EXHIBIT 10.8(p)(i)
OGDEN
PROFIT SHARING PLAN
As amended and restated January 1, 1991
and as in effect through January 1, 1993
OGDEN
PROFIT SHARING PLAN
TABLE OF CONTENTS
Section Page
SECTION 1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 14
3.1. Date of Participation . . . . . . . . . . . . . . . . . . 14
3.2. Participation and Adjustments . . . . . . . . . . . . . . 14
3.3. Duration. . . . . . . . . . . . . . . . . . . . . . . . . 15
3.4. Reemployment. . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4. SAVINGS FEATURES. . . . . . . . . . . . . . . . . . . . . 16
4.1. Pre-tax Contributions . . . . . . . . . . . . . . . . . . 16
4.2. Distribution of Excess Pre-tax Contributions. . . . . . . 16
4.3. Election to Institute, Change, or Resume Contribution . . 17
4.4. Limitation on Pre-tax Contributions . . . . . . . . . . . 17
4.5. Definitions . . . . . . . . . . . . . . . . . . . . . . . 18
4.6. Refund of Excess Contributions. . . . . . . . . . . . . . 23
SECTION 5. COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 26
5.1. Company Matched Contributions . . . . . . . . . . . . . . 26
5.2. Company Discretionary Contributions . . . . . . . . . . . 26
5.3. Time of Payment of Company Contributions. . . . . . . . . 27
5.4. Form of Payment of Company Contributions. . . . . . . . . 27
5.5. Maintenance of Separate Accounts. . . . . . . . . . . . . 27
5.6. Maintenance of Accounts Shall Not Vest any Right in
Assets. . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.7. Limitation on Company Matched Contributions . . . . . . . .28
SECTION 6. ALLOCATION OF COMPANY CONTRIBUTIONS . . . . . . . . . . . 35
6.1. Allocation of Discretionary Company Contributions . . . . 35
6.2. Discretionary Company Contribution Formula. . . . . . . . 36
6.3. Allocation of Matching Contribution . . . . . . . . . . . 36
SECTION 7. INVESTMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . . 37
7.1. Investment by Trustees. . . . . . . . . . . . . . . . . . 37
7.2. Investment Funds. . . . . . . . . . . . . . . . . . . . . 37
7.3. Investment Elections. . . . . . . . . . . . . . . . . . . 38
SECTION 8. VALUATIONS AND ADJUSTMENTS. . . . . . . . . . . . . . . . 41
8.1. Separate Accounts . . . . . . . . . . . . . . . . . . . . 41
8.2. Allocation of Earnings and Losses Valuation of Trust. . . 41
8.3. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 42
8.4. Allocation of Forfeitures . . . . . . . . . . . . . . . . 43
SECTION 9. ELIGIBILITY FOR BENEFITS. . . . . . . . . . . . . . . . . 44
9.1. Retirement Date . . . . . . . . . . . . . . . . . . . . . 44
9.2. Distribution of Participant's Account on Retirement,
Death, Disability, or Hardship. . . . . . . . . . . . . . 44
9.3. Distribution on other Termination of Service. . . . . . . 48
9.4. In-Service Withdrawals. . . . . . . . . . . . . . . . . . 48
9.5. Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.6. Restrictions on Distributions . . . . . . . . . . . . . . 51
9.7. Direct Rollovers. . . . . . . . . . . . . . . . . . . . . 52
SECTION 10. VESTED INTERESTS. . . . . . . . . . . . . . . . . . . . . 55
10.1. Pre Tax Contributions . . . . . . . . . . . . . . . . . . .55
10.2. Company Contributions . . . . . . . . . . . . . . . . . . 55
10.3. Transferred Accounts. . . . . . . . . . . . . . . . . . . 55
10.4. Break in Service for Vesting. . . . . . . . . . . . . . . 55
SECTION 11. METHOD OF PAYMENT OF BENEFITS. . . . . . . . . . . . . . 57
11.1. Payment of Benefits . . . . . . . . . . . . . . . . . . . 57
11.2. Commencement of Payment . . . . . . . . . . . . . . . . . 57
11.3. Time of Payment . . . . . . . . . . . . . . . . . . . . . 60
SECTION 12. MAXIMUM AMOUNT OF ALLOCATION . . . . . . . . . . . . . . 62
12.1. Application of Section 12 . . . . . . . . . . . . . . . . 62
12.2. Maximum Additions to Account. . . . . . . . . . . . . . . 62
12.3. Order of Reduction. . . . . . . . . . . . . . . . . . . . 63
12.4. Additional Account Limitations. . . . . . . . . . . . . . 64
SECTION 13. DESIGNATION OF BENEFICIARIES . . . . . . . . . . . . . . 67
13.1. Beneficiary Designation . . . . . . . . . . . . . . . . . 67
13.2. Failure to Designate Beneficiary. . . . . . . . . . . . . 68
SECTION 14. ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . 69
14.1. Powers and Duties of Administrative Committee . . . . . . 69
14.2. Powers and Duties of Investment Committee . . . . . . . . 69
14.3. Powers and Duties of Trustee. . . . . . . . . . . . . . . 70
14.4. Agents, Report of Committees to Board . . . . . . . . . . 70
14.5. Structure of Committees . . . . . . . . . . . . . . . . . 71
14.6. Adoption of Procedures of Committees. . . . . . . . . . . 72
14.7. Demands for Money . . . . . . . . . . . . . . . . . . . . 72
14.8. Claims for Benefits . . . . . . . . . . . . . . . . . . . 73
14.9. Hold Harmless . . . . . . . . . . . . . . . . . . . . . . 74
14.10. Service of Process. . . . . . . . . . . . . . . . . . . . 75
14.11. Specific Powers and Duties. . . . . . . . . . . . . . . . 75
SECTION 15. WITHDRAWAL OF PARTICIPATING COMPANY. . . . . . . . . . . 76
15.1. Withdrawal of Participating Company . . . . . . . . . . . 76
15.2. Distribution after Withdrawal . . . . . . . . . . . . . . 77
15.3. Transfer to Successor Plan. . . . . . . . . . . . . . . . 78
SECTION 16. AMENDMENT OR TERMINATION OF THE PLAN AND THE TRUST . . . 79
16.1. Right to Amend, Suspend or Terminate Plan . . . . . . . . 79
16.2. Retroactivity . . . . . . . . . . . . . . . . . . . . . . 80
16.3. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.4. No Further Contribution . . . . . . . . . . . . . . . . . 80
16.5. Partial Termination . . . . . . . . . . . . . . . . . . . 82
16.6. Exclusive Benefit of Participants and Beneficiaries . . . 83
SECTION 17. GENERAL LIMITATIONS AND PROVISIONS . . . . . . . . . . . 84
17.1. All Risk on Participants and Beneficiaries. . . . . . . . 84
17.2. Trust is Sole Source of Benefits. . . . . . . . . . . . . 84
17.3. No Right to Continued Employment. . . . . . . . . . . . . 84
17.4. Payment on Behalf of Payee. . . . . . . . . . . . . . . . 85
17.5. No Alienation . . . . . . . . . . . . . . . . . . . . . . 85
17.6. Missing Payee . . . . . . . . . . . . . . . . . . . . . . 86
17.7. Required Information. . . . . . . . . . . . . . . . . . . 87
17.8. Subject to Trust Agreement. . . . . . . . . . . . . . . . 87
17.9. Communications to Committees. . . . . . . . . . . . . . . 87
17.10. Communications from Participating Company or Committe . . 88
17.11. Incoming Transfers and Rollovers. . . . . . . . . . . . . 88
17.12. Gender. . . . . . . . . . . . . . . . . . . . . . . . . . 89
17.13. Captions. . . . . . . . . . . . . . . . . . . . . . . . . 89
17.14. Applicable Law. . . . . . . . . . . . . . . . . . . . . . 89
17.15. Mistake of Fact . . . . . . . . . . . . . . . . . . . . . 89
17.16. Qualification of Plan . . . . . . . . . . . . . . . . . . 89
17.17. Deductibility of Contributions. . . . . . . . . . . . . . 90
SECTION 18. TOP HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . 91
18.1. Top Heavy Plan. . . . . . . . . . . . . . . . . . . . . . 91
18.2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 91
18.3. Compensation. . . . . . . . . . . . . . . . . . . . . . . 97
18.4. Minimum Contribution. . . . . . . . . . . . . . . . . . . 98
18.5. Limitations on Contributions. . . . . . . . . . . . . . . 99
18.6. Other Plans . . . . . . . . . . . . . . . . . . . . . . . 99
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 1. PURPOSE
The Ogden Food Service Corporation, a subsidiary of
Ogden Services Corporation, formerly known as Ogden Allied Services
Corporation adopted the Ogden Food Service Corporation Saving and Security Plan
effective as of January 1, 1982. Effective August 1, 1986, such Plan was
amended, restated in its entirety and renamed the Ogden Allied Services
Saving and Security Plan. As a result of an employee benefit plan
reorganization, effective January 1, 1989, (i) the Ogden Allied Services
Saving and Security Plan was amended, restated in its entirety and renamed
the Ogden Allied Services Profit Sharing Plan (the "Plan"); (ii) the Plan
was merged with (a) Ogden Corporation Profit Sharing Plan, (b) Ogden Allied
Maintenance Retirement Savings Plan, (c) Ogden Allied Maintenance Security
Fund and (d) Ogden Allied Facility Management Corporation of Iowa Savings
and Security Plan (collectively, the "Prior Plans"); and (iii) the related
trusts maintained as part of each of the Prior Plans was merged with the
Ogden Allied Services Profit Sharing Plan Trust (the "Trust"). As a result
of the merger, each Sponsor of the Prior Plans became a Participating
Company of the Plan and the Trust. Effective January 1, 1991, the Plan was
again amended and restated in its entirety and renamed the Ogden Profit
Sharing Plan and effective January 1, 1992, the Atlantic Design Profit
sharing Plan was merged with the Ogden Profit Sharing Plan.
The purpose of the Plan is to provide eligible employees with a
convenient way to save on a regular and long-term basis and by providing
such employees with a beneficial interest in the profits of the business,
all as set forth herein and in the Trust Agreement adopted as part of the
Plan.
The Plan, as hereby amended and restated, and the Trust are
intended to qualify as a plan and trust which meet the requirements of
Section 401(a), 401(k) and 501(a), respectively, of the Internal Revenue
Code of 1986, as now in effect or here-after amended, or any other
applicable provisions of law including, without limitation, the Employee
Retirement Income Security Act of 1974.
If a person retired or otherwise terminated employment prior to
January 1, 1991 and is not reemployed by a Participating Company thereafter,
the rights under the Plan (or the Prior Plans) in respect of him, to
retirement or other benefits under the Plan (or the Prior Plans) shall be
governed by the applicable provisions of the Plan (or the Prior Plans) as
in effect prior to January 1, 1991.
SECTION 2. DEFINITIONS
When used herein the following terms shall have the following
meanings:
2.1. "Account" means the account established and maintained in
respect of a Participant including such Participant's Company Matched
Account, Company Discretionary Account, pursuant to Sections 5.1 and 5.2,
401(k) Matched Account and 401(k) Unmatched Account pursuant to Section
4.1, and other accounts established pursuant to Appendix A.
2.2. "Act" means the Employee Retirement Income Security Act of
1974, as now in effect or as hereafter amended.
2.3. "Administrative Committee" means the Administrative
Committee provided for in Section 14.
2.4. "Affiliate" means any corporation which is included in a
controlled group of corporations (within the meaning of Section 414(b) of
the Code), which includes the Company, any trade or business (whether or
not incorporated) under the common control of the Company (within the
meaning of Section 414(c) of the Code), any organization included in the
same affiliated service group (within the meaning of Section 414(m) of the
Code), as the Company, and any other entity affiliated with the Company
pursuant to the Regulations under Section 414(o) of the Code, except that
for purposes of applying the provisions of Sections 12 and 18 with respect
to the limitation on contributions, Section 415(h) of the Code shall apply.
2.5. "Base Compensation" means Compensation paid to a
Participant that does not exceed the annual Social Security taxable wage base.
2.6. "Base Contribution Percentage" means the contribution
percentage as calculated in Section 6.2 which is applied to the Base
Compensation.
2.7. "Beneficiary" means the beneficiary or beneficiaries
designated by a Participant pursuant to Section 13 to receive the amount,
if any, payable under the Plan upon the death of such Participant.
2.8. "Board of Directors" means the Board of Directors of the
Company.
2.9. "Break in Service" means Plan Year during which an
individual has not completed more than 500 Hours of Service, as determined
by the Administrative Committee in accordance with the Regulations. Solely
for purposes of determining whether a Break in Service has occurred, an
individual shall be credited with the Hours of Service which such indi-
vidual would have completed but for a maternity or paternity absence, as
determined by the Administrative Committee in accordance with this Section
2.7, the Code and the Regulations; provided, however, that the total Hours
of Service so credited shall not exceed the 501 Hours of Service, and that
the individual shall timely provide the Administrative Committee with such
information as it shall require. Hours of Service credited for a maternity
or paternity absence shall be credited entirely (i) in the Plan Year in
which the absence began if such Hours of Service are necessary to prevent a
Break in Service in such Plan Year or (ii) in the following Plan Year. For
purposes of this Section 2.7, maternity or paternity absence shall mean an
absence from work by reason of the individual's pregnancy, the birth of the
individual's child or the placement of a child with the individual in
connection with the adoption of the child by such individual, or for
purposes of caring for a child for the period immediately following such
birth or placement.
2.10. "Code" means the Internal Revenue Code of 1986, as
now in effect or as hereafter amended. All citations to sections of the
Code are to such sections as they may from time to time be amended or
renumbered.
2.11. "Committee" means the Administrative Committee and
the Investment Committee. For purposes of the Act, the members of the
Administrative Committee and the Investment Committee shall be named
fiduciaries (with respect to the matters for which they are hereby made
responsible) of the Plan, and the Administrative Committee shall be the
administrator of the Plan.
2.12. "Company" means Ogden Services Corporation or any
successor to the Company.
2.13. "Compensation" means the total salary and other
compensation paid during a Plan Year to an Employee from a Participating
Company, including any amount which such Employee elects to have the
Company contribute to a qualified plan under Section 401(k) of the Code,
any benefit payments under a plan under Section 125 of the Code, but
excluding imputed income, other non-cash compensation, lump sum severance
pay, special discretionary cash payments, any contribution to the Plan or
any other pension plan, profit-sharing plan or qualified or non-qualified
benefit plan maintained by a Participating Company, any benefit payment
under the Plan or any other such plan, reimbursed expense, or any
withholding tax (federal, state or local) remitted by a Participating
Company on behalf of an Employee in respect of imputed income arising out
of group insurance coverage of such Employee. Notwithstanding the foregoing,
for Plan Years beginning after 1988, Compensation shall be limited to
$200,000 for all Plan purposes, as adjusted for cost of living to the extent
permitted by the Code and the Regulations (the "annual compensation limit").
If less than a full Plan Year of Compensation is taken into account, then the
annual compensation limit shall be multiplied by the ratio obtained by dividing
the number of full months in the period by 12. In determining the Compensation
of a Participant for purposes of the annual compensation limit, the rules of
Section 414(q)(6) shall apply, except that in applying such limitation, Family
Member shall include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before the close of
the Plan Year. If, as a result of the application of such rules the adjusted
$200,000 limitation is exceeded, then the limitation shall be prorated among
the affected individuals in proportion to each such individual's Compensation
as determined under this Section 2.11 prior to the application of annual
compensation limit.
2.14. "Contributions" means those contributions made in respect
of a Participant including Company Matched Contributions and Company
Discretionary Contributions made by a Participating Company pursuant to Section
5.1 and 5.2, Pre-tax Contributions made by a Participant on a pre-tax basis
pursuant to Section 4.1, and any other contribution made in accordance with
Appendix A.
2.15. "Disability" means an Employee's physical or mental
incapacity to perform his assigned duties with the Employer, such that he
is eligible to receive either benefits under the long-term disability plan
of the Employer or any Affiliate, or disability benefits under the Social
Security Act and such incapacity is expected to last for more than 12 months
as determined in a uniform manner by the Administrative Committee after
reviewing any medical evidence which the Administrative Committee considers
necessary, including the reports of any medical examinations required by the
Administrative Committee.
2.16. "Early Retirement Date" means the first day of the
month coincident with or next following the Participant's attainment of age
55 and 10 Years of Service.
2.17. "Effective Date" means January 1, 1991.
2.18. "Employee"; "Eligible Employee":
(a) Employee means an individual in the employ of
the Employer who is employed on an hourly or salaried basis.
(b) Eligible Employee means any Employee other than
those who are included in a unit of Employees covered by a collective
bargaining agreement and certain hourly employees who are in the employ of
units that have been designated by the Company as being ineligible to
participate in the Plan that does not provide for their participation in
the Plan.
2.19. "Employer" means the Company and each other
Participating Company, or any of them.
2.20. "Excess Compensation" means Compensation paid that
exceeds the annual Social Security taxable wage base.
2.21. "Excess Contribution Percentage" means Contribution
percentage as calculated in Section 6.2 and which is applied to the Excess
Compensation.
2.22. "Family Member" means a spouse, lineal ascendants
and descendants of an Employee or former Employee and the spouses of such
lineal ascendants and descendants.
2.23. "Hours of Service" means the hours for which an
Employee shall receive credit for purposes of the Plan, as follows:
(a) One hour for each hour for which he is directly
or indirectly paid, or entitled to payment, by the Company or an Affiliate
for the performance of duties during the applicable computation period for
which his Hours of Service are being determined under the Plan. (The hours
shall be credited to the Employee for the computation period or periods in
which the duties were performed, and shall include hours for which back pay
has been either awarded or agreed to by the Company or an Affiliate as
provided by regulations under the Act, with no duplication of credit for
hours.)
(b) One hour for each hour, in addition to the
hours in paragraph (a) above, for which he is directly or indirectly paid,
or entitled to payment, by the Company or an Affiliate, for reasons other
than for the performance of duties during the applicable computation
periods, such as paid vacation, paid holiday, paid sickness, and similar
paid periods of nonworking time (excluding time when such Employee is
receiving long term disability benefits). These hours shall be counted in
the computation period or periods in which the hours for which payment is
made occur.
(c) One hour for each hour of the normally
scheduled work hours for each day during any period which he is on leave of
absence from work with the Company or an Affiliate for military service
with the armed forces of the United States, but not to exceed the period
required under the law pertaining to veterans' reemployment rights;
provided that if he fails to report for work at the end of such leave
during which he has reemployment rights he shall not receive credit for
hours on such leave.
(d) The number of normally scheduled work hours for
each day of authorized leave of absence granted by the Company or an
Affiliate in accordance with reasonable policies established therefor for
which he is not compensated. When no time records are available, the
Employee shall be given credit for Hours of Service based upon the number
of normally scheduled work hours for each day he is on the Company's or an
Affiliate's payroll, as determined in accordance with reasonable standards
and policies from time to time adopted by the Administrative Committee
under Section 2530.200b-2(b) and (c) of the Labor Department Regulations,
which are incorporated herein by this reference thereto.
2.24. "Investment Committee" means the Investment Committee
provided for in Section 14.2.
2.25. "Investment Funds" means the funds of the Trust Fund,
or any additional funds which the Investment Committee may establish from
time to time by written notice to the Trustee in accordance with Section
7.2.
2.26. "IRS" means the United States Internal Revenue
Service.
2.27. "Labor Department" means the United States Department
of Labor.
2.28. "Normal Retirement Age" means the Participant's 65th
birthday.
2.29. "Normal Retirement Date" means the first day of the
month coincident with or next following the Participant's 65th birthday.
2.30. "Participant" means any Employee who begins to
participate in the Plan as provided in Section 3, and whose participation
is not terminated; provided, however, that an Employee who was not a
Participant in a Prior Plan or who was not an Employee on January 1, 1991
shall not be eligible to become a Participant in the Plan until the
completion of at least one Year of Service with the Company or Affiliate
and had attained age 21.
2.31. "Participating Company" means the Company or any
subsidiary of, or other corporation or entity affiliated or associated
with, the Company, the Board of Directors or equivalent governing body of
which shall adopt the Plan and the Trust by appropriate action with the
written consent of the Board of Directors. By its adoption of the Plan, a
Participating Company shall be deemed to appoint the Company, each of the
Committees and the Trustee its exclusive agent to exercise on its behalf
all of the power and authority conferred by the Plan or by the Trust upon
the Company. The authority of the Company, the Committees and the Trustee
to act as such agent shall continue until the Plan is terminated as to the
Participating Company and the relevant Trust Fund assets have been
distributed by the Trustee as provided in Section 16 of the Plan.
2.32. "Pre Tax Contributions" means 401(k) matched
contributions and 401(k) unmatched contributions as described in Section 4.1.
2.33. "Pre Tax Contribution Accounts" means the 401(k)
matched account and the 401(k) unmatched account as described in Section 4.1.
2.34. "Plan" means this Ogden Profit Sharing Plan, as the
same may be amended from time to time.
2.35. "Plan Year" means the calendar year.
2.36. "Prior Plan" means the Ogden Corporation Profit
Sharing Plan, Ogden Allied Maintenance Retirement Savings Plan, Ogden
Allied Maintenance Security Fund, Ogden Allied Facility Management
Corporation of Iowa Savings and Security Plan, and effective January 1, 1992,
Atlantic Design Profit Sharing Plan.
2.37. "Regulations" means the applicable regulations issued
under the Code, the Act or other applicable law, by the IRS, the Labor
Department or any other governmental authority and any proposed or
temporary regulations or rules promulgated by such authorities pending the
issuance of such regulations.
2.38. "Surviving Spouse" means the survivor of a deceased
former Participant to whom such deceased former Participant had been
legally married (as determined by the Administrative Committee) at the time
of the former Participant's death or at the time benefit payments commence,
whichever is earlier.
2.39. "Taxable Year" means the calendar year.
2.40. "Trust" or "Trust Fund" means the trust established
by the Company as a part of the Plan.
2.41. "Trustee" means the trustee or trustees of the Trust
who shall be appointed, and may be removed, with or without cause, by the
Board of Directors.
2.42. "Valuation Date" means the last day of each calendar
month and such other date or dates specified by the Administrative Committee.
2.43. "Vesting Service" means Years of Vesting Service
counted from each anniversary beginning on an Eligible Employee's date of
hire to termination date.
2.44. "Year of Service" means any Plan Year during which an
individual completed at least 1,000 Hours of Service, as determined by the
Administrative Committee in accordance with the Regulations. In addition,
if an Employee does not complete 1,000 Hours of Service during the Plan
Year in which his employment commenced but does complete at least 1,000
Hours of Service during the 12 consecutive month period beginning on the
date his employment commenced, as determined by the Administrative Commit-
tee, then, for purposes of determining whether such Employee was partici-
pating in the Plan, as provided in Section 3, he shall be credited with a
Year of Service for such 12 consecutive month period.
2.45. "Years of Vesting Service" means a twelve consecutive
month period commencing on an Eligible Employee's date of hire, and each
anniversary thereof, in which such Eligible Employee completes at least
1,000 Hours of Service.
SECTION 3. PARTICIPATION
3.1. DATE OF PARTICIPATION. Each person who (i) shall be an
Eligible Employee of the Company on the Effective Date, or (ii) shall have
been a Participant under a Prior Plan on December 31, 1990 shall continue
to be a Participant in the Plan on the Effective Date. In addition, each
other Eligible Employee who shall have attained age 21 shall become a
Participant in the Plan on the anniversary date of his date of employment;
provided, that such Participant has completed at least 1,000 Hours of
Service during a 12-month period beginning on his first day of employment
with a Participating Company or an Affiliate.
3.2. PARTICIPATION AND ADJUSTMENTS. The Administrative
Committee shall take all necessary or appropriate action to ensure that
each Employee eligible to become a Participant under this Section 3 becomes
a Participant and, if it is determined that such an Employee has for any
reason not been made a Participant in the Plan, such Employee shall
retroactively become a Participant. The Company Discretionary Account, as
described in Section 5.2, of an Employee who retroactively becomes a
Participant or for whom an administrative adjustment is made shall, upon
becoming a Participant or upon such adjustment, consist solely of the
aggregate amount of contributions and earnings which would have been
allocated to his Account had he become a Participant when first eligible.
3.3. DURATION. The participation of a Participant shall end
when no further benefits are payable to him on account of his participation
in the Plan.
3.4. REEMPLOYMENT. (a) If a reemployed Employee was a
Participant at the time of his termination of employment, he shall
immediately resume active participation in the Plan upon his reemployment
and credit for his Hours of Service and Years of Service prior to his
termination shall be reinstated.
(b) If a reemployed Employee was not a Participant at the
time he was terminated, his Hours of Service shall be immediately
reinstated and he shall become a Participant as provided in Section 3.1.
(c) If a reemployed Employee was not a Participant at the
time he was terminated, and such Employee has incurred a Break in Service,
his Hours of Service will not be credited and such Employee shall be
treated as a new Employee.
SECTION 4. SAVINGS FEATURES
4.1. PRE-TAX CONTRIBUTIONS. For each Plan Year, a Participant
may elect, subject to such terms and conditions as issued by the
Administrative Committee, to have his Participating Company reduce his
Compensation and contribute such amount (which shall be from 1% to 15% of
his Compensation) on his behalf to the Plan as a Pre-tax Contribution.
However, in no event may a Participant have a Pre-tax Contribution of more
than $7,627, adjusted, for Plan Years beginning after December 31, 1989,
for increases in the cost of living in accordance with Section 402(g)(5) of
the Code, contributed to the Plan on his behalf in a Plan Year. The
Company shall transfer all Pre-tax Contributions to the Trustee as soon as
practical and shall credit the first 3% of contributions to the 401(k)
Matched Account and all other Pre-tax Contributions in excess of 3% to the
401(k) Unmatched Account.
All Pre-tax contributions under this Section shall be
made by payroll deduction.
4.2. DISTRIBUTION OF EXCESS PRE-TAX CONTRIBUTIONS.
Notwithstanding any other provision of the Plan, in the event that the
aggregate amount of Pre-tax Contributions exceeds the limitation set forth
in Section 4.1, herein the amount of such excess, increased by any income
and decreased by any loss allocable thereto shall be distributed to a
Participant making such Pre-tax Contributions not later than April 15 of
the calendar year following the calendar year in which the excess occurred.
If a Participant also participates, in any calendar year, in any other
plans subject to the limitations set forth in Section 402(g) of the Code
and has made excess deferrals under the Plan when combined with the other
plans subject to such limits, to the extent the Participant, in writing
submitted to the Administrative Committee no later than the March 1 of the
calendar year following the calendar year for which the Pre-tax
Contributions were made, designates any Pre-tax Contributions under the
Plan as excess deferrals, the amount of such designated excess, increased
by any income and decreased by any losses attributable thereto, shall be
refunded to the Participant no later than April 15 of the calendar year
following the calendar year for which the Pre-tax Contributions were made.
The income or loss allocable to any amount distributed pursuant to this
Section 4.2 shall include the income or loss for the period between the end
of the Plan Year and the date of such distribution.
4.3. ELECTION TO INSTITUTE, CHANGE, OR RESUME CONTRIBUTIONS.
Subject to the provisions of Section 9.2, a Participant may elect to begin,
change, resume, or suspend Pre-tax Contributions as of the first day of any
month by filing a prescribed form with the Administrative Committee at
least 15 days prior to such date.
4.4. LIMITATION ON PRE-TAX CONTRIBUTIONS. Notwithstanding the
Pre-tax Contributions made pursuant to Sections 4.1 and 4.2 above, the
Actual Deferral Percentage of the Highly Compensated Employees shall not
exceed the greater of (i) or (ii) as follows:
(i) 125% of the Actual Deferral Percentage for Non-Highly
Compensated Employees; or
(ii) 200% of the Actual Deferral Percentage for Non-Highly
Compensated Employees; provided, however, that the
Actual Deferral Percentage of the Highly Compensated
Employees may not exceed that of the Non-Highly
Compensated Employees by more than two percentage
points.
Without the consent of a Participant, the Administrative
Committee may reduce or suspend the Pre-tax Contribution rate of a
Highly Compensated Employee, return the respective portions of excess Pre-tax
Contributions increased by any income and decreased by any losses of Highly
Compensated Employees to such Highly Compensated Employees in accordance
with Section 4.6.
4.5. DEFINITIONS.
(a) "Actual Deferral Percentage" for a specified group of
Eligible Employees for a Plan Year shall mean the average of the ratios
calculated separately for each Eligible Employee (the "actual deferral
ratio") in such group of:
(i) the total amount of Pre-tax Contributions
credited to his 401(k) Matched and 401(k)
Unmatched Accounts for such Plan Year; to
(ii) the amount of the Participant's compensation
(as defined in Section 414(s) of the Code) for
the Plan Year.
A Participant's Pre-tax Contribution will be taken into account under the
Actual Deferral Percentage test, as described herein, for a Plan Year only
if such contribution (i) relates to Compensation that has been received by
the Participant during the Plan Year. A Participant's Pre-tax Contribution
will be taken into account under the Actual Deferral Percentage test for a
Plan Year only if it is allocated to the Participant's Pre-tax Contribution
Account as of a date within such Plan Year. A Pre-tax Contribution will
be considered allocated within a Plan Year if such allocation is not
contingent on participation or the performance of service after such date
and the Pre-tax Contribution is actually paid to the Trust no later than 12
months after the Plan Year to which such contribution relates. An Eligible
Employee's actual deferral ratio shall be zero if no Pre-tax Contribution
is made on his behalf for such Plan Year. If the Plan and one or more
other plans which include cash or deferred arrangements are considered as
one plan for purposes of Sections 401(a)(4) and 410(b) of the Code, the
cash or deferred arrangements included in such plans shall be treated as
one arrangement for purposes of this Section 4.5 and Section 4.6. The
actual deferral ratio taken into account under this Section 4.5 for any
Highly Compensated Employee who participates in two or more Section 401(k)
of the Code cash or deferred arrangements of the Employer shall be determined
as if all such Section 401(k) cash or deferred arrangements were treated as one
Section 401(k) cash or deferred arrangement. For purposes of determining the
actual deferral ratio of a Participant who is a Highly Compensated Employee
subject to the family aggregation rules of Section 414(q)(6) of the Code
because he is either a five-percent owner or one of the 10 most Highly
Compensated Employees as described in Section 414(q)(6), the Pre-tax
Contributions and compensation (within the meaning of Section 414(s) of the
Code) of such Highly Compensated Employee shall include the Pre-tax
Contributions and compensation of his Family Members, and such Family Members
shall not be considered as separate Employees in determining the actual
the actual deferral ratio.
(b) "Highly Compensated Employee" means an Eligible
Employee or Family Member who, during the relevant period is treated as a
Highly Compensated Employee. A Highly Compensated Employee includes any
Employee who performs service for the Employer during the determination
year who, (i) received compensation (within the meaning of Section 414(s)
of the Code) from the Employer in excess of $75,000 (as adjusted pursuant
to Section 415(d) of the Code); (ii) received compensation within the
meaning of Section 414(s) of the Code from the Employer in excess of
$50,000 (as adjusted pursuant to Section 415(d) of the Code) and was a
member of the top-paid group for such year; or (iii) was an officer of the
Employer or an Affiliate and received compensation (within the meaning of
Section 414(s) of the Code) during such year that is greater than 50% of
the dollar limitation in effect under Section 415(b)(1)(A) of the Code.
The term Highly Compensated Employee also includes (x) Employees who are/is
one of the 100 Employees who received the most compensation (within the
meaning of Section 414(s) of the Code) from the Employer or an Affiliate
during the determination year, (y) Employees who are five percent owners at
any time during the determination year, and (z) Employees who have
separated from service or are deemed to have separated from service prior
to the determination year, who perform no service for the Employer or an
Affiliate during the determination year and were Highly Compensated
Employees for either the separation year or any determination year ending
on or after such Employee's 55th birthday. For purposes of (ii) above, the
top-paid group consists of the top 20% of Employees ranked on the basis of
compensation (within the meaning of Section 414(s) of the Code) received
during the year (excluding Employees who are described in Section 414(q)(8)
of the Code). For purposes of (iii) above, the number of officers shall
not exceed 50, or, if less, the greater of three Employees or 10% of the
Employees (excluding Employees who are described in Section 414(q)(8) of
the Code.) If no officer has satisfied the compensation requirement of
(iii) above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly Compensated
Employee. For purposes of this definition, the "determination year" and
the "look-back year" shall be the Plan Year or the calendar year ending
with or within the applicable determination year (or, in the case of a
determination year that is shorter than 12 months, the calendar year ending
with or within the 12-month period ending with the end of the applicable
determination year). If an Employee is, during a determination year or
look-back year, a Family Member of either a five percent owner who is an
active or former Employee or a Highly Compensated Employee who is one of
the 10 most Highly Compensated Employees ranked on the basis of
compensation (within the meaning of Section 414(s) of the Code) paid by the
Employer or Affiliate during such year, then the Family Member and the five
percent owner or top 10 Highly Compensated Employee shall be aggregated.
In such case, the Family Member and five percent owner of top 10 Highly
Compensated Employee shall be treated as a single Employee receiving
compensation (within the meaning of Section 414(s) of the Code) compen-
sation and contributions or benefits, as applicable, equal to the sum of
such compensation and contributions or benefits, as applicable, of
the Family Member and five percent owner or top 10 Highly Compensated
Employee. The determination of who is a Highly Compensated Employee,
including the determination of the number and identity of Employees in the
top-paid group, the top 100 Employees, the number of Employees treated as
officers, and the Compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the Regulations thereunder.
(c) "Non-Highly Compensated Employee" means any Eligible
Employee who is neither a Highly Compensated Employee nor a Family Member
of a Highly Compensated Employee.
4.6. REFUND OF EXCESS CONTRIBUTIONS. If the Administrative
Committee is required, in order to comply with the provisions of Section
4.4 and the Code, it shall refund excess contributions for a Plan Year,
increased by any income and decreased by any losses attributable thereto
through the date of such refund. For purposes of this Section 4.6, "excess
contributions" means, with respect to any Plan Year, the excess of the
aggregate amount of Pre-tax Contributions (and any earnings and losses
allocable thereto) made to the 401(k) Matched and 401(k) Unmatched Accounts
of Highly Compensated Employees for such Plan Year, over the maximum amount
of such contributions that could be made to the Pre-tax Contribution
Accounts of such Participants without violating the requirements of Section
4.4, determined for each such Highly Compensated Employee by reducing Pre-
tax Contributions made on behalf of Highly Compensated Employees as follows:
First, the actual deferral ratio of the Highly Compensated Employee with the
highest actual deferral ratio is reduced to the extent necessary to satisfy
the Actual Deferral Percentage test or cause such ratio to equal the actual
referral ratio of the Highly Compensated Employee with the next highest
ratio. Second, this process shall be repeated until the Actual Deferral
Percentage test is satisfied. The amount of excess contributions of a
Highly Compensated Employee is then equal to the total of the Pre-tax
Contributions taken into account for the Actual Deferral Percentage test
less the product of the Highly Compensated Employee's reduced actual
deferral ratio, if applicable, as determined pursuant to this Section 4.6
and his compensation (within the meaning of Section 414(s) of the Code).
This procedure shall be known as the leveling method, as described in IRS
Regulation Section 1.401(k)-1(f)(2). In the case of a Highly Compensated
Employee whose actual deferral ratio is determined under the family
aggregation rules, the amount of excess contributions, as defined in this
Section 4.6 shall be determined by reducing the actual deferral ratio in
accordance with the leveling method described in this Section 4.6 and the
excess contributions are allocated among the Family Members in proportion
to the contributions of each Family Member that have been combined. The
distribution of such excess contributions shall be made to Highly
Compensated Employees to the extent practicable before the 15th day of the
third month immediately following the Plan Year for which such excess
contributions were made, but in no event later than the end of the Plan
Year following such Plan Year or, in the case of the termination of the
Plan in accordance with Section 16, no later than the end of the 12-month
period immediately following the date of such termination.
Notwithstanding the foregoing provisions of this Section 4.6,
the amount of excess contributions to be distributed pursuant to Section
4.2 with respect to a Participant for a Plan Year shall be reduced by any
excess deferrals distributed to such Participant for such Plan Year
pursuant to Section 4.1. In no case may the amount of excess contributions
to be refunded with respect to any Highly Compensated Employee exceed the
amount of Pre-tax Contributions made on behalf of the Highly Compensated
Employee for the Plan Year.
SECTION 5. COMPANY CONTRIBUTIONS
5.1. COMPANY MATCHED CONTRIBUTIONS. A Participating Company
will contribute $1.00 for each $1.00 of 401(k) Matched Contributions of
each Participant up to 3% of Compensation.
5.2. COMPANY DISCRETIONARY CONTRIBUTIONS. For each Taxable
Year, a Participating Company may on a discretionary basis contribute to
the Plan a fixed dollar amount or a percentage of the total Compensation
earned by such Participating Company to a Participant who participated in
the Plan for such Plan Year; provided however, that an Employee who was not
a Participant in a Prior Plan or who was not an Employee of the Company on
January 1, 1991 shall not be entitled to receive a Company contribution
until the completion of at least one Year of Service with a Participating
Company. Such amount or percentage, if any, shall be determined by
resolution of the Board of Directors of such Participating Company
following the end of each Plan Year. The Company shall deliver a copy of
such resolution fixing the annual contributions of the Participating
Company duly certified by the Secretary or Assistant Secretary of the
Company to the Trustee as soon as practical following the end of such Plan
Year. In no event shall any contribution by a Participating Company exceed
the amount deductible by it for federal income tax purposes. On or about
the date of determination of the contribution, the Administrative Committee
shall be advised of the amount of such payment upon which its allocation is
to be calculated.
5.3. TIME OF PAYMENT OF COMPANY CONTRIBUTIONS. A Participating
Company may make payment of its contribution, if any, for any Taxable Year
on any date or dates it elects, provided that the total amount of its
contribution for any Taxable Year shall be paid in full on or before such
date as the Federal income tax laws applicable to such payment require the
payment to be made in order to permit deduction of such payment for such
Taxable Year.
5.4. FORM OF PAYMENT OF COMPANY CONTRIBUTIONS. The
Participating Company's contribution for a Taxable Year shall be paid
directly by the Company to the Trustee in cash or, at the option of the
Participating Company, in whole or in part in other property acceptable to
the Trustee.
5.5. MAINTENANCE OF SEPARATE ACCOUNTS. The Administrative
Committee shall establish and maintain or cause to be established and
maintained in respect of each Participant an Account showing his interest
under the Plan and in the Trust Fund, including, if applicable, a Company
Contribution Account, and Pre-tax Contribution Account, pursuant to
Sections 4 and 5 and other Accounts (set forth in Appendix A) and all
relevant data pertaining thereto. Each Participant shall be furnished with
a written statement of his Account at least annually and upon any
distribution to him. In maintaining such Accounts under the Plan, the
Administrative Committee can conclusively rely on the valuations of the
Trust Fund in accordance with the Plan and the terms of the Trust.
5.6. MAINTENANCE OF ACCOUNTS SHALL NOT VEST ANY RIGHT IN
ASSETS. The establishment and maintenance of, or allocations and credits
to, the Account of any Participant shall not vest in any Participant any
right, title or interest in and to any Plan assets or benefits except at
the time or times and upon the terms and conditions and to the extent
expressly set forth in the Plan and in accordance with the terms of the
Trust.
5.7. LIMITATION ON COMPANY MATCHED CONTRIBUTIONS.
(a) Notwithstanding any other provision of this Section
5, the Actual Contribution Percentage for the Plan Year for Highly
Compensated Employees, as defined in Section 4.5(b), shall not exceed the
greater of the following Actual Contribution Percentage tests: (A) the
Actual Contribution Percentage for such Plan Year of those Eligible
Employees who are not Highly Compensated Employees multiplied by 1.25, or
(B) the Actual Contribution Percentage for the Plan Year of those Eligible
Employees who are not Highly Compensated Employees multiplied by 2.0;
provided that the Actual Contribution Percentage for Highly Compensated
Employees does not exceed the Actual Contribution Percentage for such other
Eligible Employees by more than two percentage points. For purposes of
this Section 5, the "Actual Contribution Percentage" for a Plan Year means,
for each specified group of Eligible Employees, the average of the ratios
(calculated separately for each Eligible Employee in such group) (the
"actual contribution ratio") of (A) the sum of (I) Company Matched
Contributions described in Section 5.1 made on account of Pre-tax
Contributions made during the Plan Year and allocated to the Participant's
Company Matched Account during the Plan Year and paid to the Trust within
12 months after the Plan Year for which such contributions are made (except
for Company Matched Contributions and Company Discretionary Contributions
which are nonforfeitable when made and which are subject to the distribu-
tion requirements under Section 1.401(k)-1(b) of the IRS Regulations, and
are used to meet the Actual Deferral Percentage test under Section 4.4) and
(II) if the Administrative Committee so elects in accordance with and to
the extend permitted by IRS Regulations, Pre-tax Contributions (including
excess contributions under Section 4.6 if the contribution would have been
received in cash by the Participant had the Participant not elected to
defer such amounts under Section 4.1) credited to his Pre-tax Contribution
Account, to (B) the amount of the Partici-pant's compensation (as defined
in Section 414(s) of the Code) for the Plan Year. An Eligible Employee's
Actual Contribution Percentage shall be zero if no contributions are made
on his behalf for such Plan Year. If the Plan and one or more other plans
of the Employer to which Pre-Tax Contributions, Company Matched
Contributions, or Company Discretionary Contributions are made are treated
as one plan for purposes of Sections 401(a)(4) and 410(b) of the Code, all
Pre-Tax Contributions, Company Matched Contributions, or Company
Discretionary Contributions of such plans shall be treated as being made
under a single plan for purposes of this Section 5.7. The actual
contribution ratio taken into account under this Section 5.7 for any Highly
Compensated Employee who is eligible to receive Company Matched Contri-
butions or Company Discretionary Contributions under two or more plans
described in Section 401(a) of the Code or arrangements described in
Section 401(k) of the Code that are maintained by the Employer shall be
determined as if all such contributions were made under a single plan. The
determination and treatment of the actual contribution ratio of any
Participant shall satisfy such other requirements as may be required by the
IRS Regulations. For purposes of determining the actual contribution ratio
of a Participant who is a Highly Compensated Employee subject to the family
aggregation rules of Section 414(q)(6) of the Code because such Employee is
either a five percent owner or one of the 10 most Highly Compensated
Employees as described in Section 414(q)(6) of the Code, the Company
Matched Contributions and Company Discretionary Contributions and
compensation (within the meaning of Section 414(s) of the Code) of such
Participant shall include the Company Matched Contributions and Company
Discretionary Contributions and compensation (within the meaning of Section
414(s) of the Code) of Family Members and such Family Members shall not be
considered as separate Eligible Employees in determining the Actual
Contribution Percentage.
(b) The Administrative Committee shall determine as of
the end of the Plan Year, and at such time or times in its discretion,
whether one of the Actual Contribution Percentage tests specified in
Section 5.7 is satisfied for such Plan Year. This determination shall be
made after first determining the treatment of excess deferrals within the
meaning of Section 402(g) of the Code under Section 4.2 and then
determining the treatment of excess contributions under Section 4.6. In
the event that neither of the Actual Contribution Percentage tests is
satisfied, the Administrative Committee shall refund or forfeit the excess
aggregate contributions in the manner described in Section 5.7. For
purposes of this Section 5.7, "excess aggregate contributions" means, with
respect to any Plan Year and with respect to any participant, the excess of
the aggregate amount of contributions (and any earnings and losses
allocable thereto) made to (A) the Company Contribution Account (except to
the extent used to meet the requirements of Section 4.4), and (B) the Pre-
Tax Contribution Account (to the extent permitted by the IRS Regulations
and if the Administrative Committee elects to take into account Pre-tax
Contributions when calculating the Actual Contribution Percentage under
Section 5.7(a)) of Highly Compensated Participants for such Plan Year, over
the maximum amount of such contributions that could be made to the Company
Contribution Account and Pre-tax Contribution Account of such Participants
without violating the requirements of Section 5.7((a). The amount of each
Highly Compensated Participant's excess aggregate contributions shall be
determined as follows: First, the actual contribution ratio of the Highly
Compensated Employee with the highest actual contribution ratio is reduced
to the extent necessary to satisfy the Actual Contribution Percentage test
under Section 5.7 (a) or cause such ratio to equal the actual contribution
ratio of the Highly Compensated Employee with the next highest ratio.
Second, the process is repeated until the Actual Contribution Percentage
test is satisfied. The amount of excess aggregate contributions for a
Highly Compensated Employee is then equal to the total of the contributions
taken into account for the Actual Contribution Percentage test minus the
product of the Employee's reduced actual contribution ratio as determined
above and the Employee's compensation (as defined in Section 414(s) of the
Code). This process shall be known as the levelling method, as described
in IRS Regulation Section 1.401(m)-1(e)(2). In the case of a Highly
Compensated Employee whose actual contribution ratio is determined under
family aggregation rules, the amount of excess aggregate contributions, as
defined in this Section 5.7(b), shall be determined by reducing the actual
contribution ratio in accordance with the leveling method described in this
Section 5.7(b) and the excess aggregate contributions are allocated among
the Family Members in proportion to the contributions of each Family Member
that have been combined.
(c) If the Administrative Committee is required to refund
or forfeit excess aggregate contributions for any Highly Compensated
Participant for a Plan Year in order to satisfy the requirements of Section
5.7(a), then the refund or forfeiture of such excess aggregate
contributions shall be made with respect to such Highly Compensated
Participants to the extent practicable before the 15th day of the third
month immediately following the Plan Year for which such excess aggregate
contributions were made, but in no event later than the end of the Plan
Year following such Plan Year or, in the case of the termination of the
Plan in accordance with Section 16, no later than the end of the 12-month
period immediately following the date of such termination. For each such
Participant, amounts so refunded or forfeited shall be made in the
following order of priority: (A) to the extent permitted by law, by
forfeiting nonvested amounts contributed to the Company Contribution Ac-
count, and earnings thereon; (B) by distributing vested amounts contributed
to the Company Contribution Account, and earnings thereon, of the Highly
Compensated Participant; and (C) by distributing amounts contributed to the
Pre-tax Contribution Account (to the extent such amounts are included in
the Actual Contribution Percentage), including amounts contributed to the
Company Contribution Account, and earnings thereon, to the extent such
amounts were based on Pre-tax Contributions so distributed, and earnings
thereon. However, in no case may the amount of excess aggregate
contributions refunded or forfeited with respect to any Highly Compensated
Employee exceed the amount of Company Matched Contributions under Section
5.1 made on behalf of the Highly Compensated Employee for the Plan Year.
All such distributions and forfeitures shall be made to, or shall be with
respect to, Highly Compensated Participants on the basis of the respective
portions of such amounts attributable to each such Highly Compensated
Participant as determined under Section 5.7(b). The distribution of any
excess aggregate contributions shall include the gains and losses allocable
thereto for the Plan Year, as well as for the period between the end of the
Plan Year and the date of the distribution. The gain or loss allocable to
excess aggregate contributions is the gain or loss allocable to the
Participant's Company Contribution Account attributable to contributions
under Section 5.1 (and any Pre-tax Contribution included in the Actual
Contribution Percentage test) to the extent not included in the Actual
Deferral Percentage test multiplied by a fraction, the numerator of which
is the excess aggregate contribution for the Participant of the Plan Year
and the denominator is the Participant's Company Contribution Account
attributable to contributions under Section 5.1 (and all amounts treated as
such for purposes of the Actual Contribution Percentage test) at the end of
such Plan Year, without regard to gains and losses attributable to such
Accounts for the Plan Year. The amount of any forfeitures made pursuant to
the Section 5.7 shall be used to reduce Employer Contributions in
accordance with Section 8.4.
SECTION 6. ALLOCATION OF COMPANY CONTRIBUTIONS
6.1. ALLOCATION OF DISCRETIONARY COMPANY CONTRIBUTIONS. The
Administrative Committee shall allocate the contribution of each
Participating Company made in accordance with Section 5.2 among all
Participants who (i) are employed by a Participating Company as of the last
day of the Plan Year and (ii) eligible to receive a Company Contribution
pursuant to Section 5.2. The contribution shall be allocated to the
Company Discretionary Contribution Account of each such eligible Partici-
pant based upon a Social Security integrated formula, in accordance with
Section 6.2.
A contribution shall be allocated with respect to a Participant
whose participation in the Plan terminated during the Plan Year because of:
(i) the attainment of (1) age 65 or (2) age 55 and the
completion of 10 Years of Service.
(ii) his death or
(iii) his Disability,
even if he was not employed by the Employer on the last day of the Plan
Year. If the Plan fails to satisfy Section 401(a)(26) of the Code, Company
Contributions under Section 5.2 shall be allocated among the Eligible
Employees who are Participants for the Plan Year in which such
contributions are made, in the proportion that the Compensation of each
Participant bears to the total Compensation of all Participants for such
Plan Year based upon a Social Security integrated formula.
6.2. DISCRETIONARY COMPANY CONTRIBUTION FORMULA. The
Discretionary Company Contribution will be allocated to the Participant's
Accounts based on their Compensation for the Calendar Year.
The Contribution to a Participant will be the total of his Base
Compensation multiplied by the Base Contribution Percentage plus his Excess
Compensation multiplied by the Excess Contribution Percentage.
The Base Contribution Percentage (X) equals the Company
Discretionary Contribution (A) divided by the sum of the Base Compensation
of all Participants (C) plus 2 times the Excess Compensation of all
Participants (B).
X = A / (C + 2B)
The Excess Contribution Percentage (Y) equals 2 time the Base
Contribution Percentage (X).
Y = 2X
6.3 ALLOCATION OF MATCHING CONTRIBUTION. A Participating
Company's Matching contribution for any Taxable Year under Section 5.1
shall be allocated by the Administrative Committee or its agent, as
promptly as administratively possible after such contribution shall have
been made, to the Matching Contribution Account of each Participant on
whose behalf a Matching Contribution has been made.
SECTION 7. INVESTMENT OF CONTRIBUTIONS
7.1. INVESTMENT BY TRUSTEES. All monies, securities or other
property received as contributions under the Plan shall be delivered to the
Trustee, to be managed, invested, reinvested and distributed for the
exclusive benefit of the Participants and their Beneficiaries in accordance
with the Plan, the Trust and any agreement with an insurance company or
other financial institution constituting a part of the Plan and the Trust.
7.2. INVESTMENT FUNDS.
(a) The Trust shall consist of the Investment Funds, in
each of which each Participant who has any interest therein shall have an
undivided proportionate interest. The Investment Committee shall have,
from time to time and at any time, the right to establish additional
Investment Funds to implement and carry out investment objectives and
policies as established by the Investment Committee. The Investment
Committee may from time to time delete Investment Funds on at least 30
days' prior written notice to the Trustee. Each Participant's undivided
proportionate interest in each Investment Fund of the Trust shall be
measured by the proportion that his account balance in such Investment Fund
bears to the total account balances of all Participants in that Investment
Fund as of the date that such interest is being determined.
(b) The Investment Funds shall consist of the following
investments:
(1) A "Company Stock Fund" which shall be invested
solely in the common stock of Ogden Corporation.
(2) An "Equity Fund" which shall be invested by a
professional manager or managers in such other
companies' common stocks and other securities
whose investment objectives are a blend of
targets for appreciation, current income and
growth in dividends;
(3) A "Fixed Income Fund" which shall be invested
in guaranteed interest contracts with one or
more insurance companies or banks, with the
earnings of such contracts being blended for
allocation purposes.
(4) A "Merrill Lynch Treasury Fund" which invests
in a portfolio of U.S. Treasury Notes with
maturities not exceeding one year.
7.3. INVESTMENT ELECTIONS.
(a) A Participant's contributions and Company
Contributions shall be invested, at the written election of the
Participant, in accordance with one of the following options:
(i) 100% in one of the available Investment Funds;
or
(ii) in more than one Investment Fund allocated in
multiples of 5%.
If a Participant does not make a written election, he shall be deemed to
have elected to have his invested funds in the Merrill Lynch Treasury Fund.
Each Participant is solely responsible for the selection of his investment
options and the availability of an Investment Fund to Participants for
investment under the Plan shall not be construed as a recommendation for
investment in such Investment Fund.
(b) Any investment direction given by a Participant shall
be deemed to be a continuing direction until changed. A Participant may
change his investment election under paragraph (a) with respect to future
contributions as of the first day of each calendar quarter, provided, that
such direction is given in writing, by filing an appropriate form with the
Administrative Committee at least 30 days prior to such date or such
earlier date as permitted by the Administrative Committee in accordance
with rules uniformly applicable to Participants on a nondiscriminatory
basis.
(c) Subject to such rules as may be imposed by the
Trustee or other financial institution, a Participant may elect to transfer
amounts in his Account among the Investment Funds as of the first day of
each calendar quarter, provided that such direction is given in writing by
filing an appropriate form with the Administrative Committee at least 30
days prior to such date. A Participant may transfer such amounts among the
Investment Funds such that the value of his Account is invested 100% in one
of the available Investment Funds or in more than one Investment Fund
allocated in multiples of five percent.
(d) The net credit balances in Participant's Accounts in
the respective Investment Funds of the Trust Fund shall be adjusted, upward
or downward, pro rata, so that such net credit balances will reflect the
investment earnings of each Investment Fund of the Trust Fund as of that
Valuation Date, using fair market values as determined by the Trustee and
reported to the Administrative Committee, after such investment earnings
for the appropriate Investment Fund has been reduced by any expenses
chargeable to that Investment Fund which have been paid and which may be
incurred but not yet paid.
SECTION 8. VALUATIONS AND ADJUSTMENTS
8.1. SEPARATE ACCOUNTS. The Administrative Committee shall
maintain separate accounts in accordance with Section 4 and 5 for each
Participant in the Plan and such other accounts pursuant to Appendix A.
The Account of each Participant shall be credited with contributions made
on his behalf by a Participating Company and with earnings attributable to
the assets held in his Account in accordance with Section 8.2. A Participant's
Account shall be reduced by all payments made to him or on
his behalf by any amounts forfeited by him in accordance with Section
9.3(b) and by any net losses attributable to the assets held in his Account.
8.2. ALLOCATION OF EARNINGS AND LOSSES VALUATION OF TRUST.
(a) As of each Valuation Date in a Plan Year, and after giving
effect to any hardship withdrawal under Section 9.2(c), any loan under
Section 9.5, any transfer or rollover under Appendix A, but before giving
effect to the receipt and allocation of any Company Contribution or Employee
Pre-tax Contributions, and before giving effect to any repayments of loans
under Section 9.5, the participation of any new Participants in the Plan, any
adjustments, or any distributions under Section 11, all assets of the
respective Investment Funds shall be valued at fair market value as
determined by the Trustee.
The Trustee shall adjust the net credit balances in the
Accounts in the respective Investment Funds of the Trust Fund, upward or
downward, pro rata, so that such net credit balances will reflect the
investment earnings or losses of each Investment Fund of the Trust Fund as
of that Valuation Date, using fair market values as determined by the
Trustee and reported to the Administrative Committee. All determinations
made by the Trustee with respect to fair market values and investment
earnings shall be made in accordance with generally accepted principles of
trust accounting, and such determinations when so made by the Trustee and
any determinations by the Administrative Committee based thereon, shall be
conclusive and binding upon all persons having an interest under the Plan.
(b) With respect to the valuation of the shares held in
the Company Stock Fund pursuant to Section 7.2(b), the cash withheld from
Participants shall be delivered to the Trustee as soon as practicable.
Upon receipt of such cash, the Trustee shall purchase shares in the Company
Stock Fund as soon as practicable. The shares purchased shall be valued
under the Plan at the closing price as of the next succeeding Valuation
Date. Subsequent to the valuation of shares upon first entering the
Company Stock Fund, such shares shall be valued at the closing price as of
each Valuation Date thereafter.
8.3. EXPENSES. The expenses of administering the Plan,
including (i) the fees and expenses of any Employee and of the Trustee for
the performance of their duties under the Plan and the Trust, (ii) the
expenses incurred by the members of each of the Committees in the
performance of their duties under the Plan (including reasonable
compensation for any legal counsel, certified public accountants,
consultants, and agents and cost of services rendered in respect of the
Plan), and (iii) all other proper charges and disbursements of the Trustee
or the members of the Committees (including settlements of claims or legal
actions approved by counsel to the Plan) may be paid out of the Trust Fund,
and allocated to and deducted from the Accounts of Participants by the
Committees in accordance with the provisions of Section 8.2 above, if the
Company does not pay such expenses directly. However, the fees, expenses,
charges and disbursements attributable to any Investment Fund shall be
charged against the investment earnings of such Investment Fund as provided
in Section 8.2 unless such expenses are deducted from the income of such
Investment Fund, or, if such Investment Fund has no investment earnings in
that Plan Year, shall be deducted pro rata from the Accounts of
Participants electing to invest in such Investment Fund. The
Administrative Committee may, at its discretion, direct that certain
expenses shall be paid out of specified Investment Funds if the
Administrative Committee deems it appropriate to reflect the cost of such
Investment Funds.
8.4. ALLOCATION OF FORFEITURES. Subject to Section 9.3(c), any
forfeitures arising under the Plan shall be used to reduce the Company
Contributions specified in Section 5, and shall be allocated as Company
Contributions.
SECTION 9. ELIGIBILITY FOR BENEFITS
9.1. RETIREMENT DATE.
(a) Any Participant who has attained his Normal
Retirement Age or his Early Retirement Date, shall have a nonforfeitable
right to the value of his Account (reduced by any unpaid loans) and shall
be entitled to benefits equal to the full value of his Account.
(b) If a Participant remains in employment after his
Normal Retirement Date, or becomes a Participant after such date, he shall
participate in the contributions and benefits of the Plan in the same
manner as any other Participant. The deferred retirement date of a
Participant who continues in employment after his Normal Retirement Date
shall be the date of his termination of service.
(c) A Participant shall be considered to have retired for
the purposes of the Plan on the date his employment terminates on account
of his Disability, regardless of his age. The determination of the
Administrative Committee as to whether a Participant is disabled and the
date of such Disability shall be final, binding and conclusive.
9.2. DISTRIBUTION OF PARTICIPANT'S ACCOUNT ON RETIREMENT,
DEATH, DISABILITY, OR HARDSHIP.
(a) Upon the termination of service of a Participant on
or after his Normal Retirement Age (or by reason of his death or
Disability), an amount equal to the value of the Participant's Account as
of the Valuation Date coincident with or next following (i) the date
Service is terminated, provided that the Committee has received all the
necessary forms from the Participant shall be paid from the Trust Fund.
Such payment shall be by the method of distribution described and at the
time specified in Section 11 below.
(b) Subject to Section 11.3, if a former Participant dies
before payment of the full value of his Account from the Trust Fund, an
amount equal to the value of the unpaid portion thereof shall be paid to
his Beneficiary from the Trust Fund. Such payment shall be made as specified
in Section 11.
(c) Effective January 1, 1989, upon the receipt of a
written application from a Participant, the Administrative Committee may
distribute to a Participant any vested portion or all of a Participant's
Account that has been vested to the extent necessary to enable such
Participant to meet a Hardship in his financial affairs, provided that (i)
such Participant shall establish to the satisfaction of the Administrative
Committee, in accordance with principles and procedures established by the
Administrative Committee which are applicable to all persons similarly
situated, that a withdrawal to be made by him pursuant to this Section 9.2
is to be made by reason of an immediate and heavy financial need as defined
below and that such withdrawal is not in excess of the amount required to
relieve such immediate and heavy financial need, (ii) no amount in a
Participant's Account that is deemed invested in an outstanding loan to the
Participant may be withdrawn. A withdrawal by reason of an immediate and
heavy financial need under this Section 9.2 may be requested by a
Participant only after he has (i) withdrawn all employee contributions
permitted to be withdrawn under any other plan maintained by the Employer
and (ii) made all loans currently available under Section 9.5 or under any
other plan maintained by the Employer. The amount of any withdrawal
pursuant to this Section 9.2 shall not exceed the amount required to meet
the financial emergency. Subject to the provision of this Section 9.2,
each Participant may withdraw all or any portion of the vested aggregate
amount of his Pre-tax Contribution Account (excluding earnings on post 1988
Pre-tax Contributions) twice in a Plan Year.
A Participant shall give the Administrative Committee written
notice of a request for a withdrawal pursuant to the provisions of this
Section 9 in accordance with such procedures as the Administrative
Committee shall establish. No withdrawal pursuant to this Section 9 shall
be of an aggregate amount less than five hundred dollars ($500). In the
event a Participant who has requested a withdrawal terminates Service prior
to the effective date (as specified below) of the withdrawal, the
withdrawal request shall be void. Withdrawals shall become effective on
the last day of the valuation month during which the Administrative
Committee receives a properly executed withdrawal form, unless a later date
is requested therein, provided such request is received within the first 15
days of the month in which a withdrawal is requested. Payment of any
withdrawals pursuant to this Section 9 shall be made solely in cash. A
Participant who makes a hardship withdrawal pursuant to Section 9.2(c)
shall be suspended from making any further Pre-tax Contributions for a
period of twelve months, effective as of the next practicable payroll
following the effective date of the withdrawal. Notwithstanding any other
provision of the Plan, the Pre-tax Contributions of a Participant made in
the Plan Year following the Plan Year during which a withdrawal pursuant to
Section 9.2 was made, shall not exceed the applicable limit under Section
402(g) of the Code for such Plan Year less the amount of Pre-tax
Contributions made by the Participant during the Plan Year during which the
withdrawal pursuant to Section 9.2 was made.
For purposes of this Section, the term "Hardship" means a
situation in which a Participant or his dependents are confronted by
extreme financial need that cannot be satisfied from other sources.
Hardship situations shall be limited to extraordinary expenses resulting from:
(1) Medical expenses described in Section 213(d)
of the
Code incurred by the Participant, the Participant's
spouse, or any dependents of the Participant (as
defined in Section 152 of the Code);
(2) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3) Payment of tuition for the next 12 months of post-
secondary education for the Participant, his spouse,
children, or dependents;
(4) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
mortgage of the Participant's principal residence;
and
(5) Such other immediate and heavy financial emergency as
determined by the Administrative Committee pursuant
to uniformly applicable guidelines and regulations.
9.3. DISTRIBUTION ON OTHER TERMINATION OF SERVICE. Upon the
termination of service of any Participant which occurs other than on his
retirement and for any reason other than death or Disability, the
terminated Participant shall be paid in a lump sum (other than shares held
in the Company Stock Fund) an amount equal to the vested value of his
Account if the terminated Participant files appropriate forms requesting a
distribution from the Plan his Account will be valued as of he Valuation
Date coincident with or following the later of (i) the effective date of
termination of service, (ii) the date of termination from the payroll or
(iii) the submission of the appropriate forms requesting a distribution.
9.4. IN-SERVICE WITHDRAWALS. Notwithstanding the provisions of
Section 9.2 the Administrative Committee may distribute to a Participant on
the first day of any month following (i) his attainment of age 59-1/2 and
(ii) the receipt of a written application, in a lump sum an amount equal to
all or any part of the vested value of a Participant's Account.
9.5. LOANS. Effective January 1, 1991, a Participant shall be
entitled to apply for a loan from the vested value of his Account (other
than shares held in the Company Stock Fund); provided, however, such
Participant gives at least 30 days' prior written notice to the
Administrative Committee. The maximum amount available for a loan under
the Plan (when added to the outstanding balance of all other loans from the
Plan to the Participant) shall not exceed 50% of the vested portion of the
Participant's Account up to the maximum of $50,000. A loan equal to
$50,000 must be reduced by the excess (if any) of (i) the highest
outstanding loan balance attributable to the Account of the Participant
requesting the loan during the one-year period ending on the day preceding
the date of the loan, over (ii) the outstanding balance of all other loans
from the Plan to the Participant on the date of the loan. Loans shall be
granted in $50.00 increments with $500.00 established as the minimum amount
of any loan. Authorization for such loans and the terms thereof shall be
in the sole discretion of the Administrative Committee pursuant to uniform,
non-discriminatory rules consistently applied to all Participants. Two
loans are permissible under the Plan, one for a general financial
difficulty as determined and approved by the Committee, and one for the
purchase of a primary residence. The Committee shall not grant a loan to
any Participant unless and until a current unpaid loan for the same purpose
including accrued interest, has been liquidated. A Participant may
renegotiate both of his loans once during a Taxable Year.
As a condition for obtaining a loan, the Participant shall
execute a promissory note payable to the Trust Fund authorizing the
repayment of the loan through payroll deductions, a reasonable maturity
date (subject to the restrictions described below) and a rate of interest
equal to the Trustee's announced prime lending rate plus 1% as in effect on
the 1st business day of each month. The payment schedule shall provide for
substantially level amortization with payments not less frequently than
quarterly, equal to the amount necessary to amortize the balance due at
maturity. The maturity date for any loan will not be more than five years
after the date of the loan except for loans to acquire a principal
residence which will have a maturity date that is not more than ten years
after the date of the loan.
Each payment of principal and interest shall be transmitted to
the Trustee as soon as practicable after receipt by the Participating
Company. The outstanding balance of any loan may be fully repaid at any
time without penalty.
If a Participant has obtained a loan and subsequently defaults
in making any repayment installment when due, and such default continues
for 90 days thereafter, or in the event of the Participant's bankruptcy,
impending bankruptcy, insolvency or impending insolvency, the loan shall be
deemed to be in default and the entire unpaid balance shall immediately
become due and payable. However, at the option of the Administrative
Committee, the installments in default and all future installments may
instead be withheld from the Participant's compensation. If the unpaid
balance becomes due and payable at any time, the Administrative Committee
may direct the Trustee to pursue collection of the debt by any means
generally available to a creditor where a promissory note is in default.
If there remains any unpaid balance due on a loan to a Participant at the
time his employment terminates for any reason, the loan shall terminate and
the Trustee shall distribute to the Participant the promissory note
evidencing the loan. However, the Participant, or his Beneficiary, shall
have the right to repay such unpaid balance before receiving a distribution
of his Account pursuant to Section 11.
In no event shall any repayment of principal amounts on a loan
obtained under this Section, or interest thereon, be taken into account in
determining whether the limitations described in Section 12 (to conform to
the requirements of Section 415 of the Code) are exceeded.
9.6. RESTRICTIONS ON DISTRIBUTIONS. Notwithstanding any other
provision of the Plan, a Participant's Pre-tax Contribution Accounts may
not be distributed earlier than upon one of the following events:
(a) The Participant's Normal or Early Retirement, death,
Disability or termination of service;
(b) The termination of the Plan without the establishment
or maintenance of another defined contribution plan
(other than an employee stock ownership plan or a
simplified employee plan);
(c) the Participant's attainment of age 59-1/2 or upon
the Participant's Hardship; or
(d) The sale or disposition by the Employer to an
unrelated corporation of (i) substantially all of the
assets used in a trade of business or (ii) the
Employer's interest in a subsidiary, but only with
respect to Participants who continue employment with
the acquiring corporation or the subsidiary, as the
case may be, and the acquiring corporation does not
maintain the Plan after the disposition.
9.7. DIRECT ROLLOVERS. Effective on or after January 1, 1993
(a) Distributee may elect, at a time and manner as
permitted by the Administrative Committee, to have any portion of an
Eligible Rollover Distribution paid as a Direct Rollover to an Eligible
Retirement Plan, as specified by the Distributee.
(b) For purposes of the Section 9.7, the following terms
shall have the following meanings:
(i) "Eligible Rollover Distribution" means any
distribution of all or any portion of a
Distributee's Account other than a distribution
required by Section 401(a)(9) of the Code.
(ii) "Eligible Retirement Plan" means any plan or
program that is (1) an individual retirement
account, as described in Section 408(a) of the
Code, (2) an individual retirement annuity, as
described in Section 408(b) of the Code, (3) an
annuity plan, as described in Section 403(a) of
the Code, or (4) a qualified plan and tax-
exempt trust, as described in Sections 401(a)
and 501(a) of the Code; and for a Distributee
that is the Surviving Spouse, an Eligible
Retirement Plan means any plan or program that
is an (1) individual retirement account or (2)
individual retirement annuity, as described in
Sections 408(a) and 408(b) of the Code,
respectively.
(iii) "Distributee" means a Participant or former
Participant. A Participant's or former
Participant's Surviving Spouse, or a spouse of
a Participant or former Participant who is an
alternative payee under a Qualified Domestic
Relations Order, described in Section 17.5,
with regard to the interest of the spouse or
former spouse in the Participant's or former
Participant's Account, shall be a Distributee.
(iv) "Direct Rollover" means a distribution by the
Plan to an Eligible Retirement Plan as
specified by the Distributee.
(c) The provisions of this Section 9.7 shall apply to
distributions made on or after January 1, 1993.
SECTION 10. VESTED INTERESTS
10.1. PRE TAX CONTRIBUTIONS. A Participant will be 100%
vested and have a nonforfeitable right to the value of the Pre Tax
Contribution Accounts (401(k) Matched Account and 401(k) Unmatched Account).
10.2. COMPANY CONTRIBUTIONS. A Participant will become
100% vested and have a nonforfeitable right to the value of the Company
Contribution Accounts (Company Matched, Company Prior, Company
Discretionary Accounts) upon completion of five years of Vesting Service.
If a Participant was eligible to participate in the Plan on December 31,
1990, they will be vested in all future and past Company Contributions.
10.3. TRANSFERRED ACCOUNTS. A Participant will be 100%
vested in all accounts transferred to this Plan as referenced in Appendix A.
10.4. BREAK IN SERVICE FOR VESTING.
(a) If the terminated Participant incurs five consecutive
Breaks in Service or dies before he returns to employment, any excess of
the amount credited to such terminated Participant's Account over his
Vested Interest shall be permanently forfeited by him upon the fifth such
consecutive Break in Service, upon his death or upon receipt of his Vested
Interest upon termination of service, whichever is earlier.
(b) If the terminated Participant returns to service
prior to incurring five consecutive Breaks in Service, any excess of the
amount credited to such terminated Participant's Account over his Vested
Interest shall be reinstated and recredited, if necessary, by additional
contributions by his Participating Company to the Participant's Company
Contribution Account as of the last day of the month in which the
terminated Participant performs an Hour of Service, the last day of the
next following month or by a priority reallocations of the then current
forfeitures. As of any Valuation Date thereafter, such Participant's
Vested Interest shall be determined by (i) adjusting the amount of his
Account on the date of his most recent termination of service as if such
amount had been held in the Trust since the date of distribution as
provided in Section 8, ("adjusted previous account"), and then (iii)
multiplying his Vested Interest by his adjusted total account, and then
(iv) subtracting the amount of his distribution on his most recent
termination of service, adjusted as if such distribution had been held in
the Trust since the date of his distribution as provided in Section 8, from
his adjusted total account. Such Participant may repay to the Plan, in one
lump cash sum within two years after reemployment, the full amount
distributed to him pursuant to his prior termination of service. Any
amount repaid pursuant to this Section 9.3(c) shall be invested in the
Investment Funds in the proportions selected in the most recent written
election filed by the Participant with the Administrative Committee
pursuant to Section 7.3.
SECTION 11. METHOD OF PAYMENT OF BENEFITS
11.1. PAYMENT OF BENEFITS. Any benefit payable under the
Plan pursuant to Section 9 shall be paid in one lump cash sum. However, a
Participant may elect to receive the value of his Company Stock Fund in
shares of Ogden Corporation Common Stock.
11.2. COMMENCEMENT OF PAYMENT.
(a) Any benefit payable to a Participant under Section
11.1 shall be paid within 60 days after the end of the Plan Year in which
an event specified in Section 9 occurs; provided, however, that a Participant
may defer the distribution. Any amount so deferred shall
remain in the Participant's Account until distributed; provided, however,
such Participant shall not share in any contribution pursuant to Sections
5.1 or 5.2 but shall share in any earnings, losses, and expenses pursuant
to Sections 8.2 and 8.3.
(b) Notwithstanding any other provision of the Plan,
unless otherwise provided by law, any benefit payable to a Participant
shall commence no later than the April 1st of the calendar year following
the calendar year in which such Participant attains age 70-1/2; provided,
however, if a Participant attained age 70-1/2 prior to January 1, 1988,
except as otherwise provided, any benefit payable to such Participant shall
commence no later than April 1st of the calendar year following the later
of (i) the calendar year in which the Participant attains age 70-1/2 or
(ii) the calendar year in which Participant retires. Such benefit shall be
paid, in accordance with the Regulations, over a period not extending
beyond the life expectancy of such Participant and his Beneficiary. Life
expectancy for purposes of this Section shall not be recalculated annually
in accordance with the Regulations.
(c) If distribution of a Participant's benefit has
commenced prior to a Participant's death, and such Participant dies before
his entire benefit is distributed to him, distribution of the remaining
portion of the Participant's benefit to the Participant's Beneficiary shall
be made at least as rapidly as under the method of distribution in effect
as of the date of the Participant's death.
(d) If a Participant dies before distribution of his
benefit has commenced, distributions to any Beneficiary shall be made on or
before the December 31st of the calendar year which contains the fifth
anniversary of the date of such Participant's death; provided, however, at
the Beneficiary's irrevocable election, duly filed with the Committee
before the applicable commencement date set forth in the following
sentence, any distribution to a Beneficiary may be made over a period not
extending beyond the life expectancy of the Beneficiary. Such distribution
shall commence not later than the December 31st of the calendar year
immediately following the calendar year in which the Participant would have
attained age 70-1/2, if later (or, in either case, on any later date
prescribed by the Regulations). If such Participant's Surviving Spouse
dies after such Participant's death but before distributions to such
Surviving Spouse commence, this Subsection (d) shall be applied to require
payment of any further benefits as if such Surviving Spouse were the
Participant.
(e) If a Participant dies before distribution of his
benefit has commenced, distributions to any Beneficiary shall be made on or
before the December 31st of the calendar year which contains the fifth
anniversary of the date of such Participant's death.
(f) Pursuant to the Regulations, any benefit paid to a
child shall be treated as if paid to a Participant's Surviving Spouse if
such amount will become payable to such Surviving Spouse on the child's
attaining majority, or other designated event permitted by the Regulations.
(g) If a Participant who is a five percent owner attained
age 70-1/2 before January 1, 1988, any benefit payable to such Participant
shall commence no later than the April 1st of the calendar year following
the later of (i) the calendar year in which the Participant attains age 70-
1/2 or (ii) the earlier of (A) the calendar year within which the
Participant becomes a 5% owner or (B) the calendar year in which the
Participant retires. For purposes of this Subsection (g), a five percent
owner shall mean a five percent owner of such Participant's Employer as
defined in Section 416(i) of the Code at any time during the Plan Year in
which such owner attains age 66 or any subsequent Plan Year.
11.3. TIME OF PAYMENT
(a) ANY ELECTION UNDER SECTION 11.1 must be made by the
payee upon or following the Participant's termination of employment by
reason of his retirement, death, or Disability but prior to the date that
payments commence pursuant to the provisions of the Plan. In any event,
payments shall be made no later than the 60th day following the date on
which the amount of the payment under the Plan (or in the case of more than
one payment, the first said payment) can be ascertained under the Plan.
(b) Notwithstanding any other provision of the Plan, to
the extent required by the Code and the Regulations, if the value of a
Participant's Account exceeds or ever exceeded $3,500, no distribution
shall be made to such Participant prior to the date he attains his Normal
Retirement Age without his written consent. In the absence of receipt of
such consent by the Administrative Committee prior to the 60th day
following the date of the Participant's termination of Service, payment of
the benefit to such Participant may commence as soon as practical after the
Participant's attainment of Normal Retirement Age, which benefit shall be
in an amount equal to the value of the Participant's Account as of the
Valuation Date coincident with or immediately following the Participant's
attainment of Normal Retirement Age.
(c) Benefits payable under the Plan to a Participant or
Beneficiary from the Company Stock Fund, other than hardship withdrawals or
loans made pursuant to Section 9, shall be paid cash, unless the Participant
elects to receive such distribution in whole shares of the
stock held in such Investment Fund or Funds (containing such legends and
upon such terms and conditions and restrictions as the Committee may, in
its sole discretion, direct), together with any cash credited to his
Account either awaiting investment in such stock or representing fractional
shares of such stock.
SECTION 12. MAXIMUM AMOUNT OF ALLOCATION
12.1. APPLICATION OF SECTION 12. The provision of this
Section 12 shall govern notwithstanding any other provisions of the Plan.
12.2. MAXIMUM ADDITIONS TO ACCOUNT. Annual Additions to a
Participant's Account may not exceed the lesser of (a) $30,000 or, if
greater, one-fourth of the defined benefit dollar limitation set forth in
Section 415(b)(1)(A) of the Code as in effect, or (b) 25% of the
Participant's compensation (as defined in Section 415(c) of the Code). For
this purpose, the term "Annual Additions" shall mean the sum of the
following amounts which without regard to this Section 12 would have been
credited to the Participant's Account for any Plan Year under the Plan and
under any other defined contribution plans of the Employer or an Affiliate:
(i) Company Contributions; (ii) Pre-tax Contributions; (iii) contributions
allocated to any individual medical account defined in Section 416(i) of
the Code, the amount allocated to a separate account established for post-
retirement medical or life insurance benefits of such Participant described
in Section 419A(d)(1) of the Code. The term Annual Additions shall
include, whether or not refunded, excess deferrals as described in Section
4.2. Solely for purposes of this Section, Annual Additions shall include a
Participant's contributions under a qualified cost-of-living arrangement
described in Section 415(k)(2) of the Code.
12.3. ORDER OF REDUCTION. If as a result of a reasonable
error in estimating a Participant's Compensation, a reasonable error in
determining the amount of Pre-tax Contributions, or under such other facts
and circumstances as determined by the IRS, including the limitations of
Section 12.2, amounts which would otherwise be allocated to a Participant's
Account must be reduced, such reduction shall be made in the following
order of priority, but only to the extent necessary:
(a) Company Contributions made pursuant to Section 5.1
and 5.2 allocable to such Participant in respect of
such Plan Year shall be reduced and the amount of
such reduction shall be utilized to reduce Company
Contributions which would otherwise be made to the
Plan; and then
(b) to the extent permitted by the Code and the
Regulations, the amount of Pre-tax Contributions,
exclusive of any earnings of the Trust Fund
attributable thereto, shall be refunded to the
Participant or, to the extent required by law, shall
be held unallocated in a suspense account and shall
be applied, as directed by the Administrative
Committee in accordance with the law and regulations,
as a credit to reduce the contributions of the
Employer for the next Plan Year and in the event of
termination of the Plan shall be returned to the Em-
ployer.
12.4. ADDITIONAL ACCOUNT LIMITATIONS.
(a) In the event that, in any Plan Year and with respect
to any Participant, the sum of the "Defined Contribution Fraction" (as
defined in paragraph (b)(1)), the "Defined Benefit Fraction" (as defined in
paragraph (b)(2)) would otherwise exceed 1.0, the benefit payable under the
defined benefit plan shall be reduced in accordance with the provisions of
that plan, but only to the extent necessary to ensure that such limitation
is not exceeded.
(b) For purposes of paragraph (a) of this Section 12.4,
the following terms shall have the following meanings:
(1) "Defined Contribution Fraction" shall mean, as
to any Participant for any Plan Year, a
fraction, (i) the numerator of which is the sum
of Annual Additions, for the Plan Year and all
prior Plan Years, as of the close of the Plan
Year and (ii) the denominator of which is the
sum of the lesser of the following amounts,
determined for such Plan Year and for each
prior Plan Year (A) the product of 1.25
multiplied by the dollar limitation in effect
for such Plan Year under Section 12.2(a) or (B)
the product of 1.4 multiplied by the amount
which may be taken into account under Section
12.2(b) with respect to the Participant for
such Plan Year; provided, however, that, for
years ending prior to January 1, 1976, the
numerator of such fraction shall in no event be
deemed to exceed the denominator of such
fraction; and, further provided, that the
Administrative Committee, in determining the
Defined Contribution Fraction may elect to use
the special transitional rules permitted by
Section 415 of the Code and the Regulations
thereunder; and
(2) "Defined Benefit Fraction" shall mean, as to
any Participant for any Plan Year, a fraction,
(i) the numerator of which is the projected
annual benefit (determined as of the close of
the Plan Year and in accordance with the
Regulations) of the Participant under any
defined benefit plan (as defined in Section
414(j) and 415(k) of the Code) maintained by
the Company or any Affiliate and (ii) the
denominator is the lesser of (A) the product of
1.25 multiplied by the dollar limitation in
effect under Section 415(b)(1)(A) of the Code
for such Plan Year or (B) the product of 1.4
multiplied by an amount equal to 100% of the
Participant's average compensation for his high
three years within the meaning of Section
415(b)(3) of the Code for such Plan Year.
SECTION 13. DESIGNATION OF BENEFICIARIES
13.1. BENEFICIARY DESIGNATION. Each Participant shall file
with the Administrative Committee a written designation of one or more
persons as the Beneficiary who, subject to this Section 13.1, shall be
entitled to receive the amount, if any, payable under the Plan upon his
death. A Participant may from time to time revoke or change his
beneficiary designation without the consent of any prior Beneficiary by
filing a new designation with the Administrative Committee; provided,
however, that if a Participant's spouse has consented to the designation of
a Beneficiary as provided in Section 13.1, and the Participant revokes such
beneficiary designation, no new beneficiary designation shall be effective
unless it complies with Section 13.1. The last such designation received
by the Administrative Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective
unless received by the Administrative Committee prior to the Participant's
death, and in no event shall it be effective as of a date prior to such
receipt. If a Beneficiary shall die prior to receiving the distribution
that would have been made to such Beneficiary had such Beneficiary's death
not occurred, then for the purposes of the Plan the distribution that would
have been received by such Beneficiary shall be made to the Beneficiary's
estate.
13.2. FAILURE TO DESIGNATE BENEFICIARY. Subject to Section
13.1, if no such beneficiary designation is legally in effect at the time
of a Participant's death, or if no designated Beneficiary survives the
Participant, the payment of the amount, if any, payable under the Plan upon
his death shall be made to the Participant's estate. If the Administrative
Committee is in doubt as to the right of any person to receive such amount,
the Administrative Committee may direct the Trustee to retain such amount,
without liability for any interest thereon, until the rights thereto are
determined, or the Administrative Committee may direct the Trustee to pay
such amount into any court of appropriate jurisdiction and such payment
shall be a complete discharge of the liability of the Plan and the Trust.
SECTION 14. ADMINISTRATION OF THE PLAN
14.1. POWERS AND DUTIES OF ADMINISTRATIVE COMMITTEE. The
Administrative Committee shall have general responsibility for the
administration and interpretation of the Plan (including, but not limited
to, complying with reporting and disclosure requirements, and establishing
and maintaining Plan records). The Administrative Committee shall engage
certified public accountants, who may be accountants for the Company, as it
shall require or may deem advisable for purposes of the Plan. The
Administrative Committee shall communicate any requirements and objectives
of the Plan, and any audit information which may be pertinent to the
investment of Plan assets to the Investment Committee, which shall
establish investment standards and policies and communicate the same to the
Trustee (or other funding agencies under the Plan). The Administrative
Committee shall have no responsibility for the investment of assets under
the Plan or the Trust.
14.2. POWERS AND DUTIES OF INVESTMENT COMMITTEE. The
Investment Committee shall periodically review the investment performance
and methods of the Trustee and any other funding agency, including any
insurance company, under the Plan. The Board of Directors shall have the
authority to appoint, remove or change the Trustee and any other funding
agency. The Investment Committee shall have the power to appoint or remove
one or more investment advisers and to delegate to such adviser authority
and discretion to manage (including the power to acquire and dispose of)
the assets of the Plan, provided that (i) each adviser with such authority
and discretion shall be either a bank, an insurance company or a registered
investment adviser under the Investment Advisers Act of 1940, and shall
acknowledge in writing that it is a fiduciary with respect to the Plan and
(ii) the Investment Committee shall periodically review the investment
performance and methods of each adviser with such authority and discretion.
If annuities are to be purchased under the Plan, the Investment Committee
shall determine what contracts should be made available to terminated
Participants or purchased by the Trust.
14.3. POWERS AND DUTIES OF TRUSTEE. The Trustee shall have
responsibility under the Plan for the management and control of the assets
of the Plan and shall have responsibility for the investment and management
of such assets to the extent that such assets are invested in an Investment
Fund or the Trustee has been appointed an investment adviser pursuant to
Section 14.2.
14.4. AGENTS, REPORT OF COMMITTEES TO BOARD. The
Administrative Committee and the Investment Committee may arrange for the
engagement of such legal counsel who may be counsel for the Employer, and
make use of such agents and clerical or other personnel as they each shall
require or may deem advisable for purposes of the Plan. Each of the
Committees may rely upon the written opinion of such counsel and the
accountants engaged by the Administrative Committee and may delegate to any
such agent or to any sub-committee or member of such Committee its
authority to perform any act hereunder, including without limitation, those
matters involving the exercise of discretion, provided that such delegation
shall be subject to revocation at any time at the discretion of each of the
said Committees. Each of the Committees shall report to the Board of
Directors, or to a committee of the Board of Directors designated for that
purpose, as frequently as shall be specified by the Board of Directors or
such committee, with regard to the matters for which it is responsible
under the Plan.
14.5. STRUCTURE OF COMMITTEES. The Administrative
Committee and the Investment Committee each shall consist of three or more
members, each of whom shall be appointed by, shall remain in office at the
will of, and may be removed, with or without cause, by the Board of
Directors. A majority of the members of the Administrative Committee shall
be Employees (who may also be Directors.) Any member of either of the
Committees may resign at any time. No member of either of the Committees
shall be entitled to act on or decide any matter relating solely to himself
or any of his rights or benefits under the Plan. In the event the
Administrative Committee is unable to act in any matter by reason of the
foregoing restriction, the Board of Directors shall act on such matter.
The members of the Committees shall not receive any special compensation
for serving in their capacities as members of such Committees but shall be
reimbursed for any reasonable expenses incurred in connection therewith.
Except as otherwise required by the Act, no bond or other security need be
required of the Committees or any member thereof in any jurisdiction. Any
person may serve on both of the Committees and any member of either of the
Committees, any subcommittee or agent to whom either of the Committees
delegates any authority, and any other person or group of persons, may
serve in more than one fiduciary capacity (including service both as a
trustee and administrator) with respect to the Plan.
14.6. ADOPTION OF PROCEDURES OF COMMITTEES. Each Committee
shall establish its own procedures and the time and place for its meetings,
and provide for the keeping of minutes of all meetings. A majority of the
members of a Committee shall constitute a quorum for the transaction of
business at a meeting of such Committee. Any action of a Committee may be
taken upon the affirmative vote of a majority of the members of the Commit-
tee at a meeting or without a meeting, by mail, telegraph or telephone,
provided that all of the members of the Committee are informed by mail or
telegraph of their right to vote on the proposal and of the outcome of the
vote thereon.
14.7. DEMANDS FOR MONEY. All demands for money of the Plan
shall be signed by an officer or officers or such other person or persons
as the Administrative Committee may from time to time designate in writing
who shall cause to be kept full and accurate accounts of receipts and
disbursements of the Plan, shall cause to be deposited all funds of the
Plan to the name ad credit of the Plan, in such depositories as may be
designated by the Investment Committee, shall cause to be disbursed the
monies and funds of the Plan when so authorized by the Administrative
Committee and shall generally perform such other duties as may be assigned
to him from time to time by either of the Committees.
14.8. CLAIMS FOR BENEFITS. All claims for benefits under
the Plan shall be submitted in writing to, and within a reasonable period
of time decided by, one person designated in writing by the Administrative
Committee. Written notice of the decision on each such claim shall be
furnished reasonably promptly to the claimant. If the claim is wholly or
partially denied, such written notice shall set forth an explanation of the
specific findings and conclusions on which such denial is based. A
claimant may review all pertinent documents and may request a review by the
Administrative Committee of such a decision denying the claim. Such a
request shall be made in writing and filed with the Administrative
Committee within a reasonable period of time, as specified by the
Administrative Committee in writing from time to time, after delivery to
said claimant of written notice of said decision by the Administrative
Committee. Such written request for review shall contain all additional
information which the claimant wishes the Administrative Committee to
consider. The Administrative Committee may hold any hearing or conduct any
independent investigation which it deems necessary to render its decision,
and the decision on review shall be made as soon as possible after the
Administrative Committee's receipt of the request for review. Written
notice of the decision on review shall be promptly furnished to the
claimant and shall include specific reasons for such decision by the
Administrative Committee. For all purposes under the Plan, such decisions
on claims (where no review is requested) and decisions on review (where
review is requested) shall be final, binding and conclusive on all
interested persons as to participation and benefit eligibility, the
employee's amount of Compensation and as to any other matter of act or
interpretation relating to the Plan.
14.9. HOLD HARMLESS. To the maximum extent permitted by
law, no member of the Administrative Committee or the Investment Committee
shall be personally liable by reason of any contract or other instrument
executed by him or on his behalf in his capacity as a member of such
Committee nor for any mistake of judgment made in good faith, and the
Employer shall indemnify and hold harmless, directly from its own assets
(including the proceeds of any insurance policy the premiums of which are
paid from the Employer's owns assets), each member of the Administrative
Committee and the Investment Committee and each other officer, employee, or
director of the Employer to whom any duty or power relating to the
administration or interpretation of the Plan or to the management and
control of the assets of the Plan may be delegated or allocated, against
any cost or expense (including counsel fees) or liability (including any
sum paid in settlement of a claim with the approval of the Company) arising
out of any act or omission to act in connection with the Plan unless
arising out of such person's own fraud or bad faith.
14.10. SERVICE OF PROCESS. The Secretary of the Company, or
such other person as may from time to time be designated by the Board of
Directors shall be the agent for service of process under the Plan.
14.11. SPECIFIC POWERS AND DUTIES. The Administrative
Committee and the Investment Committee each shall have only those specific
powers, duties, responsibilities, and obligations as are specifically given
them under the Plan or the Trust as such Plan or Trust may be amended from
time to time. It is intended that each of the Committees shall be
responsible for the proper exercise of its own powers, duties,
responsibilities, and obligations and shall not be responsible for any act
or failure to act on the part of another Committee or of another fiduciary.
SECTION 15. WITHDRAWAL OF PARTICIPATING COMPANY
15.1. WITHDRAWAL OF PARTICIPATING COMPANY. Any
Participating Company (other than the Company) may withdraw from
participation in the Plan by giving the Administrative Committee and the
Trustee prior written notice in a resolution by its board of directors
specifying a withdrawal date which shall be the last day of a month at
least 30 days subsequent to the date such notice is received by the
Trustee. The Administrative Committee may require any Participating
Company to withdraw from the Plan, as of any withdrawal date specified by
the Administrative Committee, for the failure of the Participating Company
to make proper contributions or to comply with any other provision of the
Plan and shall require a Participating Company's withdrawal upon complete
and final discontinuance of the contributions. In the event of any such
withdrawal, the Administrative Committee shall promptly notify the IRS and
request such determination as counsel to the Plan may recommend and as the
Administrative Committee may deem desirable.
In such event, the Plan and the Trust as applied to the
Employees of such Participating Company shall thereafter be administered by
such Participating Company as a separate plan and trust whose terms are
identical to the term of the Plan and the Trust as in effect immediately
prior to such separation (except that such Participating Company alone
shall be deemed the "Company" and its board of directors shall be deemed
the "Board of Directors" thereunder) and the assets allocated to such
separate trust shall be appropriately segregated; provided, however, that
in the event of any transfer of assets to a successor employee benefit plan
the provisions of Section 15.3 will apply. The decision of the
Administrative Committee shall be final as to the assets to be allocated to
such separate plan and trust in accordance herewith.
15.2. DISTRIBUTION AFTER WITHDRAWAL. Upon withdrawal from
the Plan by any Participating Company (other than the Company), such
Participating Company shall not 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 Participating Company
except as provided in this Section 15. To the maximum extent permitted by
the Act, any rights of Participants no longer employed by such Participa-
ting Company and of former Participants and their Beneficiaries under the
Plan shall be unaffected by such withdrawal and any transfers,
distributions or other dispositions of the assets of the Plan as provided
in this Section 15 shall constitute a complete discharge of all liabilities
under the Plan with respect to such Participating Company's participation
in the Plan and any Participant then employed by such Participating Company.
All determinations, approvals and notifications referred to
above shall be in form and substance and from a source satisfactory to
counsel for the Plan. To the maximum extent permitted by the Act, the
withdrawal from the Plan by any Participating Company shall not in any way
affect any other Participating Company's participation in the Plan.
15.3. TRANSFER TO SUCCESSOR PLAN. No transfer of the
Plan's assets and liabilities to a successor employee benefit plan (whether
by merger or consolidation with such successor plan or otherwise) shall be
made unless each Participant would, if either the Plan or such successor
plan then terminated, receive a benefit immediately after such transfer
which (after taking account of any distributions or payments to them as
part of the same transaction) is equal to or greater than the benefit he
would have been entitled to receive immediately before such transfer if the
Plan had then been terminated. The Administrative Committee may also
request appropriate indemnification from the employer or employers
maintaining such successor plan before making such a transfer.
SECTION 16. AMENDMENT OR TERMINATION OF THE PLAN AND THE TRUST
16.1. RIGHT TO AMEND, SUSPEND OR TERMINATE PLAN.
(a) Subject to the provisions of paragraph (c), the Board
of Directors reserves the right at any time to amend, suspend or terminate
the Plan, any contributions thereunder, the Trust or any contract issued by
an insurance carrier forming a part of the Plan, in whole or in part and
for any reasons and without the consent of any Participating Company,
Participant, Beneficiary or Surviving Spouse. Each Participating Company
by its adoption of the Plan shall be deemed to have delegated this
authority to the Board of Directors. The Plan shall automatically be
terminated upon complete and final discontinuance of contributions thereun-
der.
(b) The Administrative Committee may adopt any amendment
which may be necessary or appropriate to facilitate the administration,
management and interpretation of the Plan or to conform the Plan thereto,
or to qualify or maintain the Plan and the Trust as a plan and trust,
meeting the requirements of Sections 401(a) and 501(a) of the Code or any
other applicable section of law (including the Act) and the Regulations
issued thereunder, provided said amendment does not have any material
effect on the currently estimated cost to the Employer of maintaining the
Plan. Each Participating Company by its adoption of the Plan shall be
deemed to have delegated this authority to the Administrative Committee.
(c) No amendment or modification shall be made which
would retroactively impair any rights to any benefit under the Plan which
any Participant or Beneficiary would otherwise have had at the date of such
amendment by reason of the contributions theretofore made and credited to
this Account, except as provided in Section 16.2 below.
16.2. RETROACTIVITY. Subject to the provisions of Section
16.1, any amendment, modification, suspension or termination of any
provision of the Plan may be made retroactively if necessary or appropriate
to qualify or maintain the Plan, the Trust and any contract with an
insurance company which may form a part of the Plan as a plan and trust,
meeting the requirements of Sections 401(a), 401(k) and 501(a) of the Code
or any other applicable section of law (including the Act) and the
Regulations issued thereunder.
16.3. NOTICE. Notice of any amendment, modification,
suspension or termination of the Plan shall be given by the Board of
Directors, or the Administrative Committee, whichever adopts the amendment,
to the other, and to the Trustee, and all Participating Companies.
16.4. NO FURTHER CONTRIBUTION. Upon termination of the
Plan, no Participating Company shall make any further contributions under
the Plan and no amount shall thereafter be payable under the Plan to or in
respect of any Participant except as provided in this Section 16. To the
maximum extent permitted by the Act, transfers, distributions or other
dispositions of the assets of the Plan as provided in this Section 16 shall
constitute a complete discharge of all liabilities under the Plan. The
Administrative Committee and the Investment Committee shall each remain in
existence and all of the provisions of the Plan which in the opinion of
such Committee are necessary for the administration of the Plan and the
administration, distribution, transfer or other disposition of the assets
of the Plan in accordance with this Section 16.4 shall remain in force.
After (i) payment of or provision for all expenses and charges
referred to in Section 8.3 and appropriate adjustment of all Accounts for
such expenses and charges in the manner described in Section 8.3, (ii)
appropriate adjustment of the Accounts of Participants who are employed as
of the date of such termination in the manner described in Section 6.1 for
any forfeitures arising under the Plan prior to such date (treating, for
this purpose, any Participant whose service had terminated but who had not
incurred five consecutive Breaks in Service immediately prior to such date)
and (iii) adjustment for profits and losses of the Trust to such
termination date in the manner described in Section 8.2, the interest of
each Participant who is employed as of the date of such termination in the
amount, if any, credited to his Account shall be nonforfeitable as of such
date.
In the event that upon or after the termination of the Plan,
the Board of Directors shall determine that the continuance of the Trust is
not in the best interest of the Participants, the Board of Directors may
terminate the Trust and upon such termination the Trustee shall pay in a
lump sum to each Participant the full amount credited to his individual
account, without limiting the foregoing, any such distributions may be made
in case or in property, or both, as the Administrative Committee in its
sole discretion may direct.
All determinations, approvals and notifications referred to
above shall be in form and substance and from a source satisfactory to
counsel for the Plan.
16.5. PARTIAL TERMINATION. In the event that any
governmental authority, including without limitation the IRS, determines
that a partial termination (within the meaning of the Act) of the Plan has
occurred then (i) the interest of each Participant in his Account as to
whom such termination occurred shall thereupon be fully vested, but shall
otherwise be payable as though such termination had not occurred and (ii)
the provisions of Sections 16.2, 16.3 and Section 15.2 which, in the
opinion of the Administrative Committee, are necessary for the execution of
the Plan and the allocation and distribution of the assets of the Plan
shall apply; provided, however, that the Board of Directors, in its
discretion, subject to any necessary governmental approval, may direct that
the amounts held in the accounts of such Participants as to whom such
termination occurred be segregated by the Trustee as a separate plan and
applied for the benefit of such Participants in the manner described in
Section 16.4 above.
16.6. EXCLUSIVE BENEFIT OF PARTICIPANTS AND BENEFICIARIES.
In no event shall any part of the funds of the Plan (other than such part
as is required to pay taxes, if any, and administration expenses as
provided in Section 8.3) be used for or diverted to any purposes other than
for the exclusive benefit of Participants and their Beneficiaries under the
Plan except as permitted under Section 403(c) of the Act. Upon the
transfer by a Participating Company of any money to the Trustee, all
interest of the Participating Company therein shall cease and terminate.
SECTION 17. GENERAL LIMITATIONS AND PROVISIONS
17.1. ALL RISK ON PARTICIPANTS AND BENEFICIARIES. Each
Participant, former Participant, Surviving Spouse, and Beneficiary shall
assume all risk in connection with any decrease in the value of the assets
of the Trust and the Participants' Accounts and neither the Employer nor
the Committees shall be liable or responsible therefor.
17.2. TRUST IS SOLE SOURCE OF BENEFITS. The Trust shall be
the sole source of benefits under the Plan and, except as otherwise
required by the Act, the Employer, and the Committees assume no liability
or responsibility for payment of such benefits, and each Participant,
Surviving Spouse, Beneficiary or other person who shall claim the right to
any payment under the Plan shall be entitled to look only to the Trust for
such payment and shall not have any right, claim or demand therefor against
the Employer, the Committees or any member thereof, or any employee,
officer or director of the Employer.
17.3. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing contained
in the Plan shall give any employee the right to be retained in the
employment of the Employer or any of its subsidiaries or affiliated or
associated corporations or affect the right of any such employer to dismiss
any employee. The adoption and maintenance of the Plan shall not
constitute a contract between the Employer and any employee or
consideration for, or an inducement to or condition of, the employment of
any employee.
17.4. PAYMENT ON BEHALF OF PAYEE. If the Administrative
Committee shall find that any person to whom any amount is payable under
the Plan is unable to care for his affairs because of illness or accident,
or is a minor, or has died, then any payment due him or his estate (unless
a prior claim for such amount has been made by a duly appointed legal
representative) may, if the Administrative Committee so elects, be paid to
his spouse, a child, a relative, an institution maintaining or having
custody of such person, or any other person deemed by the Administrative
Committee to be a proper recipient on behalf of such person otherwise
entitled to payment. Any such payment shall be a complete discharge of the
liability of the Plan and the Trust therefor.
17.5. NO ALIENATION. Except insofar as may otherwise be
required by law or pursuant to the terms of a Qualified Domestic Relations
order, no amount payable at any time under the Plan and the Trust shall be
subject in any manner to alienation by anticipation, sale, transfer,
assignment, bankruptcy, pledge, attachment, charge or encumbrance of any
kind nor in any manner be subject to the debts or liabilities of any person
and any attempt to so alienate or subject any such amount, whether
presently or thereafter payable, shall be void, if any person shall attempt
to, or shall alienate, sell, transfer, assign, pledge, attach, charge or
otherwise encumber any amount payable under the Plan and the Trust, or any
part thereof, or if by reason of his bankruptcy or other event happening at
any such time such amount would be made subject to his debts or liabilities
or would otherwise not be enjoyed by him, then the Administrative
Committee, if it so elects, may direct that such amount be withheld and
that the same or any part thereof be paid or applied to or for the benefit
of such person, his spouse, children or other dependents, or any of them,
in such manner and proportion as the Administrative Committee may deem
proper. For purposes of the Plan, a "Qualified Domestic Relations Order"
means any judgment, decree or order (including approval of a property
settlement agreement) which has been determined by the Administrative
Committee in accordance with procedures established under the Plan, to
constitute a qualified domestic relations order within the meaning of
Section 414(p)(1) of the code.
17.6. MISSING PAYEE. If the Administrative Committee
cannot ascertain the whereabouts of any person to whom a payment is due
under the Plan, and if, after five years from the date such payment is due,
a notice of such payment due is mailed to the last known address of such
person, as shown on the records of the Administrative Committee or the
Employer, and within three months after such mailing such person has not
made written claim therefor, the Administrative Committee, if it so elects,
after receiving advise from counsel to the Plan, may direct that such
payment and all remaining payments otherwise due to such person be canceled
on the records of the Plan and the amount thereof applied to reduce the
contributions of the Participating Company, and upon such cancellation, the
Plan and the Trust shall have no further liability therefor except that, in
the event such person later notifies the Administrative Committee of his
whereabouts and requests the payment or payments due to him under the Plan,
the amount so applied shall be paid to him as provided in Section 11.
17.7. REQUIRED INFORMATION. Each Participant shall file
with the Administrative Committee such pertinent information concerning
himself, his Surviving Spouse or Beneficiary as the Administrative
Committee may specify, and no Participant, Surviving Spouse, Beneficiary,
or other person shall have any rights or be entitled to any benefits under
the Plan unless such information is filed by or with respect to him.
17.8. SUBJECT TO TRUST AGREEMENT. Any and all rights or
benefits accruing to any persons under the Plan shall be subject to the
terms of the trust agreement which the Company shall enter into with the
Trustee providing for the administration of the Trust Fund. If the payment
of any benefit under the Plan is provided for by a contract with an
insurance company, the payment of such benefit shall also be subject to all
the provisions of such contract.
17.9. COMMUNICATIONS TO COMMITTEES. All elections,
designations, requests, notices, instructions, and other communications
from a Participating Company, a Participant, Surviving Spouse, Beneficiary
or other person to the Committees required or permitted under the Plan
shall be in such form as is prescribed from time to time by each such
Committee, shall be mailed by first-class mail or delivered to such
location as shall be specified by each such Committee, and shall be deemed
to have been given and delivered only upon actual receipt thereof by such
Committee at such location.
17.10. COMMUNICATIONS FROM PARTICIPATING COMPANY OR
COMMITTEES. All notices, statements, reports and other communications from
a Participating Company or any of the Committees to any employee,
Participant, Surviving Spouse, Beneficiary or other person required or
permitted under the Plan shall be deemed to have been duly given when
delivered to, or when mailed by first-class mail, postage prepaid and
addressed to, such employee, Participant, Surviving Spouse, Beneficiary or
other person at his address last appearing on the records of the
Administrative Committee, or when posted by the Participating Company or
such Committee as permitted by law.
17.11. INCOMING TRANSFERS AND ROLLOVERS. Upon such terms
and conditions as the Administrative Committee may approve, and subject to
any required approval by the IRS, benefits may be provided under the Plan
to a Participant with respect to any period of his employment by any
organization, and such benefits (and any Hours of Service credited with
respect to such period of employment under Section 2.18) may be provided
for, in whole or in part, by funds transferred, directly or indirectly
(including a rollover from a conduit or employer sponsored individual
retirement account, or an individual retirement annuity as described in
Section 408 of the Code), to the Trust from an employee benefit plan of
such organization which qualified under Section 401(a) of the Code. Subject
to Appendix A, such amounts shall be credited to the Participant's
"Rollover Contribution Account."
17.12. GENDER. Whenever used in the Plan the masculine
gender includes the feminine.
17.13. CAPTIONS. The captions preceding the sections of the
Plan have been inserted solely as a matter of convenience and in no way
define or limit the scope or intent of any provisions of the Plan.
17.14. APPLICABLE LAW. The Plan and all rights thereunder
shall be governed by and construed in accordance with the Act, the Code and
the laws of the State of New York.
17.15. MISTAKE OF FACT. Notwithstanding any other
provisions herein contained, if any contribution is made by a mistake of
fact, such contribution shall upon the direction of the Administrative
Committee, which shall be given in conformity with the provisions of the
Act, be returned, without liability to any person.
17.16. QUALIFICATION OF PLAN. Notwithstanding any other
provisions herein contained, the Plan is amended and restated on the
condition that the Plan, and the trust agreement established hereunder
shall be approved by the IRS as a qualified and exempt plan and trust under
the provisions of the Code and the Regulations so that contributions to the
Trust may be deducted for federal income tax purposes, within the limits of
such Code and Regulations, and to be non-taxable to Participants when
contributed. If such approval should be denied for any reason (including
failure to comply with any conditions for such approval imposed by the
IRS), contributions made after the execution of the trust agreement and
prior to such denial shall be returned, without any liability to any
person, within one year after the date of denial of such approval.
17.17. DEDUCTIBILITY OF CONTRIBUTIONS. Notwithstanding any
other provisions herein contained, all contributions are hereby expressly
conditioned upon their deductibility under Section 404 of the Code and the
Regulations, as amended from time to time, and if the deduction for any
contribution is disallowed in whole or in part, then such contribution (to
the extent the deduction is disallowed) shall upon direction of the
Administrative Committee, which shall be given in conformity with the
provisions of the Act, be returned, without liability to any person, within
one year after such disallowance.
SECTION 18. TOP HEAVY PROVISIONS
18.1. TOP HEAVY PLAN. The Plan will be considered a Top
Heavy Plan for any Plan Year if it is determined to be a Top Heavy Plan as
of the last day of the preceding Plan Year (or, with respect to the first
Plan Year, the last day of such Plan Year). For purposes of determining
whether the Plan is a Top Heavy Plan, actuarial assumptions which reflect
reasonable mortality experience and a reasonable interest rate that
uniformly applies for accrual purposes under all plans maintained by the
Company and Affiliates shall be used. The Value of a Participant's Account
shall be determined as of the last valuation date used for computing Plan
costs for minimum contribution purposes which occurs within the Plan Year
in which the determination is being made, and shall include amounts
distributed to or on behalf of the Participant within the four preceding
Plan Years. Notwithstanding any other provisions in the Plan, the
provisions of this Section 18 shall apply and supersede all other
provisions in the Plan during each Plan Year with respect to which the Plan
is determined to be a Top Heavy Plan.
18.2. DEFINITIONS. For purposes of this Section 18 and as
otherwise used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Determination Date" means the last day of the
preceding Plan Year or the last day of the first Plan Year.
(b) "Key Employee" means
(1) each person (and his Beneficiary) who at any
time during the five Plan Years ending on the
Determination Date:
(i) was an officer of the Company having an
annual compensation (within the meaning
of Section 414(q)(7) of the Code)
greater than 50% of the amount in effect
under Section 415(b)(1)(A) of the Code
for any such Plan Year;
(ii) was one of the 10 Employees owning the
largest interest of the Company but only
if he received compensation (within the
meaning of Section 414(q)(7) of the
Code) equal to or greater than the
dollar amount applied for purposes of
Section 415(c)(1)(A) of the Code for the
calendar year ending coincident with or
immediately after the Determination
Date; or
(iii) owned at least five percent of the
Company's outstanding shares of stock or
at least five percent of the total
combined voting power of the Company's
shares of stock, or owned at least one
percent of the Company's shares of
stock.
(2) The following special rules apply to this
definition:
(i) No more than 50 officers, or, if less,
the greater of three or 10% of all
Employees will be Key Employees under
Subsection (i)(A). If there are more
officers than are counted under the
preceding sentence, only those who had
the highest aggregate compensation
(within the meaning of Section 414(q)(7)
of the Code) during the five Plan Years
ending on the Determination Date will be
considered Key Employees.
(ii) A person is an officer only if he is in
regular and continued service as an
administrative executive of the Company.
(iii) No person will be a Key Employee under
more than one paragraph of this
definition unless he also is a
Beneficiary of a deceased Key Employee.
(iv) A person will be treated as owning all
shares of stock which he owns directly
or constructively by application Section
318 of the Code.
(v) For purposes of determining whether a
person is a one-percent or five-percent
owner of the Company, his ownership
interest in any entity related to the
Company solely by reason of Sections
414(b), (c) or (m) of the Code will be
disregarded.
(c) "Non-Key Employee" means (1) any Employee who is not
a Key Employee, or (2) a Beneficiary of a Non-Key Employee.
(d) "Permissive Aggregation Group" means all qualified
employee pension benefit plans in the Required Aggregation Group and any
qualified employee pension benefit plans sponsored by the Employer which
are not part of the Required Aggregation Group, but which satisfy the
requirements of Sections 401(a)(4) and 410 of the Code when considered
together with the Required Aggregation Group and which the Company elects
to have included in the Permissive Aggregation Group.
(e) "Required Aggregation Group" means the Plan and any
other qualified employee pension benefit plan sponsored by the Employer (1)
in which a Key Employee participates or (2) which enables the Plan to meet
the requirements of Sections 401(a)(4) or 410 of the Code.
(f) "Top Heavy Group" means all qualified employee
pension benefit plans of the Employer in the Required Aggregation Group and
any other qualified employee benefit plan of the Employer which the
Employer elects to aggregate as part of a Permissive Aggregation Group if,
on any Determination Date, the Value of the cumulative annual accrued
benefits for Key Employees under all defined benefit plans and the
aggregate Value of all Key Employees' accounts under all defined
contribution plans exceed 60% of a similar sum determined for all
Employees. For purposes of that computation, the accounts and cumulative
annual accrued benefits of all Non-Key Employees who were, but no longer
are, Key Employees will be disregarded. If the aggregated plans do not
have the same Determination Date, this test will be made using the Value
calculated as of each such plan's Determination Date occurring during the
same Plan Year.
(g) "Top Heavy Plan" means the Plan if, on any
Determination Date, the present Value of the Account under the Plan for Key
Employees exceeds 60% of the Value of the Accounts under the Plan for all
Employees. For purposes of the comparison, the Accounts of all Non-Key
Employees who were, but no longer are, Key Employees will be disregarded.
The Plan is Super Top Heavy if it would be a Top Heavy Plan if 90% were
substituted for 60% wherever it appears in the definition of Top Heavy and
Top Heavy Group.
(h) "Top Heavy Plan Year" means any Plan Year during
which the Plan is Top Heavy or part of a Top Heavy Group.
(i) "Value" means:
(1) for all defined benefit plans, the present
value calculated as provided in those plans;
and
(2) for all defined contribution plans, the fair
market value of each Participant's account
(including amounts attributable to voluntary
employee contributions from a qualified em-
ployee pension benefit plan sponsored by the
Company or an Affiliate) determined as of the
most recent Determination Date increased by:
(i) distributions made during the five Plan
Years ending on the Determination Date
(except distributions already included
in determining the Value of the
Accounts); and
(ii) all rollover contributions distributed
from the plans to a qualified employee
benefit plan not sponsored by the
Company or an Affiliate, and decreased
by;
(iii) any deductible employee contributions;
(iv) rollover contributions received by the
plans after December 31, 1983 from a
qualified employee benefit plan not
sponsored by the Company or an
Affiliate; and
(v) rollover contributions distributed from
the Plan to a qualified employee pension
benefit plan by the Company or an
Affiliate.
18.3. COMPENSATION. For any Plan Year that the Plan is a
Top Heavy Plan, only the first $200,000 (adjusted for Plan Years beginning
on or after January 1, 1988, in accordance with the Regulations) of
compensation (within the meaning of Section 414(q)(7) of the Code) shall be
credited to a Participant.
18.4. MINIMUM CONTRIBUTION. (a) Subject to Section 18.5,
for each Plan Year that the Plan is a Top Heavy Plan, the Company
Contribution allocable to the Account of each Participant who has performed
an Hour of Service at the end of the Plan Year and who is not a Key
Employee and who has not separated from service at the end of the Plan
Year, regardless of such Employee's level of Compensation, shall not be
less than the lesser of (i) three percent of such Participant's
compensation, within the meaning of Section 415 of the Code, or (ii) the
percentage at which contributions and forfeitures for such Plan Year are
made and allocated on behalf of the Key Employee for whom such percentage
is the highest. For the purpose of determining the appropriate percentage
under clause (ii), all defined contribution plans required to be included
in a Required Aggregation Group shall be treated as one plan. Clause (ii)
shall not be applicable if the Plan is included in a Required Aggregation
Group which enables a defined benefit plan also required to be included in
said Required Aggregation Group to satisfy Sections 401(a)(4) or 410 of the
Code. For each Plan Year that the Plan is a Top Heavy Plan, each Non-Key
Employee will receive a minimum contribution if such Employee is a
Participant as of the last day for the Plan Year, regardless of whether or
not such Non-Key Employee has completed 1,000 Hours of Service. Company
Contributions under Section 18.4(a) shall include Elective Contributions
made on behalf of a Participant.
18.5. LIMITATIONS ON CONTRIBUTIONS.
(a) For each Plan Year that the Plan is a Top Heavy Plan,
1.0 shall be substituted for 1.25 as the multiplicand of the dollar
limitation in determining the denominator of the defined benefit plan
fraction and of the defined contribution plan fraction for purposes of
Section 415(e) of the Code.
(b) If, after substituting 90% for 60% wherever the
latter appears in Section 416(g) of the Code, the Plan is not determined to
be a Top Heavy Plan, the provisions of paragraph (a) shall not be
applicable if the minimum Company Contribution allocable to the Account of
any Participant who is not a Key Employee as specified in Section 18.4 is
determined by substituting "four" for "three".
18.6. OTHER PLANS. The Administrative Committee shall, to
the extent permitted by the Code and in accordance with the Regulations,
apply the provisions of this Section 18 by taking into account the benefits
payable and the contributions made under any other plans maintained by the
Employer or any of its subsidiaries or affiliated or associated entities
which are qualified under Section 401(a) of the Code to prevent inappropri-
ate omissions or required duplication of minimum benefits or contributions.
OGDEN SERVICES
PROFIT SHARING PLAN
APPENDIX A
In accordance with Section 8.1, this Appendix A serves to
identify the various accounts maintained under the Plan that were
transferred from other qualified plans that are qualified under Code
Section 401 and are exempt from tax under Code Section 501(a). These
accounts are subject to all of the provisions under the Plan except where
otherwise noted.
1. AFTER-TAX ACCOUNT - This account was established to receive
the after-tax contributions (and earnings thereon) of employees who
formerly participated in the Ogden Allied Services Saving and Security Plan
and the Ogden Corporation Profit Sharing Plan. No further contributions
may be credited to this account under any circumstances. Any Participant
in whose behalf such an account was established shall be fully vested in
such account at all times.
2. PRIOR COMPANY ACCOUNT - This account was established to
receive stock bonus contributions (and earnings thereon) credited to the
accounts of employees who formerly participated in the Allied Maintenance
Corporation Variable Income (Stock Savings) Retirement Plan, the Ogden
Allied Services Saving and Security Plan, the Ogden Food Service
Corporation Pension Plan and the Nedicks Pension Plan, Ogden Corporation
Profit Sharing Plan, and the Atlantic Design Profit Sharing Plan. No
further contributions may be credited to this account under any
circumstances. Any Participant in whose behalf such an account was
established shall be fully vested in such account at all times.
3. ROLLOVER ACCOUNT - This account was established to receive
rollover contributions credited to the rollover account of Participants who
formerly participated in any other qualified employees retirement plan.