contrary, effective as of December 12, 1994, an individual reemployed by
the Employer, in the period during which his right to reemployment after the
completion of qualified military service (as defined in Section 414(u)(5) of the
Code) is protected by federal law, shall not be deemed to have incurred a Break
in Service by reason of such individual's period of qualified military service.
1.8 Code - The Internal Revenue Code of 1986, as amended from time to time.
All references to the Code are deemed to refer to the Internal Revenue Code of
1986 and the Regulations as they now exist or as they may be amended or
modified. Any reference to a specific section or subsection of the Code is
deemed to refer to that section or subsection and the regulations thereunder as
they now exist or as they may be amended.
1.9 Company - United Community Banks, Inc.
1.10 Effective Date - This amendment and restatement shall be effective as
of January 1, 2001, except where otherwise noted. The Plan was originally
effective January 1, 1967.
1.11 Elective Deferral - The portion of a Participant's Annual Compensation
deferred pursuant to the election described in Section 3.1, contributed on his
behalf to the Trust and credited to the Participant's Pre-Tax Account. For tax
purposes, Elective Deferrals shall be considered Employer contributions to the
Plan.
1.12 Eligible Employee - An Employee described in Section 2.2(a) who is
eligible to have Elective Deferrals made on his behalf to the Plan for all or a
portion of the Plan Year. An Employee will not cease to be an Eligible Employee
merely because he is suspended from making Elective Deferrals due to a
withdrawal of contributions, because he elects not to participate (other than an
initial, irrevocable election never to participate in any cash or deferred
arrangement maintained by the Company or any Affiliated Employer), or because he
is prevented from making such Elective Deferrals by operation of Section 415 of
the Code.
1.13 Employee - Any person who is an employee (such term having its
customary meaning) of the Employer and who is receiving remuneration for
personal services rendered to the Employer (or who is on an Authorized Leave of
Absence), other than as an independent contractor. Any Employee who, as of the
last day of the Plan Year, has no Annual
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Compensation for the Plan Year shall be deemed to have terminated Employment as
of the first day of the Plan Year. The term Employee, to the extent mandated by
law, shall include leased employees within the meaning of Section 414(n)(2) of
the Code unless (i) such leased employees constitute less than twenty percent
(20%) of the Employer's non-highly compensated work force within the meaning of
Section 414(n)(5)(C)(ii) of the Code, and (ii) such leased employees are covered
by a plan described in Section 414(n)(5) of the Code, in which event such leased
employees shall not be considered Employees for purposes of this Plan. Leased
Employees shall not be eligible to participate in the Plan. Independent
contractors and other individuals under contract with the Employer and
designated by the Employer as a non-Employee shall not be eligible to
participate in the Plan. If any individual designated by the Employer as an
independent contractor or other non-employee classification is later required by
action of the Internal Revenue Service, Department of Labor or any other
governmental body to be classified as an Employee, such individual shall not be
eligible to participate in the Plan prior to such reclassification, and after
such reclassification, the individual's participation shall be in accordance
with the rules established by the Employer and the Plan Administrator.
1.14 Employee Benefit Committee or Committee - The body which, if appointed
by the Company, shall be the Plan Administrator and be responsible for the
administrative management of the Plan, as provided in Article VII. In each
instance where the Plan shall refer to the Committee, the reference shall mean
the Company for any period for which the Company has not appointed a Committee.
1.15 Employer - The Company and any Affiliated Employer whose employees are
authorized by the Company to participate herein and that, to the extent
necessary, adopts the Plan for the exclusive benefit of its Employees in
accordance with any conditions required by the Company.
1.16 Employer Contribution Accounts - The Accounts derived from Employer
contributions, which include a Participant's Matching Contribution Account and
Profit Sharing Account.
1.17 Employment - Service as an Employee of the Employer and any Affiliated
Employer. The term "Reemployment" means Employment following a prior termination
of employment. The terms "Employed" and "Reemployed" shall be used in the same
sense as the terms Employment and Reemployment, respectively.
1.18 Entry Date - The date on which an employee who has satisfied the
eligibility requirements of Section 2.2 shall become a Participant. The Entry
Dates shall be each January 1, April 1, July 1 and October 1. Notwithstanding
the foregoing, the Plan Administrator may establish Entry Dates more frequently
than those listed in the preceding sentence.
1.19 Excess Aggregate Contributions - With respect to any Plan Year, the
aggregate amount of Matching Contributions (or any other contribution for
purposes of Section 3.5), to the extent such amount exceeds the maximum
permissible amount of such contributions under the limitations of Section 3.5
(determined by reducing contributions made on behalf of Highly Compensated
Employees, beginning with the Highly Compensated Employee(s) who has the
greatest dollar amount of Elective Deferrals for the Plan Year).
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1.20 Excess Contributions - With respect to any Plan Year, the aggregate
contributions paid to the Plan as an Elective Deferral (or any other
contributions taken into account for purposes of Section 3.3 of the Plan) on
behalf of a Highly Compensated Employee for such Plan Year, to the extent such
aggregate contributions exceed the maximum amount of such contributions
permitted for such Highly Compensated Employee for such Plan Year under the
limitations of Section 3.3 (determined by reducing such contributions made on
behalf of such Highly Compensated Employees beginning with the Highly
Compensated Employee(s) who has the greatest dollar amount of Elective Deferrals
for the Plan Year).
1.21 ERISA - Public Law 93-406, the Employee Retirement Income Security Act
of 1974, as amended from time to time.
1.22 Fiduciaries - The named fiduciaries who shall be the Company, the Plan
Administrator, and the Trustee, and other parties designated as fiduciaries by
such named fiduciaries in accordance with the powers herein provided, but only
with respect to the specific responsibilities of each in connection with the
Plan and Trust.
1.23 Forfeiture - The portion of a Participant's Employer Contribution
Accounts not vested at the time of the termination of his employment, and which,
in accordance with the provisions hereof, reverts to the Trust Fund and is used
to reduce the Employer's Matching Contributions or Profit Sharing Contributions,
as provided in Section 4.4.
1.24 Highly Compensated Employee - Notwithstanding anything contained
herein to the contrary, the term "Highly Compensated Employee" includes highly
compensated active Employees and highly compensated former Employees. A highly
compensated active Employee means any Employee who - (A) was a 5% owner (as
defined in Section 416(i)(1) of the Code) of the Employer at any time during the
current or the preceding year, or (B) for the preceding year - (i) had
compensation from the Employer in excess of $85,000 (as adjusted by the
Secretary pursuant to Section 415(d) of the Code), and (ii) if the Employer
elects the application of this clause for such preceding year, was in the
top-paid group of employees for such preceding year.
For this purpose, an Employee is in the top-paid group of Employees for any
year if such Employee is in the group consisting of the top 20% of the Employees
when ranked on the basis of compensation paid during such year.
A former Employee shall be treated as a Highly Compensated Employee if: (A)
such Employee was a Highly Compensated Employee when such Employee separated
from service, or (B) such Employee was a Highly Compensated Employee at any time
after attaining age 55.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
will be made in accordance with Section 414(q) of the Code and the regulations
thereunder.
For purposes of this subsection, the term "compensation" means compensation
within the meaning of Section 415(c)(3) of the Code. The determination will be
made without regard to Sections 125, 402(e)(3), and 402(h)(1)(B) of the Code,
and in the case of Employer contributions made pursuant to a salary reduction
agreement, without regard to Section 403(b) of the Code.
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For Plan Years beginning after December 31, 1997, for purposes of this
subsection, the term "compensation" means compensation within the meaning of
Section 415(c)(3) of the Code.
Notwithstanding anything herein to the contrary, for Plan Years commencing
on and after January 1, 1997, the "family aggregation" and "contribution ceiling
apportionment" provisions set forth in the Plan shall not apply.
1.25 Holding Company Stock - The common stock of United Community Banks,
Inc.
1.26 Hour of Service - Each Employee will be credited with an Hour of
Service for eligibility for participation purposes for:
(a) Each hour for which an Employee is paid, or entitled to payment,
by the Employer for the performance of duties. These hours shall be
credited to the Employee for the computation period in which the duties are
performed; and
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), jury duty, military duty or Authorized Leave of Absence;
provided, however, that under this paragraph (b):
(i) No more than 501 Hours of Service shall be credited for any
single continuous period (whether or not such period occurs in a
single computation period) during which the Employee performs no
duties;
(ii) No hours shall be credited if such payment is made or due
under a plan maintained by the Employer solely for purposes of
complying with applicable workmen's compensation, unemployment
insurance or disability insurance laws; and
(iii) No hours shall be credited for a payment which solely
reimburses an Employee for medical or medically related expenses
incurred by the Employee; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. These hours shall
be credited to the Employee for the computation period to which the award
or agreement pertains rather than to the period in which the award,
agreement or payment is made. The same Hours of Service shall not be
credited under paragraphs (a) or (b), as the case may be, and this
paragraph (c). Crediting of hours for back pay awarded or agreed to with
respect to periods described in paragraph (b) shall be subject to the
limitations of that paragraph.
-7-
(d) Hours of Service credited under the Plan shall be calculated
and credited subject to the rules and restrictions set forth in
Department of Labor Regulations Section 2530.200b-2 which regulations
are incorporated herein by this reference.
(e) The method of determining Hours of Service under the Plan
shall be in accordance with Department of Labor Regulations Section
2530.200b-3 and shall be applied in a non-discriminatory manner to all
Employees or classes of Employees. The Plan may apply different
methods and equivalency rules in determining Hours of Service for
different classes of Employees.
1.27 Investment Funds - The investment options established pursuant to
Sections 8.2(b) and 8.3 of the Plan into which a participant may direct the
investment of his Account.
1.28 Limitation Year - The 12-month period coinciding with the Plan Year.
1.29 Matching Contribution - The contribution made by the Employer to match
a Participant's Elective Deferrals as provided in Section 3.4.
1.30 Matching Contribution Account - The account maintained for a
Participant to record any Matching Contributions made on his behalf by the
Employer pursuant to Section 3.4, and adjustments relating thereto.
1.31 Non-Highly Compensated Employee - An Employee who is not a Highly
Compensated Employee.
1.32 Normal Retirement Date and Normal Retirement Age - The later of (i)
the date the Participant attains age 60 or (ii) the fifth anniversary of the
date the Participant commenced participation in the Plan (the Normal Retirement
Age). A Participant's right to his retirement benefit shall become
nonforfeitable upon his attaining Normal Retirement Age.
1.33 Participant - Any Employee who has qualified under the terms of the
Plan for participation herein and who remains so qualified.
1.34 Plan - The United Community Banks, Inc. Profit Sharing Plan as set
forth herein, as it may be amended from time to time.
1.35 Plan Administrator - The Company (or the person, group, organization,
or Committee appointed by the Company), which shall have the authority to
administer the Plan as provided in Article VII.
1.36 Plan Year - The 12-month period commencing on January 1 and ending on
the next following December 31.
1.37 Pre-Tax Account - The account maintained for a Participant to record
Elective Deferrals deferred pursuant to the election described in Section 3.1,
and adjustments related thereto. A Participant's Pre-Tax Account shall at all
times be fully vested.
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1.38 Prior Plan - Any other qualified retirement plan that has been merged
into or consolidated with, or whose assets and liabilities have otherwise been
transferred to, this Plan.
1.39 Prior Plan Account - The account(s) maintained for a Participant to
record his balance from a Prior Plan, and any adjustments relating thereto.
1.40 Profit Sharing Account - The account maintained for a Participant to
record his share of any Profit Sharing Contributions the Employer may elect in
its discretion to make pursuant to Section 3.6, and adjustments relating
thereto.
1.41 Profit Sharing Contribution - Any contribution the Employer may elect
in its discretion to make pursuant to Section 3.6, and which is credited to the
Participant's Profit Sharing Account.
1.42 Qualified Non-Elective Contributions - Employer contributions made by
an Employer in accordance with Section 3.9, which are nonforfeitable when made
and which meet the Special Distribution Restrictions.
1.43 Qualified Non-Elective Contribution Account - The account maintained
to record any Qualified Non-Elective Contributions, and adjustments relating
thereto.
1.44 Rollover Account - The account maintained to record any rollover
contributions by the Participant pursuant to Section 3.7, and adjustments
relating thereto. A Participant's Rollover Account shall at all times be fully
vested.
1.45 Service - A Participant's period of Employment with the Employer, and
any corporation, sole proprietorship or partnership that is a member of a
controlled group of corporations that includes the Employer, or is under common
control, or is a member of an affiliated service group that includes the
Employer, or are entities related through the leasing of Employees, as
determined under Section 414(b), (c), (m), and (n) of the Code. Service also
includes any period of employment for an entity with respect to which the
Company is the successor employer.
1.46 Special Distribution Restrictions - Amounts credited to a
Participant's Account(s) which are 100% vested and nonforfeitable when so
credited; and which are not distributable to Participants or their
Beneficiary(ies) merely by reason of any stated period of participation or the
lapse of any fixed number of years, nor earlier than the earliest of:
(a) Separation from Employment by the Participant;
(b) Death of the Participant;
(c) Total Disability of the Participant;
(d) Attainment of age 59-1/2 by the Participant;
(e) Except as limited by subsection (g) below, termination of the
Plan without establishment of a successor plan;
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(f) Hardship of the Participant, but only if and to the extent
permitted by the Code and Regulations issued thereunder; or
(g) With respect to Elective Deferrals (and earnings thereon),
and Matching Contributions (and earnings thereon) taken into account
for purposes of Section 3.3, upon (A) termination of the Plan without
establishment or maintenance of a successor defined contribution plan,
(B) sale of substantially all assets used by the Employer in the trade
or business in which the Participant is Employed, or (C) the sale of
an incorporated Affiliated Employer's interest in a subsidiary;
provided, however, that such distributions may only be made if and to
the extent permitted by the Code and Regulations issued thereunder.
1.47 Total Deferrals - With respect to any taxable year of an Employee, the
sum of: (i) any Elective Deferrals to this Plan or any pre-tax contributions to
any other cash or deferred arrangement (as defined in Section 401(k) of the
Code) in lieu of receipt of such amount as compensation; (ii) any elective SEP
contributions under Section 402(h) of the Code; and (iii) any salary reduction
contribution to any annuity under Section 403(b) of the Code.
1.48 Total and Permanent Disability - The lasting inability of a
Participant, due to illness, accident or other physical or mental incapacity, to
perform the customary duties and services of his Employment. The determination
as to whether such Total and Permanent Disability exists in any individual case
shall be made by the Plan Administrator on the basis of medical and other
information provided to it. In the event the Plan Administrator, after
examination of the medical and other information provided to it, finds that
Total and Permanent Disability within the meaning of this Section does not
exist, then it shall by certified mail so notify the Participant in question who
shall have the rights set forth in the claims procedure in Section 7.3. The
reasonable expenses of determining whether such a Participant is Totally and
Permanently Disabled shall be considered an administrative expense of the Trust,
and shall be paid as provided in Section 7.10.
1.49 Trust (or Trust Fund) - The trust fund or funds established pursuant
to Article VIII and the Trust Agreement to receive and to invest the amounts
deferred by or contributed on behalf of the Participants under the Plan, and
from which distributions will be made.
1.50 Trust Agreement - The agreement entered into between the Company and
the Trustee which provides for the holding and investment of the assets of the
Plan.
1.51 Trustee - The Trustee of the Plan is the Trust Department of United
Community Bank d/b/a Union County Bank. Effective as of February 1, 2001 (or as
soon thereafter as is practical), INTRUST Bank, N.A. shall be the Trustee of the
Plan. The term Trustee shall also mean any successor Trustee(s) designated in
the manner provided in the Plan and accepting such Trust as provided herein.
1.52 Valuation Date - The periodic and regularly scheduled date (or dates)
for valuation of the individual Investment Funds of the Trust and the respective
accounts of Participants. The Investment Fund which is invested in Holding
Company Stock may be valued
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less frequently than the other Investment Funds. The Annual Valuation Date shall
be December 31 of each year.
1.53 Vested Interest - That portion of the Participant's Profit Sharing
Account, Pre-Tax Account, Matching Contribution Account, Qualified Non-Elective
Contribution Account, Rollover Account, and, if applicable, Prior Plan Account,
which under the terms hereof is nonforfeitable.
1.54 Year of Service - The applicable 12-consecutive month period in which
an Employee completes at least 1,000 Hours of Service.
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ARTICLE II
ELIGIBILITY, PARTICIPATION AND SERVICE
2.1 Eligibility - Subject to Section 2.2 below, any Eligible Employee who
as of the date immediately preceding the effective date was a Participant in the
Plan shall continue as a Participant in the Plan on the Effective Date. All
other Employees of an Employer shall be eligible to participate upon completion
of the requirements set forth in Section 2.2 below, except the following
Employees shall not be eligible to participate in the Plan: (i) Employees whose
terms and conditions of Employment are determined by collective bargaining with
a union or an affiliate thereof representing such persons and with respect to
whom inclusion in the Plan has not been expressly provided for in the collective
bargaining agreement; (ii) non-resident aliens who receive no earned income from
the Employer from sources within the United States; (iii) leased Employees; (iv)
independent contractors; and (v) Employees classified by the Employer as
temporary or casual.
2.2 Participation
(a) Participation Date - Except as set forth in Section 2.1 above, any
Employee of an Employer shall be eligible to participate (i) in the
Elective Deferral portion of the Plan as of the Entry Date coincident with
or next following his date of Employment and (ii) in the Matching
Contribution and Profit Sharing Contribution portions of the Plan as of the
Entry Date coincident with or next following the date on which the Employee
first completes one Year of Service, provided he is still in Employment on
such dates.
(b) Year of Service - For purposes of eligibility for Plan
participation, a Year of Service shall mean the first 12-month period
during which an Employee has at least 1,000 Hours of Service. The
computation period initially to be taken into account for purposes of
eligibility shall be the 12-month period commencing with the date of the
Employee's Employment, whether such Employment commenced prior or
subsequent to the Effective Date. If an Employee is credited with at least
1,000 Hours of Service during such initial 12-month period and such period
overlaps two Plan Years in neither of which the Employee is credited with
at least 1,000 Hours of Service, he shall nevertheless be credited with a
Year of Service for the Plan Year in which he becomes a Participant in the
Plan. In the event that the Employee fails to have at least 1,000 Hours of
Service during this initial computation period, the eligibility computation
period shall be the first Plan Year commencing after the date of Employment
and, if necessary, succeeding Plan Years. A Participant's continued
eligibility to participate under the Plan shall be determined on a Plan
Year basis.
With regard to an Employee who was actively employed by the Employer
on the Effective Date, his Years of Service prior to the Effective Date
shall be counted as
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Service hereunder. Years of Service for eligibility purposes with members
of a group of related employers shall be credited in accordance with
Section 11.12 of the Plan.
(c) Continued Eligibility - A Participant shall continue to be
eligible to participate in the Plan as long as he is actively employed in
an eligible employment category under Section 2.1.
2.3 Enrollment for Elective Deferrals - In order to participate in the
Elective Deferral portion of the Plan, an Employee must complete the election
form described in Section 3.1(b) in the manner provided for therein (or
otherwise enroll through a telephone communications or other electronic
arrangement). If the date an Employee submits an election form designating a
portion of his Annual Compensation to be contributed to the Plan (and indicating
the manner in which such amounts shall be invested) is later than the date he
would otherwise become a Participant, then his participation in the Elective
Deferral portion shall commence as soon as practical thereafter.
2.4 Return to Employment
(a) An Employee who has satisfied the eligibility requirements of
Section 2.1 and 2.2 prior to his termination of Employment and who is
thereafter Reemployed, will again be eligible to participate as soon as
practical following the date on which he completes an Hour of Service upon
Reemployment.
(b) An Employee who had not satisfied the eligibility requirements of
Sections 2.1 and 2.2 prior to his termination of Employment and who is
thereafter Reemployed prior to incurring a Break in Service, shall have all
his Service with the Employer counted for purposes of the eligibility
requirements of Section 2.2.
(c) Any other Employee who had not satisfied the eligibility
requirements of Sections 2.1 and 2.2 prior to his termination of Employment
must satisfy the eligibility requirements of Sections 2.1 and 2.2 for
participation in the Plan as if he were a new Employee whose Employment
commenced on the first date that he completes an Hour of Service following
his Reemployment.
2.5 Maternity or Paternity Leave
(a) In the case of an Employee who is absent from active Employment
with the Employer on account of
(i) the Employee's pregnancy;
(ii) the birth of a child of the Employee;
(iii) the placement of a child with the Employee in connection
with the adoption of the child by the Employee; or
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(iv) an absence due to the need for caring for such child for a
period beginning immediately following the birth or placement,
(b) The Hours of Service credited under this Section will be credited
in the Plan Year the absence begins only to prevent an Employee from
incurring a Break in Service in such Plan Year. In any other case, such
hours will be credited in the immediately following Plan Year. The Employee
will not be entitled to receive credit for maternity or paternity leave
under this Section unless the Employee furnishes to the Plan Administrator,
within a reasonable time period as the Plan Administrator may establish,
evidence that the absence is on account of one of the four reasons
specified in subsection (a) above and evidence of the duration of the
absence.
2.6 Military Service - If a Participant is reemployed after a period of
qualified military service, the years, or partial years, of qualified military
service will be credited as Years of Service under the Plan, in accordance with
Section 414(u) of the Code. Effective as of December 12, 1994, absence from
employment on account of a leave of absence for service in the uniformed armed
services of the United States will be counted as employment with the Employer
if, and only if, that leave of absence does not extend beyond the end of the
period during which the Employee's reemployment rights are protected under
Veterans' Reemployment Act (as modified by the Uniformed Services Employment and
Reemployment Rights Act) (herein referred to as "USERRA") and the Employee
presents himself for employment with an entity constituting the Employer at or
prior to the end of such leave. In addition, if the Employee presents himself
for return to service with the Employer within the period during which his
reemployment rights are protected under USERRA, the period of his absence from
employment between the end of his active duty period and his return to
employment with the Employer will be considered service with the Employer. If
the Employee does not return to active employment with the Employer, his Service
will be deemed to have ceased on the earliest date permitted under applicable
law. The Employer's leave policy shall be applied in a uniform and
nondiscriminatory manner to all Participants under similar circumstances.
2.7 Transfers of Employment Among Employers - In determining Years of
Service for any purpose under the Plan, the following rules shall apply:
(a) Service completed for any Employer shall count for purposes of
eligibility and vesting under the Plan.
(b) A transfer of an Employee from the employ of one Employer to the
employ of another Employer shall not interrupt Employment.
2.8 Eligibility to Participate, Service and Annual Compensation for
Employees of Acquired Companies or Business Units
(a) Bankers Bank Employees - Each employee of the Bankers Bank on
September 30, 1994 who became employed by the Employer on October 1, 1994
as a result of the Company's acquisition of certain assets of the mortgage
business of the Bankers Bank shall be credited with Years of Service for
purposes
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of Participation under Section 2.2 and vesting under Section 5.5 and for
purposes of qualifying for a Profit Sharing Contribution under Section 3.6,
by including all service while employed by the Bankers Bank as if such
service had been with the Employer and had been determined in accordance
with the Plan, including the break in service rules. Each such Employee
who satisfied the minimum service requirements of Section 2.2(b) as of
October 1, 1994 became a Participant on that date and became eligible to
make Elective Deferrals and receive related Matching Contributions starting
as of such date. For purposes of any Profit Sharing Contribution for the
Plan Year ending December 31, 1994, under Section 3.6, (i) Annual
Compensation determined for any Employee described above shall only take
into account Annual Compensation for the period of employment with the
Employer and not compensation from the Bankers Bank, and (ii) service with
the Bankers Bank credited under this Section 2.8(a) shall be counted in
determining whether a Participant has a Year of Service for such Plan Year.
(b) First Union Employees - Each Employee who was employed by First
Union National Bank on April 6, 1995, who became an Employee of the
Employer on April 7, 1995 as a result of the Company's acquisition of
certain assets of First Union National Bank shall be credited with Years of
Service for purposes of participation under Section 2.2 and vesting under
Section 5.5 and for purposes of qualifying for a Profit Sharing
Contribution under Section 3.6, by including all service while employed by
First Union National Bank as if such service had been with the Employer and
had been determined in accordance with the Plan, including the break in
service rules. Each such Employee who has satisfied the minimum service
requirements of Section 2.2(b) as of April 7, 1995 became a Participant on
that date and became eligible to make Elective Deferrals and receive
related Matching Contributions starting as of such date. For purposes of
any Profit Sharing Contribution for the Plan Year ending December 31, 1995,
under Section 3.6, (i) the Annual Compensation determined for any Employee
described above shall only take into account Annual Compensation for the
period of employment with the Employer and not compensation from First
Union National Bank, and (ii) service with First Union National Bank
credited under this Section 2.8(b) shall be counted in determining whether
a Participant has a Year of Service for such Plan Year.
(c) Other Acquisitions by Employers - Unless United Community Banks,
Inc. or the Company provide otherwise in connection with an acquisition, if
the Employer acquires a company, branch or business unit, the employees of
that acquired company, branch or business unit who become Employees of the
Employer as a result of the acquisition on the date immediately following
the acquisition date shall be credited with Years of Service for purposes
of participation under Section 2.2 and vesting under Section 5.5 and for
purposes of qualifying for a Profit Sharing Contribution under Section 3.6,
by including service while employed by the acquired company, branch or
business unit as if such service had been with the Employer and had been
determined in accordance with the Plan, including the Plan's Break in
Service rules. Each such Employee
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who has satisfied the minimum service requirements of Section 2.2(b) as of
the date he becomes an Employee of the Employer shall become a Participant
on the Entry Date coincident with or next following the date he becomes an
Employee of the Employer and shall be eligible to make the Elective
Deferrals and receive related Matching Contributions starting as of such
date or as soon thereafter as is administratively practical. For purposes
of any Profit Sharing Contribution for the Plan Year in which the
acquisition occurs, under Section 3.6, (i) the Annual Compensation
determined for any Employee described above shall only take into account
Annual Compensation for the period of employment with the Employer and not
compensation from the acquired company or business unit prior to the
acquisition, and (ii) service with the acquired company or business unit
credited under this Section 2.8(c) shall be counted in determining whether
a Participant has a Year of Service for such Plan Year.
(d) Adopting Employers - Unless United Community Banks, Inc. or the
Company provide otherwise as to an Affiliated Employer, effective as of
August 31, 1995, each Eligible Employee who was employed by an Employer on
the date on which the Employer became an Affiliated Employer shall be
credited with Years of Service for purposes of eligibility to participate
under Section 2.2 and vesting under Section 5.5 and for purposes of
qualifying for a Profit Sharing Contribution under Section 3.6, by
including service while employed by the Employer as if such service had
been with the Employer and had been determined in accordance with the Plan,
including the Plan's Break in Service rules. Each such Employee who
satisfies the minimum service requirements of Section 2.2(b) as of the date
the Employer adopts the Plan pursuant to Section 11.11 shall become a
Participant on the Entry Date coincident with or next following the date
the Employer adopts the Plan and shall be eligible to make Elective
Deferrals and receive related Matching Contributions starting as of such
date or as soon thereafter as is administratively practical. For purposes
of any Profit Sharing Contribution for the Plan Year in which the Employer
adopts the Plan, under Section 3.6, (i) the Annual Compensation determined
for any Employee described above shall only take into account Annual
Compensation for the period of employment after the Affiliated Employer
adopted the Plan, and (ii) service with the Employer credited under this
Section 2.8(d) shall be counted in determining whether a Participant has a
Year of Service for such Plan Year.
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ARTICLE III
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
3.1 Elective Deferrals
(a) Amount of Elective Deferrals - Pursuant to the election described
in subsection (b) below, each Participant who is eligible to make Elective
Deferrals in accordance with Section 2.2 may defer under this Plan in any
Plan Year from 2% to 15% of his Annual Compensation in 1% increments or as
a fixed dollar amount, in accordance with such rules and regulations as may
be established by the Plan Administrator and subject to the limitations
contained in Sections 3.2, 3.3 and 4.5. In the event that a Participant
elects to defer a portion of his Annual Compensation under this Plan, it
will be designated for contribution by the Employer to the Trust, on behalf
of the Participant, and for deposit in his Pre-Tax Account. All amounts
deposited to a Participant's Pre-Tax Account shall at all times be fully
vested.
(b) Election to Defer - Subject to the provisions of subsection (d),
Participants may elect each Plan Year to defer a portion of their Annual
Compensation by delivering to the Plan Administrator or its agent a
properly completed election providing for such deferral for such Plan Year.
The Plan Administrator shall establish such nondiscriminatory time
requirements for the delivery of election forms as it deems necessary for
the proper administration of the Plan. Elections shall initially be
effective for the first payroll period commencing on or after the Entry
Date subsequent to the Participant's deferral election. Such election shall
continue in effect from year to year until the earlier of the date the
Participant making the election ceases participation in the Plan, or the
date an adjustment election described in subsection (c) becomes effective.
(c) Elective Deferral Adjustment - Subject to the provisions of
subsection (d), a Participant who has elected under subsection (b) to defer
a portion of his Annual Compensation for a Plan Year may elect to increase
or reduce the amount of his deferral as provided in this subsection. A
Participant may elect to increase or reduce the amount of his deferral,
effective as of the first payroll period commencing on or after the first
day of each calendar quarter (or more frequently or less frequently as may
be established by the Plan Administrator), provided that the Participant's
change election is received by the Plan Administrator at least 15 days (or
such other nondiscriminatory time period established by the Plan
Administrator) before such change is to be effective. The Plan
Administrator may, in its sole discretion, from time to time permit special
interim Elective Deferral adjustment dates. Any change which becomes
effective pursuant to this subsection shall remain in effect until the
earlier of the date the Participant making the election ceases
participation in the Plan, or the date a subsequent adjustment election
first becomes effective.
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A Participant may elect to terminate his deferral of a portion of his
Annual Compensation under the Plan by delivering a change form to the Plan
Administrator. Such Elective Deferral termination election shall be effective as
soon as administratively practical subsequent to such Participant's election. If
a Participant terminates his contributions, such Participant cannot again elect
to defer a portion of his Annual Compensation pursuant to Section 3.1(a) and (b)
until the first payroll period commencing on or after the first day of any
subsequent calendar quarter, or more frequently or less frequently as may be
established by the Plan Administrator.
(d) Method of Making Election - An election made pursuant to
subsections (b) or (c) of this Section 3.1 shall be made in writing on a
form prescribed by the Plan Administrator or through other arrangements,
including telephone and other electronic means, established by the Plan
Administrator. An election to commence, increase or decrease the amount of
Elective Deferrals shall specify the amount of deferral desired, subject to
the limitation in subsection (a) above. Any election purporting to defer
more than the maximum percentage of Annual Compensation as specified in
Section 3.1(a) shall be treated as an election to defer such maximum
percentage.
(e) Payroll Deductions - The contribution of Elective Deferrals shall
normally be accomplished through an automatic payroll deduction
arrangement. However, the Plan Administrator may, in its discretion, allow
such contributions to be made in a manner other than through regular
payroll deductions if consistent with applicable law and regulations.
3.2 Limitation of Total Deferrals; Return of Contributions -
Notwithstanding any other provision of this Plan, in no event shall the Total
Deferrals of any individual with respect to any taxable year of such individual
exceed $10,500, or such adjusted amount as is established by the Secretary from
time to time in accordance with cost of living adjustments under Section
401(a)(17)(B) of Code, for all plans in which such individual is a participant,
whether or not maintained by the Employer. In the event such Total Deferrals of
a Participant or former Participant exceed such limitation for any taxable year
of such Participant, such Participant or former Participant shall, not later
than March 1 following the close of, and with respect to, the taxable year in
which such excess Total Deferrals were made, (i) notify the Plan Administrator
in writing of the Total Deferrals made under any plan other than this Plan, (ii)
allocate in writing such excess Total Deferrals between or among such other
plans and this Plan, and (iii) state in writing that if such excess Total
Deferrals allocable to the Plan are not distributed, the deferral limitations of
Section 402(g) of the Code will be exceeded for the Participant's taxable year
with respect to which such Total Deferrals occurred. Upon such notification the
Plan Administrator shall distribute any excess Total Deferrals (and any income
allocable thereto) allocable to the Plan to the relevant Participant not later
than April 15 of the calendar year following the close of the taxable year of
the Participant with respect to which such excess Total Deferrals were made.
Solely for purposes of the preceding sentence, the income deemed allocable to
any such excess Total Deferrals shall be determined in accordance with
Regulations issued by the Secretary. The amount of excess Total Deferrals to be
distributed for a taxable year shall be reduced by any
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Excess Contributions previously distributed to the Participant during the Plan
Year beginning in such taxable year.
3.3 Limitation on Elective Deferrals
(a) Limitation - Notwithstanding any provision in the Plan to the
contrary, in any Plan Year the Average Deferral Percentage for Highly
Compensated Employees shall not exceed the greater of (i) or (ii) below:
(i) The Average Deferral Percentage of all other Eligible
Employees who are Non-Highly Compensated Employees for the Plan Year,
multiplied by 1.25, or
(ii) The Average Deferral Percentage of all other Eligible
Employees who are Non-Highly Compensated Employees determined for the
Plan Year, multiplied by 200%, provided, however, that in this case
the Average Deferral Percentage of the Highly Compensated Employees
shall not exceed the Average Deferral Percentage of the Non-Highly
Compensated Employees by more than two percentage points.
(b) Average Deferral Percentage - For purposes of subsection (a)
above, Average Deferral Percentage shall mean the average (expressed as a
percentage) of the Actual Deferral Percentages of a specified group of
Participants. Actual Deferral Percentage shall mean a ratio (expressed as a
percentage) of the amount of Elective Deferrals made on behalf of a
Participant for the Plan Year to such Participant's Annual Compensation for
such Plan Year. The Average Deferral Percentage for Non-Highly Compensated
Employees will be determined based on the amount of Elective Deferrals and
Annual Compensation and an Employee's status as a Non-Highly Compensated
Employee for the Plan Year. The Employer has elected to use the
current-year testing method in accordance with the rules established under
Section 401(k) of the Code.
For purposes of the preceding paragraph:
(i) the Employer may elect to include as an amount contributed as
an Elective Deferral on behalf of a Participant for purposes of this
Section, any Matching Contributions or Qualified Non-Elective
Contributions which meet the Special Distribution Restrictions.
(ii) Elective Deferrals will be taken into account for purposes
of determining the Actual Deferral Percentage of a Participant for a
Plan Year only if allocated to the Participant as of a date within
that Plan Year, is not contingent on participation or performance of
services after such date, and is actually paid to the Trust no later
than 12 months after the Plan Year to which the contribution relates.
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(iii) Actual Deferral Percentages and Average Deferral
Percentages shall be computed to the nearest one hundredth of one
percent (1/100%).
(c) Special Adjustments - For purposes of this Section, the following
special rules shall apply:
(i) If any Highly Compensated Employee is eligible to have
Elective Deferrals (or other contributions treated as Elective
Deferrals) allocated to his account under two or more plans or
arrangements described in Section 401(k) of the Code maintained by the
Company or an Affiliated Employer, all such Elective Deferrals (and
other such contributions) shall be aggregated as if made under a
single plan or arrangement.
(ii) If two or more plans of the Company are treated as one plan
for purposes of Section 410(b) and/or Section 401(a)(4) of the Code
because such plans would not otherwise satisfy such Section 410(b)
and/or Section 401(a)(4), such plans shall be treated as one plan for
purposes of this Section. If a Highly Compensated Employee
participates in two or more plans of the Company to which such
contributions are made by or on behalf of such Highly Compensated
Employee, all such contributions shall be aggregated for purposes of
this Section.
(d) Adjustment of Elective Deferrals - If during a Plan Year the Plan
Administrator determines that there is a likelihood that the Average
Deferral Percentage of the Highly Compensated Employees will exceed the
limitation specified in subsection (a), then the Plan Administrator may
prospectively reduce the deferrals of the Highly Compensated Employees by
such amount and beginning as of such pay period during the Plan Year as is
deemed necessary by the Plan Administrator in its sole discretion to
prevent the limitation in subsection (a) from being exceeded for the Plan
Year. The Plan Administrator may terminate (in whole or in part) any
reduction of deferrals under this subsection which is no longer necessary
to prevent the limitation specified in subsection (a) from being exceeded
for the Plan Year. Whenever necessary during the Plan Year, the Plan
Administrator may institute further reductions of deferrals, or reinstate
reductions of deferrals, to the extent required to prevent the limitation
in subsection (a) from being exceeded. Any adjustment in Participant
Elective Deferrals made pursuant to this subsection shall, to the extent
possible, reduce the deferral of each affected Participant by an identical
percentage of Annual Compensation.
(e) Distribution of Excess Contributions and Income - If the Elective
Deferral feature of the Plan fails the limitations of subsection (a) for
any Plan Year, then except as may be otherwise provided in this Section and
notwithstanding any other provision of the Plan, any Excess Contributions
for such Plan Year (and net any income allocable thereto) shall be
distributed to the
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Highly Compensated Employees not later than two and one-half (21/2) months
following the Plan Year with respect to which such Excess Contributions
were made. Alternatively, any Excess Contributions may be distributed not
later than the end of the Plan Year following the Plan Year with respect to
which the Excess Contributions were made, provided the Company pays any
applicable excise tax on such distribution. The Plan may use any reasonable
method for computing the income allocable to Excess Contributions, provided
that the method does not violate Section 401(a)(4) of the Code, is used
consistently for all Participants and for all corrective distributions
under the Plan for the Plan Year, and is used by the Plan for allocating
income to Participant's accounts. The amount of Excess Contributions to be
distributed with respect to an Employee for a Plan Year shall be reduced by
any excess Elective Deferrals previously distributed during the taxable
year ending in the same Plan Year.
Notwithstanding anything herein to the contrary, any distribution of the
Excess Contributions for any Plan Year shall be made to Highly Compensated
Employees on the basis of the amount of contributions by, or on behalf of, each
of such Employees. Excess Contributions will be distributed according to the
following procedures:
(i) The dollar amount of Excess Contributions is computed for
each affected Highly Compensated Employee.
(ii) The Excess Contributions are distributed in the following
manner:
(1) Reduce the applicable contributions beginning with
the Highly Compensated Employee with the highest dollar
amount to equal the dollar amount of the Highly Compensated
Employee with the next highest dollar amount of
contributions.
(2) This amount will be distributed to the Highly
Compensated Employee with the highest dollar amount.
(iii) Repeat step 2 until total Excess Contributions are
distributed.
Any such distribution may and shall be made without regard to any
other provision of this Plan restricting distributions. Any such Excess
Contributions distributed to a Highly Compensated Employee (with earnings
thereon) shall be distributed pro rata from any Account which contains
contributions used in computing Average Deferral Percentages, based on
contributions made to such Accounts during such Plan Year.
To the extent that a Highly Compensated Employee receives a
distribution of Excess Contributions pursuant to this section, any Matching
Contributions made on behalf of the Highly Compensated Employee which are
attributable to the distributed Excess Contributions shall be treated as a
Forfeiture.
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(f) Determinations by Plan Administrator - Notwithstanding the
foregoing provisions of this Section, any determination required by this
Section shall be made by the Plan Administrator, and the determination by
such Plan Administrator of the method of compliance with subsection (a) and
reduction of deferrals in excess of that permitted by subsection (a), in
accordance with subsection (d), and the determination of the amount of any
Excess Contribution to be distributed pursuant to subsection (e), shall be
final, binding, and conclusive as to all Participants, former Participants,
Beneficiaries, and any other person or entity associated with or benefiting
from this Plan.
(g) Multiple Use Limitation - In the event that the multiple use
limitations set forth in Section 1.401(m)-2(b) of the Regulations applies
with respect to any Highly Compensated Employee, the Actual Deferral
Percentages of each Highly Compensated Employee shall be reduced (beginning
with such Highly Compensated Employee whose Actual Deferral Percentage is
highest) so that the multiple use limitation is not exceeded. The amount by
which each Highly Compensated Employee's Actual Deferral Percentage is
reduced shall be treated as an Excess Contribution as provided under
Section 3.3(e).
(h) Priority of Application of Sections - Section 3.2 shall be applied
before this Section; provided, however, that, except to the extent provided
in Regulations, any amounts distributed under Section 3.2 shall be deemed
not to have been distributed for purposes of this Section. This Section
shall be applied before Section 3.5 of the Plan.
3.4 Matching Contributions - The Employer (or the Company on behalf of the
Employer) will make a Matching Contribution to the Plan for the credit of each
Participant who is eligible to receive Matching Contributions in accordance with
Section 2.2, and who has deferred a portion of his Annual Compensation as an
Elective Deferral as provided in Section 3.1. Subject to the provisions of
Sections 3.5 and 4.5, the amount of the Matching Contribution to be made under
this Section shall be 100% of the Participant's Elective Deferrals up to a total
of 5% of a Participant's Annual Compensation. Notwithstanding anything in the
Plan to the contrary, the Employer (or the Company) may elect, in its sole
discretion, to make Matching Contributions each pay period or at such other
times during the Plan Year as it deems appropriate.
3.5 Limitation on Matching Contributions
(a) Limitation - Notwithstanding any provision in the Plan to the
contrary, the Average Contribution Percentage for Highly Compensated
Employees for any Plan Year shall not exceed the greater of (i) or (ii)
below:
(i) The Average Contribution Percentage of all Eligible Employees
who are Non-Highly Compensated Employees for the Plan Year, multiplied
by 1.25, or
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(ii) The Average Contribution Percentage of all Eligible
Employees who are Non-Highly Compensated Employees, determined for the
Plan Year, multiplied by 200%, provided, however, that in this case
the Average Contribution Percentage of the Highly Compensated
Employees shall not exceed the Average Contribution Percentage of the
Non-Highly Compensated Employees by more than two percentage points.
(b) Average Contribution Percentage - For purposes of subsection (a)
above, Average Contribution Percentage shall mean the average (expressed as
a percentage) of the Actual Contribution Percentage of a specified group of
Participants. Actual Contribution Percentage shall mean a ratio (expressed
as a percentage) of the amount of Matching Contributions made on behalf of
a Participant for the Plan Year to such Participant's Annual Compensation
for such Plan Year. The Average Contribution Percentage for Non-Highly
Compensated Employees will be determined based on the amount of Matching
Contributions and Annual Compensation and an Employee's status as a
Non-Highly Compensated Employee for the Plan Year. The Employer has elected
to use the current year testing method in accordance with the rules
established under Section 401(m) of the Code.
For purposes of the preceding paragraph:
(i) The Employer may elect to include as an amount contributed on
behalf of a Participant for purposes of this Section any Elective
Deferrals or Qualified Non-Elective Contributions which satisfy the
conditions of Section 1.401(m)-1(b)(5) of the Regulations.
(ii) Matching Contributions will be taken into account for
purposes of determining the Actual Contribution Percentage of a
Participant for a Plan Year only if allocated to the Participant as of
a date within that Plan Year, is made on behalf of an Employee on
account of the Participant's Elective Deferral contributions for the
Plan Year, and is actually paid to the Trust no later than 12 months
after the Plan Year to which the contribution relates.
(iii) Actual Contribution Percentages and Average Contribution
Percentages shall be computed to the nearest one hundredth of one
percent (1/100%).
(c) Special Adjustments - For purposes of this Section, the following
special rules shall apply:
(i) If any Highly Compensated Employee is eligible to have
Matching Contributions (or other contributions taken into account in
determining Average Contribution Percentages) allocated to his account
under two or more plans or arrangements described in Section 401(m) of
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the Code maintained by the Company or an Employer, all such Matching
Contributions (and other such contributions) shall be aggregated as if
made under a single plan or arrangement.
(ii) If two or more plans of the Company are treated as one
plan for purposes of Section 410(b) and/or Section 401(a)(4) of
the Code because such plans would not otherwise satisfy such
Section 410(b) and/or Section 401(a)(4), such plans shall be
treated as one plan for purposes of this Section. If a Highly
Compensated Employee participates in two or more plans of the
Company to which such contributions by or on behalf of such
Highly Compensated Employee are made, all such contributions
shall be aggregated for purposes of this Section.
(d) Employees Taken Into Account - Each Employee who is eligible to
receive Matching Contributions (or is eligible to receive other
contributions which are taken into account under this Section 3.5) shall be
taken into account as a Highly Compensated Employee or Non-Highly
Compensated Employee, as applicable, for purposes of this Section, whether
or not any such contributions are made by or on behalf of such Employee.
(e) Distribution of Excess Aggregate Contributions and Income -
Notwithstanding any other provision of the Plan, any Excess Aggregate
Contributions for such Plan Year (and net any income allocable thereto)
shall be distributed to the Highly Compensated Employees not later than two
and one-half (2 1/2) months following the Plan Year with respect to which
such Excess Aggregate Contributions were made. Alternatively, any Excess
Aggregate Contributions may be distributed not later than the end of the
Plan Year following the Plan Year with respect to which the Excess
Aggregate Contributions were made, provided the Company pays any applicable
excise tax on such distribution. The Plan may use any reasonable method for
computing the income allocable to Excess Aggregate Contributions, provided
that the method does not violate Section 401(a)(4) of the Code, is used
consistently for all Participants and for all corrective distributions
under the Plan for the Plan Year, and is used by the Plan for allocating
income to Participants' Accounts.
Notwithstanding anything herein to the contrary, any distribution of the
Excess Contributions for any Plan Year shall be made to Highly Compensated
Employees on the basis of the amount of contributions by, or on behalf of, each
of such Employees. Excess Aggregate Contributions will be distributed according
to the following procedures
(i) The dollar amount of Excess Aggregate Contributions is
computed for each affected Highly Compensated Employee.
(ii) The Excess Aggregate Contributions are distributed in the
following manner:
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(1) Reduce the applicable contributions beginning with the
Highly Compensated Employee with the highest dollar amount to
equal the dollar amount of the Highly Compensated Employee with
the next highest dollar amount of contributions.
(2) This amount will be distributed to the Highly
Compensated Employee with the highest dollar amount.
(iii) Repeat step 2 until total Excess Aggregate Contributions are
distributed.
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Any such distribution may and shall be made without regard to any
other provision of this Plan restricting distributions. Any such Excess
Contributions distributed to a Highly Compensated Employee (with earnings
thereon) shall be distributed pro rata from any Account which contains
contributions used in computing Average Deferral Percentages, based on
contributions made to such Accounts during such Plan Year.
(f) Determinations By Plan Administrator - Notwithstanding the
foregoing provisions of this Section, any determination required by this
Section shall be made by the Plan Administrator, and the determination by
such Plan Administrator of the method of compliance with subsection (a) and
the determination of the amount of any Excess Aggregate Contribution to be
distributed pursuant to subsection (e), shall be final, binding, and
conclusive as to all Participants, former Participants, Beneficiaries, and
any other person or entity associated with or benefiting from this Plan.
(g) Priority of Application of Sections - The provisions of Section
3.2 shall be applied before Section 3.3, which, in turn, shall be applied
before this Section.
3.6 Profit Sharing Contributions - For each Plan Year, each Employer (or
the Company on behalf of the Employer if permitted by law) may in its sole
discretion elect to make a Profit Sharing Contribution to the Plan, in the
amount determined by the Employer (or the Company), for the credit of each
Participant who is eligible to receive Profit Sharing Contributions in
accordance with Section 2.2 and who is an Employee on the last day of the Plan
Year to which such Profit Sharing Contribution relates. Any such Profit Sharing
Contribution shall be allocated in accordance with Section 4.3. In no event
shall the contribution by the Company or the Employer under this Section 3.6 be
greater than the amount permissible under Section 4.3 or deductible by the
Company or Employer for federal income tax purposes for the taxable year with
respect to which the contribution is made, plus such additional amount as may be
deductible by reason of a deduction carry forward from any prior year (or years)
when less than the maximum deductible amount was actually contributed. Prior to
January 1, 2001, the Profit Sharing Contribution shall be administered in
accordance with Section 11.13. Notwithstanding anything in the Plan to the
contrary, the Employer (or the Company) may elect, in its sole discretion, to
make Profit Sharing Contributions (if any) more frequently or less frequently
than each Plan Year.
3.7 Rollover Contributions - With the consent of the Plan Administrator,
the Trustee may receive and invest any amounts received from an Employee, from
another qualified plan, whether in the form of a rollover or in the form of a
trust-to-trust transfer (within the time prescribed by law for such rollovers).
Such amounts shall be held for the benefit of a Participant in a Rollover
Account established for his benefit. The Plan Administrator and the Trustee may
request such information from the Participant as they deem necessary to
determine that a proper rollover contribution is being made. Upon termination of
Employment, the Participant's Rollover Account shall be distributed in
accordance with Article V.
3.8 Contributions on Account of Veteran's Reemployment Rights - An Employee
reemployed after a period of qualified military service in accordance with
Section 414(u) of the
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Code shall be credited with Matching Contributions for his period of qualified
military service to the extent that he contributes an amount up to the total
Elective Deferrals attributable to his period of qualified military service in
accordance with (a), within the period determined under (b), and based on the
assumptions in (c):
(a) Repayment Amount - The Employee may make contributions under this
Section 3.8 in one or more payments that total no more than the total
Elective Deferrals he would have been permitted to contribute during his
period of qualified military service, subject to otherwise applicable
limitations contained in Sections 402(g), 403(b), 404(a), 404(h), 408, 415
or 457 of the Code with respect to the year in which the contributions are
made, had he continued to be employed by the Employer during such period of
qualified military service. Adjustment of the amount shall be made for any
Elective Deferrals actually made during the period. Amounts contributed
under this section shall not include the crediting of any earnings prior to
the date the contribution is actually made. Allocation of Forfeitures with
respect to the period of qualified military service is not required. In the
absence of specific designation by the Employee, payments shall be first
characterized as Elective Deferrals up to the maximum amount permitted.
(b) Repayment Period - The Employee must make contributions under this
Section 3.8 to the Plan within a period beginning on his date of
reemployment and ending as of the earlier of (i) a period equal to three
times his period of qualified military service under Section 414(u) of the
Code, or (ii) five years.
(c) Annual Compensation Assumption - For purposes of determining the
amount of contributions permitted under this Section 3.8, the reemployed
Employee will be treated as having received during his period of qualified
military service the compensation included in Annual Compensation
determined under Section 1.3 for periods of qualified military service.
(d) Accounts - Once contributions by the Employer and Employee have
been made under this section, the contribution will be allocated to the
appropriate subaccount.
(e) Compliance - Contributions by the Employer and an Employee rehired
following qualified military service are intended to comply with Section
414(u) of the Code and any regulations or rulings thereunder as may be
issued from time to time.
3.9 Qualified Non-Elective Contributions - Subject to all the terms and
conditions of the Plan, the Employer may, in lieu of distributing Excess
Contributions as provided in Section 3.3 or Excess Aggregate Contributions as
provided in Section 3.5 for any Plan Year, make Qualified Non-Elective
Contributions for such Plan Year on behalf of Participants who are Nonhighly
Compensated Employees in an amount sufficient to satisfy the limitations under
Section 401(k) of the Code described in Section 3.3 or the limitations under
Section 401(m) of the Code described in Section 3.5, or both. The Qualified
Non-Elective Contributions, if any,
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made on a Participant's behalf for a Plan Year will be allocated to his
Qualified Non-Elective Account as of the last day of that Plan Year.
3.10 Fund for Exclusive Benefit of Participants - All assets of the Trust
Fund shall be held hereunder and in accordance with Article VIII for the
exclusive benefit of the Participants and their Beneficiaries for the purpose of
distributing to such Participants and Beneficiaries both the corpus and income
of the Trust Fund in accordance with the provisions of Article V hereof. No part
of the Trust Fund corpus or income shall be used for or diverted to purposes
other than for the exclusive benefit of Participants and Beneficiaries under the
Plan (other than such part as is required to pay taxes and expenses of
administration); provided that the Company hereby reserves the right to amend or
terminate the Plan at any time as provided in Articles IX and X hereof.
To the extent permitted by the Code and applicable rules and regulations
thereunder and notwithstanding anything herein to the contrary, upon the
Employer's request, a contribution which was made by a mistake of fact, or
conditioned upon the initial qualification of the Plan, or upon the
deductibility of the contribution under Section 404 of the Code, shall be
returned to the Employer (with any Elective Deferrals being refunded for the
benefit of Employees on whose behalf the contributions were made to the Trust)
within one year after the payment of the contribution, the denial of the
qualified status of the Plan or the disallowance of the deduction for such
contribution (to the extent disallowed), whichever is applicable. All
contributions by the Employer to the Plan are expressly conditioned upon their
deductibility and, if all or part of a contribution is determined not to be
deductible, the portion that is nondeductible shall be returned to the Employer.
3.11 Special 1993 Employer Contribution for Certain Participants in the
Former Citizens Bank Employee 401(k) Plan - The Employer has made a "Special
1993 Employer Contribution" for certain Participants (as defined below) who
participated in the former Citizens Bank Employee 401(k) Plan (the "Former
Citizens Plan"). The amount of such contribution was equal to the allocable
amount for such Participants of the "Contingent Withdrawal Charge," which was
imposed by the Equitable on the assets of the Former Citizens Plan upon the
cessation of the investment relationship with the Equitable. The contribution
was made on behalf of all Participants who: (1) were participants in the Former
Citizens Plan, (2) had their account balances in the Former Citizens Plan
transferred to the Plan, and (3) were actively employed by the Employer on
January 1, 1993. Participants who terminated employment prior to January 1, 1993
were not eligible to receive an allocation under this Section. The contribution
was allocated among such eligible Participants in the same proportion as the
total account balance of each such Participant in the Former Citizens Plan as of
December 31, 1992 beared to the total account balances of such Participants in
the Former Citizens Plan as of December 31, 1992. Upon allocation, such
contribution was directed to be held in the Employer Contribution Account of
each Participant and invested as provided in Article VIII of the Plan. Further,
such contribution is subject to the provisions of Section 5.5 of the Plan, which
governs the determination of a Participant's Vested Interest.
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ARTICLE IV
INTEREST OF PARTICIPANTS
4.1 Accounts of Participants - The Plan Administrator, or its agent, shall
maintain separate accounts on its books, for record keeping purposes only, for
each Participant. A given Participant may have multiple accounts (which may be
further divided by the Plan Administrator into subaccounts): (i) a Pre-Tax
Account to record any portion of his Annual Compensation which he defers
pursuant to Section 3.1; (ii) a Matching Contribution Account to record any
Matching Contributions with which he may be credited pursuant to Section 3.4;
(iii) a Profit Sharing Account to record any Profit Sharing Contributions with
which he may be credited pursuant to Section 3.6; (iv) a Rollover Account to
record any rollover contributions and transfers made pursuant to Section 3.7;
(v) a Qualified Non-Elective Contribution Account to record any Non-Elective
Contributions made pursuant to Section 3.9; and (vi) a Prior Plan Account to
record a Participant's interest from a Prior Plan. The maintenance of accounts
or subaccounts for individual Participants is only for recordkeeping purposes,
and a segregation of the assets of the Trust Fund to each Participant's accounts
shall not be required.
4.2 Allocation of Income, Expense, Fluctuations in Asset Value, Etc. - As
of the close of business on each Valuation Date, the Trustee shall:
(a) Adjust each Participant's Account for gains or losses experienced
by each Investment Fund in accordance with Section 8.2(d); and
(b) Make appropriate adjustments in the Accounts of all Participants,
former Participants and Beneficiaries who have unpaid balances in their
Accounts at such time, by allocating pro rata among such Accounts based on
the respective balances thereof, any expenses, costs, or other income
(excluding contributions) of the Trust Fund (to the extent such expenses or
costs are not paid by the Company and to the extent such items are not
already included in the adjustment described in Section 4.2(a) above) since
such preceding Valuation Date.
4.3 Allocations of Employer Profit Sharing Contributions - As of each
Annual Valuation Date, and after the allocation provided in Section 4.2, the
Employer Profit Sharing Contribution for the then ending Plan Year shall be
allocated to the respective Profit Sharing Accounts of each Qualifying
Participant of the Employer who is eligible to receive a Profit Sharing
contribution as provided in Section 2.2, in the same proportion that his Annual
compensation for the Plan Year bears to the total Annual Compensation of all
such eligible Qualifying Participants for that Plan Year. An eligible
Participant shall be a Qualifying Participant if he is employed on the last day
of the applicable Plan Year and completes a Year of Service for such Plan Year.
Further, part-time Employees who otherwise satisfied the eligibility
requirements of Section 2.2 as of June 30, 1994, who completed a Year of Service
for the Plan Year ending December 31, 1994, and who are employed on the last day
of such Plan Year shall be deemed Qualifying Participants for such Plan Year and
shall be eligible to receive a Profit Sharing Contribution for such Plan Year.
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4.4 Disposition of Forfeitures and Amounts Subject to Buy-Back Option
(a) Participants Who Terminate Employment - In the case of an Employee
who has terminated Employment, the amount standing to his credit in his
Employer Contribution Accounts in which he has no Vested Interest shall be
forfeited and allocated as provided in Section 4.4(d) as of the first day
of the calendar month following the earlier of (i) the date on which he
incurs a one year Break in Service, or (ii) the date on which payment of
the terminated Participant's Vested Interest in his Employer Contribution
Accounts commences. If the Participant has no Vested Interest in his
Employer Contribution Accounts, his entire account shall be forfeited and
allocated as provided in Section 4.4(d) annually, provided that his
Employer Contribution Accounts may later be restored in accordance with
Section 4.4(c). After termination of his Employment, a former Employee's
Vested Interest (if any) in his Employer Contribution Accounts shall be
distributed or held for distribution in accordance with Article V hereof.
(b) Buy-Back Option - A Participant who received a distribution of
less than 100% of his Employer Contribution Accounts and who is reemployed
by the Employer prior to incurring five consecutive one year Breaks in
Service, shall have an option to "buy back" the amount which was subject to
forfeiture by paying to the Plan the full amount of the distribution paid
to him from his Employer Contribution Accounts. His buy-back option shall
continue until he has been Reemployed for five years. Upon such full
repayment, the amount in his Employer Contribution Accounts shall be
restored, and such restored amount shall not be less than the total of the
amount repaid and the amount forfeited. If such restored amount is less
than such minimum, the difference shall be credited to the Participant's
Employer Contribution Accounts, either out of Forfeitures or Trust Fund
earnings attributable to the Plan Year in which the Participant exercises
his buy-back option, or by an additional Employer contribution, as
determined in the sole discretion of the Plan Administrator.
(c) Participant With No Vested Interest - If a Participant who has no
Vested Interest in his Employer Contribution Accounts incurs a Break in
Service, and if the Participant is Reemployed by the Employer prior to
incurring five consecutive one year Breaks in Service, upon such
Reemployment, the amount in his Employer Contribution Accounts at the time
he terminated Employment shall be restored, either out of Forfeitures or
Trust earnings attributable to the Plan Year in which he is reemployed, or
by an additional Employer contribution, as determined in the sole
discretion of the Plan Administrator.
(d) Allocation of Forfeitures - Forfeitures shall be used to reduce
the Employer's Matching Contributions or Profit Sharing Contributions to
the Plan for the Plan Year in which such Forfeiture occurs (or in
subsequent Plan Years, if necessary).
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4.5 Maximum Allocations - Notwithstanding anything contained herein to the
contrary, the annual addition made to the account(s) of a Participant for any
limitation year shall not exceed the lesser of $35,000, as adjusted for cost of
living increases in accordance with Section 415(d) of the Code, or 25% of the
Participant's Annual compensation within the meaning of Section 415(c)(3) of the
Code for the relevant limitation year. Such annual additions shall include the
sum of Employer contributions (excluding, however, any Employer contribution
distributed to a Participant as an excess contribution, to the extent such
exclusion is permissible under the Code and Regulations issued by the
Secretary), Elective Deferrals, Forfeitures (and any other amounts allocated to
an account in the same manner as a forfeiture), Employee contributions ( other
than any contribution distributed to the relevant individual to the extent such
exclusion is permissible under the Code and Regulations issued by the
Secretary), and, any amount described in Section 419(A)(d)(2) of the Code
attributable to post-retirement medical benefit coverage, but shall not include
any rollover contributions made pursuant to Section 3.7.
4.6 Excess Allocations
(a) If, as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's Annual Compensation, or a reasonable
error in determining the amount of elective deferrals, such annual
additions with respect to any Participant for any Plan Year would exceed
the limitation set forth in the immediately preceding paragraph, the excess
amounts shall be treated in accordance with the following in the order
indicated:
(i) Any Elective Deferrals made by the Participant which would
constitute annual additions for the Plan Year shall first be returned
to the Participant.
(ii) In the event that the Participant is in the Service of the
Employer in succeeding Plan Years, then any remaining excess amounts
shall not be distributed to the Participant, but shall be held in a
suspense account and carried over for the Participant's benefit and
allocated to the appropriate account or accounts of the Participant
for such succeeding Plan Years to the extent consistent with the
limits in Section 4.6. If such a suspense account is in existence at
any time in accordance with this provision, all amounts in such
suspense account must be allocated before any Employer contributions
which would constitute such annual additions may be made to the Plan.
Investment gains and losses and other income shall not be allocated to
such suspense account. Upon termination of the Plan, any amount
remaining in such suspense account which is unallocable shall revert
to the Employer.
(iii) In the event that the Participant is not in the Service of
the Employer in a succeeding Plan Year for which an allocation is to
be made hereunder, then any remaining excess amount shall not be
distributed to the Participant, but shall be reapplied for the benefit
of all remaining Participants.
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(b) Notwithstanding the foregoing, the otherwise permissible annual
additions for any Participant under this Plan may be further reduced to the
extent necessary, as determined by the Plan Administrator, to prevent
disqualification of the Plan under Section 415 of the Code, which imposes
additional limitations on the benefits payable to Participants who also may
be participating in another tax qualified pension, profit sharing, savings
or stock bonus plan of the Employer. The Plan Administrator shall advise
affected participants of any additional limitation on their annual
additions required by the preceding sentence. Effective as of the first day
of the first Limitation Year commencing on January 1, 2000, and
notwithstanding any other provision of the Plan, the accrued benefit for
any Participant shall be determined by applying the terms of Plan
implementing the limitations of Section 415 of the Code as if the
limitations of Section 415 of the Code continued to include the limitations
of Section 415(e) of the Code as in effect on the last day of the last
Limitation Year ending prior to the first Limitation Year commencing after
December 31, 1999. For this purpose, the defined contribution fraction is
set equal to the defined contribution fraction as of the last day of the
Last Limitation Year commencing prior to January 1, 2000.
For purposes of applying the limitations imposed in this Section 4.6,
all defined contribution plans (as defined under ERISA) maintained by the
Employer or otherwise required to be aggregated under Section 414 of the
Code will be considered to be a single defined contribution plan.
4.7 Investment of Participant Accounts - The investment of a Participant's
accounts shall be governed by the provisions of Article VIII of the Plan.
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ARTICLE V
DISTRIBUTIONS TO PARTICIPANTS
5.1 Normal Retirement - A Participant who retires under the Plan at his
Normal Retirement Date shall be entitled to receive the entire amount of his
interest in the Plan, computed as of the Valuation Date coincident with or next
preceding such Normal Retirement Date, plus any Elective Deferrals and Matching
Contributions made since the preceding Valuation Date. The Participant's
interest at Normal Retirement shall be payable to the Participant in accordance
with Section 5.6.
5.2 Postponed Retirement - In the event a Participant remains Employed
after his Normal Retirement Date, provided he does not incur a Break in Service,
he shall continue to be a Participant just as if he had not yet attained his
Normal Retirement Date. When such a Participant actually retires, he shall be
entitled to receive the entire amount of his interest in the Plan upon his
actual retirement computed as of the Valuation Date coincident with or next
preceding the date of his actual retirement, plus any Elective Deferrals and
Matching Contributions made since the preceding Valuation Date. The
Participant's interest upon Postponed Retirement shall be payable to the
Participant in accordance with Section 5.6.
5.3 Death Benefits - In the event of the death of a Participant while he is
actively Employed, the Participant shall become 100% vested in his Account. The
entire amount of the Participant's interest in the Plan, computed as of the
Valuation Date coincident with or next preceding the date of his death, plus any
Elective Deferrals and Matching Contributions made since the preceding Valuation
Date, shall be payable to his Beneficiary, the payment of such benefits to be
made in such manner as may be determined under the provisions of Section 5.6.
5.4 Disability - In the event a Participant becomes Totally and Permanently
Disabled while actively Employed, he shall become 100% vested in his Account. He
shall be entitled to retire under the Plan for disability and to receive the
entire amount of his interest in the Plan, computed as of the Valuation Date
coincident with or next preceding the date he is determined to be disabled by
the Plan Administrator, plus any Elective Deferrals and Matching Contributions
made since the preceding Valuation Date. The Participant's interest upon
disability shall be payable to the Participant in accordance with Section 5.6.
5.5 Termination of Employment
(a) Vested Interest - Except as may be provided in an Appendix with
respect to a Prior Plan Account, if prior to Normal Retirement, disability
or death in accordance with the foregoing provisions of this Article V, the
Participant terminates Employment, such Participant shall be entitled to
receive the following amounts, computed as of the Valuation Date coincident
with or next preceding payment of such interest, plus any Elective
Deferrals and Matching Contributions made since the preceding Valuation
Date: (i) the full amount credited to his Pre-Tax Account, Qualified
Non-Elective Account and Rollover Account; (ii) the Participant's Vested
Interest in his Prior Plan Account as determined under the
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applicable Prior Plan and any applicable Appendix hereto; and (iii) the
Participant's Vested Interest in his Matching Contribution Account and
Profit Sharing Account shall be determined under the following vesting
schedule (as applicable):
For Plan Years Beginning Prior to January 1, 2001
Years of Service Vested Percentage Forfeited Percentage
---------------- ----------------- --------------------
Less than 2 0% 100%
2 20% 80%
3 40% 60%
4 60% 40%
5 80% 20%
6 or more 100% 0%
For Plan Years Beginning on or after January 1, 2001
Years of Service Vested Percentage Forfeited Percentage
---------------- ----------------- --------------------
Less than 1 0% 100%
1 but less than 2 33% 66%
2 but less than 3 66% 33%
3 or more 100% 0%
The Participant's interest at termination of Employment shall be
payable to the Participant in accordance with Section 5.6. The forfeiture of
amounts in which he does not have a Vested Interest shall be handled in
accordance with Section 4.4.
(b) Years of Service - For purposes of determining a Participant's
Years of Service under subsection (a) above, the following rules shall
govern:
(i) An Employee shall be credited with a Year of Service if he
completes 1,000 or more Hours of Service during the applicable vesting
computation period. The vesting computation period shall be the 12
consecutive month Plan Year commencing on January 1 of each year.
(ii) A Participant who returns to Employment after a Break in
Service shall have all of his Years of Service prior to a Break in
Service (except those Years of Service disregarded as a result of a
prior Break in Service) counted for purposes of determining his Vested
Interest in amounts contributed to his Employer Contribution Account
after his return to employment if he had a Vested Interest in his
Employer Contribution Account at the time of his Break in Service or
if he has not incurred five consecutive one year Breaks in Service.
Years of Service prior to a Break
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in Service shall not be counted for any other Employee who incurs a
Break in Service.
(iii) A Participant who returns to Employment with the Employer
after a Break in Service, and who was vested but did not receive a
distribution of his Vested Interest, or who repays a distribution in
accordance with Section 4.4(b), shall have his Years of Service after
the Break in Service counted to determine his Vested Interest in his
Employer Contribution Account at the time he incurred a Break in
Service, if the number of consecutive years constituting a one-year
Break in Service does not exceed five years.
(iv) Notwithstanding the foregoing, Years of Service after five
consecutive one-year Breaks in Service shall in no event be taken into
account for purposes of determining the Vested Interest of the
Participant in his Employer Contribution Account which accrued prior
to such consecutive Breaks in Service.
(v) Notwithstanding the foregoing, each period of qualified
military service under Section 414(u) of the Code is deemed to be
Service for purposes of determining the nonforfeitability of the
benefits of an Employee rehired on or after December 12, 1994 and
following a period of qualified military service in accordance with
Section 414(u) of the Code.
(vi) Years of Service with related employers shall be credited in
accordance with the definition of Service contained in Article I.
(c) Amendments to Vesting Provision - No amendment to the vesting
provisions shall deprive a Participant of his nonforfeitable right accrued
before the date of any such amendment. In the event an amendment is adopted
which changes the vesting schedule contained in Section 5.5(a), each
Participant with at least three Years of Service with the Employer may
elect to have his non-forfeitable percentage computed under the Plan
without regard to such amendment. Such election may be made in writing to
the Plan Administrator any time after the adoption of any such amendment,
provided, however, that the election period shall end no earlier than the
latest of 60 days following (i) the date the amendment is effective, (ii)
the date the amendment was adopted, or (iii) the date the Participant is
given written notification of the amendment by the Employer or Plan
Administrator.
5.6 Payment of Benefits
(a) Form of Payment - Except as may be provided in any Appendix hereto
with respect to a Prior Plan Account and unless the Participant elects
otherwise, the benefits to which a retiring, disabled, or otherwise
terminated
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Participant is entitled upon his retirement, disability, or other
termination of Employment as the case may be, shall be paid as elected by
the Participant either:
(i) in full (lump sum) during a single calendar year; or
(ii) in regular, periodic, and substantially equal installments,
commencing as soon as administratively feasible after the Participant
becomes entitled to payment and continuing until the total benefit has
been fully distributed, over any period specified by the Participant
not to exceed the life expectancy of the Participant or the joint life
expectancies of the Participant and his spouse or his designated
Beneficiary (within the meaning of Section 401(a)(9) of the Code). All
income earned and attributable to the undistributed balance of the
Participant's interest under the Plan shall be distributed in the year
when earned.
(b) Distribution of Holding Company Stock - Any portion of a
Participant's Account that is invested in Holding Company Stock shall only
be distributed in shares of Holding Company Stock and shall be distributed
in accordance with the form of payment elected by the Participant under (a)
above, provided that the Participant may elect a lump sum distribution of
his shares of Holding Company Stock and installment payments under (a)(ii)
above for the remainder of his Account.
(c) Timing of Payment - Notwithstanding any other provision of Section
5.4 or this Section 5.6, a terminated Participant's Vested Interest in the
Plan may be paid as a lump-sum distribution under the following
circumstances:
(i) If the terminated Participant's Vested Interest does not
exceed $5,000 ($3,500 prior to January 1, 1998), then the Plan
Administrator shall pay such benefit in a lump-sum to the appropriate
recipient(s) thereof within an administratively practicable time after
the occurrence of the event giving rise to entitlement to a
distribution; or
(ii) If the terminated Participant's Vested Interest exceeds
$5,000 ($3,500 prior to January 1, 1998), then only with the consent
of all recipients shall the Plan Administrator direct the payment of
such Vested Interest in a lump-sum to the appropriate recipient(s)
thereof, within an administratively practicable time after the
occurrence of the event giving rise to entitlement to a distribution
or the date of such consent, if later.
5.7 Maintenance of Accounts Prior to Payout - After a Participant's
Employment terminates and prior to the distribution of all of his benefits to
him or to his Beneficiary, as the case may be, the balance of his Account, as it
may exist from time to time, shall be maintained, subject to Section 5.6, in the
manner described in this Section 5.7. The Trustee shall segregate the account(s)
credited to such former Participant as of the date his Employment terminated,
and such segregated account(s) shall not thereafter share in any allocations
pursuant to Section 4.3. The Participant will continue to direct the investment
of the balance in such segregated
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account(s) in accordance with Sections 8.2 and 8.3 to the same extent as if such
account had not been segregated; provided, however, that in the event, the
Vested Interest of a former Participant is distributed on a date other than a
Valuation Date, the amount of such distribution shall be the Vested Interest of
the former Participant's Account as determined on the Valuation Date next
preceding the date of such distribution.
5.8 Errors in Participant's Accounts - When an error or omission is
discovered in an account of a Participant, the Plan Administrator shall be
authorized to make such equitable adjustments as may be appropriate as of the
Plan Year in which the error or omission is discovered.
5.9 Commencement of Payments and Period of Distribution
(a) In General - Notwithstanding anything herein to the contrary,
unless a Participant otherwise elects in a writing delivered to the Plan
Administrator, subject to the requirements of Section 5.6(b), benefit
payments hereunder shall commence not later than sixty days after the later
of (i) the date on which a Participant reaches his Normal Retirement Date,
(ii) the Plan Year in which occurs the fifth anniversary of the year in
which such Participant commenced participation, or (iii) the Plan Year in
which such Participant's Employment with the Employer terminates, unless
the recipient of the benefit agrees otherwise.
(b) Required Commencement Date - Payment of a Participant's entire
interest shall commence by April 1st of the calendar year following the
later of the year in which the Participant (i) attains age 70-1/2, or (ii)
separates from employment, unless the Participant is a 5% owner (as defined
in Section 416 of the Code), in which case payment of such Participant's
entire interest shall commence by the April 1 of the calendar year
following the calendar year in which he attains age 70-1/2. Notwithstanding
the foregoing, if a Participant has terminated employment, payment of such
Participant's entire interest shall commence as soon as administratively
practicable following such Participant's attainment of age 65.
(c) Period of Distribution - The entire interest of a Participant
shall be distributed to the Participant either: (i) as of the required
commencement date as described in Section 5.9(b), or (ii) beginning not
later than such required commencement date, in accordance with regulations
prescribed by the Secretary of the Treasury, (1) over the life of such
Participant or (2) over the lives of the Participant and a designated
Beneficiary or (3) over a period not exceeding the life expectancy of the
Participant or (4) over a period not exceeding the life expectancy of the
Participant and a designated Beneficiary. The life expectancy of an
Employee and Employee's spouse (other than in the case of a life annuity)
may be redetermined, but not more frequently than annually. The provisions
of Section 401(a)(9) of the Code and regulations issued by the Secretary
thereunder, including but not limited to ss.1.401(a)(9)-2, shall override
any distribution provision of the Plan to the extent such
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provision is inconsistent with such Section.
-38-
(d) When the Participant's Death Precedes Commencement of Benefit
Payments - If death precedes the commencement of payments to an Employee of
his interest in the Plan, his interest in the Plan, as determined under
Section 5.3, shall be distributed within five years after the death of such
Employee, the payment of such benefits to be made in such manner as may be
determined under the provisions of Section 5.6; provided, however, that the
five year requirement shall not apply if: (i) any portion of the Employee's
interest is payable to (or for the benefit of) a designated Beneficiary;
(ii) such portion will be distributed (in accordance with regulations) over
the life of such designated Beneficiary (or over a period not extending
beyond the life expectancy of such Beneficiary); and (iii) such
distributions commence no later than one year after the date of the
Employee's death (or such later date as the Secretary may, under
regulations, prescribe). If the designated Beneficiary referred to in this
Section 5.9(d) is the surviving spouse of the Employee, the date on which
distributions are required to commence shall be not earlier than the date
the deceased Employee would have attained age 70-1/2. If such surviving
spouse dies prior to the commencement of distributions to such spouse, this
Section 5.9(d) shall be applied as if the surviving spouse were the
Employee. For purposes of this section, a distribution to a child shall be
treated as if it had been paid to the surviving spouse of the Employee if
such amount will become payable to the surviving spouse upon such child
reaching majority (or such other event designated and permitted under the
regulations).
(e) When the Participant's Death Occurs After Commencement of Benefit
Payments - If death occurs after distributions to the Employee of his
interest in the Plan have commenced, the undistributed balance of the
interest of such Employee, if any, shall be distributed at least as rapidly
as under the method of distribution used under Section 5.6 as of the date
of his death.
5.10 Payment of Benefits of Disabled or Incapacitated Person - Whenever, in
the opinion of the Plan Administrator or its agent, a person entitled to receive
any payment of a benefit hereunder is under a legal disability or is
incapacitated in any way so as to be unable to manage his financial affairs, the
Plan Administrator or its agent may direct the Trustee to make payments to such
person or to his legal representative or to a relative or friend of such person
for his benefit, or the Plan Administrator or its agent may direct the Trustee
to apply the payment for the benefit of such person in such manner as the Plan
Administrator or its agent considers advisable. Any payment of a benefit or
installment thereof in accordance with the provisions of this Section shall be a
complete discharge of any liability for the making of such payment under the
provisions of the Plan.
5.11 Hardship Withdrawals
(a) In General - Upon the written request of a Participant and upon
compliance with such further requirements as may be imposed by the Plan
Administrator, a hardship withdrawal may be made upon the proven financial
hardship of a Participant. The amounts available for a hardship withdrawal
shall
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be as follows: (i) the total amount of the Participant's Pre-Tax Account,
excluding any earnings on such account after December 31, 1988, (ii) the
total amount of the Participant's Rollover Account, and (iii) the vested
amounts in the Participant's Matching Contribution Account and Profit
Sharing Account. Such a withdrawal shall be granted only if the Plan
Administrator determines that the purpose of the withdrawal is to meet a
financial hardship as described in subsections (b) and (c) below and the
amount of the withdrawal does not exceed such financial need. In addition,
while the value of the shares of Holding Company Stock may be used to
determine the amount of an allowable hardship withdrawal, no shares of
Holding Company Stock may be sold to provide cash for any hardship
withdrawal. If a hardship withdrawal is approved under this Section 5.11,
the Participant shall be suspended from making Elective Deferrals to the
Plan for 12 months.
(b) Financial Hardship - For purposes of this Section 5.11, "financial
hardship" shall mean a Participant's immediate and heavy financial need
that cannot be met from other reasonably available resources and is caused
by one or more of the following:
(i) Uninsured (or unreimbursed) medical expenses incurred as the
result of accident or illness incurred by the Participant, or the
Participant's spouse or dependents, or necessary for those persons to
obtain such medical services; or
(ii) The cost of purchasing or preserving the principal residence
of the Participant, excluding mortgage payments; or
(iii) Payment of tuition, related education-related fees,
including room and board expenses, for the next twelve months of
post-secondary education for the Participant or the Participant's
spouse, children, or dependents; or
(iv) The cost of preventing the Participant's eviction from, or
foreclosure on the mortgage of, the Participant's principal residence;
or
(v) Payment of the funeral expenses of an immediate family
member.
(c) Determination of Hardship - The Plan Administrator, in making its
determination of the existence of a financial hardship may reasonably rely
on the Participant's representation that such need cannot be met by:
(i) Insurance;
(ii) Reasonable liquidation of nonessential assets of the
Participant or his or her spouse;
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(iii) Cessation of the Participant's Elective Deferrals to
the Plan or any other plan of the Employer; or
(iv) Other distributions or loans from this Plan or any
other plan maintained by the Company or any Employer or by a loan
from any commercial source on reasonable terms.
(d) Withdrawal From Investment Funds - If the amount of the hardship
withdrawal is less than the balance of the Participant's Pre-Tax Account
and such account consists of more than one Investment Fund, the amount of
the withdrawal approved by the Plan Administrator will be withdrawn pro
rata from each Investment Fund (except to the extent otherwise limited by
the Investment Fund and except that no shares of Holding Company Stock
shall be sold to effectuate a hardship withdrawal).
(e) Amount of Withdrawal - The amount of any hardship withdrawal may
not exceed the actual expenses incurred by the Participant as a result of
the hardship, plus any amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the
distribution. The minimum amount of a hardship withdrawal shall be $1,000
or such other amount as may be established by the Plan Administrator from
time to time.
(f) Frequency - Only one hardship withdrawal may be made by a
Participant during any twelve month period.
(g) Payment of Hardship Withdrawal - Participant requests for hardship
withdrawals will be processed and paid as soon as practical after a fully
completed hardship withdrawal request is filed with the Plan Administrator.
5.12 Direct Transfer of Eligible Rollover Distributions
(a) Notwithstanding any provision of the Plan to the contrary, with
respect to any distribution made on or after January 1, 1993, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the Distributee
in a Direct Rollover.
(b) For the purposes of this Section 5.12, the following definitions
shall apply:
(i) "Eligible Rollover Distribution" shall mean any distribution
of all or any portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution shall not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for 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 for a specified period of
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ten years or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; any hardship
distribution described in Section 401(k)(2)(B)(i)(IV) of the Code and
the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(ii) "Eligible Retirement Plan" shall mean an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code,
an annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that accepts
the Distributee's Eligible Rollover Distribution. However, in the case
of an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan shall mean only an individual retirement
account or individual retirement annuity.
(iii) "Distributee" shall mean an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined
in section 414(p) of the Code, are Distributees with regard to the
interest of the spouse or former spouse.
(iv) "Direct Rollover" shall mean a payment to the Eligible
Retirement Plan specified by the Distributee either by transfer from
the Plan, or by delivery of the distribution check by the Distributee,
provided such check is made out in a manner to ensure that it is
negotiable only by the trustee of the Eligible Retirement Plan.
(c) The Employer will provide the Distributee a written notice as
required by Section 402(f) of the Code which provides a general description
of the Distributee's distribution options and notice of the Distributee's
other rights, if any, to defer receipt of the distribution. Such notice
will be given within the time period specified in Reg. ss.1.411(a)-11(c);
provided, however, that if the distribution is one to which Sections
401(a)(11) and 417 of the Code do not apply, such distribution may commence
less than 30 days after the required notice is given, provided that
(i) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a Participant distribution
option), and
(ii) the Participant, after receiving the notice, affirmatively
elects a distribution.
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5.13 No Other Benefit or Withdrawals - Except as expressly provided for in
this Article V, for so long as this Plan continues in effect no individual,
whether a Participant, former Participant, Beneficiary or otherwise, shall be
entitled to any distribution or withdrawal of funds from the Trust Fund. This
prohibition applies to Trust Funds attributable to individual contributions as
well as those attributable to other sources.
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ARTICLE VI
DESIGNATION OF A BENEFICIARY
The Participant's entire interest in the Plan at his death, if any, shall
be paid to such Participant's surviving spouse (if such spouse is then living)
unless prior to the Participant's death, the surviving spouse consents in a
writing witnessed by a Plan representative or a notary public to permit the
Participant to designate a person other than the surviving spouse as the
Participant's Beneficiary, which consent may expressly permit designations of
Beneficiary(ies) by the Participant without any requirement of further consent
by such spouse. This provision shall not apply where it is established to the
satisfaction of the Plan Administrator that such consent cannot be obtained
because there is no surviving spouse, because the surviving spouse cannot be
located, or because of such other circumstances as may be permitted by the
regulations. The Plan Administrator shall provide to each Participant within a
reasonable time before such Participant is entitled to receive benefits, a
written explanation of the Participant's spouse's right to waive the surviving
spouse benefits described in this Article VI.
Subject to the foregoing, each Employee becoming a Participant hereunder
shall designate in writing, in such form and manner as shall be prescribed by
such rules and regulations as the Plan Administrator may promulgate in this
connection, a Beneficiary or Beneficiaries of any interest under this Trust
which may be payable with respect to such Participant in the event of his death
before or after retirement, or otherwise after termination of Employment, which
designation may include the designation of an alternate Beneficiary or
Beneficiaries. Subject also to such rules and regulations as the Plan
Administrator may promulgate, a Participant may from time to time change such
designation of Beneficiary or Beneficiaries (or alternate Beneficiary or
Beneficiaries). In the event benefits become payable upon the death of a
Participant and no Beneficiary has been properly designated as above provided,
or if the designated Beneficiary or Beneficiaries shall have predeceased him,
such benefits shall be payable in full to the surviving spouse of the
Participant, and if he has no surviving spouse, to the Participant's estate
The identity of Beneficiaries of a deceased Participant's interest will be
determined by the Plan Administrator after reasonable investigation. The Plan
Administrator's determination will be final and conclusive and both the Plan
Administrator and the Trustee will be fully protected in paying benefits to the
deceased Participant's Beneficiaries, regardless of whether payments are
actually made to a person or persons who actually constitute Beneficiaries of
the deceased Participant under these provisions.
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ARTICLE VII
ADMINISTRATION
7.1 Allocation of Responsibility Among Fiduciaries for Plan and Trust
Administration - The Fiduciaries shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given or delegated to them
under this Plan and the Trust. The Company and the Employer shall have the sole
responsibility for making the contributions under the Plan as specified in
Article III, and the Company shall have the sole authority to appoint and remove
the Plan Administrator, any Trustee or Trustees, and to amend or terminate, in
whole or in part, this Plan. The Plan Administrator shall have the sole
responsibility for the administration of the Plan. Except where Participants
direct the investment of their Accounts as provided in Sections 8.2 and 8.3
below, or as otherwise specified in the Trust Agreement between the Company and
the Trustee, the Trustee shall have the responsibility for the administration of
the Trust and the management of the assets held under the Trust in accordance
with the Trust Agreement. Each Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance with the
provisions of the Plan authorizing or providing for such direction, information
or action. Furthermore, each Fiduciary may rely upon any direction, information
or action of another Fiduciary as being proper under this Plan, and is not
required under this Plan to inquire into the propriety of any direction,
information or action. It is intended under this Plan that each Fiduciary shall
be responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under this Plan and shall not be responsible
for any act or failure to act of another Fiduciary. No Fiduciary guarantees the
Trust in any manner against investment loss or depreciation in asset value.
Whenever a notice or election is required to be given hereunder by a Participant
to the Plan Administrator or the Trustee, such notice or election may be given
to an agent designated for such purpose by such entity.
7.2 Administration - The Plan shall be administered by an Employee Benefit
Committee appointed by the Board, or by the Company for any period for which a
Committee has not been appointed. Any member of such Committee may be removed at
any time by action of the Board and resign at any time by giving notice in
writing to the Board of his resignation. In the event of the removal or
resignation of a member of the Committee, a new member thereof shall be
designated by the Board. All usual and reasonable expenses of the Committee may
be paid in whole or in part by the Company, and any expenses not paid by the
Company shall be paid by the Trustee out of the principal or income of the Trust
Fund. Any members of the Committee who are Employees shall not receive
compensation with respect to their service for the Committee. The President of
the Company (or in the event of the President's inability or failure to act, any
Vice President) shall certify in writing to the Trustee, as promptly as
practicable after any change of the Committee the names of the persons then
serving as the Committee. The Trustee shall be entitled to rely on the name so
certified as being the authorized and acting Committee until notified of any
change by subsequent certification. The Committee may appoint or employ persons
to assist in the administration of the Plan and may appoint or employ any other
agents it deems advisable, including legal counsel, actuaries, auditors,
bookkeepers and recordkeepers to serve at the Plan Administrator's direction.
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7.3 Claims Procedure - The Plan Administrator shall have the exclusive
discretionary power to construe and interpret the Plan, and to determine all
questions that may arise thereunder relating to (a) the eligibility of
individuals to participate in the Plan, (b) the amount of benefits to which any
Participant or Beneficiary may become entitled hereunder, and (c) any situation
not specifically covered by the provisions of the Plan, and the Plan
Administrator's decisions on such matters shall be final and binding on all
parties. Without limiting the generality of the foregoing, benefits under the
Plan will be provided only if the Plan Administrator decides in its discretion
that the Participant or other applicant is entitled to them. Any interpretation
or determination made pursuant to such discretionary authority will be upheld on
judicial review, unless it is shown to be an abuse of discretion or arbitrary
and capricious.
If a request for a Plan distribution by a Participant or Beneficiary is
wholly or partially denied, the Plan Administrator will provide such claimant a
comprehensible written notice setting forth:
(a) The specific reason or reasons for such denial;
(b) Specific reference to pertinent Plan provisions on which the
denial is based;
(c) A description of any additional material or information necessary
for the claimant to submit to perfect the claim and an explanation of why
such material or information is necessary;
(d) A description of the Plan's claim review procedure.
If a Participant disagrees with the Plan Administrator's initial
determination, the Participant may request a review within 60 days of the date
of denial. The request for review should be in writing and include the reasons
the Participant believes the decision was incorrect as well as any other
information or documentation in support of the request. The review procedure
also includes the right to examine pertinent documents. The decision on review
will be made within 60 days after the Plan Administrator receives the request
for review, unless circumstances warrant an extension of time not to exceed an
additional 60 days. The determination will be in writing and drafted in a manner
calculated to be understood by the claimant, and include specific reasons for
the decision with references to the specific Plan provisions on which the
decision is based. If no determination is received within the time allowed, the
Participant's claim shall be deemed denied.
7.4 Records and Reports - The Company, the Employer, and the Plan
Administrator shall exercise such authority and responsibility as it deems
appropriate in order to comply with ERISA and government regulations issued
thereunder relating to records of Participants' service and Account balances;
notifications to Participants; reports to, or registration with, the Internal
Revenue Service; reports to the Department of Labor; and such other documents
and reports as may be required by ERISA. The Employer shall from time to time
make available to the Plan Administrator such information with respect to the
Employees, their dates of Employment, their compensation, and other matters as
may be necessary or desirable in connection with the
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performance by the Plan Administrator of its duties with respect to the Plan.
The Plan Administrator shall, in turn, furnish to the Trustee such information
and such rulings and decisions as the Trustee may require or may request in
connection with its performance of its duties as Trustee of the Trust Fund
hereby created.
7.5 Other Administrative Powers and Duties - The Plan Administrator shall
have such powers and duties as may be necessary to discharge its functions
hereunder, including:
(a) to construe and interpret the Plan, decide all questions of
eligibility, determine the factual basis necessary for all benefit
determinations, and determine the amount, manner and time of payment of any
benefits (benefits under the Plan will be provided only if the Plan
Administrator decides in its discretion that the Participant or other
applicant is entitled to them);
(b) to prescribe procedures to be followed by Participants or
Beneficiaries filing applications for distributions;
(c) to prepare and distribute, in such manner as the Plan
Administrator determines to be appropriate, information explaining the
Plan, which shall include providing Participants not less frequently than
annually with periodic statements of their accounts;
(d) to receive from Employers and agents and from Participants such
information as shall be necessary for the proper administration of the
Plan;
(e) to furnish any Employer, upon request, such annual reports with
respect to the administration of the Plan as it deems reasonable and
appropriate;
(f) to receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition of the Trust Fund, receipts and
disbursements from the Trust Fund from the Trustee or any Investment
Manger, and to make recommendations to the Trustee and take such action as
the Plan Administrator deems advisable;
(g) to appoint or employ individuals or other parties to assist in the
administration of the Plan and any other agents it deems advisable,
including accountants, legal counsel, bookkeepers and recordkeepers; and
(h) to designate or employ persons to carry out any of the Plan
Administrator's fiduciary duties or responsibilities under the Plan.
7.6 Authorization of Benefit Distributions - The Plan Administrator or its
agent shall issue directions to the Trustee concerning all distributions which
are to be made from the Trust pursuant to the provisions of the Plan, and shall
warrant that all such directions are in accordance with this Plan.
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7.7 Application and Forms for Distributions - The Plan Administrator may
require a Participant to complete and file with the Plan Administrator an
application for a distribution, and all other forms approved by the Plan
Administrator, and to furnish all pertinent information requested by the Plan
Administrator. When making a determination or calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, the legal counsel of the Plan Administrator, or the
Trustee.
7.8 Notices to Trustee - All notices and instructions from the Plan
Administrator or the Company to the Trustee shall be made in writing, by
electronic means, or by such other method as the Company and the Trustee may
agree upon, and the Trustee may rely thereon in carrying out its duties and
responsibilities under the Trust Agreement.
7.9 Indemnification of the Plan Administrator - No member of the Plan
Administrator (of a Committee or individual) shall be liable for any act or
omission of any other member of the Plan Administrator (as applicable), or for
any act or omission on his own part, excepting only his own willful misconduct,
or unless such liability is imposed by ERISA. The Company shall indemnify and
hold harmless each member of the Plan Administrator against any and all expenses
and liabilities arising out of his membership on the Plan Administrator, except
expenses and liabilities arising out of his own willful misconduct, or unless
such indemnification is not permissible under ERISA. The Company shall be
entitled to defend or maintain, either in its own name or in the name of the
Plan Administrator, or in the name of any member thereof, any suit or litigation
arising hereunder with respect to such Plan Administrator or any member thereof,
and may employ its own counsel.
7.10 Expenses of Plan - All usual and reasonable expenses of maintaining,
operating and administering the Plan, including the expenses of the Plan
Administrator or the Trustee, shall be paid from the Trust (whether directly or
by reimbursement to the Company or the Employer), except to the extent the
Employer or the Company elects to pay such expenses and except that the Company
will pay the expenses related to the Investment Fund which is invested in
Holding Company Stock. Any Plan expenses may be paid from any Forfeiture account
maintained under the Trust Fund.
7.11 Rules and Decisions - The Plan Administrator may adopt such by-laws,
rules and regulations as it deems necessary, desirable, or appropriate, provided
that same shall not be inconsistent with or contrary to the express terms of
this agreement. All such by-laws, rules regulations and decisions of the Plan
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. When making a determination or calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, the Employer, the legal or actuarial counsel of the
Employer, or the Trustee.
7.12 Committee Procedures - If a Committee is appointed, the Committee may
act at a meeting or by unanimous written consent without a meeting. The
Committee shall elect one of its members as Chairman, appoint a Secretary, who
may or may not be a Committee Member, establish procedures for its meetings, and
advise the Trustee of such actions in writing. The
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Secretary shall keep a record of all meetings and forward all necessary
communications to the Employer or the Trustee.
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ARTICLE VIII
INVESTMENT OF CONTRIBUTIONS
8.1 Trust - All assets of and contributions to the Plan shall be held in
trust by the Trustee, pursuant to the terms of the Trust Agreement. The Trustee
shall invest the assets of the Plan, in accordance with the directions of the
Participants, pursuant to Sections 8.2 and 8.3 below, and to the right of the
Company to designate an investment manager as provided in the Trust Agreement.
8.2 Participant Directed Investments - In accordance with the rules set
forth in this Section 8.2 and subject to Section 8.3, a Participant's Account
will be subject to the investment direction of the Participant. A Participant
shall be required to submit an investment election form to the Trustee.
(a) In General - A Participant will direct the investment, or change
the direction of the investment, of the amounts credited to his Account by
communicating such direction to the Plan Administrator (i) in writing on
forms provided by the Plan Administrator; (ii) through an automated
telephone system provided for such purpose; or (iii) through any other
method made available by the Plan Administrator, in accordance with the
rules as may be established by the Plan Administrator.
Any investment direction submitted by a Participant must specify, in
1% increments, the percentage of his Account and ongoing contributions to
be invested in one or more of the separate Investment Funds established by
the Company under Section 8.2(b), and must specify whether the investment
instructions apply to existing Account balances, future contributions, or
both. To the extent permitted by applicable law and regulations, if a
Participant fails to submit a statement of direction properly directing the
investment of 100% of his Account, any portion not properly directed will
be invested in the money market or similar Investment Fund selected by the
Company as the default investment.
A Participant may change his investment election at any time. A
Participant's investment direction will take effect as soon as
administratively possible after it is received.
(b) Investment Options - A minimum of three (3) Investment Funds
offering a broad range of investment alternatives will be offered. The
separate Investment Funds made available under the Plan may be changed,
eliminated, or modified by the Company (or its designee).
(c) Participant Responsible for Investment - The Participant will have
the sole responsibility for the investment of his Account among the
available Investment Funds, and no fiduciary or other person will have any
liability for any
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loss or diminution in value resulting from the Participant's exercise of
his investment responsibility. It is intended that ERISA Section 404(c)
will apply to the fullest extent possible to a Participant's exercise of
investment responsibilities under this Plan and that the Company and the
Plan Administrator will take all actions required to comply with the
provisions of ERISA Section 404(c).
(d) Valuation - As of each Valuation Date, the Plan Administrator and
the Trustee shall determine the fair market value of the Investment Funds,
and the gain or loss experienced by each such Fund since the immediately
preceding Valuation Date, and allocate such amounts among the Participants'
Accounts in the appropriate manner. The valuation of the Investment Fund
which is invested in Holding Company Stock shall be made in accordance with
the provisions of the Trust Agreement.
(e) Valuation Statements - The Plan Administrator will provide each
Participant with a statement of the value of his Account maintained under
this Plan. In no event will these statements be furnished less than once
each year.
8.3 Investment in Holding Company Stock
(a) Subject to subsections (e) and (f) below and except as otherwise
may be limited by the Plan Administrator in its discretion with respect to
amounts credited to a Participant's Pre-Tax Account, Participants shall
have the option to direct the investment of all of their Pre-Tax Accounts
and a portion of their Employer Contribution Accounts in Holding Company
Stock. With regard to their Pre-Tax Accounts, Participants may direct the
investment of 100% of such accounts in Holding Company Stock, provided the
Participants may direct the investment of any lesser amount in 1%
increments. With regard to their Employer Contribution Accounts, the
maximum amount that the Participant may direct to be invested in Holding
Company Stock shall equal the lesser of the following amounts:
(i) an amount equal to 75% of an Employee's Vested Interest in
the Plan; or
(ii) the balance in the Participant's Employer Contribution
Account (whether or not fully vested),
provided that the Participant may direct the investment of any lesser
amount in 1% increments.
(b) The investment direction by a Participant of his Account in
Holding Company Stock, as described in the preceding subsection (a), shall
be made in accordance with this Section 8.3(b). A Participant shall direct
the investment, or change the direction of the investment, of his Account
on the
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appropriate election form prepared by the Plan Administrator and pursuant
to uniform procedures adopted by the Plan Administrator. Any Participant
direction shall remain in effect until superseded by a subsequent
direction, or until the complete distribution of a Participant's Vested
Interest.
(c) The amounts in a Participant's Rollover Account shall be invested
according to Section 8.2 of this Plan and shall not be eligible for
investment in Holding Company Stock; provided, however, an Employee who
elects to have Holding Company Stock, which was held in his account in the
White County Bank Employee Stock Ownership Plan, transferred to the Plan
through a direct transfer or rollover shall be entitled to keep his
Rollover Account invested in Holding Company Stock to the extent Holding
Company Stock is so transferred.
(d) Each Participant who timely provides instructions to the Trustee
in accordance with such procedures as the Plan Administrator and the
Trustee may establish shall be entitled to direct the Trustee how to vote
any shares of Holding Company Stock allocated to his Account(s) with
respect to any matter for which a shareholder vote is required. Reasonable
means shall be employed to provide confidentiality with respect to the
directions by such Participant and such directions shall be held in
confidence and shall not be divulged or released to any person, including
the Company or any member of the Board, officer, employee, or agent of the
Company, except to the extent required by law, it being the intent of this
provision to ensure that the Company cannot determine the direction given
by any Participant.
(e) Notwithstanding anything in the Plan to the contrary, effective as
of January 1, 2001, Participants shall not be permitted to direct the
investment of any further portion of their Accounts in Holding Company
Stock, whether such amounts represent existing Account balances, Rollover
or new contributions.
(f) Notwithstanding anything in the Plan to the contrary, effective as
of January 1, 2001, Participants shall only be permitted to direct the
investment of Holding Company Stock held in their accounts to the other
Investment Funds under the Plan, in accordance with the rules established
by the Plan Administrator which shall be reasonably acceptable to the
Trustee.
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ARTICLE IX
AMENDMENT OF THE PLAN
The Company shall have the right at any time by instrument in writing, duly
executed and acknowledged, to modify, alter or amend the Plan in whole or in
part, provided, however, that any benefits which have actually accrued and
become payable hereunder shall not be affected thereby and no such amendment
shall change the Trustee's duties without its consent. The Company shall provide
the Trustee with written notice of any such amendment.
No amendment shall be made which shall cause or authorize any part of the
Trust Fund to revert or be refunded to the Employer or to be used for or
diverted to purposes other than the exclusive and sole benefit of the
Participants or their Beneficiaries (other than such part as is required to pay
taxes and expenses of administration). Except as otherwise permitted by law, no
amendment shall be made to the Plan which shall eliminate or reduce an early
retirement benefit or eliminate an optional form of benefit provided under the
Plan with respect to benefits accrued as of the date of such amendment. The
Company shall have the limited right to amend the Plan at any time,
retroactively or otherwise, in such respects and to such extent as may be
necessary to qualify it under existing and applicable laws and regulations so as
to permit the full deduction for tax purposes of the Employer contributions made
hereunder, and if and to the extent necessary to accomplish such purpose may by
such amendment decrease or otherwise affect the rights of Participants to
benefits which have actually accrued and become payable hereunder,
notwithstanding any provision herein to the contrary.
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ARTICLE X
DISCONTINUANCE OF CONTRIBUTIONS AND
TERMINATION OF THE PLAN
10.1 Intention to Continue Plan - The Plan herein provided for has been
established by the Company with the bona fide intention that it shall be
continued in operation indefinitely and that the Employer's contributions
hereunder shall continue for an indefinite period. However, the Company reserves
the right at any time to discontinue contributions or to terminate the Plan.
10.2 Termination or Partial Termination of Plan - Should the Company decide
to terminate or partially terminate the Plan, the accounts of all Participants
who are active Employees who are affected thereby, shall become fully vested and
nonforfeitable. The Trustee shall be notified of any termination or partial
termination in writing and shall proceed at the direction of the Plan
Administrator to liquidate the assets of the Trust. Upon termination of the Plan
by the Company, the Company and the Employer shall not thereafter make any
further contributions under the Plan, and no amount shall thereafter be payable
under the Plan to or in respect of any Participants then Employed by such
Employer, except as provided in this Article or except as amounts may become
payable under the Plan as a result of such Participants continuing their
participation in the Plan as a result of being Employed by other participating
Employers. To the maximum extent permitted by ERISA, transfers, distributions or
other dispositions of assets of the Plan as provided in this Article shall
constitute a complete discharge of all liabilities under the Plan. Promptly upon
any such termination the Company and the Trustee shall pay any due and accrued
expenses and liabilities of the Trust and any expenses involved in the
termination of the Plan and appropriately adjust, as may be required, all
accounts of Participants for such expenses and charges. The interest of each
such Participant who is then actively Employed by such Employer in the adjusted
amount then credited to his Employer Contribution Accounts shall be
nonforfeitable as of such date. The full current value of each adjusted account
shall be paid, transferred, or otherwise distributed from the Trust to or on
behalf of the Participant for whom such account is maintained.
In the event of a partial termination of the Plan, the payments,
adjustments and distributions described above shall also be made, but only with
respect to the portion of the Plan being terminated.
In the event of a complete discontinuance by the Company and the Employer
of the contributions to be made by it hereunder, the rights of each Participant
who is actively employed to amounts credited to his account at such time shall
become nonforfeitable.
10.3 Discontinuance of Contributions - In the event of a complete
discontinuance by the Company and the Employer of the contributions to be made
by it hereunder, the accounts of Participants who are actively employed shall be
treated, and the rights of Participants shall be, as if the Plan was terminated
as contemplated under Section 10.2 on the effective date of such discontinuance
or the date such discontinuance is deemed to have been effective, including, but
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not limited to, nonforfeitability of all amounts credited to the Employer
Contribution Accounts of Participants who are then actively Employed by such
Employer.
The mere suspension of a contribution for a year or years during which the
Company and the Employer earns profits shall not in itself be deemed a
discontinuance within the meaning of this Section, unless such suspension shall
be deemed to have ripened into a discontinuance under the applicable provisions
of the Code, any valid regulations promulgated thereunder or any rulings
properly interpreting and applying same.
10.4 Internal Revenue Service Approval - Notwithstanding the foregoing,
unless the Plan Administrator otherwise directs, in the event the Plan is
terminated or contributions are completely discontinued, no distribution from
the Plan shall be required until such time as the Internal Revenue Service shall
have determined in writing that such termination or discontinuance will not
adversely affect the qualification of the Plan.
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ARTICLE XI
MISCELLANEOUS
11.1 Participants' Rights; Acquittance - Except to the extent required or
provided for by mandatorily imposed law as in effect and applicable hereto from
time to time, neither the establishment of the Trust hereby created, nor any
modification thereof, nor the creation of any fund or account, nor the payment
of any distributions, shall be construed as giving to any Participant or other
person any legal or equitable right against the Company, the Employer or any
Affiliated Employer, or any officer or employee thereof, or the Trustee or the
Plan Administrator except as herein provided; nor shall any Participant have any
legal right, title or interest in this Trust or any of its assets, except in the
event and to the extent that amounts may actually be distributable to him
hereunder, and the same limitations shall be applicable with respect to
distributions upon death which may be payable to the Beneficiaries of a
Participant. Under no circumstances shall the terms of Employment of any
Participant be modified or in any way affected hereby. This Plan shall not
constitute a contract of Employment nor afford any individual any right to be
retained in the employ of the Company or the Employer.
11.2 Spendthrift - To the extent permitted by law, Participants are
prohibited from anticipating, encumbering, alienating or assigning any of their
rights, claims or interest in this Trust or in any of the assets thereof, and no
undertaking or attempt to do so shall in any way bind the Plan Administrator or
the Trustee or be of any force or effect whatsoever. Furthermore, to the extent
permitted by law, no such rights, claims or interest of a Participant in this
Trust or in any of the assets thereof shall in any way be subject to such
Participant's debts, contracts or engagements, nor to attachment, garnishment,
levy or other legal or equitable process; provided, however, anything to the
contrary herein notwithstanding, to the extent permissible under applicable law,
a Participant's interest hereunder is subject to all bona fide and existing
debts owed by such Participant to the Plan and Trust, if any, and upon such
Participant or the Beneficiary of such Participant becoming entitled to receive
a distribution hereunder, the Trustee, if it shall prior to disbursement have
received certified notice or confirmation from the Plan Administrator in such
form as it may reasonably require of the fact and amount of such indebtedness,
shall pay first from the distribution so payable the amount of such indebtedness
to the Plan and Trust with the remainder, if any, being payable as otherwise
provided herein.
The foregoing provision against the assignment of a Participant's right in
the Plan shall not apply in the case of (i) qualified domestic relations order
which is determined by the Committee to meet the requirements of Section 414(p)
of the Code, or (ii) the Participant's liability to the Plan due to: (A) the
Participant's conviction of a crime involving the Plan, (B) a judgment, consent
order, or decree in action for violation of fiduciary standards, or (C) a
settlement involving the Department of Labor or Pension Benefits Guarantee
Corporation. Unless otherwise provided in the qualified domestic relations
order, the amount paid to the alternate payee (i) will be withdrawn pro rata
from all of the Participant's Accounts, (ii) shall be paid in the form of a lump
sum, and (iii) shall be distributed as soon as administratively
-56-
practicable following receipt of such qualified domestic relations order and the
determination that such order satisfies the requirements of Section 414(p) of
the Code.
In any action or proceeding involving the Trust Fund, or any property
constituting part or all thereof, or the administration thereof, the Company,
the Plan Administrator, and the Trustee shall be the only necessary parties and
no employees or former employees of the Company or their beneficiaries or any
other person having or claiming to have an interest in the Trust Fund or under
the Plan shall be entitled to any notice or service of process.
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 parties
hereto, the Plan Administrator, the Trustee and all persons having or claiming
to have any interest in the Trust Fund or under the Plan.
11.3 Qualification of Plan as a Condition - This Plan is based upon the
condition subsequent that it shall be approved and qualified by the Internal
Revenue Service as meeting the requirements of the Internal Revenue Code and
regulations issued thereunder with respect to employees' plans and trusts,
including a salary reduction arrangement, so as to permit, among other incidents
to such qualified plans, the Company and the Employer to deduct for income tax
purposes the amount of its contributions to the Plan as set forth herein, and so
that such contributions will not be taxable at the time of contribution to the
Participants as income. Therefore, if when this Plan is submitted for
qualification and approval by the Internal Revenue Service, the Internal Revenue
Service rules that the Plan does not meet the qualification requirements of the
Internal Revenue Code for the purposes specified in the preceding sentence, and
the deficiencies precluding qualification may not be corrected by amendment
effective as of the Effective Date, then regardless of any other provision
herein contained, this amended and restated Plan shall be and become null and
void ab initio, and any contributions under the Plan for any fiscal year of the
Company commencing on or after the Effective Date shall be returned to the
Company or the Employer for the benefit of the Employees on whose behalf the
contribution was made to the Trust.
11.4 Successor to the Company - In the event of the dissolution, merger,
consolidation or reorganization of the Company, provision may be made by which
the Plan and Trust will be continued by the successor; and, in that event, such
successor shall be substituted for the Company under the Plan. The substitution
of the successor shall constitute an assumption of Plan liabilities by the
successor and the successor shall have all the powers, duties and
responsibilities of the Company under the Plan.
11.5 Transfer of Plan Assets - In the event of any merger or consolidation
of the Plan with, or transfer in whole or in part of the assets and liabilities
of the Trust Fund to another trust fund, held under any other plan of deferred
compensation maintained or to be established for the benefit of all or some of
the Participants of this Plan, the assets of the Trust Fund applicable to such
Participants shall be transferred to the other trust fund only if:
(a) Each Participant would, if either this Plan or the other plan then
terminated, receive a benefit immediately after the merger, consolidation
or
-57-
transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or
transfer, if the Plan had then terminated;
(b) Resolutions of the Board of Directors of the Company, shall
authorize such transfer of assets; and, in the case of the new or successor
employer of the affected Participants, its resolutions shall include an
assumption of liabilities with respect to such Participant's inclusion in
the new employer's plan; and
(c) Such other plan and trust are qualified under Sections 401(a) and
501(a) of the Code.
11.6 Delegation of Authority by the Company - Whenever the Company under
the terms of this Agreement is permitted or required to do or perform any act or
matter or thing, it may be done and performed by any officer or individual
thereunto duly authorized by the Board.
11.7 Construction of Agreement - This Plan shall be construed and
administered according to the provisions of ERISA, and its validity and
enforceability shall be determined under such law. In the event ERISA is not
applicable or does not preempt state law, the laws of the State of Georgia shall
apply.
11.8 Merger of Prior Plan - Except as may be provided in any Schedule with
respect to any Prior Plan, the stated provisions of the Plan shall apply to all
Participants. An Appendix designated "Prior Plans," as may be amended from time
to time, shall be attached to the Plan indicating the names of all the Prior
Plans and the date each such Prior Plan merged into or consolidated with, or had
any part of its assets and liabilities otherwise transferred to, this Plan. The
merger and transfer of assets and liabilities of any Prior Plan shall be
accomplished in a manner consistent with Section 414(l) of the Code. The merger
and transfer of assets and liabilities of any Prior Plan shall be subject to the
condition precedent that they do not adversely affect the tax qualified status
of the Plan. The Plan Administrator shall have the authority (a) to take such
additional actions as may be necessary or desirable to fully effectuate any
merger (that has been authorized by the Company) of any Prior Plan with and into
the Plan and the related transfer of assets and liabilities, and (b) to take
such action as are required to preserve the participants' benefits and rights
accrued under a Prior Plan to the extent required under Section 411(d)(6) of the
Code.
11.9 Headings - The headings of Sections and Subsections are for ease of
reference only and shall not be construed to limit or modify the detailed
provisions hereof.
11.10 Compliance With Distribution Method and Timing Regulations -
Notwithstanding any other provision of this Plan, if, and solely to the extent
that, any provision of the Plan becomes a material violation of Sections 401 or
411 of the Code as an impermissible restriction on an individual's rights with
respect to the timing or method of any alternative form of benefit, then such
Plan provision(s) shall thereafter be construed and administered in a manner
which
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grants to each Participant or his Beneficiary(ies), as applicable, such
additional rights, and only such additional rights, as will satisfy such Code
Sections.
11.11 Participation of Adopting Employer and Its Employees - With the
written consent of the Company, an adopting Employer may become a party to this
Agreement pursuant to authorization by its Board of Directors. An Appendix
designated "Adopting Employers," as may be amended from time to time, shall be
attached to the Plan indicating the names of the Employers who have adopted the
Plan, the effective date of each such adoption, and the eligible Employee group,
as applicable. In the event an adopting Employer does so become a party, it
shall contribute to the Plan, and its Employees shall be entitled to benefits
thereunder, in accordance with the terms of the Plan and any Adoption Agreement
executed by such Employer. In computing the Service of a person who is in the
employ of more than one of the adopting Employers at the same time, the period
of Service of such person with any of the adopting Employers shall be counted,
and a transfer of an Employee from the Employment of another shall not interrupt
his Service, nor shall such a transfer constitute a termination of Employment
under the terms of the Plan.
11.12 Service for Employment with Related Employers and Transfers of
Employment Among Employers - In determining Years of Service and any period of
Employment for purposes of eligibility to participate in the Plan as provided
for in Section 2.2, the period of an Employee's Employment with any other member
of a group of related employers which includes the Company shall be counted and
a transfer of an Employee from the Employment of one such member to the
Employment of another member shall not interrupt Employment. For purposes of
determining an Employer's Vested Interest under the Plan the following special
rules shall apply:
In addition to Service credited to such Employee under Section 5.5 of the
Plan,
(a) Service for Peoples Bank of Fannin County Employees shall also
include their Service as Employees of Peoples Bank prior to July 1, 1992,
which Service shall be determined in accordance with the provisions of the
Plan;
(b) Service for Towns County Bank Employees shall also include their
Service as Employees of Towns County Bank prior to January 1, 1993, which
Service shall be determined in accordance with the provisions of the Plan;
and
(c) Service for Citizens Bank of Murphy, North Carolina Employees
shall also include service credited to such Employees for vesting purposes
under the Citizens Bank Employee 401(k) Plan through December 31, 1992.
Related employers shall be determined under Sections 414(b), (c), (m) and (n) of
the Code, to include members of a controlled group of corporations, trades or
businesses under common control, members of an affiliated service group, and
entities related through the leasing of employees. In the event any Participant
during the course of any Plan Year is Employed simultaneously by more than one
such member who has adopted the Plan, he shall be entitled to an allocation
under Section 4.3 hereof by taking into account his aggregate Annual
Compensation from such simultaneous members.
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11.13 Administration of Profit Sharing Contributions - The following
provisions apply to Plan Years ending on or before December 31, 2000. The
provisions of this Section 11.13 shall not apply to Plan Years commencing on or
after January 1, 2001.
(a) The Profit Sharing Contribution of the Company and of each
adopting Employer made pursuant to Section 3.6 of the Plan shall be
determined separately by the Board of Directors of each Employer under
Section 3.6 hereof. Such determination shall occur at or after the end of
each Plan Year. In determining the amount, if any, of such contributions,
the Board of Directors of such Employer shall consider the profitability,
financial condition and financial performance of such Employer for the
applicable Plan Year.
(b) The Profit Sharing Contribution of each adopting Employer made
pursuant to Section 3.6 of the Plan shall be allocated among its Employees
separately from the contributions of the others in accordance with the
provisions of Section 3.6. The Forfeitures of a Participant or other
reallocation from a Participant's Account shall be allocated only among the
Participants who are Employees of the adopting Employer with which such
Participant was Employed. Net increases and decreases in the value of the
Trust Fund resulting from increases or decreases in the value of the assets
of the Trust and earnings and losses shall be allocated among all
Participants under the Plan as a group in accordance with the provisions of
section 8.2. Participants who are Employees of one or more adopting
Employers shall have separate Accounts with respect to their participation
as an Employee of each such adopting Employer.
(c) In the event of a transfer of any Participant from the Employment
of one adopting Employer to the Employment of another, his Account shall be
considered and treated thereafter as the Account of a Participant who is an
Employee of the adopting Employer to which he is transferred, except, if
such Participant thereafter forfeits or becomes subject to a reallocation
of all or a part of his interest under any of the provisions of the Plan,
the Plan Administrator shall, on the next following Annual Valuation Date,
divide such Forfeiture or reallocation of his non-Vested Interest in the
Plan in an equitable manner, considering all the circumstances, between the
two adopting Employers.
In the event of such a transfer, the transferred Participant shall
share in the next annual contribution of each of such adopting Employers on
a pro rata basis, based upon the amount of wages or salary earned with each
such Employer during its fiscal year in which the transfer takes place.
11.14 Gender and Number - The masculine gender wherever used will be deemed
to include the feminine gender. Words in the singular will be read and construed
as though used in the plural in all cases where they would apply and vice versa.
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ARTICLE XII
TOP-HEAVY PLAN PROVISIONS
12.1 Application - In the event that the Plan is determined to be a
Top-Heavy Plan as hereinafter defined, this Article XII shall become effective
as of the first day of the Plan Year in which the Plan is a Top-Heavy Plan.
12.2 Definitions
(a) Top Heavy Compensation - For purposes of this Section of the Plan,
Top-Heavy Compensation means an individual's compensation (as determined
under Section 415(c)(3) of the Code) from the Employer for the Plan Year,
as adjusted pursuant to Section 415(d) of the Code.
(b) Key Employee - During any year that the Plan is a Top-Heavy Plan,
a Participant who is a Key Employee within the meaning of Section 416 of
the Code, including any Employee, former Employee or Beneficiary of an
Employee or former Employee who at any time during the Plan Year or any of
the four (4) preceding Plan Years, is or was:
(i) an officer of the Employer whose Top Heavy Compensation is
greater than 50% of the dollar limitation in effect in Section
415(b)(1)(A) of the Code, provided that Employees described in Section
414(q)(8) of the Code shall be excluded;
(ii) 1 of the 10 Employees having Top Heavy Compensation of more
than the dollar limitation in Section 415(c)(1)(A) of the Code and
owning (or considered as owning within the meaning of Section 318 of
the Code) one of the largest interests in the Employer, which interest
is at least 1/2%;
(iii) a five percent (5%) owner of the Employer; or
(iv) a one percent (1%) owner of the Employer having Top Heavy
Compensation from the Employer of more than $150,000.
Ownership shall be determined according to Section 416(i)(1)(B) of the
Code. For purposes of (i) above, no more than 50 Employees (or, if less,
the greater of 3% or 10% of the Employees) shall be treated as officers.
For purposes of (ii) above, if two Employees have the same ownership
interest, the Employee with the higher Top Heavy Compensation shall be
treated as having the larger interest. An Employee or former Employee who
is not a Key Employee shall be a "Non-Key Employee."
-61-
(c) Minimum Contribution - For a Plan Year, the lesser of 3% of a
Participant's compensation (within the meaning of Section 415 of the Code)
or a percentage of a Participant's compensation equal to the percentage at
which contributions are made (or required to be made) under the Plan and
all other plans required to be aggregated under Section 416(g)(2) of the
Code, (i.e., each plan maintained by the Employer in which a Key Employee
is a Participant and all other plans maintained by the Employer which
enable the plans in which a Key Employee is a Participant to meet the
requirements of Section 401(a)(4) and Section 410) for the Key Employee for
whom such percentage is highest. The percentage of a Key Employee's
compensation at which contributions are made shall be determined by
dividing the contributions for each such employee by so much of his
compensation for the Plan Year (including Elective Deferrals) as does not
exceed $150,000, as adjusted pursuant to Section 401(a)(17)(B) of the Code.
For Plan Years beginning on or after January 1, 1989, Matching
Contributions and Elective Deferrals on behalf of a Non-Key Employee shall
not be considered in determining such Minimum Contribution.
(d) Top-Heavy Plan - A plan that is required in such year to satisfy
the requirements of Section 416 of the Code because the aggregate of the
accounts of all Key Employees in the Plan exceeds 60% of the aggregate of
the accounts of all Participants in the Plan, such determination to be made
in accordance with the procedures described in Section 416(g) of the Code
and the regulations thereunder as of the Annual Valuation Date immediately
preceding such Plan Year (or in the case of the first Plan Year, as of the
last day of such Plan Year) (the "Determination Date"), and shall include
distributions made in the last five years. The account balance of any
Participant who has not performed any services for the Employer in the last
five years shall not be taken into account. For purposes of determining
whether the Plan is a Top-Heavy Plan, the Plan shall be aggregated with all
other plans maintained by the Employer which are required to be aggregated
with the Plan in order for the Plan to meet the requirements of Sections
401(a)(4) or 410 of the Code, and all other plans maintained by the
Employer in which a Key Employee is a Participant (the "Required
Aggregation Group"). In addition, the Plan may also be aggregated with any
other plans maintained by the Employer (the "Permissive Aggregation Group")
so long as such aggregation would not prevent the aggregated group from
satisfying the requirements of Sections 401(a)(4) and 410 of the Code.
12.3 Allocation of Minimum Contribution - For any year in which the Plan is
a Top-Heavy Plan, the Minimum Contribution as defined in Section 12.2(c) hereof
shall be made to the account of each Participant who is a non-Key Employee,
unless the Minimum Contribution for the Participant is made under another
defined contribution plan maintained by the Employer. Such Minimum Contribution
shall be made to the Employer Contribution Account of each non-Key Employee
Participant who has not separated from service on the last day of such Plan Year
without regard to such Participant's Hours of Service during such Plan Year, and
without regard to such Participant's compensation for such Plan Year. The
Employer shall determine under
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which plan a Participant shall receive the Minimum Contribution if the Employee
is a Participant in more than one plan maintained by the Employer. Such Minimum
Contribution shall be made without consideration of the Employer's contributions
under Section 3111 of the Code.
Key Employee Participant who has not separated from service on the last day of
such Plan year without regard to such Participant's Hours of Service during such
Plan Year, and without regard to such Participant's compensation for such Plan
Year. The Employer shall determine under which plan a Participant shall receive
the Minimum Contribution if the Employee is a Participant in more than one plan
maintained by the Employer. Such Minimum Contribution shall be made without
consideration of the Employer's contributions under Section 3111 of the Code.
Qualified Non-Elective Contributions, if any, may be taken into account in
satisfaction of any required Minimum Contribution. Matching Contributions and
Elective Deferrals allocated to the account of a Key Employee shall be taken
into account in determining the amount of any required Minimum Contribution;
provided, however, that Matching Contributions and Elective Deferrals made on
behalf of a Non-Key Employee and taken into account for purposes of Section 3.3
or 3.5 shall not be taken into account in determining whether a required Minimum
Contribution on behalf of such non-Key Employee has been satisfied.
-63-
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized corporate officers and its corporate seal to be
hereunto affixed, as of the day and year first written above.
UNITED COMMUNITY BANKS, INC.
By: /s/ James G. Campbell
Title: Senior Vice-President
Attest:
/s/ Billy M. Decker
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APPENDIX A
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- ADOPTING EMPLOYERS -
Adopting Date of Eligible
Employers Participation* Employee Group
--------- ------------- --------------
1. United Community Bank d/b/a January 1, 1967 All Employees except those excluded by the
Union County Bank terms of the Plan.
2. Carolina Community Bank January 1, 1993 All Employees except those excluded by the
(formerly Citizens Bank of terms of the Plan.
Murphy, North Carolina)
3. Peoples Bank of Fannin County July 1, 1992 All Employees except those excluded by the
terms of the Plan.
4. Towns County Bank January 1, 1993 All Employees except those excluded by the
terms of the Plan.
5. White County Bank August 31, 1995 All Employees except those excluded by the
terms of the Plan.
6. United Community Banks, Inc. January 1, 2001 All Employees except those excluded by the
terms of the Plan.
7. First Floyd Bank -- All Employees except those excluded by the
terms of the Plan.
8. Independent Bank and Trust -- All Employees except those excluded by the
terms of the Plan.
9. Peoples First Community Bank -- All Employees except those excluded by the
terms of the Plan.
* With respect to any Adopting Employer, however, the date of participation
for Employees of that Employer may be delayed, if necessary, in the event
of any administrative difficulties relating to that Employer's commencement
of participation in the Plan.
APPENDIX B
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- PRIOR PLANS -
Date of Merger/
Prior Plan Asset and Liability Transfer Special Provisions
---------- ---------------------------- ------------------
1. Citizens Bank 401(k) Plan January 1, 1993 None
2. Union County Bank Retirement Plan January 1, 1994 Schedule A
and Trust
3. First Clayton 401(k) Plan and Trust January 1, 1998 Schedule B
4. Bank of Adairsville 401(k) March 31, 1999 Schedule C
Retirement Savings Plan
5. 1st Floyd Bank 401(k) Plan August 26, 1999 Schedule D
6. Dawson County Bank Section 401(k) December 31, 2000 Schedule E
Profit Sharing Plan
SCHEDULE A
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- UNION COUNTY BANK RETIREMENT PLAN AND TRUST -
The following special provisions relate only to Participant's Pension
Accounts (which are attributable to the merger of the Union County Bank
Retirement Plan and Trust with, and into, the Plan on January 1, 1994), where
applicable, as governed by the specific Sections of the Plan as indicated
herein.
1. Death Benefits (Section 5.3) - With regard to amounts held in a
Participant's Pension Account, if death precedes the payment of benefits to
Participant, the entire interest of such deceased person, computed as of the
Valuation Date coincident with or next following his death, shall be paid in
accordance with the following provisions:
(a) Death Benefits Prior to Normal Retirement Date - Except as
otherwise provided in paragraph (d) of this Section 5.3, subject,
however, to the provisions of Section 5.6(c), in the event of the death
of a Participant prior to his Normal Retirement Date, a death benefit
in the form of a Qualified Preretirement Survivor Annuity shall be paid
to such Participant's Eligible Spouse, if any, based on the balance in
the Participant's Pension Account, if any.
Such benefit payments shall begin not later than the date
which would have been the Participant's first Early Retirement Date,
had he survived. Such Participant's surviving Eligible Spouse shall be
permitted to direct the commencement of Qualified Preretirement
Survivor Annuity payments within a reasonable time after the
Participant's death.
(b) Death Benefits After Normal Retirement Date - Except as
otherwise provided in this Section and in Section 5.6(c), in the event
of the death of a Participant who has a Pension Account and who:
(i) is Employed after his Normal Retirement Date; or
(ii) retired on or after his Normal Retirement Date
and had deferred the commencement of retirement benefits, or
had not yet begun to receive such benefits, such Participant's
surviving Eligible Spouse, if any, shall receive a survivor
annuity in the form of a Qualified Preretirement Survivor
Annuity based on the value of his Pension Account.
(c) Death Subsequent to Commencement of Qualified Joint and
Survivor Annuity Benefits Or Optional Form of Benefit - If a former
Participant dies after payment of his Qualified Joint and Survivor
Annuity or optional form of benefits has commenced, regardless of
whether such payments commenced prior to, on, or after his
Normal Retirement Date, or a deferred retirement date, the death
benefit payable under the Plan attributable to the Participant's
Pension Account shall be the death benefit, if any, payable in
accordance with the terms of such Qualified Joint and Survivor Annuity
or optional form of benefit.
(d) Election Not to Receive a Qualified Preretirement Survivor
Annuity - Notwithstanding the foregoing provisions of this Section, the
Qualified Preretirement Survivor Annuity form of benefit shall not
apply with respect to benefits payable from a Participant's Pension
Account if the Participant otherwise elects within the period of time
and in the manner set forth in this paragraph. The Committee will
provide the Participant with a Notice of Option to Elect an Alternate
Form of Benefit within the time period beginning on the first day of
the Plan Year in which such Participant attains age thirty-two (32) and
ending on the last day of the Plan Year preceding the Plan Year in
which the Participant attains age thirty-five (35), or, if later,
within one (1) year of the date the Participant's Employment begins,
or, if earlier, within a reasonable period after separation from
Employment of a Participant who so separates before attaining age 35.
Such notice shall be similar in content to that required with respect
to a Qualified Joint and Survivor Annuity, except that it shall relate
to the Preretirement Survivor Annuity. A Participant may, with the
consent of an Eligible Spouse, if any, and in the manner indicated in
Section 5.6(a)(ii), elect not to have the Qualified Preretirement
Survivor Annuity form of benefit apply within the time period beginning
on the first day of the Plan Year in which such Participant attains age
35 and ending on such Participant's date of death; provided, however,
that if a Participant separates from Employment before attaining age
35, the election period shall begin on the date of separation from
Employment. Any such election may be revoked during the election
period, and if an election is revoked, another election may be made
during the election period.
2. Payment of Benefits (Section 5.6) - When a Participant has become
eligible to receive payment of his benefits under the provisions of the Plan,
amounts held in a Pension Account shall be payable as follows:
(a) Qualified Joint and Survivor Annuity for Benefits
Attributable To A Pension Account of Married Participants and Straight
Life Annuity For Participants Who Do Not Have an Eligible Spouse - The
benefits under this Plan attributable to a Pension Account of any
Participant or former Participant who is credited with an Hour of
Service on or after August 23, 1984, and who is married to an Eligible
Spouse on his Annuity Starting Date will be paid in the form of a
Qualified Joint and Survivor Annuity unless the Participant otherwise
elects within the period of time and in the manner set forth below:
(i) Notice of Option to Elect An Alternate Form of
Benefit - The Committee shall provide each Participant with a
Notice of Option to Elect An Alternate Form of Benefit. Such
notice and information shall be delivered to the Participant
within a reasonable period of time before the Annuity Starting
Date, provided, however, that such period shall be not less
than ninety (90) days.
(ii) Time and Manner of Election - An election to
waive the Qualified Joint and Survivor Annuity form of benefit
(or revocation of such an election) with respect to benefits
attributable to a Pension Account shall be made during the
ninety (90) day period ending on the Annuity Starting Date,
provided, however, that if a Participant reasonably requests
additional information within such ninety (90) day period the
election period shall in all cases include the ninety (90) day
period following the date on which the additional information
so requested is personally delivered or mailed to the
Participant. The Committee need not comply with more than one
such request made by a particular Participant or former
Participant. Any such election is revocable by the Participant
by a signed writing delivered to the Committee within the
election period, and if such election is revoked, another
election may be made with respect to benefits attributable to
a Pension Account during the election period, subject to the
consent of the Participant's Eligible Spouse, if any, at the
time of such subsequent election.
(iii) Consent By An Eligible Spouse - An election by
a Participant who is married to an Eligible Spouse to receive
his retirement benefit attributable to his Pension Account in
a form other than a Qualified Joint and Survivor Annuity shall
not be effective unless such Eligible Spouse makes a written
consent to the Participant's election, such consent to
acknowledge the effect of the Participant's election and to be
witnessed by a notary public or a representative designated by
the Committee. Consent by an Eligible Spouse shall not be
required if it is established to the satisfaction of the
Committee that such consent cannot be obtained because there
is no Eligible Spouse, because the Eligible Spouse cannot be
located, or because of such other circumstances as the
Secretary may prescribe by Regulations. Consent by an Eligible
Spouse, or establishment that an Eligible Spouse's consent
cannot be obtained, shall be effective only with respect to
such Eligible Spouse.
(iv) Additional Rules for Joint and Survivor Annuity
A. If a Participant's retirement benefits
attributable to his Pension Account are to be paid in
the form of a Qualified Joint and Survivor Annuity
and his Eligible Spouse dies before the Participant's
Annuity Starting Date, the Participant shall be
entitled to the benefits he would have received had
he not been married to an Eligible Spouse,
B. If a Participant's or former
Participant's retirement benefits attributable to his
Pension Account are to be paid in the form of a
Qualified Joint and Survivor Annuity and the
Participant dies on or before the Annuity Starting
Date, his Eligible Spouse shall receive a Qualified
Preretirement Survivor Annuity as provided in Section
5.3, unless that form of benefit has been waived in
accordance with Section 5.3.
C. If payment of a Participant's benefits
attributable to his Pension Account has commenced as
a Qualified Joint and Survivor Annuity and his
Eligible Spouse thereafter dies, the Participant
shall continue to receive the reduced retirement
benefit payable from his Pension Account at the time
of the death of his Eligible Spouse.
(v) Normal Retirement Benefit Form for Benefits
Attributable To A Pension Account for Unmarried Participants
and Married Participants Who Do Not Have An Eligible Spouse -
Except as otherwise provided in this Section 5.6(a) with
respect to married Participants who have an Eligible Spouse, a
Participant entitled to retirement or termination benefits
hereunder who is not married or who is married but does not
have an Eligible Spouse shall receive benefits attributable to
his Pension Account, if any, in equal monthly installments
during his lifetime as a straight life annuity; provided,
however, that any such Participant may elect in his sole
discretion not to receive his Pension Account benefits in the
form of such straight life annuity by filing a writing with
the Committee at any time prior to his Annuity Starting Date.
Any such election may be revoked at any time prior to his
Annuity Starting Date, and if so revoked, another election may
be made at any time prior to his Annuity Starting Date.
(vi) Notice of Option to Elect An Alternate Form of
Benefit/Time And Manner of Election After January 1, 1997 -
Notwithstanding the foregoing, the written explanation
described in Code Section 417(a)(3)(A) may be provided after
the Annuity Starting Date. The 90-day applicable election
period to waive the Joint and Survivor Annuity described in
Code Section 417(a)(6)(A) shall not end before the 30th day
after the date on which such explanation is provided. The
Secretary may, by regulations, limit the period of time by
which the annuity starting date precedes the provision of the
written explanation other than by providing that the annuity
starting date may not be earlier than termination of
employment.
A Participant may elect (with any applicable spousal
consent) to waive any requirement that the written explanation
be provided at least 30 days before the Annuity Starting Date
(or to waive the 30-day requirement under the above paragraph)
if the distribution commences more than 7 days after such
explanation is provided.
SCHEDULE B
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- FIRST CLAYTON 401(K) PLAN & TRUST -
Notwithstanding anything to the contrary in the Plan, the following
special provisions apply only to Participants who were Participants in the First
Clayton 401(k) Plan and Trust on December 31, 1997:
1. Notwithstanding the eligibility requirements of Section 2.2, any
Eligible Employee who was a Participant bin the First Clayton 401(k) Plan and
Trust as of December 31, 1997 shall be a Participant in the Plan as of January
1, 1998.
2. Notwithstanding the vesting schedule provided in Section 5.5, with
respect to a Participant who has completed three (3) Years of Service as of
December 31, 1997, such Participant's Vested Interest shall be determined under
the following vesting schedule:
Years of Service Vested Percentage Forfeited Percentage
---------------- ----------------- --------------------
less than 1 0% 100%
1 20 80
2 40 60
3 60 40
4 80 20
5 100 0
With respect to any other Participant who has not completed three (3)
Years of Service as of December 31, 1997, such Participant's Vested Interest
shall be determined under the vesting schedule contained in Section 5.5, but in
no event shall his Vested Interest be less than it was under the vesting
schedule in the Prior Plan determined as of December 31, 1997.
Notwithstanding the foregoing vesting schedule, the Participants'
Vested Interest shall, effective as of January 1, 2001, be determined under the
vesting schedule provided in Section 5.5 Plan.
SCHEDULE C
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- BANK OF ADAIRSVILLE 401(k) RETIREMENT SAVINGS PLAN -
Notwithstanding anything to the contrary in the Plan, the following
special provision applies only to Participants who were Participants in the Bank
of Adairsville 401(k) Retirement Savings Plan on March 31, 1999:
1. Notwithstanding the eligibility requirements of Section 2.2, any
Eligible Employee who was an active Participant in the Bank of Adairsville
401(k) Retirement Savings Plan as of March 31, 1999 shall be a Participant in
the Plan as of March 31, 1999.
SCHEDULE D
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- 1st FLOYD BANK 401(k) PLAN -
Notwithstanding anything to the contrary in the Plan, the following
special provisions apply only to Participants who were Participants in the 1st
Floyd Bank 401(k) Plan on August 26, 1999:
1. Notwithstanding the eligibility requirements of Section 2.2, any
Eligible Employee who was a Participant in the 1st Floyd Bank 401(k) Plan as of
August 26, 1999 shall be a Participant in the Plan as of August 26, 1999.
2. Notwithstanding the vesting schedule contained in Section 5.5 with
respect to a Participant who has completed three (3) Years of Service as of
August 26, 1999, such Participant's Vested Interest shall be determined under
the following vesting schedule:
Years of Service Vested Percentage
---------------- -----------------
less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
With respect to any other Participant who has not completed three (3)
Years of Service as of August 26, 1999, such Participant's Vested Interest shall
be determined under the vesting schedule contained in Section 5.5 but in no
event shall his Vested Interest be less than it was under the vesting schedule
in the Prior Plan determined as of August 26, 1999.
Notwithstanding the foregoing vesting schedule, the Participants'
Vested Interest shall, effective as of January 1, 2001, be determined under the
vesting schedule provided in Section 5.5 Plan.
3. Notwithstanding the form and manner of distributions provided in
Section 5.6, Participants who were Participants in the 1st Floyd Bank 401(k)
Plan shall be permitted to receive their distribution in cash or other property.
SCHEDULE E
TO
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
- DAWSON COUNTY BANK SECTION 401(k) PROFIT SHARING PLAN -
Notwithstanding anything to the contrary in the Plan, the following
special provisions apply only to Participants who were Participants in the
Dawson County Bank Section 401(k) Profit Sharing Plan on December 31, 2000:
1. Notwithstanding the eligibility requirements of Section 2.2, any
Eligible Employee who was a Participant in the Dawson County Bank Section 401(k)
Profit Sharing Plan as of December 31, 2000 shall be a Participant in the Plan
as of December 31, 2000.
Exhibit 4.4
AMENDMENT NO. 1
TO THE
UNITED COMMUNITY BANKS, INC.
PROFIT SHARING PLAN
THIS AMENDMENT is hereby made and entered into this 15th day of March 2002, by UNITED COMMUNITY BANKS, INC. (the "Company") to be effective as of the date(s) set forth hereinbelow.
W I T N E S S E T H:
WHEREAS, the Company maintains the United Community Banks, Inc. Profit Sharing Plan (the "Plan") for the exclusive benefit of its eligible employees and their beneficiaries, and those of any permitted participating employers;
WHEREAS, the Company desires to amend the Plan to permit investment of Pre-Tax Accounts and Employer Contribution Accounts in the stock of the Company (“Holding Company Stock”) effective as of March 18, 2002, or as soon as administratively practicable thereafter; and
WHEREAS, the Company has the right to amend the Plan from time to time.
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
Effective as of March 18, 2002, Section 1.25 is deleted in its entirety and the following substituted therefor:
“1.25 Holding Company Stock - - The securities that meet the definition of “employer securities” under Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407 with respect to this Plan, including, without limitation:
(a) ordinary shares or common stock issued by United Community Banks, Inc. or by any successor to such company,
(b) preference shares or preferred stock issued by United Community Banks, Inc. or any successor to such company, or
(c) any securities substituted for any such stock by reason of a recapitalization, reorganization, merger or consolidation.”
1
2.
Effective as of March 18, 2002, Section 5.11(a) is amended by deleting its next to last sentence in its entirety.
3.
Effective as of March 18, 2002, Section 5.11(d) is amended by deleting the parenthetical at its end in its entirety and substituting the following therefor:
“(except to the extent otherwise limited by the Investment Fund)”
4.
Effective as of March 18, 2002, Section 8.3 is deleted in its entirety and the following substituted therefor:
“8.3 Investment in Holding Company Stock
(a) General – Except as may be limited by the Plan Administrator in its discretion, Participants shall have the option to direct the investment of the amounts credited to their Pre-Tax Account and/or Employer Contribution Account in Holding Company Stock. The Plan Administrator may establish limits on what percentage of a Participant’s Pre-Tax Account and/or Employer Contribution Account may be invested in Holding Company Stock and shall communicate any such limitations in writing to Participants from time to time.
Notwithstanding anything in the Plan to the contrary, an Employee who elects to have Holding Company Stock, which was held in his account in the White County Bank Employee Stock Ownership Plan, transferred to the Plan through a direct transfer or rollover shall be entitled to keep his Rollover Account invested in Holding Company Stock, to the extent Holding Company Stock is so transferred.
(b) Employer Stock Investment Fund - - Except as the Plan Administrator (or its designee) may otherwise direct, effective as of March 18, 2002, investments under the Plan in Holding Company Stock shall be made via an “employer stock” Investment Fund which shall consist of Holding Company Stock and short-term liquid investments necessary to satisfy the “employer stock” Investment Fund’s needs for transfers and payments. Any investments under the
2
Plan in Holding Company Stock shall be made in compliance with and subject to the applicable limitations of ERISA Section 407; provided, however, that the Plan shall be authorized to invest up to 70% of the value of the total assets of the Plan in Holding Company Stock. The Plan Administrator may establish from time to time restrictions or limitations on transfers into or out of any “employer stock” Investment Fund, including restrictions or limitations on any distributions or withdrawals under Article V. The Company (or its designee) may at any time, because of securities law restrictions or other legal restrictions, direct the Trustee to cease purchases and sales of Holding Company Stock by the “employer stock” Investment Fund.
(c) Dividends - Dividends received by the “employer stock” Investment Fund are reinvested in additional Holding Company Stock.
(d) Purchases and Sales - Purchases and sales of Holding Company Stock (other than for exchanges) shall be made on the open market or in such other manner as may be determined by the Plan Administrator or the Trustee; provided, however, that if directed by the Company in writing prior to a trading date, the Trustee may purchase or sell Holding Company Stock from or to the Company if the purchase or sale is for adequate consideration (within the meaning of ERISA Section 3(18)) and no commission is charged. If, in the reasonable judgment of the Trustee, there is insufficient liquidity in the “employer stock” Investment Fund on any given day to meet all redemption orders for such day, the Trustee shall hold all such orders until, in the reasonable judgment of the Trustee, there is sufficient liquidity to meet such orders. The Plan Administrator or the Trustee may establish from time to time administrative procedures for processing redemption requests, including the placement of restrictions or limitations on redemption orders in the event of insufficient liquidity in the “employer stock” Investment Fund.
(e) Voting –
(i) Voting Directed by Participant - Whole shares of Holding Company Stock credited to the Participants’ Accounts (“Allocated Shares”) shall be voted by the Trustee as directed by the Participants in writing from time to time. Fractional shares of Holding Company Stock credited to the Participants’ Accounts shall be aggregated into whole shares of Holding Company Stock and voted by the Trustee to reflect, to the extent possible, the voting directions of the Participants with respect to whole shares of Holding Company Stock. Notwithstanding the foregoing, if the Company determines that a legal or administrative restriction would preclude the voting by the
3
Participants of the Allocated Shares, the Company shall so inform the Trustee and such shares shall be voted by the Trustee as directed by the Company (or its designee). In such a case, fractional shares of Holding Company Stock credited to the Participants’ Accounts shall be aggregated into whole shares of Holding Company Stock and voted by the Trustee to reflect to the extent possible the voting directions of the Company with respect to whole shares of Holding Company Stock.
(ii) Voting by Employee Benefit Committee - Except as limited by ERISA Section 404(c), the Committee shall be entitled to direct the Trustee to vote the following shares, on any matter for which shareholder approval is required: (i) Allocated Shares with respect to which the Trustee received no timely voting instructions from Participants; and (ii) shares of Holding Company Stock held by the Trustee and not allocated to Participants’ Accounts (the “Unallocated Shares”). In exercising its voting rights under this section, the Committee, based upon such information as may be provided to it by the Trustee, shall take into account the manner in which Participants voted the Allocated Shares.
(iii) Obligations of the Company - The Company shall use its reasonable best efforts, in conjunction with the Plan Administrator, the Committee and the Trustee, to cause to be delivered to each Participant on a timely basis all proxy materials, notices and information as are furnished to the Company’s stockholders in respect of the exercise of voting rights, together with forms by which the Participant may confidentially instruct the Trustee, or revoke such instruction, with respect to shares of Holding Company Stock allocated to his or her Account.
(g) Tender Offers –
(i) In the event of a tender offer for Holding Company Stock at a time when Holding Company Stock are readily tradeable on an established market, each Participant who has whole shares of Holding Company Stock allocated to his or her Account shall be given the opportunity to direct the Trustee regarding whether to tender or not to tender the whole shares of Holding Company Stock allocated to his or her Account. As promptly as practicable after receiving a Participant’s response form which directs the Trustee to tender his or her whole shares of Holding Company Stock, the Trustee shall tender such shares. After the expiration of the period during which Participants may direct the Trustee to tender shares under this Section 8.3, the Trustee shall determine the total number of whole shares it was directed to tender, and the total number of whole shares it was directed
4
not to tender (either expressly or by failure to timely respond). If the majority of the whole shares of Holding Company Stock were directed to be tendered, then the Trustee shall also tender, as promptly as practicable, any fractional shares which are held in the Participants’ Accounts. The Trustee shall take such steps as the Trustee deems reasonable and appropriate to effect directions from Participants in a confidential manner.
(ii) The Committee shall make the determination whether to sell, offer to sell, exchange, or otherwise dispose of the Unallocated Shares and direct the Trustee with respect to the disposition of such Unallocated Shares. In making its determination, the Committee, based upon such information as may be provided to it by the Trustee, shall take into account the tender or exchange directions given by Participants with respect to the Allocated Shares. The proceeds of a disposition of Unallocated Shares shall be held by the Trustee subject to the provisions of the Plan and Trust and any applicable loan agreement.
(iii) The Company shall use its reasonable best efforts, in conjunction with the Trustee, the Committee, and the Plan Administrator, to cause to be delivered to each Participant on a timely basis all materials, notices, and information as are furnished to the Company’s stockholders in respect of the exercise of tender or exchange rights, together with forms by which the Participant may confidentially instruct the Trustee, or revoke a prior instruction, with respect to shares of Holding Company Stock allocated to his Account. Any Trustee instruction form shall prominently note that a failure to return such form within a specified reasonable period of time shall be deemed to be a direction to the Trustee not to tender or exchange shares of Holding Company Stock allocated to the Participant’s Account.
(iv) Notwithstanding the foregoing provisions of this Section 8.3, the Trustee, after consultation with the Committee, shall have the right to change or modify its actions hereunder to the extent such change or modification is mandated by the terms of any valid order of a court of competent jurisdiction.”
5.
Except as provided herein, the provisions of the Plan shall remain in full force and effect.
5
IN WITNESS WHEREOF, the Employer has caused this Amendment No.1 to be executed by its duly appointed and qualified officer to be effective as of the date(s) set forth hereinabove.
EMPLOYER:
UNITED COMMUNITY BANKS, INC.
By: /s/
Rex S. Schuette
Rex S. Schuette
Title: Executive Vice President and
Chief Financial Officer
Exhibit 5
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Suite 2800 1100 Peachtree St. |
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April 23, 2002 |
direct dial 404 815 6483 |
United Community Banks, Inc.
63 Highway 515
Blairsville, Georgia 30512
Re: United Community Banks, Inc.
Registration Statement on S-8
Gentlemen:
We have acted as counsel for United Community Banks, Inc., a Georgia corporation (the “Company”), in preparation and filing of the Registration Statement on Form S-8 (the “Registration Statement”) relating to United Community Banks, Inc. Profit Sharing Plan (the “Plan”) and the proposed offer and sale of up to 200,000 shares of common stock, par value $1.00 per share, of the Company (the “Common Stock”) pursuant thereto.
As your counsel, and in connection with the preparation of the Registration Statement, we have examined the originals or copies of such documents, corporate records, certificates of public officials and officers of the Company, and other instruments related to the authorization and issuance of the Common Stock as we deemed relevant or necessary for the opinion expressed herein. Based upon the foregoing, it is our opinion that the shares of Common Stock to be issued by the Company in accordance with the terms and conditions of the Plan will be, upon issuance, sale, and delivery in the manner and under the terms and conditions described in the Registration Statement and the Plan, validly issued, fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement and any amendments thereto.
Sincerely,
KILPATRICK STOCKTON LLP
By: /s/ Jan
Davidson
Jan Davidson
Partner
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors of
United Community Banks, Inc.
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 21, 2002 related to the consolidated balance sheets of United Community Banks, Inc. and subsidiary of December 31, 2001 and 2000, and the related consolidated statements of income, shareholders' equity and comprehensive income, and cash flows for each of the years in the three year period ended December 31, 2001, which report appears in the December 31, 2001 annual report on Form 10-K, United Community Banks, Inc.
/s/ PORTER KEADLE MOORE, LLP
Atlanta, Georgia
April 22, 2002