EXHIBIT 10.7(p)(i)
OGDEN
PROFIT SHARING PLAN
OGDEN
PROFIT SHARING PLAN
TABLE OF CONTENTS
Section Page
1. PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.1. "Account" . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.2. "Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.3. "Actual Contribution Percentage". . . . . . . . . . . . . . . .2
2.4. "Actual Contribution Ratio" . . . . . . . . . . . . . . . . . 2
2.5. "Actual Deferral Percentage". . . . . . . . . . . . . . . . . .2
2.6. "Actual Deferral Ratio" . . . . . . . . . . . . . . . . . . . .2
2.7. "Administrative Committee". . . . . . . . . . . . . . . . . . .2
2.8. "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.9. "Base Compensation" . . . . . . . . . . . . . . . . . . . . . .3
2.10. "Base Contribution Percentage". . . . . . . . . . . . . . . . .3
2.11. "Beneficiary" . . . . . . . . . . . . . . . . . . . . . . . . .3
2.12. "Board of Directors". . . . . . . . . . . . . . . . . . . . . .3
2.13. "Break in Service" . . . . . . . . . . . . . . . . . . . . . .3
2.14. "Code". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.15. "Committee" . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.16. "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.17. "Company Contribution Account". . . . . . . . . . . . . . . . .3
2.18. "Company Discretionary Contributions" . . . . . . . . . . . . .3
2.19. "Company Matched Contributions" and
"Company Matched Contribution Account". . . . . . . . . . . . .4
2.20. "Compensation". . . . . . . . . . . . . . . . . . . . . . . . .4
2.21. "Contributions" . . . . . . . . . . . . . . . . . . . . . . . .4
2.22. "Direct Rollover" . . . . . . . . . . . . . . . . . . . . . . .4
2.23. "Disability". . . . . . . . . . . . . . . . . . . . . . . . . .5
2.24. "Distributee" . . . . . . . . . . . . . . . . . . . . . . . . .5
2.25. "Early Retirement Age". . . . . . . . . . . . . . . . . . . . .5
2.26. "Early Retirement Date" . . . . . . . . . . . . . . . . . . . .5
2.27. "Effective Date". . . . . . . . . . . . . . . . . . . . . . . .5
2.28. "Eligible Employee" . . . . . . . . . . . . . . . . . . . . . .5
2.29. "Eligible Retirement Plan". . . . . . . . . . . . . . . . . . .5
2.30. "Eligible Rollover Distribution". . . . . . . . . . . . . . . .5
2.31. "Employee". . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.32. "Employer". . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.33. "Excess Compensation" . . . . . . . . . . . . . . . . . . . . .6
2.34. "Excess Contribution Percentage". . . . . . . . . . . . . . . .6
2.35. "Family Member" . . . . . . . . . . . . . . . . . . . . . . . .6
2.36. "Highly Compensated Employee" or
"Highly Compensated Participant". . . . . . . . . . . . . . . .6
2.37. "Hours of Service". . . . . . . . . . . . . . . . . . . . . . .7
2.38. "Individual Retirement Account Rollover
Contribution" . . . . . . . . . . . . . . . . . . . . . . . . .8
2.39. "Investment Committee". . . . . . . . . . . . . . . . . . . . .8
2.40. "Investment Funds". . . . . . . . . . . . . . . . . . . . . . .8
2.41. "IRS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.42. "Labor Department". . . . . . . . . . . . . . . . . . . . . . .8
2.43. "Normal Retirement Age" . . . . . . . . . . . . . . . . . . . .8
2.44. "Normal Retirement Date". . . . . . . . . . . . . . . . . . . .8
2.45. "Participant" . . . . . . . . . . . . . . . . . . . . . . . . .8
2.46. "Participating Company" . . . . . . . . . . . . . . . . . . . .8
2.47. "Pre-tax Contributions" . . . . . . . . . . . . . . . . . . . .9
2.48. "Pre-tax Contribution Account". . . . . . . . . . . . . . . . .9
2.49. "Plan". . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.50. "Plan Year" . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.51. "Prior Plan". . . . . . . . . . . . . . . . . . . . . . . . . .9
2.52. "Qualified Domestic Relations Order". . . . . . . . . . . . . .9
2.53. "Qualified Plan Rollover Contribution". . . . . . . . . . . . .9
2.54. "Regulations" . . . . . . . . . . . . . . . . . . . . . . . . 10
2.55. "Rollover Contribution" . . . . . . . . . . . . . . . . . . . 10
2.56. "Salary". . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.57. "Surviving Spouse". . . . . . . . . . . . . . . . . . . . . . 10
2.58. "Taxable Year". . . . . . . . . . . . . . . . . . . . . . . . 10
2.59. "Trust" or "Trust Fund" . . . . . . . . . . . . . . . . . . . 10
2.60. "Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.61. "Valuation Date". . . . . . . . . . . . . . . . . . . . . . . 11
2.62. "Vesting Service" . . . . . . . . . . . . . . . . . . . . . . 11
2.63. "Year of Service" . . . . . . . . . . . . . . . . . . . . . . 11
2.64. "Years of Vesting Service". . . . . . . . . . . . . . . . . . 11
3. PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1. Date of Participation . . . . . . . . . . . . . . . . . . . . 11
3.2. Participation and Adjustments . . . . . . . . . . . . . . . . 12
3.3. Duration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4. Reemployment. . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5. Establishment and Maintenance of Separate
Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. SAVINGS FEATURES . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1. Pre-tax Contributions . . . . . . . . . . . . . . . . . . . . 12
4.2. Distribution of Excess Pre-tax Contributions. . . . . . . . . 13
4.3. Election to Institute, Change, or
Resume Contributions. . . . . . . . . . . . . . . . . . . . . 13
4.4. Limitation on Pre-tax Contributions . . . . . . . . . . . . . 14
4.5. Refund of Excess Contributions. . . . . . . . . . . . . . . . 15
4.6. Rollover Contributions. . . . . . . . . . . . . . . . . . . . 17
5. COMPANY CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . 17
5.1. Company Matched Contributions . . . . . . . . . . . . . . . . 17
5.2. Company Discretionary Contributions . . . . . . . . . . . . . 17
5.3. Time of Payment of Company Contributions. . . . . . . . . . . 18
5.4. Form of Payment of Company Contributions. . . . . . . . . . . 18
5.5. Maintenance of Accounts Shall Not Vest
any Right in Assets . . . . . . . . . . . . . . . . . . . . . 18
5.6. Limitation on Company Matched Contributions . . . . . . . . . 18
6. ALLOCATION OF COMPANY AND MATCHING CONTRIBUTIONS . . . . . . . . . . 21
6.1. Allocation of Discretionary Company Contributions . . . . . . 21
6.2. Discretionary Company Contribution Formula. . . . . . . . . . 21
6.3. Allocation of Matching Contribution . . . . . . . . . . . . . 22
7. INVESTMENT OF CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . 22
7.1. Investment by Trustees. . . . . . . . . . . . . . . . . . . . 22
7.2. Investment Funds. . . . . . . . . . . . . . . . . . . . . . . 22
7.3. Investment Elections. . . . . . . . . . . . . . . . . . . . . 23
8. VALUATIONS AND ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . 24
8.1. Separate Accounts . . . . . . . . . . . . . . . . . . . . . . 24
8.2. Allocation of Earnings and Losses Valuation
of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4. Allocation of Forfeitures . . . . . . . . . . . . . . . . . . 25
9. ELIGIBILITY FOR BENEFITS . . . . . . . . . . . . . . . . . . . . . . 25
9.1. Retirement Date . . . . . . . . . . . . . . . . . . . . . . . 25
9.2. Distribution of Participant's Account on
Retirement, Death, or Disability. . . . . . . . . . . . . . . 25
9.3. Distribution on other Termination of Service. . . . . . . . . 26
9.4. In-Service and Hardship Withdrawals . . . . . . . . . . . . . 26
9.5. Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.6. Restrictions on Distributions . . . . . . . . . . . . . . . . 30
10. VESTED INTERESTS. . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.1. Pre-tax Contributions. . . . . . . . . . . . . . . . . . . . 30
10.2. Company Contributions. . . . . . . . . . . . . . . . . . . . 30
10.3. Transferred Accounts . . . . . . . . . . . . . . . . . . . . 30
10.4. Break in Service for Vesting . . . . . . . . . . . . . . . . 30
11. METHOD OF PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . 31
11.1. Payment of Benefits. . . . . . . . . . . . . . . . . . . . . 31
11.2. Commencement of Payment. . . . . . . . . . . . . . . . . . . 31
11.3. Time of Payment. . . . . . . . . . . . . . . . . . . . . . . 32
11.4. Direct Rollovers . . . . . . . . . . . . . . . . . . . . . . 33
12. MAXIMUM AMOUNT OF ALLOCATION. . . . . . . . . . . . . . . . . . . . 33
12.1. Application of Section 12. . . . . . . . . . . . . . . . . . 33
12.2. Maximum Additions to Account . . . . . . . . . . . . . . . . 33
12.3. Order of Reduction . . . . . . . . . . . . . . . . . . . . . 34
12.4. Additional Account Limitations . . . . . . . . . . . . . . . 34
13. DESIGNATION OF BENEFICIARIES. . . . . . . . . . . . . . . . . . . . 35
13.1. Beneficiary Designation. . . . . . . . . . . . . . . . . . . 35
13.2. Failure to Designate Beneficiary . . . . . . . . . . . . . . 35
14. ADMINISTRATION OF THE PLAN. . . . . . . . . . . . . . . . . . . . . 36
14.1. Powers and Duties of Administrative Committee. . . . . . . . 36
14.2. Powers and Duties of Investment Committee. . . . . . . . . . 36
14.3. Powers and Duties of Trustee . . . . . . . . . . . . . . . . 36
14.4. Agents, Report of Committees to Board. . . . . . . . . . . . 36
14.5. Structure of Committees. . . . . . . . . . . . . . . . . . . 37
14.6. Adoption of Procedures of Committees . . . . . . . . . . . . 37
14.7. Demands for Money. . . . . . . . . . . . . . . . . . . . . . 37
14.8. Claims for Benefits. . . . . . . . . . . . . . . . . . . . . 38
14.9. Hold Harmless. . . . . . . . . . . . . . . . . . . . . . . . 38
14.10. Service of Process . . . . . . . . . . . . . . . . . . . . . 38
14.11. Specific Powers and Duties . . . . . . . . . . . . . . . . . 39
15. WITHDRAWAL OF PARTICIPATING COMPANY . . . . . . . . . . . . . . . . 39
15.1. Withdrawal of Participating Company. . . . . . . . . . . . . 39
15.2. Distribution after Withdrawal. . . . . . . . . . . . . . . . 39
15.3. Transfer to Successor Plan . . . . . . . . . . . . . . . . . 40
16. AMENDMENT OR TERMINATION OF THE PLAN AND THE TRUST. . . . . . . . . 40
16.1. Right to Amend, Suspend or Terminate Plan. . . . . . . . . . 40
16.2. Retroactivity. . . . . . . . . . . . . . . . . . . . . . . . 41
16.3. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
16.4. No Further Contribution. . . . . . . . . . . . . . . . . . . 41
16.5. Partial Termination. . . . . . . . . . . . . . . . . . . . . 42
16.6. Exclusive Benefit of Participants and
Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . 42
17. GENERAL LIMITATIONS AND PROVISIONS. . . . . . . . . . . . . . . . . 42
17.1. All Risk on Participants and Beneficiaries . . . . . . . . . 42
17.2. Trust is Sole Source of Benefits . . . . . . . . . . . . . . 42
17.3. No Right to Continued Employment . . . . . . . . . . . . . . 42
17.4. Payment on Behalf of Payee . . . . . . . . . . . . . . . . . 42
17.5. No Alienation. . . . . . . . . . . . . . . . . . . . . . . . 43
17.6. Missing Payee. . . . . . . . . . . . . . . . . . . . . . . . 43
17.7. Required Information . . . . . . . . . . . . . . . . . . . . 43
17.8. Subject to Trust Agreement . . . . . . . . . . . . . . . . . 43
17.9. Communications to Committees . . . . . . . . . . . . . . . . 44
17.10. Communications from Participating
Company or Committees . . . . . . . . . . . . . . . . . . . 44
17.11. Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
17.12. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 44
17.13. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . 44
17.14. Mistake of Fact. . . . . . . . . . . . . . . . . . . . . . . 44
17.15. Qualification of Plan. . . . . . . . . . . . . . . . . . . . 44
17.16. Deductibility of Contributions . . . . . . . . . . . . . . . 45
18. TOP HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 45
18.1. Top Heavy Plan . . . . . . . . . . . . . . . . . . . . . . . 45
18.2. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 45
18.3. Top Heavy Vesting. . . . . . . . . . . . . . . . . . . . . . 47
18.4. Minimum Contribution . . . . . . . . . . . . . . . . . . . . 48
18.5. Limitations on Contributions . . . . . . . . . . . . . . . . 48
18.6. Other Plans. . . . . . . . . . . . . . . . . . . . . . . . . 48
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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.
Subsequently, the Atlantic Design Profit Sharing Plan (effective
January 1, 1992), and the Lenzar Electro-Optics, Inc. Profit
Sharing Plan (effective April 1, 1994) were 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 effective as
herein provided, 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 hereafter 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
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 on the date of the person's retirement or
other termination of employment.
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; and Company Discretionary Account,
pursuant to Sections 5.1 and 5.2; Pre-tax Contribution Account,
pursuant to Section 4.1, Rollover Account 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. "Actual Contribution Percentage" means, for any
Plan Year, the Plan's Actual Contribution Ratio of the sum of (A)
the Company Matched Contributions made on account of 401(k) Matched
Contributions made during the Plan Year and allocated to the
Participant's Company Match Account during such Plan Year
(excluding any Company Matched Contributions which are
nonforfeitable when made and are subject to the IRS Regulations
Section 1.401(k) - 1(b) and are used to meet the Actual Deferral
Percentage test under Section 4), and (B) at the Administrative
Committee's election in accordance with IRS Regulations, Pre-tax
Contributions (including excess contributions under Section 4, if
the contribution would have been received in cash by the
Participant for the Plan Year) to the amount of the Participant's
Salary for such Plan Year.
2.4. "Actual Contribution Ratio" means the average of
the contribution ratios for each specified group of Eligible
Employees as determined by the Administrative Committee.
2.5. "Actual Deferral Percentage" means, for any Plan
Year, the Plan's Actual Deferral Ratio of the amount of
contributions allocated to the Participant's Pre-tax Contribution
Account (and any Company Matched Contributions which meet the
requirements of Section 1.401(k)-1(b)(5) of the IRS Regulations)
during the Plan Year to the amount of the Participant's Salary for
such Plan Year.
2.6. "Actual Deferral Ratio" means the average of the
deferral ratios for each specified group of eligible Employees, as
determined by the Administrative Committee.
2.7. "Administrative Committee" means the Administrative
Committee provided for in Section 14.
2.8. "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.
2.9. "Base Compensation" means Compensation paid to a
Participant that does not exceed the annual Social Security taxable
wage base.
2.10. "Base Contribution Percentage" means the contribution
percentage as calculated in Section 6.2 which is applied to the Base
Compensation.
2.11. "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.
2.12. "Board of Directors" means the Board of Directors
of the Company.
2.13. "Break in Service" means a 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 individual would have completed but for
a maternity or paternity absence, as determined by the
Administrative Committee in accordance with this Section 2.13, the
Code and the Regulations; provided, however, that the total Hours
of Service so credited shall not exceed 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 2.13, 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.
2.14. "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.
2.15. "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.
2.16. "Company" means Ogden Services Corporation or any
successor to the Company.
2.17. "Company Contribution Account" means the
Participant's Company Matched Contribution Account.
2.18. "Company Discretionary Contributions" and "Company
Discretionary Contribution Account" means those Employer
contributions made pursuant to Section 5.2 and that portion of the
Participant's Account to which such contributions are credited.
2.19. "Company Matched Contributions" and "Company
Matched Contribution Account" means those Employer contributions
made pursuant to Section 5.1 and that portion of the Participant's
Account to which such contributions are credited.
2.20. "Compensation" means, for each Plan Year beginning
before January 1, 1994, an Employee's first $200,000 (as adjusted
for cost of living to the extent permitted by the Code and IRS
Regulations), and for each Plan Year beginning on or after January
1, 1994, an Employee's first $150,000 (as adjusted by the
Commissioner of the IRS , for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Code) (the "annual
compensation limit") of 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 profit sharing payments
(an annual cash payment determined by the Compensation Committee of
the Board and paid to the Employee), 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. 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, the term 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 annual compensation limit is exceeded, then the limit
shall be prorated among the affected individuals in proportion to
each such individual's Compensation as determined under this
Section 2.20 prior to the application of the annual compensation
limit.
2.21. "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 Sections 5.1 and 5.2, Pre-tax Contributions
made by a Participant on a pre-tax basis pursuant to Section 4.1,
Rollover Contributions pursuant to Section 4.6, and any other
contribution made in accordance with Appendix A.
2.22. "Direct Rollover" means (i) a distribution by the
Plan to an Eligible Retirement Plan as specified by a Distributee
and (ii) a payment by another employee retirement plan to the Plan
as a Rollover Contribution as specified by an Eligible Employee.
2.23. "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.
2.24. "Distributee" means a Participant or a former
Participant, a Participant's or former Participant's Surviving
Spouse or a former spouse of a Participant or former Participant
who is a payee under a Qualified Domestic Relations Order to which
a distribution is to be made under the Plan shall also be deemed to
be a Distributee.
2.25. "Early Retirement Age" means the date a
Participant attains age 55 and completes 10 Years of Service.
2.26. "Early Retirement Date" means the first day of the
month coincident with or next following the Participant's Early
Retirement Age.
2.27. "Effective Date" of this amendment and restatement
means January 1, 1994. The original effective date of the Plan is
January 1, 1982.
2.28. "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.
2.29. "Eligible Retirement Plan" means (i) an individual
retirement account, as described in Section 408(a) of the Code,
(ii) an individual retirement annuity, as described in Section
408(b) of the Code, (iii) an annuity plan, as described in Section
403(a) of the Code, and (iv) a qualified plan and trust, as
described in Sections 401(a) and 501(a) of the Code; provided,
however, that in the case of an Eligible Rollover Distribution to
a Surviving Spouse, an Eligible Retirement Plan means an individual
retirement account or an individual retirement annuity, as
described in Sections 408(a) and 408(b) of the Code, respectively.
2.30. "Eligible Rollover Distribution" means any
distribution from the Plan of all or any portion of the balance to
the credit of a Distributee, except that an Eligible Rollover
Distribution shall not include: (i) any distribution to the extent
such distribution is required under Section 11.2(b) and Section
401(a)(9) of the Code, (ii) any distribution that is one of a
series of the substantially equal periodic payments (not less
frequently than annually) made for the life of the Distributee or
the joint lives (or joint life expectancies) of the Distributee or
the joint lives (or joint life expectancies) of the Distributee and
the Distributee's Beneficiary, or for a period of ten years or
more, (iii) the portion of any distribution that is not includible
in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities), and
(iv) after tax contributions made in accordance with Appendix A.
2.31. "Employee" means an individual in the employ of
the Employer who is employed on an hourly or salaried basis.
2.32. "Employer" means the Company and each other
Participating Company, or any of them.
2.33. "Excess Compensation" means Compensation paid that
exceeds the annual Social Security taxable wage base.
2.34. "Excess Contribution Percentage" means the
Contribution percentage as calculated in Section 6.2 and which is
applied to the Excess Compensation.
2.35. "Family Member" means a spouse, lineal ascendants
and descendants of an Employee or former Employee and the spouses
of such lineal ascendants and descendants.
2.36. "Highly Compensated Employee" or "Highly Compensated
Participant" means an Employee or Participant 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 and who,
during the look-back year (i) received Salary from the Employer in
excess of $75,000 (as adjusted pursuant to Section 415(d) of the
Code); (ii) received Salary 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 Salary 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 (1) Employees who are both
described in the preceding sentence if the term determination year
is substituted for the term look-back year and the Employee is one
of the 100 Employees who received the most Salary from the Employer
or an Affiliate during the determination year, (2) Employees who
are five percent owners at any time during the look-back year or
determination year, and (3) Employees who have separated from
Service or deemed to have separated from Service prior to the
determination year, 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 Salary received during the determination
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
Salary 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 Section 2.36, the "determination year" shall be the Plan 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), or, if elected,
the calendar year immediately preceding the calendar year 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 Salary 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 or top 10 Highly Compensated
Employee shall be treated as a single Employee receiving Salary and
contributions or benefits, as applicable, equal to the sum of such
Salary 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 Salary that is
considered, will be made in accordance with Section 414(q) of the
Code and IRS Regulations. Notwithstanding the foregoing, the
Administrative Committee may elect the simplified definition of
Highly Compensated Employee and Highly Compensated Participant
contained in Section 414(q)(12) of the Code. If the Administrative
Committee so elects such definition, then $50,000 (as adjusted
pursuant to Section 415(d) of the Code) shall be substituted for
$75,000 in (i) above and (ii) above will be disregarded.
2.37. "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.
2.38. "Individual Retirement Account Rollover Contribution"
means the entire amount received by an Eligible Employee from
an individual retirement account representing the entire amount in
the account (the "qualifying amount") if no part of the amount in
the account is attributable to any source other than (i) an
employer's plan and trust described in Section 401(a) of the Code,
that is exempt from federal income tax under Section 501(a) of the
Code, or (ii) a qualified annuity plan meeting the requirements of
Section 403(a) of the Code, and any earnings on such sums. An
Individual Retirement Account Rollover Contribution shall be
accepted only if the entire qualifying amount was received by the
Eligible Employee in cash, and only such cash amount is included in
the Individual Retirement Account Rollover Contribution. The
Eligible Employee may transfer any portion of such cash amount to
the Trust on or before the 60th day after the day on which the
Participant received the qualifying amount.
2.39. "Investment Committee" means the Investment
Committee provided for in Section 14.2.
2.40. "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.
2.41. "IRS" means the United States Internal Revenue
Service.
2.42. "Labor Department" means the United States
Department of Labor.
2.43. "Normal Retirement Age" means the Participant's
65th birthday.
2.44. "Normal Retirement Date" means the first day of
the month coincident with or next following the Participant's
Normal Retirement Age.
2.45. "Participant" means any Employee who begins to
participate in the Plan as provided in Section 3, and whose
participation is not terminated.
2.46. "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.
2.47. "Pre-tax Contributions" means 401(k) matched
contributions and 401(k) unmatched contributions as described in
Section 4.1.
2.48. "Pre-tax Contribution Account" means the 401(k)
matched account and the 401(k) unmatched account as described in
Section 4.1.
2.49. "Plan" means this Ogden Profit Sharing Plan, as
the same may be amended from time to time.
2.50. "Plan Year" means the calendar year.
2.51. "Prior Plan" means, individually or collectively,
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, effective as of January 1, 1992, Atlantic Design
Profit Sharing Plan and effective as of April 1, 1994, the Lenzar
Electro-Optics, Inc. Profit Sharing Plan.
2.52. "Qualified Domestic Relations Order" means any
judgment, decree or order (including approval of a 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.
2.53. "Qualified Plan Rollover Contribution" means,
(a) For Rollover Contributions made prior to
January 1, 1993, the balance to the credit of an Eligible Employee
under an employee retirement plan meeting the requirements of
Section 401(a) of the Code, paid to an Eligible Employee in one or
more distributions which constitute a "lump sum distribution"
within the meaning of Section 402(d)(4)(A) of the Code (determined
without reference to Sections 402(d)(4)(B) and (F) of the Code) or
within one taxable year of the Eligible Employee on account of a
termination of such plan or, in the case of a profit sharing plan
or stock bonus plan, a complete discontinuance of contributions
under such plan. The maximum amount which may be transferred prior
to January 1, 1993 shall not exceed the fair market value of all
the property received in the distribution reduced by:
(i) the Eligible Employee's own
contributions under such plan and any other amounts considered as
contributed by him (determined by applying Section 72(f) of the
Code); less
(ii) any amounts previously distributed to
him from such other plan and not includible in his gross income.
(b) For Rollover Contributions made after January
1, 1993, a Qualified Plan Rollover Contribution means any
distribution paid to an Eligible Employee from an employee
retirement plan meeting the requirements of Section 401(a) of the
Code, of all or any portion of the balance to the credit of an
Eligible Employee, except that a Qualified Plan Rollover
Contribution shall not include: (i) any distribution to the extent
such distribution is required under Section 11.2(b) and Section
401(a)(9) of the Code, (ii) any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life of the Distributee or
the joint lives (or joint life expectancies) of the Distributee and
the Distributee's Beneficiary, or for a period of ten years or
more, and (iii) the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities). A Participant must transfer any portion of his
distribution to be rolled over to the Trust on or before the 60th
day after the day on which he received the distribution.
2.54. "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.
2.55. "Rollover Contribution" and "Rollover Contribution
Account" means any contribution made by an Eligible Employee
pursuant to Section 4.6 and that portion of the Participant's
Account to which such contributions are credited.
2.56. "Salary" means for each Plan Year beginning before
January 1, 1994, an Employee's first $200,000 (as adjusted for cost
of living to the extent permitted by the Code and IRS Regulations)
of total remuneration paid or payable for Service while an Eligible
Employee, without giving effect to any reduction therein pursuant
to an election under Section 4.1 nor any contributions by the
Employer to the Plan or any other retirement plan maintained by the
Employer, as reported on IRS Form W-2. For each Plan Year
beginning on or after January 1, 1994, Salary means an Employee's
first $150,000 (as adjusted by the Commissioner of the IRS, for
years beginning after December 31, 1993, for increases in the cost
of living in accordance with Section 401(a)(17)(B) of the Code) of
total remuneration paid or payable for Service while an Eligible
Employee, without giving effect to any reduction therein pursuant
to an election under Section 4.1 nor any contributions by the
Employer to the Plan or any other retirement plan maintained by the
Employer, as reported on IRS Form W-2.
2.57. "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.
2.58. "Taxable Year" means the calendar year.
2.59. "Trust" or "Trust Fund" means the trust established
by the Company as a part of the Plan.
2.60. "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.
2.61. "Valuation Date" means the last day of each
calendar month and such other date or dates specified by the
Administrative Committee.
2.62. "Vesting Service" means Years of Vesting Service
counted from each anniversary beginning on an Eligible Employee's
date of hire to termination date.
2.63. "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 Committee,
then, for purposes of determining whether such Employee was
participating in the Plan, as provided in Section 3, he shall be
credited with a Year of Service for such 12 consecutive month
period.
2.64. "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 is a
Participant on the Effective Date shall continue to be a
Participant in the Plan on such Effective Date. An Eligible
Employee in the employ of Lenzar Electro-Optics, Inc. on March 31,
1994 shall become a Participant on April 1, 1994. Each other
Eligible Employee who shall have attained age 21 shall become a
Participant in the Plan on the first day of the month coincident
with or next following 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.
3.5. Establishment and Maintenance of Separate Accounts.
(a) The Administrative Committee shall establish
and maintain or cause to be established and maintained in respect
to each Participant an Account showing his interest under the Plan
and in the Trust Fund (including separate accounts showing his
respective interests, if any, in each of the Investment Funds) with
respect to (i) Pre-tax Contributions made under Section 4.1, (ii)
Company Contributions made under Sections 5.1 and 5.2, (iii) Roll-over
Contributions made pursuant to Section 4.6, (iv) other
Accounts (as set forth in Appendix A), and (v) such other accounts
as may be needed from time to time, and all other relevant data
pertaining thereto. Each Participant shall be furnished with a
written statement of his Account and the value of each such
separate interest at least annually and upon any distribution to
him. In maintaining the Accounts under the Plan or causing them to
be maintained, the Administrative Committee may conclusively rely
on the valuations of the Trust Fund made in accordance with the
Plan and the terms of the Trust Agreement.
(b) 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.
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 in whole percentages 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 $9,240, as adjusted, for Plan Years beginning after December
31, 1994, 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. Notwithstanding the foregoing and as
described in Section 4.4, the Administrative Committee reserves the
right, with or without notice, to limit a Highly Compensated
Participant's Pre-tax Contributions as may be necessary in order to
comply with the requirements of the Code. 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. In
the event that the aggregate amount of Pre-tax Contributions
exceeds the limitation set forth in Section 4.1, the amount of such
excess, increased by any income and decreased by any loss allocable
thereto shall be distributed to the Participant making such excess
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 designates, 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,
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 excess deferrals
distributed pursuant to this Section 4.2 shall be equal to 10% of
the income or loss for the period between the end of the Plan Year
and the date of such distribution multiplied by the number of
calendar months which have elapsed since the end of the Plan Year.
For purposes of determining a calendar month, a distribution made
on or before the 15th day of the month will be treated as being
made on the last day of the preceding month; a distribution made
after the 15th day of the month will be treated as being made on
the last day of such month. The amount of excess deferrals that
may be distributed with respect to a Participant shall be reduced
by any excess contributions previously distributed pursuant to
Section 4.6 with respect to such Participant for the Plan Year
beginning with or within the Calendar Year to which such excess
deferrals relate.
4.3. Election to Institute, Change, or Resume Contributions.
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. The Administrative Committee may, in
its discretion and in a uniform and nondiscriminatory manner, waive
its right to such written notice at any time and from time to time.
4.4. Limitation on Pre-tax Contributions. Notwithstanding
the Pre-tax Contributions made pursuant to Section 4.1,
the Actual Deferral Percentage of the Highly Compensated Employees
shall not exceed the greater of (i)and (ii), where (i) is the
Actual Deferral Percentage for such Plan Year for the Eligible
Employees who are not Highly Compensated Employees multiplied by
1.25; and (ii) is the Actual Deferral Percentage for such Plan Year
for the Eligible Employees who are not Highly Compensated Employees
multiplied by 2.0; provided that the Actual Deferral Percentage of
the Highly Compensated Employees does not exceed the Actual
Deferral Percentage for such other Eligible Employees by more than
two percentage points or that the aggregate test described in
Section 4.5(d)(ii) is passed. 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 4.5.
(a) 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 relates
to Compensation that either (i) would have been received by the
Participant during the Plan Year, but for the election pursuant to
Section 4.1 or (ii) is attributable to Hours of Service performed
by such Participant during the Plan Year and would have been
received by the Participant within two and one-half months after
the close of the Plan Year, but for the election pursuant to
Section 4.1. 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 4.4. The Actual Deferral Ratio under this
Section 4.4 for any Highly Compensated Employee who participates in
two or more Code Section 401(k) 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 of such Highly
Compensated Employee shall include the Pre-tax Contributions and
salary of his Family Members, and such Family Members shall not be
considered as separate Eligible Employees in determining the Actual
Deferral Ratio.
4.5. Refund of Excess Contributions.
(a) 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 Deferral Percentage tests 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 4.1. In
the event that neither of such Actual Deferral Percentage tests is
satisfied, the Administrative Committee shall, to the extent
permissible under the Code and IRS Regulations, refund the excess
contributions in the manner described in this Section 4.5.
(b) Excess Contributions shall be 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 Deferral 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 4.5 and his salary. 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 Pre-tax Contributions,
shall be determined by reducing the Actual Deferral Ratio in
accordance with the leveling method described in this Section 4.5
and the excess Pre-tax 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 Pre-tax
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 Pre-tax
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 4.5, the amount of excess Pre-tax Contributions to be
distributed pursuant to Section 4.2 with respect to a Participant
for a Plan Year shall be reduced by any excess Pre-tax
Contributions distributed to such Participant for such Plan Year
pursuant to Section 4.1. In no case may the amount of excess Pre-
tax 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.
(c) The distribution of any excess Pre-tax
Contributions shall include the gains and losses allocable thereto
for the Plan Year. The gain or loss allocable to the excess Pre-
tax Contributions for the period between the end of the Plan Year
and the distribution date is equal to 10% of the income allocated
to such excess contributions for the Plan Year multiplied by the
number of calendar months which have elapsed since the end of the
Plan Year. For purposes of determining the number of calendar
months, a distribution occurring on or before the 15th day of the
month will be treated as having been made on the last day of the
preceding month, a distribution made after the 15th day of the
month will be treated as having been made on the first day of the
next month. Notwithstanding the foregoing provisions of this
Section, the amount of excess Pre-tax Contributions to be
distributed with respect to a Highly Compensated Employee for a
Plan Year, shall be reduced by any excess Pre-tax Contributions
distributed to such Participant for such Plan Year pursuant to
Section 4.1. In no case may the amount of such distributed excess
Pre-tax Contributions exceed the amount of Pre-tax Contributions
made on behalf of the Highly Compensated Employee for the Plan
Year.
(d) (i) Notwithstanding any other provision of
the Plan, the sum of the Actual Deferral Percentage of those
Eligible Employees who are Highly Compensated Employees and the
Actual Contribution Percentage of those Eligible Employees who are
Highly Compensated Employees shall not exceed the aggregate limit
determined in accordance with Section 4.5(d)(ii).
(ii) For purposes of this Section
4.5(d)(ii), the "aggregate limit" for a Plan Year means the greater
of (A) and (B) where (A) is the sum of (1) 1.25 multiplied by the
greater of the Actual Deferral Percentage or the Actual
Contribution Percentage of those Eligible Employees who are not
Highly Compensated Employees, and (2) two plus the lesser of the
Actual Deferral Percentage or the Actual Contribution Percentage of
those Eligible Employees who are not Highly Compensated Employees,
provided that the amount shall not exceed twice the lesser of the
Actual Deferral Percentage or the Actual Contribution Percentage of
those Eligible Employees who are not Highly Compensated Employees
and (B) is the sum of (1) 1.25 multiplied by the lesser of the
Actual Deferral Percentage or the Actual Contribution Percentage of
those Eligible Employees who are not Highly Compensated Employees,
and (2) two plus the greater of the Actual Deferral Percentage or
the Actual Contribution Percentage of those Eligible Employees who
are not Highly Compensated Employees, provided that this amount
shall not exceed twice the greater of the Actual Deferral
Percentage or the Actual Contribution Percentage of those Eligible
Employees who are not Highly Compensated Employees.
(iii) The Administrative Committee shall
determine as of the end of the Plan Year, and at such time or times
in its discretion whether the aggregate limit has been exceeded.
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 4.1, then determining the treatment of
excess contributions under Section 4.1, and then determining the
treatment of excess aggregate contributions under Section 5.1(d).
In the event that the aggregate limit is exceeded the Actual
Contribution percentage of those Eligible Employees who are Highly
Compensated Employees shall be reduced in the same manner as
described in Sections 5.1 until the aggregate limit is no longer
exceeded.
4.6. Rollover Contributions.
(a) A Participant may make a Rollover
Contribution to the Plan at any time of a Qualified Plan Rollover
Contribution or an Individual Retirement Account Rollover Contribution.
The Plan will also accept a Direct Rollover of an amount
paid to the Plan on behalf of a Participant which would qualify as
a Qualified Plan Rollover Contribution if paid to the Eligible
Employee. If a Participant elects to make a Rollover Contribution,
the Participant shall supply the Administrative Committee with
evidence, assurances, opinions and certifications it may deem
necessary to establish to its satisfaction that the amounts to be
contributed qualify as a Qualified Plan Rollover Contribution, an
Individual Retirement Account Rollover Contribution or a Direct
Rollover and will not affect the qualification of the Plan or the
tax-exempt status of the Trust under Sections 401(a) and 501(a) of
the Code, respectively. The amount so transferred must consist of
cash distributed from such other plan or any portion of the cash
proceeds from the sale of distributed property other than cash, to
the extent permitted by Section 402(a)(6)(D) of the Code.
(b) Any Rollover Contribution shall be allocated
to the appropriate Participant's Rollover Contribution Account
which shall be established and separately accounted for, shall be
invested in accordance with the direction of the Participant pursuant
to Section 7, be debited or credited in accordance with Section
8, and shall be distributed in the same manner and at the same time
as described in Sections 9 and 11 with respect to a distribution of
benefits under the Plan to such Eligible Employee.
(c) Each request by any Eligible Employee to make
a Rollover Contribution shall be subject to review by the
Administrative Committee which shall make a case by case determination
that each Rollover Contribution meets the requirements set
forth in Section 4.6(a) and such other requirements or conditions
as the Administrative Committee may, from time to time and in its
sole discretion, impose; provided, however, that any determination
made by the Administrative Committee pursuant to this Section
4.6(c) shall not have the effect of discriminating in favor of
Employees who are officers, shareholders or Highly Compensated
Employees.
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 paid 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 e 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 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.
5.6. 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 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. 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 5.6. The
Actual Contribution Ratio taken into account under this Section 5.6
for any Highly Compensated Employee who is eligible to receive
Company Matched Contributions 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 Highly Compensated
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 salary of such Participant shall
include the Company Matched Contributions and Company Discretionary
Contributions and salary 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 5.6 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
Pre-tax Contributions under Section 4.5. 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 5.6.
(c) For purposes of this Section 5.6, "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 5.6(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 5.6(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 5.6(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 Salary. 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 the family
aggregation rules, the amount of excess aggregate contributions, as
defined in this Section 5.6(c), shall be determined by reducing the
Actual Contribution Ratio in accordance with the leveling method
described in this Section 5.6(c) and the excess aggregate contributions
are allocated among the Family Members in proportion to the
contributions of each Family Member that have been combined.
(d) 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 5.6(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 Account, 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 5.6(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 gain
or loss allocable to the excess aggregate contributions for the
period between the end of the Plan Year and the distribution date
is equal to 10% of the income allocated to such excess aggregate
contributions for the Plan Year multiplied by the number of
calendar months which have elapsed since the end of the Plan Year.
For purposes of determining the number of calendar months, a
distribution occurring on or before the 15th day of the month will
be treated as having been made on the last day of the preceding
month, a distribution made after the 15th day of the month will be
treated as having been made on the first day of the next month.
The amount of any forfeitures made pursuant to the Section 5.6
shall be used to reduce Company Contributions in accordance with
Section 8.4.
SECTION 6. ALLOCATION OF COMPANY AND MATCHING CONTRIBUTIONS
6.1. Allocation of Discretionary Company Contributions.
(a) The Administrative Committee shall allocate
the contribution of each Participating Company made in accordance
with Section 5.2 among all Participants who are (i) 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 Participant based upon
the formula described in Section 6.2.
(b) If he was not employed by the Employer on the
last day of the Plan Year, then a contribution will be allocated
with respect to a Participant whose participation in the Plan
terminated during the Plan Year solely 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. 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 the formula
described in Section 6.2.
6.2. Discretionary Company Contribution Formula.
(a) The Discretionary Company Contribution will
be allocated to the Participants' Accounts by multiplying the
Participant's Base Compensation by the Base Contribution Percentage
and adding to the product his Excess Compensation multiplied by the
Excess Contribution Percentage.
(b) The Base Contribution Percentage shall equal
the Company Discretionary Contribution divided by the sum of the
Base Compensation of all Participants plus 2 times the Excess
Compensation of all Participants. The Excess Contribution
Percentage shall equal 2 times the Base Contribution Percentage,
but in no event shall it be more than 5.7 percentage points above
the base contribution percentage or such other maximum as may be
announced by the IRS.
6.3. Allocation of Matching Contribution. A Participating
Company's Company Matching Contributions 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 of such Participating
Company 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. Interest, dividends and other
distributions received and gains realized on securities or other
property held in any Investment Fund shall be reinvested in such
Investment Fund.
(b) The Investment Funds shall consist of the
following investments:
(1) A "Company Stock Fund" which shall be
invested in the common stock of Ogden Corporation and cash;
(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 or bank investment contracts or
synthetic guaranteed interest or investment contracts, with the
earnings of such contracts being blended for allocation purposes;
(4) A "Merrill Lynch Treasury Fund", a
mutual fund which invests in a portfolio of United States Treasury
securities and equivalents; and, effective October 1, 1994,
(5) The "Fidelity Magellan Fund" which shall
be invested by a professional manager or managers in common stock
and securities convertible into common stock of domestic, foreign
and multinational issuers of all sizes that offer potential for
growth; and
(6) The "T. Rowe Price International Stock
Fund" which shall be invested by Rowe Price-Fleming International
Inc. in primarily common stocks of established non-United States
companies in the Far East, Europe, South Africa, Australia, Canada
and other areas.
7.3. Investment Elections.
(a) A Participant's Pre-tax 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 in multiples of 5%. If a
Participant does not make a written election, he shall be deemed to
have elected to have his Account invested 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 Section
7.3(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 5%.
(d) The net credit balances in Participants'
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 (i) all payments made to him or on his behalf, (ii) any
amounts forfeited by him in accordance with Section 10.4, and
(iii) 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
9.4(b), 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 may be needed and 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, investment
manager, 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
10.4(a), any forfeitures arising under the Plan shall be used to
reduce the Company Contributions specified in Section 5.
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, or Disability.
(a) Upon the termination of service of a
Participant on or after his Normal Retirement Date, Early
Retirement Date, (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.
(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.
9.3. Distribution on other Termination of Service. Upon
the termination of employment 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 the Valuation Date coincident with
or next following the later of (i) the effective date of
termination of employment, (ii) the date of termination from the
payroll and (iii) the receipt by the Company of the appropriate
forms requesting a distribution.
9.4. In-Service and Hardship Withdrawals.
(a) Notwithstanding the provisions of Section 9.2
and Section 9.3 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.
Notwithstanding the provisions of Section 9.2 and
Section 9.3, the Administrative Committee may distribute to a
Participant on the first day of any month following the receipt of
a written application, in a lump sum an amount equal to all or any
part of the value of the Participants' After-Tax Account (as
provided for in Appendix A).
(b) 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 an immediate and heavy financial need 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 9.4(b) 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, and (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 9.4(b) may be requested by a
Participant only after he has (i) withdrawn all employee
contributions permitted to be withdrawn under this or 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 9.4(b) shall not exceed the amount required to meet the
financial emergency (including all applicable income taxes and
penalties). Subject to the provisions of this Section 9.4(b), 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 $500. Withdrawals shall become effective on the last day of
the 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 the withdrawal is requested. Payment of any
withdrawals pursuant to this Section 9.4(b) shall be made solely in
cash. A Participant who makes a hardship withdrawal pursuant to
this Section 9.4(b) 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 9.4(b) 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 9.4(b) was
made.
For purposes of this Section, the term "immediate
and heavy financial need" means a situation in which a Participant
or his dependents are confronted by extreme financial need that
cannot be satisfied from other sources and shall be limited to the
need of Funds for: (i) the payment of medical expenses described
in Section 213(d) of the Code incurred by, or necessary (even
though not yet incurred)/or the treatment of, the Participant, the
Participant's spouse, or any dependents of the Participant (as
defined in Section 152 of the Code); (ii) the Purchase (excluding
mortgage payments) of a principal residence for the Participant;
(iii) the payment of tuition and related educational expenses for
the 12 months following the date of the withdrawal for post-
secondary education of the Participant, his spouse, children, or
dependents (as defined in Section 152 of the Code); (iv) the
prevention of the eviction of the Participant from his principal
residence or the prevention of foreclosure on the mortgage of the
Participant's principal residence; or (v) such other immediate and
heavy financial emergency as determined by the Administrative
Committee pursuant to uniformly applicable guidelines and IRS
Regulations.
9.5. Loans.
(a) 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 15 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, 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 increments with $500 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, nondiscriminatory rules consistently
applied to all Participants. Effective January 1, 1995, only two
outstanding loans are permissible under the Plan. There will be an
administration fee charged for any second loan. Such
administration fee will be paid directly by the Participant to the
Company. For any loan approved prior to December 31, 1994, 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.
(b) 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 first
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. A loan
may not have a maturity date of less than six months 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.
(c) 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 salary. 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.
(d) A loan shall be deemed an investment of the
borrowing Participant's Account and shall not reduce the amount
credited to his Account. At the time a loan is made, the amount
loaned shall first be deemed an investment of, and allocated to,
the Participant's Vested Interest in his Company Matched
Contribution Account; to the extent the loan is in excess of such
amounts, it shall then be deemed an investment of, and allocated to
the Participant's 401(k) Matched Account not already allocated to
a loan; to the extent it is in excess of such amounts, it shall
then be deemed an investment of, and allocated to, the
Participant's 401(k) Unmatched Account not already allocated to a
loan; for those Participants that participated in the Lenzar
Electro-Optic, Inc. Profit Sharing Plan, to the extent it is in
excess of such amounts, it shall be deemed an investment of and
allocated to such Participants' Prior 401(k) Account, as described
in Appendix A, not already allocated to a loan; to the extent it is
in excess of such amounts, it shall then be deemed an investment
of, and allocated to, the Participant's Vested Interest in his
Company Discretionary Account not already allocated to a loan and,
for those Participants who participated in the Prior Plans, to the
extent it is in excess of such amounts, it shall be deemed an
investment of and allocated to their (i) Prior Company Accounts,
(ii) Rollover Contribution Accounts and (iii) After-Tax Accounts,
in such order, to extent the loan is in excess of such amounts.
(e) The Investment Funds in which the Participant's
Account is invested in accordance with Section 7 of the Plan
shall be reduced by the amount of any loan made hereunder in the
ratio that the value of each such Investment Fund bears to the
value of all Investment Funds in which the Participant's Accounts
are invested; provided, however, that the Company Stock Fund may
not be reduced for any loan made hereunder.
(f) The Administrative Committee shall, in
accordance with its established standards, review and approve or
disapprove a completed application as soon as practicable after its
receipt thereof, and shall promptly notify the applicant of such
approval or disapproval. In addition, in the event the Trustee, in
its sole discretion, determines that it is not reasonably and prudently
able, in the interests of Participants and Beneficiaries, to
liquidate the necessary amount from any of the Investment Funds,
the Trustee shall notify the Administrative Committee, and the
amount to be paid to each Participant whose completed application
designated that a loan be made from such Investment Fund shall be
reduced in proportion to the ratio which the aggregate amount that
the Trustee has advised the Administrative Committee may prudently
be liquidated bears to the aggregate amount which all such
Participants designated to be paid from such Investment Fund.
(g) The right to receive loan repayments,
including interest thereon, shall be considered an asset of the
Plan and all loan repayments of principal and interest shall be
credited to the Investment Funds that the Participant's future
contributions are allocated on the date of such repayment in the
same proportion as that in which each was liquidated and credited
to the Account in the order reversed to the order used to make
payment of the loan proceeds to the Participant.
(h) Outstanding loans shall share in Plan
expenses in a manner determined by the Administrative Committee.
The Administrative Committee shall apply these rules on a uniform
and nondiscriminatory basis. With appropriate notice, the Administrative
Committee may amend these rules, including amendments that
affect outstanding loans, as may be required to conform to
applicable law or regulation.
9.6. Restrictions on Distributions. Notwithstanding
any other provision of the Plan, a Participant's Pre-tax Contribution
Account may not be distributed earlier than upon one of the
following events: (i) The Participant's Retirement, death,
Disability or termination of employment; (ii) 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); (iii) the Participant's
attainment of age 59-1/2 or upon the Participant's Hardship as
described in Section 9.4(b); or (iv) the sale or disposition by the
Employer to an unrelated corporation of (1) substantially all of
the assets used in a trade of business or (2) 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.
SECTION 10. VESTED INTERESTS
10.1. Pre-tax Contributions. A Participant will be 100%
vested and have a nonforfeitable right to the value of his Pre-tax
Contribution Account.
10.2. Company Contributions. A Participant will become
100% vested and have a nonforfeitable right to the value of the
Company Contribution Account upon his (i) Normal Retirement Age,
(ii) Early Retirement Date, (iii) death, (iv) Disability, or (v)
completion of five Years of Vesting Service. Any Participant who
was eligible to participate in the Plan on December 31, 1990 shall
be 100% vested in his Account. An Eligible Employee in the employ
of Lenzar Electro-Optics, Inc. who became a Participant on April 1,
1994, shall be 100% vested in his Account.
10.3. Transferred Accounts. A Participant will be 100%
vested in any account transferred to the Plan as referenced in
Appendix A.
10.4. Break in Service for Vesting.
(a) If a terminated Participant incurs five
consecutive Breaks in Service before he returns to the employment
of the Employer, 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, or upon receipt of his Vested Interest upon termination
of service, whichever is earlier.
(b) If the terminated Participant returns to the
employment of the Employer 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 Company
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 reallocation
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 employment as if such amount had been held in
the Trust since the date of distribution as provided in Section 8,
and then (ii) multiplying his Vested Interest by such adjusted
total account, and then (iii) subtracting the amount of his
distribution on his most recent termination of employment, 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 employment.
Any amount repaid pursuant to this Section 10.4(b) 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;
provided, however, that a Participant may elect to receive the
value of his Company Stock Fund in shares of Ogden Corporation
Common Stock; further, provided, that with respect to a
Participant's March 31, 1994 account balance under the Lenzar
Electro-Optics, Inc. Profit Sharing Plan, such Participant may
elect to have said account balance distributed by any method of
payment which was available under such Plan as in effect on March
31, 1994.
11.2. Commencement of Payment.
(a) Any benefit payable to a Participant under
Section 11.1 shall be paid within 60 to 90 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 the Participant retires. Such benefit
shall be paid, in accordance with the IRS 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 Administrative 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 IRS Regulations). If such
Participant's Surviving Spouse dies after such Participant's death
but before distributions to such Surviving Spouse commence, this
Section 11.2(d) shall be applied to require payment of any further
benefits as if such Surviving Spouse were the Participant.
(e) Pursuant to IRS 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.
(f) If a Participant who is a 5% 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 Section 11.2(f), a 5% 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.
(g) All distributions made hereunder shall be
made in accordance with the provisions of Section 401(a)(9) of the
Code and IRS Regulations thereunder.
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 and
prior to the date that payments commence pursuant to the provisions
of the Plan. Subject to Section 11.3(b), payments shall be made no
later than the 90th 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 IRS 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
and, during the period of deferral mandated by the absence of
receipt of written consent, the Participant may change his
investment direction under Section 7.
(c) Benefits payable under the Plan to a
Participant or Beneficiary from the Company Stock Fund, other than
for a withdrawal due to an immediate and heavy financial need, an
after-tax withdrawal, or loans, made pursuant to Section 9, shall
be paid in 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 Administrative 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.
11.4. 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.
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 Salary. 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
and all elective contributions made under any cash or deferred
arrangement within the meaning of Section 1.401(k)-1(g)(3) of IRS
Regulations including excess deferrals; (iii) voluntary employee
after-tax contributions made under any qualified employee pension
benefit plan; (iv) forfeitures, if applicable; (v) contributions
allocated to any individual medical account defined in Section
415(l)(2) of the Code that is part of a defined benefit plan
maintained by the Company or Affiliate; and (vi) the amount allocated
to a separate account established for post-retirement medical
or life insurance benefits described in Section 419A(d)(1) of the
Code.419A(d)(1) of the Code for such Participant, provided that the
Participant is a "Key employee" as defined in Section 419A(d)(3) of
the Code. The term Annual Additions shall include, whether or not
refunded, excess deferrals, excess contributions and excess
aggregate contributions, as described in Sections 4.2 and 4.5.
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 but shall
exclude Rollover Contributions.
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,
allocation of forfeitures, 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, first, pursuant
to Section 5.1 and, second, pursuant to 5.2, and 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 IRS
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 Employer.
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)), and 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 Section 12.4(a), the
following terms shall have the following meanings:
(1) "Defined Contribution Fraction" shall
mean, as to any Participant for any Plan Year, a fraction, (A) the
numerator of which is the sum of the Annual Additions, for the Plan
Year and all prior Plan Years, as of the close of the Plan Year and
(B) 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 IRS
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 IRS Regulations) of the
Participant under any defined benefit plan (as defined in Sections
414(j) and 415(k) of the Code) maintained by the Company or any of
its Affiliates 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 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 Participant'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
Investment Committee 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 subcommittee 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 Committee 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 Participating 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 Section 16.1(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 thereunder.
(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 his 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 a 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 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,
16.4 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.
16.6. Exclusive Benefit of Participants and Beneficiaries.
Except as provided in Sections 17.4, 17.15 and 17.16 or as
required by a Qualified Domestic Relations Order, 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 and Surviving Spouses under the Plan. 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. The prohibition against assignment or alienation of
benefits contained in this Section 17.5 shall not apply to any loan
to a Participant made under Section 9.5.
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. Gender. Whenever used in the Plan the masculine
gender includes the feminine.
17.12. 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.
17.13. 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.
17.14. 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.
17.15. 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 IRS 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.
17.16. 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 IRS 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 Salary
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 and its
Affiliates but only if he received Salary 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
5% of the Company's outstanding shares of stock or at least 5% of
the total combined voting power of Ogden Corporation's shares of
stock, or owned at least 1% of Ogden Corporation's shares of stock,
and whose annual Salary from Ogden Corporation exceeds $150,000.
(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
Section 18.2(b)(i)(A). If there are more officers than are counted
under the preceding sentence, only those who had the highest
aggregate Salary 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 employment as
an administrative executive of the Company or Participating
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 1% or 5% owner of Ogden
Corporation, his ownership interest in any entity related to Ogden
Corporation solely by reason of Sections 414(b), (c) or (m) of the
Code will be disregarded. (iv) For purposes of determining whether
a person receives an annual Salary in excess of $150,000, Salary
received from each Company and Affiliate shall be taken into
account.
(c) "Non-Key Employee" means: (i) any Employee
who is not a Key Employee, or (ii) 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 (i) in which a Key Employee participates or (ii) 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 account balances and cumulative annual
accrued benefits of a Participant (i) who is a Non-Key Employee but
who was a Key Employee in a prior Plan Year, or (ii) who has not
been credited with one Hour of Service with any Employer at any
time during the Five Year period ending on the Determination Date
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: (i) for all defined benefit
plans, the present value calculated as provided in those plans; and
(ii) for all defined contribution plans, the fair market value of
each Participant's account (including amounts attributable to
voluntary employee contributions from a qualified employee pension
benefit plan sponsored by the Company or an Affiliate) determined
as of the most recent Determination Date increased by: (A)
distributions made during the five Plan Years ending on the Determination
Date (except distributions already included in determining
the Value of the Accounts distributions made during the Five Plan
Years preceding the Determination Date under a terminated plan
which, if it had not been terminated, would have been required to
be included in the Required Aggregation Group); and (B) all
rollover contributions distributed from the plans to a qualified
employee benefit plan not sponsored by the Company or an
Affiliate, and decreased by; (C) any deductible employee contributions;
(D) 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 (E) rollover
contributions distributed from the Plan to a qualified employee
pension benefit plan by the Company or an Affiliate.
18.3. Top Heavy Vesting.
(a) If a Plan is a Top Heavy Plan with respect to
any Plan Year, a Participant's nonforfeitable percentage of his
Company Contribution Account shall not be less than the amount
determined in accordance with the following vesting schedule:
Years of Vesting Service Percentage
less than 3 0%
3 or more 100%
(b) In the event the vesting provisions of
Section 10.2 are amended, or changed on account of the Plan becoming
or ceasing to be a Top Heavy Plan, any Participant who has
completed at least three Years of Service, for purposes of determining
a Participant's nonforfeitable right to his Company Contribution
Account, may elect to have the nonforfeitable percentage
of such Company Contribution Account computed under the Plan
without regard to such amendment or change by notifying the
Administrative Committee in writing within the election period
hereinafter described. The election period shall begin on the date
such amendment is adopted or the date such change is effective, as
the case may be, and shall end no earlier than the latest of the
following dates: (i) the date which is 60 days after the day such
amendment is adopted; (ii) the date which is 60 days after the day
such amendment or change becomes effective; or (iii) the date which
is 60 days after the day the Participant is given written notice of
such amendment or change by the Administrative Committee. Any
election made pursuant to this Section 18.3(b) shall be
irrevocable.
18.4. Minimum Contribution. 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 Non-Key Employee who
has satisfied the eligibility requirements of Section 3.1, whether
or not a Participant in the Plan and who is in the employ of the
Employer at the end of the Plan Year, regardless of his Salary,
shall not be less than the lesser of (i) 3% of such Non-Key
Employee's Salary, 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.
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 Section
18.5(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
"4%" for "3%".
18.6. Other Plans. The Administrative Committee shall,
to the extent permitted by the Code and in accordance with IRS
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 inappropriate 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, as in
effect on January 1, 1995, that were transferred from plans and
trusts sponsored and maintained by Affiliates of the Company or
Ogden Corporation and that were qualified and tax exempt under
Sections 401(a) and 501(c) of the Code. These accounts are subject
to all of the provisions of 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 will be credited to this account
under any circumstances. Any Participant on 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 the (i) Company 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 and (ii) the company
contributions (and earnings thereon) credited to the accounts of
employees who formerly participated in the Lenzar Electro-Optics,
Inc. Profit Sharing Plan. No further contributions will be
credited to this account under any circumstances. Any Participant
on 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 qualified employees
retirement plan other than the Plan. Effective January 1, 1994,
this account was merged into the Plan's Rollover Contribution
Account.
4. PRIOR 401(k) ACCOUNT - This account was established
to receive the 401(k) contributions (and earnings thereon credited
to the accounts of employees who formerly participated in the
Lenzar Electro-Optics, Inc. Profit Sharing Plan. No further
contributions will be credited to this account under any
circumstances. Any Participant on whose behalf such an account was
established shall be fully vested in such account at all times.