EXHIBIT 10.7(w)(i)
OGDEN PROJECTS
PROFIT SHARING PLAN
OGDEN PROJECTS PROFIT SHARING PLAN
Table of Contents
Section Page
SECTION 1. PURPOSE . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
SECTION 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 Account. 12
3.6 Maintenance of Accounts Shall Not Vest Any
Right in Plan Assets. . . . . . . . . . . . . . . . 13
SECTION 4. PRE-TAX CONTRIBUTIONS AND
AFTER-TAX CONTRIBUTIONS . . . . . . . . . . . . 13
4.1 Pre-Tax Contributions. . . . . . . . . . . . . . . . 13
4.2 Refund of Excess Contributions. . . . . . . . . . . 17
4.3 After-Tax Contributions. . . . . . . . . . . . . . . 17
4.4 Institute, Change, Resume, Suspend,
Contributions. . . . . . . . . . . . . . . . . . . . 17
4.5 Rollover Contributions. . . . . . . . . . . . . . . 17
SECTION 5. PARTICIPATING COMPANY CONTRIBUTIONS . . . . . . . 18
5.1 Participating Company Contributions. . . . . . . . . 18
5.2 Limitation on After-Tax Contributions. . . . . . . . 18
5.3 Allocation of Participating Company
Contributions. . . . . . . . . . . . . . . . . . . . 21
5.4 Time of Payment of Participating Company
Contributions. . . . . . . . . . . . . . . . . . . . 22
5.5 Form of Payment of Participating Company
Contributions. . . . . . . . . . . . . . . . . . . . 22
5.6 Return of Employer Contributions. . . . . . . . . . 22
SECTION 6. INVESTMENT OF CONTRIBUTIONS . . . . . . . . . . . 22
6.1 Investment by Trustees. . . . . . . . . . . . . . . 22
6.2 Investment Funds. . . . . . . . . . . . . . . . . . 22
6.3 Investment Elections. . . . . . . . . . . . . . . . 23
6.4 Company Liability. . . . . . . . . . . . . . . . . . 24
SECTION 7. VALUATIONS AND ADJUSTMENTS OF
PARTICIPANTS' ACCOUNTS. . . . . . . . . . . . . 24
7.1 Allocation of Earnings and Losses - Valuation
of Trust. . . . . . . . . . . . . . . . . . . . . . 24
7.2 Expenses.. . . . . . . . . . . . . . . . . . . . . . 25
7.3 Allocation of Forfeitures. . . . . . . . . . . . . . 25
SECTION 8. ELIGIBILITY FOR BENEFITS. . . . . . . . . . . . . 26
8.1 Distribution of Participant's Account on
Retirement and Disability. . . . . . . . . . . . . . 26
8.2 Distribution of Participant's Account on
Death. . . . . . . . . . . . . . . . . . . . . . . 26
8.3 Distribution on other Termination of
Service. . . . . . . . . . . . . . . . . . . . . . . 26
8.4 Hardship Withdrawals; In-Service
Withdrawals. . . . . . . . . . . . . . . . . . . . . 26
8.5 Loans. . . . . . . . . . . . . . . . . . . . . . . . 28
8.6 Restrictions on Distributions. . . . . . . . . . . . 30
SECTION 9. VESTING . . . . . . . . . . . . . . . . . . . . . 31
9.1 Vesting. . . . . . . . . . . . . . . . . . . . . . . 31
9.2 Vesting Schedule. . . . . . . . . . . . . . . . . . 31
9.3 Break in Service for Vesting.. . . . . . . . . . . . 31
9.4 Full Vesting. . . . . . . . . . . . . . . . . . . . 32
SECTION 10. METHOD OF PAYMENT OF BENEFITS . . . . . . . . . . 32
10.1 Payment of Benefits. . . . . . . . . . . . . . . . 32
10.2 Commencement of Benefits. . . . . . . . . . . . . . 32
10.3 Time of Payment. . . . . . . . . . . . . . . . . . 34
10.4 Latest Commencement Date. . . . . . . . . . . . . . 34
10.5 Direct Rollover. . . . . . . . . . . . . . . . . . 35
10.6 Special Tax Notice. . . . . . . . . . . . . . . . . 35
SECTION 11. DESIGNATION OF BENEFICIARIES . . . . . . . . . . 35
11.1 Beneficiary Designation. . . . . . . . . . . . . . 35
11.2 Failure to Designate Beneficiary. . . . . . . . . . 35
SECTION 12. ADMINISTRATION OF THE PLAN. . . . . . . . . . . . 36
12.1 Powers and Duties of Administrative
Committee. . . . . . . . . . . . . . . . . . . . . 36
12.2 Powers and Duties of the Investment
Committee.. . . . . . . . . . . . . . . . . . . . . 36
12.3 Powers and Duties of Trustees. . . . . . . . . . . 36
12.4 Agents, Reports of Committees. . . . . . . . . . . 37
12.5 Structure of the Committees. . . . . . . . . . . . 37
12.6 Adoption of Procedures of Committees. . . . . . . . 37
12.7 Demands for Money. . . . . . . . . . . . . . . . . 37
12.8 Hold Harmless; Indemnification. . . . . . . . . . . 38
12.9 Claims for Benefits. . . . . . . . . . . . . . . . 38
12.10 Communications. . . . . . . . . . . . . . . . . . . 39
12.11 Participant Information. . . . . . . . . . . . . . 40
12.12 Service of Process. . . . . . . . . . . . . . . . . 40
12.13 Specific Powers and Duties. . . . . . . . . . . . . 40
SECTION 13. TERMINATION OR WITHDRAWAL OF
PARTICIPATING COMPANY PARTICIPATION . . . . . . 40
13.1 Termination or Withdrawal of Participating
Company. . . . . . . . . . . . . . . . . . . . . . . 40
13.2 Distributions Upon Termination or Withdrawal . . . . 40
13.3 Transfer to Successor Plan. . . . . . . . . . . . . 41
SECTION 14. AMENDMENT OR TERMINATION OF THE
PLAN AND THE TRUST. . . . . . . . . . . . . . . 42
14.1 Right to Amend, Suspend or Terminate Plan. . . . . 42
14.2 Retroactivity. . . . . . . . . . . . . . . . . . . 42
14.3 Notice. . . . . . . . . . . . . . . . . . . . . . . 42
14.4 No Further Contributions. . . . . . . . . . . . . . 42
14.5 Partial Termination. . . . . . . . . . . . . . . . 43
14.6 Exclusive Benefit.. . . . . . . . . . . . . . . . . 43
SECTION 15. GENERAL LIMITATIONS AND PROVISIONS. . . . . . . . 44
15.1 All Risk on Participants and Beneficiaries. . . . . 44
15.2 No Right to Continued Employment. . . . . . . . . . 44
15.3 Payment of Behalf of Payee. . . . . . . . . . . . . 44
15.4 No Alienation. . . . . . . . . . . . . . . . . . . 44
15.5 Missing Payee. . . . . . . . . . . . . . . . . . . 45
15.6 Subject to Trust Agreement. . . . . . . . . . . . . 45
15.7 Gender; Singular. . . . . . . . . . . . . . . . . . 45
15.8 Captions. . . . . . . . . . . . . . . . . . . . . . 45
15.9 Applicable Law. . . . . . . . . . . . . . . . . . . 45
SECTION 16. MAXIMUM AMOUNT OF ALLOCATION. . . . . . . . . . . 45
16.1 Application of Section 16. . . . . . . . . . . . . 45
16.2 Maximum Annual Additions to Account. . . . . . . . 45
16.3 Order of Reduction. . . . . . . . . . . . . . . . . 46
16.4 Additional Account Limitations. . . . . . . . . . . 47
SECTION 17. TOP HEAVY PROVISIONS. . . . . . . . . . . . . . . 48
17.1 Top Heavy Plan. . . . . . . . . . . . . . . . . . . 48
17.2 Top Heavy Plan Definitions. . . . . . . . . . . . . 49
17.3 Top Heavy Plan Minimum Contribution. . . . . . . . 51
17.4 Top Heavy Plan Annual Addition Limitations. . . . . 52
17.5 Other Plans. . . . . . . . . . . . . . . . . . . . 52
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . 53
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1. PURPOSE
The purpose of the Ogden Projects Profit Sharing Plan
(the "Plan") is to continue to provide retirement benefits and
certain other benefits to eligible employees of Ogden Projects,
Inc. and its participating subsidiaries and other participating
companies, or to the beneficiaries of such employees, and thereby
to continue to encourage employees to make and continue careers
with Ogden Projects, Inc., all as set forth herein and in the
trust adopted as a part of the Plan.
Prior to the adoption of the Plan, Ogden Projects, Inc.
and several other subsidiaries of Ogden Corporation were each a
"Participating Company" under the Ogden corporation Profit Sharing
Plan (the "Prior Plan"), and the related trust thereunder
(the "Prior Plan Trust"). As a result of the Tax Reform Act of
1986, Ogden Corporation, parent of the sponsor of the Prior Plan,
determined that it would be in the best interest of all Prior
Plan Participating Companies, and their respective employees, to
elect whether to continue to be a Participating Company under the
Prior Plan or to establish a separate defined contribution plan.
Effective as of January 1, 1989, Ogden Projects, Inc. determined
that it was in the best interest of Ogden Projects, Inc., its
subsidiaries, affiliated companies and the employees of such
companies to adopt the Plan, such plan being substantially similar
and a continuation of the Prior Plan. All service credited to an
individual as a participant under the Prior Plan was credited to
such individual under the Plan; provided, that such individual
became a Participant of the Plan on or after January 1, 1989, and
further provided, that such service was credited solely in
accordance with the terms and provisions of the Plan. With the
adoption of the Plan, the trustee of the Prior Plan Trust
segregated a proportional share of the assets of the Prior Plan,
including any earnings, and transferred such assets to the trustee
of the Plan's trust to be held in trust for the Participants of
the Prior Plan who continue to be participants of the Plan. By
letter dated June 19, 1991, the District Director of Internal
Revenue, Baltimore, Maryland determined that (i) the adoption of
the Plan and its related trust, (ii) the spinoff and transfer of
assets and liabilities from the Prior Plan and Prior Plan Trust
to the Plan and the Plan's trust, and (iii) the crediting of
service, as described herein, satisfied the requirements of
Sections 401(a), 401(k) and 501(a) of the Internal Revenue Code of
1986.
Subsequent to the issuance of the District Director's
favorable determination letter, effective December 31, 1991, the
Ogden Environmental Services ("OES") Profit Sharing Plan merged
with the Plan. In addition to OES (now known as Ogden Waste
Treatment Services, Inc.), Ogden Yorkshire Water Co. participates
in the Plan.
The Plan, as set forth herein, constitutes an amendment
and restatement of the Plan through January 1, 1994. Although
this restatement is generally effective January 1, 1989, the
enactment of the Unemployment Compensation Amendments of 1992, and
the Omnibus Budget Reconciliation Act of 1993, as well as the
adoption of miscellaneous administrative and operational changes,
necessitates different effective dates for different Plan Sections.
The Plan, as amended and restated, and maintained
hereunder, is intended to continue to qualify as a plan and a trust
which meet the requirements of Sections 401(a), 401(k) and 501(a)
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.
The rights of any person who terminated employment or
who retired on or before the effective date of a particular
amendment, including his eligibility for benefits and the time
and form in which benefits, if any, will be paid, and the actuarial
assumptions used to compute such benefits, shall be determined
solely under the terms of the Prior Plan or the Plan as in
effect on the date of his termination of employment or retirement,
unless such person is thereafter reemployed and again becomes a
participant in the Plan.
SECTION 2. DEFINITIONS
When used herein the following terms shall have the
following meanings:
2.1 "Account" or "Participant's Account" means the
Account established and maintained on behalf of a Participant,
including such Participant's Company Contribution Account, Pre-Tax
Contribution Account, After-Tax Contribution Account, Roll-over
Contribution Account and any other account establishing
pursuant to Appendix A.
2.2 "Act" means the Employee Retirement Income Security
Act of 1974, as now in effect or as hereafter amended.
2.3 "Administrative Committee" means the OPI
Administrative Committee as provided for in Section 12. For
purposes of the Act, the Administrative Committee shall be the
administrator of the Plan and its members shall be named
fiduciaries with respect to matters for which they are responsible
under the Plan.
2.4 "Affiliate" means any corporation which is included
in a controlled group of corporations (within the meaning
of Section 414(b) of the Code) which includes the Company, any
trade or business (whether or not incorporated) which is under
common control with 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 required to be
aggregated with the Company pursuant to the IRS Regulations under
Section 414(o) of the Code; except that for purposes of applying
the provisions of Sections 16 and 17 with respect to the
limitations on contributions, Section 415(h) of the Code shall
apply.
2.5 "After-Tax Contributions" and "After-Tax
Contribution Account" means those After-Tax contributions made
pursuant to Section 4.3 and that portion of the Participant's
Account to which such contributions are credited.
2.6 "Annual Net Profit" means current and accumulated
net income and earnings of each Participating Company, as
determined by each Participating Company, in accordance with
generally accepted accounting principles, without regard to any
federal, state, and local income taxes. If any Participating
Company is prevented from making a contribution by reason of having
insufficient Annual Net Profit, then any other Participating
Company who, along with such Participating Company, is a member of
an "affiliated group" within the meaning of Section 1504 of the
Code and does have sufficient Annual Net Profit, may make a
contribution on behalf of such Participating Company, up to the
amount so prevented.
2.7 "Beneficiary" means the beneficiary or beneficiaries
designated by a Participant pursuant to Section 11 to receive the
amount, if any, payable under the Plan upon the death of such
Participant.
2.8 "Board of Directors" means the Board of Directors
of the Company.
2.9 "Break in Service" means 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 2.9
and the Labor Department Regulations; provided, however, that the
total Hours of Service so credited shall not exceed 501 Hours of
Service and that the individual timely provides the Administrative
Committee with such information as it may 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 2.9, 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 adoption of the
child by such individual, or for purposes of caring for a child
for the period immediately following such birth or placement.
2.10 "Code" means the Internal Revenue Code of 1986,
as now in effect or as hereafter amended. All citations to
sections of the Code are to such sections as they may from time to
time be amended or renumbered.
2.11 "Committee" means the Administrative Committee
and the Investment Committee.
2.12 "Company" means Ogden Projects, Inc., a State of
Delaware corporation.
2.13 "Company Contributions" and "Company Contribution
Account" means those Company Contributions made pursuant to Section
5.1 and that portion of the Participant's Account to which such
contributions are credited.
2.14 "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, Compensation 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) (the "annual
compensation limit"), of remuneration paid or payable for Service
while an Employee and a Participant and performed during the Plan
Year and, but for the Eligible Employee's Pre-Tax Contributions,
would have been received by such Employee by the March 15 following
the close of the Plan Year, without giving effect to any reduction
therein pursuant to such Participant's election under Section 4.1.
Compensation includes any deferred income earned by the Employee,
salary deferrals made pursuant to Section 4.1 and Section 125 of
the Code, but excludes imputed income, other non-cash compensation,
amounts of special discretionary cash compensation, severance
payments, contributions to the Plan or any other pension, profit
sharing or benefit plan maintained by a Participating Company, any
benefit payment under the Plan, or any other similar plan,
reimbursed expenses and withholding taxes remitted by a
Participating Company on behalf of the Employee with respect to
imputed income. 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) of the Code shall apply, except that in
applying such rules, 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 2.14 prior to the application of the annual compensation
limit.
2.15 "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.
2.16 "Disability" means an Employee's physical or
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 Company 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.
2.17 "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.
2.18 "Early Retirement Age" means the date on which a
Participant has attained age 55 and has completed five Years of
Service.
2.19 "Early Retirement Date" means the first day of
the month coincident with or next following a Participant's
retirement after reaching his Early Retirement Age but prior to his
Normal Retirement Age.
2.20 "Effective Date" means, for this amendment and
restatement, January 1, 1994. The original effective date of the
Plan is January 1, 1989.
2.21 "Eligible Employee" means any Employee excluding
(i) any nonresident alien, (ii) any Employee who is included in a
unit of Employees covered by a collective bargaining agreement
which does not provide for his participation in the Plan, (iii)
any Employee paid on a hourly basis and who are in the employ of
units that have been designated by the Company as being ineligible
to participate in the Plan, and for the 1994 Plan Year,
(iv) any Highly Compensated Employee designated by the
Administrative Committee to be ineligible to participate in the
Plan, unless or until the Administrative Committee rescinds such
prohibition.
2.22 "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.
2.23 "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 10.2(c) 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), and (iv) After-Tax Contributions made in accordance
with the Plan.
2.24 "Employee" means an individual in the employ of
the Employer.
2.25 "Employer" means the Company and each other
Participating Company, or any of them.
2.26 "Family Member" means a spouse, lineal ascendants
and descendants of the Employee or former Employee and the
spouses of such lineal ascendants and descendants.
2.27 "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 2.27,
the "determination year" shall be the Plan Year unless the
Employer elects a calendar year and the "look-back" year shall be
the 12-month period immediately preceding the determination year,
or, if elected by the Employer, 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.
2.28 "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. (These 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
Affiliate as provided by Labor Department Regulations under the
Act, with no duplication of credit for hours.)
(b) One hour for each hour, in addition to the
hours in Section 2.28(a), above, for which he is directly or
indirectly paid, or entitled to payment, by the Company or
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. (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 he is on leave
of absence from work with the Company or 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 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 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. Notwithstanding the foregoing, an Employee shall be
credited with 45 Hours of Service with respect to each week for
which he is entitled to be credited with at least one Hour of
Service.
2.29 "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.
2.30 "Investment Committee" means the OPI Investment
Committee as provided for in Section 12.
2.31 "Investment Fund" means the investment fund or
funds, or any additional funds which the Investment Committee may
establish or adopt from time to time by written notice to the
Trustee.
2.32 "Investment Manager" means an Investment Manager,
as that term is defined in Section 3(38) of the Act, appointed by
the Investment Committee in accordance with Section 12.2 hereof.
2.33 "IRS" means the United States Internal Revenue
Service.
2.34 "Labor Department" means the United States
Department of Labor.
2.35 "Normal Retirement Age" means the date which is
the Participant's 65th birthday. Upon attainment of Normal
Retirement Age, the Participant shall have a nonforfeitable right
to his entire Account balance.
2.36 "Normal Retirement Date" means the first day of
the month coincident with or next following a Participant's
attainment of his Normal Retirement Age.
2.37 "Participant" means any Eligible Employee who
participates in the Plan as provided in Section 3.
2.38 "Participating Company" means an Affiliate of the
Company, designated by the Board of Directors as such, the board
of directors or equivalent governing body of which shall adopt
the Plan and the Trust Agreement by appropriate action and the
Employees of which shall be eligible to participate in the Plan
in the manner and to the extent determined by the Board of
Directors so long as such Affiliate remains so designated. Any
such Affiliate so designated and which adopts the Plan shall be
deemed thereby to appoint the Company, the Administrative
Committee, the Investment Committee and the Trustee its exclusive
agents to exercise on its behalf all of the powers and authority
conferred hereby, or by the Trust Agreement, upon the Company, and
shall make its allocable contributions to the Plan. The authority
of the Company, the Administrative Committee, the Investment
Committee and the Trustee to act as such agent shall continue until
the Plan has terminated as to such Affiliate and the relevant Trust
Fund assets have been distributed by the Trustee as provided in
Section 14.4 hereof.
2.39 "Plan" means the OPI Profit Sharing Plan, as set
forth herein and as the same may be amended from time to time.
2.40 "Plan Year" means the calendar year.
2.41 "Pre-Tax Contributions" and "Pre-Tax Contribution
Account" mean those contributions made by the Employer on behalf
of a Participant in accordance with such Participant's election
pursuant to Section 4.1 and that portion of the Participant's
Account to which such contributions are credited.
2.42 "Prior Plan" means the Ogden Profit Sharing Plan,
as in effect on January 1, 1989.
2.43 "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.
2.44 "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 con-
sidered 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 on or 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 10.2 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.
2.45 "Regulations" means the applicable regulations
issued under the Code (referred to herein as "IRS Regulations"),
the Act (referred to herein as "Labor Department Regulations") or
other applicable law, by the IRS, the Labor Department or any
other governmental authority and any temporary regulations or
rules promulgated by such authorities pending the issuance of
such regulations.
2.46 "Rollover Contribution" and "Rollover Contribution
Account" means any contribution made by a Participant pursuant to
Section 4.5 and that portion of the Participant's Account
to which such contributions are credited.
2.47 "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(a) 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(a) 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.
2.48 "Service" means employment or reemployment (whether
or not as an Eligible Employee) with the Company, any Participating
Company or with any subsidiary of or other corporation
or entity affiliated or associated with the Company which is a
member of the same controlled group of corporations (within the
meaning of Section 1563(a) of the Code), including all periods of
employment rendered by an individual from his date of employment
or reemployment, as the case may be, with the Employer and all
Service credited to a Participant while a participant under the
Prior Plan, in accordance with the terms and conditions of the
Prior Plan.
2.49 "Surviving Spouse" means the survivor of a deceased
Participant or a deceased former Participant to whom such
deceased Participant or deceased former Participant had been
legally married (as determined by the Administrative Committee) on
the date of the Participant's death or at the time payments
commence, whichever is earlier.
2.50 "Trust" or "Trust Fund" means the trust established
by the Company pursuant to the Trust Agreement as a part
of the Plan.
2.51 "Trustee" means the trustee of the Trust.
2.52 "Trust Agreement" means the agreement entered into
between the Company and the Trustee regarding the investment
and holding of Plan assets as provided in the Plan, as amended or
restated from time to time.
2.53 "Valuation Date" means the last day of each Plan
Year and the last day of any calendar month or months in a Plan
Year and any other date as the Administrative Committee in its
discretion may specify or determine from time to time.
2.54 "Vested Interest" means the portion of a
Participant's Account which has become nonforfeitable pursuant to
Section 9.2.
2.55 "Year of Service" means any Plan Year during
which an Employee completed at least 1,000 Hours of Service as
determined by the Administrative Committee in accordance with the
Regulations. In addition, solely for purposes of determining
whether an Eligible Employee is enrolled as a Participant as
provided in Section 3, if an Employee does not complete 1,000 Hours
of Service during the Plan Year in which his Service commenced
but does complete at least 1,000 Hours of Service during the 12
consecutive month period beginning on the date his Service
commenced, as determined by the Administrative Committee, then, he
shall be credited with a Year of Service for such 12 consecutive
month period. In determining the number of Years of Service a
Participant is to be credited with all years of service credited
to such Participant, as of December 31, 1988, under the Prior
Plan.
SECTION 3. PARTICIPATION
3.1 Date of Participation. Each Employee who is an
Eligible Employee on the Effective Date and who was a Participant
in the Plan on Effective Date shall continue to be a Participant
on such Effective Date. Each Employee who was an Eligible Employee
on the Effective Date but who was not a Participant in the
Plan prior to that date, shall become a Participant in the Plan
on the earliest of (i) the date the Eligible Employee would
become a Participant under the terms of the Plan prior to the
Effective Date or (ii) the first day of the month coincident with
or next following the later of (1) date on which the Eligible
Employee has completed six months of Service, or (2) the date on
which the Eligible Employee has completed 1,000 Hours of Service
with the Employer, commencing on the day such Eligible Employee
completed one Hours of Service provided that such Eligible Employee
is employed by the Employer on that date. Each other Employee who
is an Eligible Employee hired on or after the Effective Date shall
become a Participant in the Plan on the first day of the month
coincident with or next following the later of (i) the date on
which the Eligible Employee has completed six months of Service or
(ii) the date on which the Employee has completed 1,000 Hours of
Service with the Employer, commencing on the day such Eligible
Employee completed one Hour of Service, provided such Eligible
Employee is employed by the Employer on that date.
3.2 Participation and Adjustments. A Participant
shall file with the Administrative Committee a written application
form which shall include an election to reduce the Participant's
Compensation, specifying the amount of contributions elected under
Section 4 and authorizing any necessary payroll deductions,
investment direction, beneficiary designation and an agreement to
be bound by all the terms and conditions of the Plan and the Trust
and any agreement with any other funding agency, including an
insurance company, constituting a part of the Plan and the Trust
Fund.
3.3 Duration. The participation of a Participant
shall end when no further benefits are payable to him or his
Beneficiary from his Account under the Plan.
3.4 Reemployment.
(a) Subject to Section 3.4(b), 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. If he had fulfilled the service
requirements of Section 3.1 at the time of his prior termination,
but terminated employment prior to becoming a Participant, he shall
become a Participant on the first day of the month following the
date of his reemployment. If he had not fulfilled such service
requirement at the time of his termination, he shall become a
Participant as provided in Section 3.1.
3.5 Establishment and Maintenance of Separate Account.
(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, but not limited to, 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 Section 5.1,
(iii) After-Tax Contributions made under Section 4.1 and (iv)
Rollover Contributions made pursuant to Section 4.5, such other
accounts as described in Appendix A, 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.
3.6 Maintenance of Accounts Shall Not Vest Any Right
in Plan 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.
SECTION 4. PRE-TAX CONTRIBUTIONS AND
AFTER-TAX CONTRIBUTIONS
4.1 Pre-Tax Contributions. (a) A Participant may
elect to reduce his Compensation by an amount not less than one
percent and not more than ten percent of such Compensation for a
Plan Year in any whole percentage in accordance with procedures
adopted by the Administrative Committee, and the Employer shall
contribute such amount to the Plan on behalf of the Participant
as a Pre-Tax Contribution. Notwithstanding the foregoing, such
Pre-Tax Contributions in any calendar year shall not exceed
$9,240, as adjusted, for years beginning after December 31, 1993,
for increases in the cost of living in accordance with Section
402(g)(5) of the Code. In the event that the aggregate amount of
Pre-Tax Contributions for a Participant exceeds the limitation in
the previous sentence, the amount of such excess, increased by
any gains and decreased by any losses attributable thereto, shall
be refunded to the Participant no later than the April 15th of
the calendar year following the calendar year for which the Pre-Tax
Contributions were made. If a Participant also participates,
in any calendar year, in any other plans subject to the limitation
set forth in Section 402(g) of the Code and has made deferrals
under the Plan when combined with the other plans subject to
such limits in excess of the limitation described above, 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 gains and decreased by any losses attributable
thereto, shall be refunded to the Participant no later than the
April 15 of the calendar year following the calendar year for which
the Pre-Tax Contributions were made. The amount of such excess
gains or losses is determined by multiplying the gain or loss for
the calendar year allocable to the excess deferrals of the
Participant by a fraction, the numerator of which is the excess
deferral amount made by the Participant for the calendar year and
the denominator of which is the balance of the Pre-Tax Contribution
Account as of the end of such calendar year, without regard to
any gain or loss, allocable to such Account for the calendar
year. The gain or loss allocable to the excess deferrals 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 deferrals
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 excess deferrals that may be distributed pursuant to
this Section 4.1(a) with respect to a Participant shall be reduced
by any excess contributions (as defined in Section 4.1(b)(ii))
previously distributed to the Participant for the Plan Year
beginning with or within the calendar year to which such excess
deferrals relate. Notwithstanding the foregoing, in no event may
the total of the Participant's Pre-Tax Contributions and After-Tax
Contributions, as described in Section 4.3, in any Plan Year exceed
ten percent of his Compensation.
(b)(i) Notwithstanding any other provision of this
Section 4.1, the actual deferral percentage for the Plan Year for
Highly Compensated Employees shall not exceed the greater of the
following actual deferral percentage tests: (a) the actual deferral
percentage for such Plan Year of those Eligible Employees who
are not Highly Compensated Employees multiplied by 1.25, or (b)
the actual deferral percentage for the Plan Year of those Eligible
Employees who are not Highly Compensated Employees multiplied
by 2.0; provided that the actual deferral percentage for Highly
Compensated Employees does not exceed the actual deferral
percentage for such other Eligible Employees by more than two
percentage points. For purposes of this Section 4.1, the "actual
deferral percentage" for a Plan Year means, for each specified
group of Eligible Employees, the average of the ratios (calculated
separately for each Eligible Employee in such group) (the
"actual deferral ratio") of (A) the amount of contributions
allocated to the Participant's Pre-Tax Contribution Account (and
any contribution under Section 5.1(a) which meets the requirements
of Section 1.401(k)-1(b)(5) of the IRS Regulations) during the Plan
Year, to (B) the amount of the Participant's Salary for the Plan
Year. A Participant's Pre-Tax Contribution will be taken into
account under the actual deferral percentage test, as described
herein, for a Plan Year only if such contribution relates to
Compensation that either would have been received by the Employee
during the Plan Year, but for the election pursuant to Section
4.1(a), or is attributable to Service performed by the Employee
during the Plan Year and would have been received by the Employee
within two and one-half months after the close of the Plan Year,
but for the election pursuant to Section 4.1(a). A 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. For purposes of the actual deferral percentage
test described herein, 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 Participant's 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 Contributions are 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 4.1(b).
The actual deferral ratio taken into account under this Section
4.1(b) for any Highly Compensated Employee who is a participant
under two or more Section 401(k) of the Code cash or deferred
arrangements of the Employer shall be determined as if all such
Section 401(k) cash or deferred arrangements were treated as one
Section 401(k) cash or deferred arrangement. For purposes of
determining the actual deferral ratio of a Participant who is a
Highly Compensated Employee subject to the family aggregation rules
of Section 414(q)(6) of the Code because such Employee is either a
five-percent owner or one of the ten most Highly Compensated
Employees as described in Section 414(q)(6) of the Code, the
Pre-Tax Contributions and Salary of such Participant shall include
Pre-Tax Contributions and Salary of Family Members, and such Family
Members shall not be considered as separate Eligible Employees in
determining actual deferral percentages.
(ii) 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
specified in Section 4.1(b)(i) 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(a). The Administrative
Committee may, in its sole discretion, and without the consent of
a Participant, reduce or suspend the Salary Reduction Contributions
of a Highly Compensated Employee, or return excess Salary Reduction
Contributions, such Contributions increased by any income
and decreased by any losses to the extent necessary to satisfy
one of the actual deferral percentage tests. 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 Section 4.1(b)(iii). For purposes of
this Section 4.1, "excess contributions" means, with respect to any
Plan Year, the excess of the aggregate amount of Pre-Tax
Contributions (and any earnings and losses allocable thereto) made
to the Pre-Tax Contribution Accounts of Highly Compensated
Participants for such Plan Year, over the maximum amount of such
contributions that could be made to the Pre-Tax Contribution
Accounts of such Participants without violating the requirements of
Section 4.1(b)(i), determined for each such Highly Compensated
Participant by reducing Pre-Tax Contributions made on
behalf of Highly Compensated Participants 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 as determined pursuant to this Section
4.1(b)(ii) and his Salary. This process shall be known as
the leveling method, as described in IRS Regulation Section
1.401(k)-1(f)(2).
(iii) If required in order to comply with the provisions
of Section 4.l(b)(i) and the Code, the Administrative Committee
shall refund excess contributions for a Plan Year. The
distribution of such excess contributions shall be made to Highly
Compensated Participants to the extent practicable before the
15th day of the third month immediately following the Plan Year
for which such excess contributions were made, but in no event
later than the end of the Plan Year following such Plan Year or,
in the case of the termination of the Plan in accordance with
Section 14, no later than the end of the 12-month period
immediately following the date of such termination. Any such
distribution shall be made to each Highly Compensated Participant
on the basis of the respective portions of such amounts
attributable to each such Highly Compensated Participant determined
under Section 4.1(b)(ii). The distribution of any excess
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 contributions for a Plan Year is the gain or
loss allocable to the Participant's Pre-Tax Contribution Account
for the Plan Year multiplied by a fraction, the numerator of which
is the Participant's Pre-Tax Contributions for the year and the
denominator of which is the Participant's Pre-Tax Contribution
Account as of the end of such Plan Year without regard to any gain
or loss for the Plan Year. The gain or loss allocable to the
excess 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. In the case of a Highly Compensated Employee whose
actual deferral percentage is determined under the family
aggregation rules, the amount of excess contributions, as defined
in Section 4.1(b)(ii), shall be determined by reducing the actual
deferral percentage in accordance with the leveling method
described in Section 4.1(b)(ii) and the excess contributions are
allocated among the Family Members in proportion to the
contributions of each Family Member that have been combined.
(iv) Notwithstanding the foregoing provisions of
this Section 4.1(b), the amount of excess contributions to be
distributed pursuant to Section 4.1 with respect to a Highly
Compensated Employee for a Plan Year, shall be reduced by any
excess deferrals distributed to such Participant for such Plan Year
pursuant to Section 4.1(a). In no case may the amount of such
distributed excess contributions exceed the amount of Pre-Tax
Contributions made on behalf of the Highly Compensated Employee for
the Plan Year.
(v) Notwithstanding any other provision of the
Plan, the sum of the actual deferral percentage determined in
accordance with Section 4.l(b)(i) of those Eligible Employees who
are Highly Compensated Employees and the actual contribution
percentage determined in accordance with Section 5.2(a) of those
Eligible Employees who are Highly Compensated Employees shall not
exceed the aggregate limit determined in accordance with this
Section 4.1(b)(iv). The "aggregate limit" for a Plan Year means
the greater of (A) or (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.
4.2 Refund of Excess Contributions. 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. In the
event that the aggregate limit is exceeded the actual deferral
percentage of those Eligible Employees who are Highly Compensated
Employees shall be reduced in the same manner as described in
Section 4.1 until the aggregate limit is no longer exceeded.
4.3 After-Tax Contributions. Subject to the
provisions of Section 5.2, a Participant may elect to make
After-Tax Contributions to the Plan of an amount of up to ten
percent of his Compensation in any whole percentage through payroll
deductions, in accordance with procedures adopted by the
Administrative Committee.
4.4 Institute, Change, Resume or Suspend Contributions.
A Participant may suspend Pre-Tax Contributions made on
his behalf or his After-Tax Contribution, or both, or institute
or change the rate of the reduction of his Compensation pursuant
to Section 4.1, or the rate of his After-Tax Contribution, or
both, upward or downward within the percentage limitations set
forth in Section 4.1, without terminating his participation in
the Plan, upon 30 days advance written notice thereof to the
Administrative Committee. Such change shall be effective as of
the first day of any calendar quarter. A suspension shall be
effective as of the first day of any calendar month. A Participant
may not change the rate of the reduction of his Compensation
or the rate of his After-Tax Contribution more frequently than
once every three months. 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.
4.5 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. If the 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 6, be debited or credited in accordance with
Section 7, and shall be distributed in the same manner and at the
same time as described in Sections 8 and 10 with respect to a
distribution of benefits under the Plan to such Participant.
(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 this Section 4.5 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 shall not have the effect of discriminating in favor of
Employees who are officers, shareholders or Highly Compensated
Employees.
SECTION 5. PARTICIPATING COMPANY CONTRIBUTIONS
5.1 Participating Company Contributions. For each
Plan Year, a Participating Company may contribute to the Plan a
fixed dollar amount or a percentage of the total Compensation
earned by such Participating Company to its Eligible Employees
who participated in the Plan for such Plan Year. Such amount or
percentage, if any, shall be determined by resolution of the
board of directors of such Participating Company as soon as
practical following the close of the 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 close of the 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 determining the annual contribution, the
Administrative Committee shall be advised of the amount of such
annual contribution upon which its allocation is to be calculated.
Any Participating Company contributions made hereunder shall be
reduced to the extent necessary to comply with the requirements of
Section 415 of the Code.
5.2 Limitation on After-Tax Contributions. (a)
Notwithstanding any other provision of this Section 5.1, 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. For purposes of this Section 5.2, the
"actual contribution percentage" for a Plan Year means, for each
specified group of Eligible Employees, the average of the ratios
(calculated separately for each Eligible Employee in such group)
(the "actual contribution ratio") of (A) the sum of (I) After-Tax
Contributions credited to his After-Tax Contribution Account if
such After-Tax Contributions are paid to the Trust during the
Plan Year or paid to an agent of the Plan and transmitted to the
Trust within a reasonable period after the end of the Plan Year
and if the Administrative Committee so elects in accordance with
and to the extent permitted by IRS Regulations, (II) Pre-Tax
Contributions (including excess contributions under Section 4.1(b)
if the contribution would have been received in cash by the
Participant had the Participant not elected to defer such amounts
under Section 4.1(a)) credited to his Pre-Tax Contribution
Account, to (B) the amount of the Participant's Salary for the
Plan Year. An Eligible Employee's actual contribution percentage
shall be zero if no contributions are made on his behalf for such
Plan Year. If the Plan and one or more other plans of the Employer
to which Pre-Tax Contributions, After-Tax Contributions or Company
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, After-Tax Contributions or Company Contributions
of such plans shall be treated as being made under a single plan
for purposes of this Section 5.2. The actual contribution ratio
taken into account under this Section 5.2 for any Highly
Compensated Employee who is eligible to make After-Tax
Contributions or receive Employer contributions under two or more
plans described in Section 401(a) of the Code or arrangements
described in Section 401(k) of the Code that are maintained by
the Employer shall be determined as if all such contributions
were made under a single plan. The determination and treatment
of the actual contribution ratio of any Participant shall satisfy
such other requirements as may be required by the IRS
Regulations. For purposes of determining the actual contribution
ratio of a Participant who is a Highly Compensated Employee
subject to the family aggregation rules of Section 414(q)(6) of
the Code because such Employee is either a five percent owner or
one of the 10 most Highly Compensated Employees as described in
Section 414(q)(6) of the Code, the Employer contributions and
After-Tax Contributions and Salary of such Participant shall
include the Employer contributions and After-Tax Contributions
and Salary of Family Members, and such Family Members shall not
be considered as separate Eligible Employees in determining
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 5.2(a) 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(a) and then determining the
treatment of excess contributions under Section 4.1(b). 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 5.2(c). For purposes of this Section 5.2, "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 After-Tax Contribution Account 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 5.2(a) of Highly Compensated
Participants for such Plan Year, over the maximum amount of
such contributions that could be made to the After-Tax Contribution
Account and Pre-Tax Contribution Account of such Participants
without violating the requirements of Section 5.2(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 5.2(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
leveling 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 5.2(b) shall be determined by reducing
the actual contribution ratio in accordance with the leveling
method described in this Section 5.2(b) and the excess aggregate
contributions are allocated among the Family Members in proportion
to the contributions of each Family Member that have been
combined.
(c) If the Administrative Committee is required
to refund or forfeit excess aggregate contributions for any Highly
Compensated Participant for a Plan Year in order to satisfy
the requirements of Section 5.2(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 14, 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) by distributing
amounts contributed to the After-Tax Contribution Account, and
earnings thereon; and (B) by distributing amounts contributed to
the Pre-Tax Contribution Account (to the extent such amounts are
included in the actual contribution percentage), 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 After-Tax Contributions
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 5.2(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 After-Tax Contributions Account
(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 for the Plan
Year and the denominator is the Participant's After-Tax
Contributions (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 purpose 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.
5.3 Allocation of Participating Company Contributions.
(a) The Administrative Committee shall allocate the
contribution of each Participating Company made in accordance
with Section 5.1 among all Participants who were employed by such
Participating Company or an Affiliate as of the last day of the
Plan Year. The contribution shall be allocated to the Company
Contribution Account of each Employee of the Participating Company
who was a Participant in the Plan for a Plan Year in the
same proportion that his Compensation bears to the Compensation
of all Employees of the Participating company who were Participants
in the Plan for such Plan Year. Notwithstanding the foregoing, (i)
no contribution shall be allocated in respect of a Participant who
did not complete at least one Hour of Service with a Participating
Company during such Plan Year; and (ii) a contribution shall be
allocated with respect to a Participant whose participation in the
Plan terminated during the Plan Year because of (1) the attainment
of his Early Retirement Date or his Normal Retirement Date, (2) his
death, or (3) his Disability, even if he was not employed by a
Participating Company on the last day of the Plan Year.
(b) In the event that a Participating Company is unable
to make its full contribution because of the limitations specified
in Section 2.6 (to the extent such contribution is not paid on such
Participating Company's behalf pursuant to such Section) the amount
allocated to such Participant in respect of his employment during
such Plan Year with such Participating Company shall be reduced
proportionately so that the total amounts allocable to Participants
in respect of employment with the Participating Company do not
exceed the actual amount of the contribution made by such
Participating Company. If the Plan fails to satisfy Section
401(a)(26) of the Code, Participating Company contributions under
Section 5.1 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.
5.4 Time of Payment of Participating Company
Contributions. The Company Contributions made by a Participating
Company under Section 5.1 shall be paid as soon as practicable to
the Trustee following the approval of such contribution by the
Board of Directors; provided that the total amount of the
contribution under the Plan for any taxable year shall be paid in
full on or before such date as the federal income tax laws
applicable to such payment require the payment to be made in order
to permit deduction of such payment for such taxable year.
5.5 Form of Payment of Participating Company
Contributions. The Pre-Tax Contributions made for a taxable year
pursuant to Section 4.1, the Company Contributions made for a
taxable year pursuant to Section 5.4 and the Participants'
After-Tax Contributions under Section 4.3, shall be paid directly
by the Company to the Trustee in cash, or, at the option of the
Company, in whole or in part in other property acceptable to the
Trustee.
5.6 Return of Employer Contributions. Any contribution
made by an Employer because of a mistake of fact shall be returned
to the Employer which made such contribution within one year of
such contribution. Any contribution made by an Employer is
conditioned upon the contribution's deductibility or the Plan's
initial qualification under the Code, and if either the deduction
or the initial qualification is denied, such contribution shall be
returned to the Employer which made such contribution within one
year after the date such deduction or qualification is denied.
SECTION 6. INVESTMENT OF CONTRIBUTIONS
6.1 Investment by Trustees. All amounts of money,
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.
6.2 Investment Funds. (a) The Trustee shall cause to
be established and maintained separate 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 Funds shall be reinvested in such Investment Funds.
(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;
(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 shall invest in a portfolio of United States Treasury
securities and equivalents;
(5) Effective October 1, 1994, 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
(c) Effective October 1, 1994, 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.
6.3 Investment Elections. (a) A Participant's Pre-Tax
Contributions, Company Contributions, After-Tax Contributions
and Rollover 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
five percent. 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
6.3 (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 amy transfer such amounts among the Investment
Funds such that the value of his Account is invested 100% in one of
the available Investment Funds or in more than one Investment Fund,
allocated in multiples of five percent.
(d) The net credit balances in 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 the 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.
6.4 Company Liability. Any losses related to the
compliance by the Company with respect to the Participant's
investment direction shall be borne by the Participant's Account.
The Company, each Participating Company, the Investment Committee
and the Administrative Committee shall not be liable for any loss
or expense which may arise from or result from compliance with any
investment direction from a Participant.
SECTION 7. VALUATIONS AND ADJUSTMENTS OF
PARTICIPANTS' ACCOUNTS
7.1 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 8.4, any
loan under Section 8.5, any Direct Rollover under Section 10.5,
or transfer under Appendix A, but before giving effect to the
receipt and allocation of any Company Contribution, Pre-Tax
Contributions or After-Tax Contributions, and before giving effect
to any repayments of loans under Section 8.5, the participation
of any new Participants in the Plan, any adjustments, or any
distributions under Section 10, 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 account, 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 6.2(b)(1), 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.
7.2 Expenses. The expenses of administering the Plan,
including (i) the fees and expenses of (1) any Employee, (2) the
Trustee and (3) any Investment Manager, for the performance of
their duties under the Plan and the Trust, (ii) the expenses
incurred by the members of the Administrative Committee and of the
Investment Committee 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 members of
either the Administrative Committee or the Investment Committee
(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 Participants' Accounts by the
Administrative Committee in accordance with the provisions of
Section 7.1 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
7.1 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.
7.3 Allocation of Forfeitures. As of the last day of
each Plan Year, any forfeitures arising under the Plan during
such Plan Year shall be allocated by the Administrative Committee
to Participants' Accounts in the same manner as contributions
provided in Section 5. For this purpose, all Participants of all
Participating Companies shall be treated as Eligible Employees of
a single employer.
SECTION 8. ELIGIBILITY FOR BENEFITS
8.1 Distribution of Participant's Account on Retirement
and Disability. Upon termination of a Participant's Service on or
after his Normal Retirement Date or his Early Retirement Date or by
reason of his Disability and subject to Sections 10.2 and 10.4, a
benefit equal to the value of the Participant's Account (less any
unpaid loans) as of the Valuation Date coincident with or next
following the date on which his Service is terminated shall be paid
from the Trust Fund; provided that the Administrative Committee has
received all the necessary forms from the Participant. Such
payment shall be made by a method of distribution described and at
the time specified in Section 10.
8.2 Distribution of Participant's Account on Death.
(a) Upon the death of a Participant while an Employee, benefits
equal to the value of the Participant's Account (reduced by any
unpaid loans) as of the Valuation Date coincident with or next
following the date of his death shall be payable to the Beneficiary
of such Participant (as determined in Section 11) from the Trust by
a method of distribution described and at the time specified in
Section 10; provided that the Administrative Committee has received
all the necessary forms from the Beneficiary.
(b) If a former Employee who was a 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 as of the Valuation Date coincident with or next following
the date of his death shall be paid to the Beneficiary of
such former Participant (as determined under Section 11) in
accordance with a method of distribution described and at the
time specified in Section 10; provided that the Administrative
Committee has received all necessary forms from the Beneficiary.
8.3 Distribution on other Termination of Service.
(a) Upon the termination of employment of any
Participant which occurs other than on his Normal Retirement Date
or his Early Retirement Date or for any reason other than death
or Disability and subject to Sections 10.2 and 10.4, the
Participant shall be paid an amount equal to the value of his
Account, after reduction for the amount of any unpaid loans, as
of the Valuation Date coincident with or next following the date
on which his Service is terminated and all necessary forms are
received by the Administrative Committee, of the sum of the
Participant's (i) Pre-Tax Contribution Account, (ii) After-Tax
Contribution Account, (iii) Vested Interest (as determined in
Section 9.2) in his Company Contribution Account, and (iv) Rollover
Contribution Account; provided the Administrative Committee
receives all of the necessary forms from the Participant. Such
distribution shall be made as soon as practicable thereafter by a
method of distribution described and at the time specified in
Section 10. Any excess of the amount credited to such
Participant's Company Contribution Account over his Vested Interest
in such Account shall be forfeited.
8.4 Hardship Withdrawals; In-Service Withdrawals.
(a) 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 8.4(a) 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 8.4(a) may be
requested by a Participant only after he has (i) withdrawn all
employee contributions permitted to be withdrawn under any other
plan maintained by the Employer, and (ii) made all loans currently
available under Section 8.5 or under any other plan maintained by
the Employer. The amount of any withdrawal pursuant to this
Section 8.4(a) shall not exceed the amount required to meet the
financial emergency (including amounts needed to pay any taxes or
penalties as a result of such withdrawal). Subject to the
provisions of this Section 8.4(a), 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.
(b) A Participant shall give the Administrative
Committee written notice of a request for a withdrawal pursuant
to the provisions of this Section 8.4 in accordance with such
procedures as the Administrative Committee shall establish. No
withdrawal pursuant to this Section 8 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 a withdrawal is requested.
Payment of any withdrawals pursuant to this Section 8.4 shall be
made solely in cash. A Participant who makes a hardship withdrawal
pursuant to this Section 8.4 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 this Section 8.4 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 this Section 8.4 was made.
(c) 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 next 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.
(d) Notwithstanding Sections 8.1, 8.2 and 8.3,
the Administrative Committee may distribute to a Participant on
the first day of any month following the receipt of a written
application, the balance then credited to his After-Tax
Contribution Account.
8.5 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 and the Stock Bonus
Account); provided, however, such Participant gives at least 30
days' prior written notice to the Administrative Committee. The
maximum amount available for a loan under the Plan (when added to
the outstanding balance of all other loans from the Plan to the
Participant) shall not exceed 50% of the vested portion of the
Participant's Account up to the maximum of $50,000 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 $1,000 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. 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 one percent 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 12
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
10. 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
10 (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 and his Company 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 Pre-Tax Contribution 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 After-Tax Contribution Account not already allocated
to a loan; to the extent it is in excess of such amounts, it shall
be deemed an investment of and allocated to such Participants'
Roll-over Contribution Account; 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 any account
(except as provided to the contrary herein) described in Appendix
A, not already allocated to a loan.
(e) The Investment funds in which the Participant's
Account is invested in accordance with Section 6 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 Account are
invested; provided, however, that the Company Stock Fund and Stock
Bonus 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.
8.6 Restrictions on Distributions. Notwithstanding
the foregoing, a Participant's Pre-Tax Contribution Account may
not be distributed earlier than upon one of the following events:
(a) The Participant's retirement, death, Disabil-
ity or termination of Service;
(b) The termination of the Plan without the
establishment or maintenance of another de-
fined contribution plan (other than an
employee stock ownership plan or a simplified
employee plan);
(c) The Participant's attainment of age 59-1/2 or
upon the Participant's hardship, if so per-
mitted by the Plan; or
(d) The sale or disposition by the Employer to an
unrelated corporation of (i) substantially
all of the assets used in a trade of business
or (ii) the Employer's interest in a subsidi-
ary, 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 deposition.
SECTION 9. VESTING
9.1 Vesting. At all times, each Participant shall
have a nonforfeitable right to 100% of the value of his Pre-Tax
Contribution Account, his After-Tax Contribution Account and his
Rollover Contribution Account, if any, and such other accounts as
set forth in Appendix A, except as otherwise provided therein.
9.2 Vesting Schedule. A Participant's interest in his
Company Contribution Account shall vest according to the following
vesting schedule:
Nonforfeitable
Full Years of Service Percentage
less than 1 Year of Service 0%
1 but less than 2 Years of Service 20%
2 but less than 3 Years of Service 40%
3 but less than 4 Years of Service 60%
4 but less than 5 Years of Service 80%
5 or more Years of Service 100%
9.3 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 employment, 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 reallocations
of the 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 9.3(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 6.3.
9.4 Full Vesting. Notwithstanding the foregoing, a
Participant or his Beneficiary, whichever is appropriate, shall
be fully vested in the entire value of the Participant's Account
upon the Participant's attainment of his Normal Retirement Age,
Early Retirement Age, or upon such Participant's Disability or
death.
SECTION 10. METHOD OF PAYMENT OF BENEFITS
10.1 Payment of Benefits. Subject to the provisions of
this Section 10, any benefit payable under Section 8 of the Plan
shall be paid in one of the following methods of distribution, as
the Participant (or in the case of his death, either the
Participant or his Beneficiary as provided in Section 8) may elect:
(1) One lump sum payment from the Trust Fund;
or
(2) With respect to any benefit earned or
accrued on or before December 31, 1988 under the Prior Plan, a
Participant may elect either a lump sum payment in accordance
with this Section 10.1 or any method of payment which was available
under the Prior Plan as in effect on December 31, 1988, consisting
of equal monthly, quarterly and annual installments. If the
Participant elects to receive the December 31, 1988 value of his
Account in such installments, in no event may the present value of
such installments be less than 50% of the installments projected to
be paid to the Participant and his Beneficiary.
10.2 Commencement of Benefits. (a) If the Participant
or Beneficiary fails to select a distribution method at least 30
days prior to the date by which distribution must commence, such
benefits shall be paid in one lump sum payment. If a Participant
has elected an installment method of payment pursuant to Section
10.1(2) and such Participant dies before the distribution of his
entire Account has been made, his Beneficiary shall be entitled to
a lump sum payment of such remaining Account balance.
(b) Any Disability benefit payable to a Participant
under Section 8, shall be paid in accordance with the following
provisions:
(i) If a disabled Participant files
appropriate forms requesting a distribution from the Plan by the
end of the month in which he suffered his Disability, the
Administrative Committee shall distribute the proceeds of his
Account, valued as of the last Valuation Date of the month in which
the Participant suffered such Disability, by the next succeeding
month, or as soon as administratively practicable thereafter.
(ii) If the disabled Participant files
appropriate forms after the end of the month in which he suffered
his Disability, the Administrative Committee shall distribute the
proceeds of his Account, valued as of the last Valuation Date of
the month such form is received, by the next succeeding month, or
as soon as administratively practicable thereafter.
(c) 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
in Section 10.2(e), 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 calendar year in which the Participant
retires. Such benefit shall be paid, in accordance with IRS
Regulations, over a period not extending beyond the life expectancy
of such Participant or the joint life expectancies of such
Participant and his Beneficiary. Life expectancy for purposes of
this Section shall not be recalculated annually in accordance with
IRS Regulations.
(d) 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.
(e) If a Participant dies before distribution of
his benefit has commenced, distributions to any Beneficiary shall
be made on or before the December 31st of the calendar year which
contains the fifth anniversary of the date of such Participant's
death; 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 died or, in the event such Beneficiary is
the Participant's Surviving Spouse, on or before the December
31st of the calendar year in which such 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 the Participant's death but before
distributions to such Surviving Spouse commence, this Section
10.2(e) shall be applied to require payment of any further benefits
as if the Surviving Spouse were the Participant.
(f) 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 IRS Regulations.
(g) If a Participant who is a five percent owner
attained age 70 1/2 before January 1, 1988, any benefit payable
to such Participant shall commence no later than the April 1st of
the calendar year following the later of (i) the calendar year in
which the Participant attains age 70 1/2 or (ii) the earlier of
(A) the calendar year within which the Participant becomes a five
percent owner or (B) the calendar year in which the Participant
retires. For purposes of this Section 10.2(g), a five percent
owner shall mean a five percent owner of such Participant's
Employer as defined in Section 416(i) of the Code at any time
during the Plan Year in which such owner attains age 66 1/2 or any
subsequent Plan Year.
(h) All distributions made hereunder shall be
made in accordance with the provisions of Section 401(a)(9) of
the Code and IRS Regulations thereunder.
(i) Notwithstanding the foregoing, distributions
to a Participant may be made in accordance with a written
designation made before January 1, 1984 by the Participant if such
designation satisfied the requirements of Section 242(b)(2) of
the Tax Equity and Fiscal Responsibility Act of 1982.
10.3 Time of Payment. (a) Any election under Section
10.1 must be made by the payee prior to the 60th day following
the date of 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 10.3(b), payments shall be made no later than
the 60th day following the date on which the amount of the payment
under the Plan (or in the case of more than one payment, the
first said payment) can be ascertained under the Plan.
(b) Notwithstanding any other provision of the
Plan, to the extent required by the Code and IRS Regulations, (i)
if the value of a Participant's Account does not or never has
exceeded $3,500, a distribution may be made to such Participant
prior to the date he attains his Normal Retirement Age without
his written consent and (ii) if the value of a Participant's
Account exceeds or has ever exceeded $3,500, no distribution may
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 shall commence
as soon as practicable after the Participant's attainment of Normal
Retirement Age, which benefit shall be in an amount equal to the
value of the Participant's distributable Account as of the
Valuation Date coincident with or immediately following the
Participant's attainment of Normal Retirement Age. During the
period of deferral mandated by the absence of receipt of consent,
the Participant may change his investment direction under Section
6.
(c) Benefits payable under the Plan to a
Participant or Beneficiary from the Company Stock Fund, other than
a withdrawal due to an immediate and heavy financial need or loans
made pursuant to Section 8, shall be paid in cash unless the
participant elects to receive such distributions 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.
10.4 Latest Commencement Date. Unless the Participant
elects otherwise, the payment of benefits under the Plan shall
commence not later than the 60th day after the latest of the
close of the Plan Year in which (i) the Participant obtains age
65, (ii) occurs the 10th anniversary of the year the Participant
commenced participation under the Plan, and (iii) the Participant
terminates employment with the Company or an Affiliate.
10.5 Direct Rollover. (a) Effective on or after
January 1, 1993, a Distributee may elect, at a time and manner
prescribed by the Administrative Committee, to have any portion
of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by such Distributee in the form of a
Direct Rollover.
10.6 Special Tax Notice. Notwithstanding any other
provision of the Plan, no distribution may be made to a Participant
unless the Participant receives from the Administrative Committee
an officially approved tax notice (pursuant to the Code and IRS
Regulations) which specifies certain information regarding the
federal income tax treatment of Plan benefits paid in the form of
a lump cash sum no less than 30 days and no more than 90 days
before the date benefits are to be distributed. Such distribution
may commence less than 30 days after the required notice is given,
provided that (i) the Administrative Committee clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the decision
of whether or not to elect a distribution, and (ii) the
Participant, after receiving the notice, affirmatively elects a
distribution.
SECTION 11. DESIGNATION OF BENEFICIARIES
11.1 Beneficiary Designation. Each Participant shall
file with the Administrative Committee a written designation of
one or more persons (which may include the Participant's spouse)
as the Beneficiary who 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. Notwithstanding
the foregoing, if the Participant is married, his spouse must
consent, in writing, to the designation of a Beneficiary other
than the Participant's spouse (unless the Administrative Committee
makes a written determination in accordance with the Code and
IRS Regulations that no such consent is required). 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.
11.2 Failure to Designate Beneficiary. If no such
Beneficiary designation is in effect at the time of a Participant's
death, or if no designated Beneficiary survives the Participant,
the Participant shall be deemed to have designated his Surviving
Spouse, if any, as Beneficiary, or if the Participant has no
Surviving Spouse, then 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
therefor.
SECTION 12. ADMINISTRATION OF THE PLAN
12.1 Powers and Duties of Administrative Committee.
The Administrative Committee shall have general responsibility
and discretionary authority for the administration, establishment
and interpretation of the Plan (including but not limited to
complying with reporting and disclosure requirements, establishing
and maintaining Plan records, adopting amendments to the Plan as
described in Section 14.1, deciding all questions arising in
connection with the Plan including eligibility, benefit payments,
vesting and factual questions). The Administrative Committee
shall engage such 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 have sole discretionary authority to determine, a
Participant's or Beneficiary's benefit eligibility. 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.
12.2 Powers and Duties of the 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, and may
appoint and remove or change the Trustee and any such funding
agency. The Investment Committee shall have the power to appoint
or remove one or more Investment Managers and to delegate to such
Investment Manager the authority and discretion to manage
(including the power to acquire and dispose of) the assets of the
Plan, provided that (i) each Investment Manager 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
Investment Manager 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.
12.3 Powers and Duties of Trustees. 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 advisor pursuant to Section 12.2.
12.4 Agents, Reports of Committees. The Administrative
Committee and the Investment Committee (collectively the
"Committees") may arrange for the engagement of such legal counsel
who may be counsel for the Company, 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 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 (including the
appointment of an Investment Manager), provided that such
delegation shall be subject to revocation at any time at the
discretion of such Committee. Each of the Committees shall report
to the Board of Directors, or to a committee of the Board of
Directors designated for that purpose, no less frequently than at
each annual meeting as shall be specified by the Board of
Directors, or such committee with regard to the Board of Directors
the matters for which it is responsible under the Plan.
12.5 Structure of the Committees. The Administrative
Committee and the Investment Committee shall consist of at least
three 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. Any member of the Committees
may resign at any time. No member of either of said 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. The
members of the Administrative Committee and of the Investment
Committee 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 Administrative Committee
or the Investment Committee or any member thereof in any
jurisdiction. Any person may serve on both Committees, and any
member of either Committee, any subcommittee or agent to whom
either Committee 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.
12.6 Adoption of Procedures of Committees. Each
Committee shall elect or designate its own Chairman, 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, at the
direction of its Chairman, without a meeting, by mail, telegraph,
telex, telecopier or telephone, provided that all of the members
of the Committee are informed by mail, telex, telecopier or
telegraph of their right to vote on the proposal and of the outcome
of the vote thereon.
12.7 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 and
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 Committee.
12.8 Hold Harmless; Indemnification. All benefits and
other amounts payable hereunder shall be paid exclusively from
the Trust Fund, and neither the Company, Participating Company,
any Affiliate, any Trustee, nor any director, officer, Employee
or agent of the Company or the Participating Company assumes any
responsibility or liability therefor. The Trust Fund may be
commingled for investment purposes with like separate trust funds
of any other plans and trusts of the Company, Participating
Company, or any Affiliate which meet the requirements of Sections
401(a) and 501(a) of the Code. Each Participant, each Beneficiary
or each other person who shall claim the right to any payment under
the Plan shall look exclusively to the Trust Fund therefor and
shall not have any right or claim therefor against the Company,
any Participating Company, any Trustee, or any director, officer,
Employee or agent of the Company. Except as otherwise required
by the Act, neither the Company, Participating Company, nor any
member of the Administrative Committee or the Investment Committee,
any director, officer, Employee or agent of the Company or
the Participating Company shall be required to inquire into or be
responsible for any act or failure to act of any Trustee or any
Participant. To the maximum extent permitted by the Act and
applicable state law, each Trustee, each member of the
Administrative Committee and the Investment Committee, each
director and officer of the Company, any Participating Company and
each Employee who performs service on behalf of the Plan or the
Trust, shall be indemnified and saved harmless by the Company or by
the Participating Company out of its own assets (including the
proceeds of any insurance policy the premiums of which are paid by
the Company) from and against any and all losses, costs and expense
(including any amounts paid in settlement of a claim with
the Company or Administrative Committee's approval) to which any
of them may be subjected by reason of any act done or omitted to
be done in good faith in their official capacities with respect
to the Plan or the Trust Agreement, including all expenses
reasonably incurred in their defense.
12.9 Claims for Benefits. (a) All claims for benefits
under the Plan shall be submitted in writing to and within a
reasonable period of time decided by, a person or persons
designated in writing by the Administrative Committee. If the
claim is wholly or partially denied, written notice of the denial
shall be furnished within 90 days after receipt of the claim;
provided that, if special circumstances require an extension of
time for processing the claim, an additional 90 days from the end
of the initial period shall be allowed for processing the claim, in
which event the claimant shall be furnished with a written notice
of the extension prior to the termination of the initial 90-day
period indicating the special circumstances requiring an extension.
The written notice denying the claim shall set forth the reasons
for the denial, including specific reference to pertinent
provisions of the Plan on which the denial is based, a description
of any additional information necessary to perfect the claim
and information regarding review of the claim and its denial.
(b) A claimant may review all pertinent documents
and may request a review by the Administrative Committee of a
decision denying the claim. Such a request shall be made in
writing and filed with the Administrative Committee within 60 days
after delivery to the claimant of written notice of the decision.
Such written request for review shall contain all additional
information which the claimant wishes the Administrative Committee
to consider. The Administrative Committee may hold a hearing or
conduct an independent investigation, 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 furnished to the claimant within
60 days after receipt by the Administrative Committee of a request
for review, unless special circumstances require an extension of
time for processing, in which event an additional 60 days
shall be allowed for review and the claimant shall be so notified
in writing. Written notice of the decision on review shall include
specific reasons for the decision. For all purposes under the
Plan, such decision on claims (where no review is requested)
and decision on review (where review is requested) shall be in
the sole discretion of the Administrative Committee, final, binding
and conclusive on all interested persons as to participation
and benefits eligibility, the amount of benefits and as to any
other matter of fact or interpretation relating to the Plan.
12.10 Communications. Any notice, election,
application, instruction, designation or other form of
communication required to be given or submitted by any Participant,
other Employee or Beneficiary shall be in such form as is
prescribed from time to time by the Administrative Committee or
Investment Committee, sent by first class mail or delivered in
person, and shall be deemed to be duly given only upon actual
receipt thereof by such Committee. Any notice, statement, report
and other communication from the Company or either Committee to any
Participant, other Employee, or Beneficiary required or permitted
by the Plan shall be deemed to have been duly given when delivered
to such person or mailed by first class mail to such person at his
address last appearing on the records of the Company or the
Administrative Committee. Each person entitled to receive a
payment under the Plan shall file in accordance herewith his
complete mailing address and each change therein. A check or
communication mailed to any person at his address on file with
the Company or the appropriate Committee shall be deemed to have
been received by such person for all purposes of the Plan, and no
Employee or agent of the Company, of a Participating Company or
member of the Administrative Committee or the Investment Committee
shall be obliged to search for or ascertain the location of
any such person except as required by the Act. If the
Administrative Committee shall be in doubt as to whether payments
are being received by the person entitled thereto, it may, by
registered mail addressed to such person at his address last known
to the Administrative Committee notify such person that all
future payments will be withheld until such person submits to the
Administrative Committee his proper mailing address and such
other information as the Administrative Committee may reasonably
request.
12.11 Participant Information. Each Participant shall
file with the Administrative Committee such pertinent information
concerning himself and his Beneficiary, and each Beneficiary
shall file with the Administrative Committee such information
concerning himself, as the Administrative Committee may specify,
and in such manner and form as the Administrative Committee may
specify or provide, and no Participant or Beneficiary shall have
any right or be entitled to any benefits or further benefits
under the Plan unless such information is filed by him or on his
behalf.
12.12 Service of Process. The agent for the service
of legal process of the Plan shall be the Secretary of the Company
or such other person as may from time to time be designated
by the Board of Directors.
12.13 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 Committee 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 13. TERMINATION OR WITHDRAWAL OF
PARTICIPATING COMPANY PARTICIPATION
13.1 Termination or Withdrawal of Participating
Company. Any Participating Company may withdraw from participation
in the Plan by giving the Administrative Committee prior written
notice specifying a termination date which shall be the last day of
a month at least 60 days subsequent to the date such notice is
received by the Administrative Committee. The Administrative
Committee may terminate any Participating Company's participation
in the Plan, as of any termination 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 terminate a Participating
Company's participation upon complete and final discontinuance of
the contributions. In the event of any such termination, 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.
13.2 Distributions Upon Termination or Withdrawal.
Upon termination of the Plan as to any Participating 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 13. 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 separate trust whose
terms are identical to the terms 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 13.3 will apply. The decision of the Trustee
shall be final as to the assets to be allocated to such separate
plan and trust in accordance herewith. 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 and Surviving Spouses under the Plan shall be
unaffected by such termination and any transfers, distributions or
other dispositions of the assets of the Plan as provided in this
Section 13 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.
The interest of each such Participant in Service with
such Participating Company as of the termination date in the
amount, if any, credited to his Account after payment of or
provision for expenses and charges and appropriate adjustment of
the Accounts of all such Participants for expenses, charges,
forfeitures and profits and losses as described in Section 14.4,
shall be nonforfeitable as of the termination date, and upon
receipt by the Administrative Committee of IRS approval of such
termination, the full current value of such amount, reduced by any
unpaid loans, shall be paid from the Trust Fund in the manner
described in Section 14.4 or transferred to a successor employee
benefit plan which is qualified under Section 401(a) of the Code;
provided, however, that in the event of any transfer of assets to
a successor employee benefit plan the provisions of Section 13.3
will apply.
All determinations, approvals and notifications referred
to above shall be in form and substance from a source satisfactory
to counsel for the Plan. To the maximum extent permitted by the
Act, the termination of the Plan as to any Participating Company
shall not in any way affect any other Participating Company's
participation in the Plan.
13.3 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 or the Investment Committee or both of the Committees may
request appropriate indemnification from the employer or employers
maintaining such successor plan before making such a transfer.
SECTION 14. AMENDMENT OR TERMINATION OF THE
PLAN AND THE TRUST
14.1 Right to Amend, Suspend or Terminate Plan. (a)
Subject to the provisions of Section 14.1(c), the Board of
Directors reserves the right at any time, by majority consent in
writing or by a meeting, to amend, suspend or terminate the Plan,
any contributions thereunder, the Trust, in whole or in part, for
any reason and without the consent of any Participating Company,
Participant, other Employee, 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
and the Administrative Committee. The Plan shall automatically
be terminated upon complete and final discontinuance of
contributions thereunder.
(b) The Administrative Committee may adopt
amendments, by majority consent in writing or by a meeting, which
may be necessary or appropriate to facilitate the administration,
management, or 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),
401(k) and 501(a) of the Code or any other applicable section of
law (including the Act) and the Regulations, provided that any
such amendment does not materially increase the cost to the
Employers of maintaining the Plan.
(c) No amendment or modification shall be made
which would retroactively impair any right to any benefit under
the Plan which any Participant, Beneficiary or Surviving Spouse
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 14.2 below.
14.2 Retroactivity. Subject to the provisions of
Section 14.1, any amendment, modification, suspension or
termination of any provisions of the Plan may be made retroactively
if necessary or appropriate to qualify or maintain the Plan and the
Trust as a plan and trust meeting the requirements of Sections
401(a), 401(k) and 501(a) of the Code or any other applicable
section of law (including the Act) and the Regulations issued
thereunder.
14.3 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 and, where and to the extent required by
law, to Participants and other interested parties.
14.4 No Further Contributions. Upon termination of
the Plan, the Employer shall not make any further contributions
under the Plan and no amount shall thereafter be payable under
the Plan in respect of any Participant except as provided in this
Section 14. To the maximum extent permitted by the Act,
transfers, distributions or other dispositions of the assets of
the Plan as provided in this Section 14 shall constitute a
complete discharge of all liabilities under the Plan. The
Administrative and Investment Committees shall remain in
existence and all of the provisions of the Plan which in the
opinion of the Administrative Committee are necessary for the
execution of the Plan and the administration and distribution,
transfer or other disposition of the assets of the Plan in
accordance with this Section 14.4 shall remain in force. After
(i) payment of or provision for all expenses and charges referred
to in Section 7.2 and appropriate adjustment of all Accounts for
such expenses and charges in the manner described in Section 7.2,
(ii) appropriate adjustment of the Accounts of Participants who
are employed as of the date of such termination in the manner
described in Section 7.3 for any forfeitures arising under the
Plan prior to such date (treating, for this purpose, any
Participant who had a termination of Service but who had not
incurred five consecutive Breaks in Service prior to such date as
having incurred such Break 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 7.1, the
interest of each Participant in Service as of the date of such
termination in the amount, if any, credited to his Account shall be
nonforfeitable as of such date.
The full current value of such adjusted amount, reduced
by the amount of any unpaid loans to the Participant, shall be
paid from the Trust to each Participant and former Participant,
(or, in the event of the death of such Participant or former
Participant, the Beneficiary or Surviving Spouse thereof) in any
manner of distribution specified in Section 10 above, including
payments which are deferred until the Participant's termination
of Service, as the Administrative Committee shall determine in a
nondiscriminatory manner. Without limiting the foregoing, any
such distributions may be made in cash 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.
14.5 Partial Termination. In the event a partial
termination (within the meaning of the Act) of the Plan has
occurred then (i) the interest of each Participant affected
thereby in his Account shall be nonforfeitable as of the date of
such partial termination and (ii) the provisions of Sections
14.2, 14.3 and 14.4 and Section 13.2 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.
14.6 Exclusive Benefit. Except as provided in Section
5.6 of the Plan, Section 414(p) of the Code, or any other federal
law, 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 expenses
as provided in Section 7) 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.
SECTION 15. GENERAL LIMITATIONS AND PROVISIONS
15.1 All Risk on Participants and Beneficiaries. Each
Participant, former Participant, Beneficiary and Surviving Spouse
shall assume all risk in connection with any decrease in the
value of the assets of the Trust and the Participants' Accounts
or special accounts and neither the Employer nor the Administrative
Committee nor the Investment Committee shall be liable or
responsible therefor.
15.2 No Right to Continued Employment. Nothing
contained in the Plan shall give any Employee the right to be
retained in the employment of the Company, any Participating
Company 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 an Employer and any Employee or
consideration for, or an inducement to or condition of, the
employment of any Employee.
15.3 Payment of Behalf of Payee. If the
Administrative Committee shall find that any person to whom any
amount is payable under the Plan is found by a court of competent
jurisdiction to be 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 therefor 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.
15.4 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 15.4 shall not apply to any loan to a
Participant made under the Plan.
15.5 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 or upon the termination of the Plan in
accordance with Section 16, 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 advice 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
Employer or, in the case of the termination of the Plan,
allocated on a pro rata basis among the Participants of the Plan,
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
10.
15.6 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.
15.7 Gender; Singular. Whenever used in the Plan the
masculine gender includes the feminine gender and the singular
includes the plural, unless the context indicates otherwise.
15.8 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.
15.9 Applicable Law. The Plan and all rights
thereunder shall be governed by and construed in accordance with
the Act and the laws of the State of New York.
SECTION 16. MAXIMUM AMOUNT OF ALLOCATION
16.1 Application of Section 16. The provisions of
this Section 18 shall govern notwithstanding any other provisions
of the Plan.
16.2 Maximum Annual Additions to Account. Annual
Additions to a Participant's Account in respect of any Plan Year
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 for such Plan
Year; or
(b) 25% of the Participant's Salary for such Plan
Year.
For this purpose, the term "Annual Additions" shall
mean the sum of the following amounts which, without regard to
this Section 16, 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 the IRS Regulations
including excess deferrals; (iii) After-Tax Contributions made
under the Plan and any other qualified employee pension benefit
plan; (iv) forfeitures, if applicable; and, with respect to any
plan maintained by the Employer or an Affiliate (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 Employer; and (vi) in the case of a Participant
who is a "key employee," as defined in Section 419A(d)(3) of the
Code, the amount allocated to a separate account established for
post-retirement medical or life insurance benefits of such
Participant described in Section 419A(d)(1) of the Code under a
welfare benefit fund as defined in Section 419(e) of the Code, and
as maintained by the Employer. The term Annual Additions shall not
include any Rollover Contributions made pursuant to Section 4.5 but
shall include, whether or not refunded, excess deferrals as
described in Section 4.1, excess contributions as defined in
Section 4.1, and excess aggregate contributions as defined in
Section 5.1. Solely for the purposes of Section 16.4(a), Annual
Additions shall include a Participant's contributions under a
qualified cost-of-living arrangement described in Section 415(k)(2)
of the Code.
16.3 Order of Reduction. If the limitations of
Section 16.2 are violated as a result of the allocation of (i)
forfeitures, (ii) a reasonable error in estimating a
Participant's Compensation or Salary, (iii) or under such other
facts and circumstances as determined by the IRS, amounts which
would otherwise be allocated to a Participant's Account must be
reduced by reason of the limitations of Section 16.2, such
reduction shall be made in the following order of priority, but
only to the extent necessary:
1. The amount of the Participant's After-Tax
Contributions, exclusive of any earnings of
the Trust Fund attributable thereto, shall be
refunded to the Participant; then
2. Forfeitures arising under the Plan and
allocable to such Participant in respect of
such Plan Year shall be allocated to the
Accounts of other Participants as of the end
of the Plan Year for which such reduction is
made in the manner provided under Section 7.3
and then allocated to such Participant in
respect of such Plan year; and then
3. Company Contributions made pursuant to
Section 5.1 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
4. 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
Participant's Employer for the next Plan Year
and in the event of termination of the Plan
shall be returned to the Participant's
Employer.
16.4 Additional Account Limitations. (a) Subject to
Sections 16.4(c) and 16.4(d), in the event that, in any Plan Year
and with respect to any Participant, the sum of the "Defined
Contribution Fraction" (as defined in Section 16.4(b)) and the
"Defined Benefit Fraction" (as defined in Section 16.4(b)) would
otherwise exceed 1.0, then the benefit payable under the defined
benefit plan or plans shall be reduced in accordance with the
provisions of that plan or those plans, but only to the extent
necessary to ensure that such limitation is not exceeded. If
this reduction does not ensure that the limitation set forth in
this Section 16.4 is not exceeded, then the Annual Addition to
any defined contribution plan, other than the 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 this Section 16.4, the
following terms shall have the following meanings:
1. "Defined Contribution Fraction" shall mean,
as to any Participant for any Plan Year, a
fraction, (A) the numerator of which is the
sum of Annual Additions, for the Plan Year
and all prior Plan Years, as of the close of
the Plan Year and (B) the denominator of
which is the sum of the lesser of the follow-
ing amounts, determined for such Plan Year
and for each prior Year of Service (i) the
product of 1.25 multiplied by the dollar
limitation in effect for such Year under Sec-
tion 16.2(a) or (ii) the product of 1.4
multiplied by the amount which may be taken
into account under Section 16.2(b) with
respect to the Participant for such 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 frac-
tion, (A) the numerator of which is the pro-
jected 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 (B)
the denominator is the lesser of (i) 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 (ii)
the product of 1.4 multiplied by an amount
equal to 100% of the Participant's average
compensation for his high three years within
the meaning of Section 415(b)(3) of the Code
for such Plan Year.
(c) In the case of a Participant with respect to
whom the sum of the Defined Contribution Fraction and the Defined
Benefit Fraction exceeds 1.0 with respect to the last Plan Year
beginning before January 1, 1983, an amount, determined in
accordance with IRS Regulations, may be subtracted from the
numerator of the Defined Contribution Fraction (not exceeding such
numerator) so that the sum of such Participant's Defined
Contribution Fraction and his Defined Benefit Fraction computed
under Section 16.4(a) does not exceed 1.0 for the last Plan Year
beginning before January 1, 1983.
(d) Notwithstanding the foregoing provisions of
this Section 16.4, in determining the maximum Annual Addition for
any Plan Year beginning before January 1, 1987, the Annual Addition
shall not be recomputed to treat all After-Tax Contributions as an
Annual Addition.
SECTION 17. TOP HEAVY PROVISIONS
17.1 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, when appropriate, 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 its 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 of
the Plan, the provisions of this Section 17 shall apply and
supersede all other provisions of the Plan during each Plan Year
with respect to which the Plan is determined to be a Top Heavy
Plan.
17.2 Top Heavy Plan Definitions. For purposes of this
Section 17 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
(i) each person (and his Beneficiary) who at any
time during the five Plan Years ending on the Determination Date:
(A) was an officer of the Company or an
Affiliate 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;
(B) 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;
(C) owned at least five percent of the an
Employer's outstanding shares of stock or at least five percent
of the total combined voting power of the Employer's shares of
stock; or
(D) owned at least one percent of the
Employer's shares of stock or at least one percent of the total
combined voting power of an Employer's shares of stock, and whose
annual Salary from the Employer exceeds $150,000.
(ii) The following special rules apply to this
definition:
(A) No more than 50 officers, or, if less,
the greater of three or 10% of all Employees will be Key
Employees under Section 17.2(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.
(B) A person is an officer only if he is in
regular and continued service as an administrative executive of
the Company or a Participating Company.
(C) 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.
(D) A person will be treated as owning all
shares of stock which he owns directly or constructively by
application of Section 318 of the Code.
(E) For purposes of determining whether a
person is a one percent or five percent owner of the Company or
any Affiliate, his ownership interest in any entity related to
the Company solely by reason of Sections 414(b), (c) and (m) of
the Code shall be disregarded.
(F) For purposes of determining whether a
person receives an annual Salary of more than $150,000, Salary
received from each Employer required to be aggregated under
Sections 414(b), (c) and (m) of the Code 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
Company or an Affiliate 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 that was
sponsored during the five year period ending on the applicable
Determination Date by the Company or an Affiliate (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 Company and its Affiliates in the
Required Aggregation Group and any other qualified employee
benefit plan of the Company and its Affiliates which the Company
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 this 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 at least 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 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 Accounts 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 Plan 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 and
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;
and
(D) rollover contributions received by the
plans 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 sponsored
by the Company or an Affiliate.
17.3 Top Heavy Plan Minimum Contribution. Subject to
Section 17.4, for each Plan Year that the Plan is a Top Heavy
Plan, the Employer's contribution allocable to the Account of
each Non-Key Employee, regardless of his Salary, who has
satisfied the eligibility requirements of Section 3.1, whether or
not a Participant in the Plan, and who is in Service at the end
of the Plan Year shall not be less than the lesser of (i) three
percent of such Non-Key Employee's Salary (or to the extent
required by the Code or Section 1.415-2(d) of the IRS
Regulations), or (ii) the percentage at which contributions 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
an Aggregation Group shall be treated as one plan. Clause (ii)
shall not be applicable if the Plan is required to be included in
an Aggregation Group which enables a defined benefit plan also
required to be included in said Aggregation Group to satisfy
Sections 401(a)(4) or 410 of the Code.
17.4 Top Heavy Plan Annual Addition Limitations. (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 16.4.
(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
17.4(a) shall not be applicable if the minimum contribution by
the Employer allocable to the Account of any Participant who is a
Non-Key Employee as specified in Section 17.3 is determined by
substituting "four percent" for "three percent".
17.5 Other Plans. If, with respect to a Non-Key
Employee who benefits in a Plan Year under both a defined
contribution and defined benefit plan which are Top Heavy Plans
maintained by the Employer, a top-heavy minimum benefit is not
provided for such Plan Year under both plans, then such
determination for such Plan Year shall be made in conformity with
the comparability analysis described in Q&A M-12 of Section
1.416-1 of the IRS Regulations. Such analysis shall be modified,
where a factor of 1.25 is utilized for such Plan Year in
connection with the satisfaction of the limitations set forth in
Section 415(e) of the Code, in accordance with the last sentence
of Q&A M-14 of Section 1.416-1 of the IRS Regulations.
OGDEN PROJECTS PROFIT SHARING PLAN
APPENDIX A
This Appendix A serves to identify the various accounts
maintained under the Plan that were transferred from Ogden
Corporation retirement plans that are qualified under Code
Section 401(a) and are exempt from tax under Code Section 501(a).
These accounts are subject to all of the provisions under the
Plan except where otherwise noted.
(1) AFTER-TAX PRE-87 ACCOUNT - This account was
established to receive the after-tax contributions (and earnings
thereon) of employees who formerly participated in the Ogden
Allied Services Savings and Security Plan. No further
contributions may be credited to this account under any
circumstances. Any Participant in whose behalf such an account
was established shall be fully vested in such account at all
times.
(2) COMPANY MATCHING CONTRIBUTION ACCOUNT - This
account was established to receive matching contributions (and
earnings thereon) credited to the accounts of employees who
formerly participated in the Ogden Allied Services Savings and
Security Plan. No further contributions may be credited to this
account under any circumstances. Any Participant in whose behalf
such an account was established shall continue to vest in such
account in accordance with the vesting schedule set forth in
Section 9.2 of the Plan.
(3) RETIREMENT A ACCOUNT - This account was
established to receive company contributions credited to the
accounts of employees who participated in the Ogden Food Service
Corporation Pension plan and the Nedicks Pension Plan. No
further contributions may be credited to this account under any
circumstances. All funds credited to this account are fully
vested at all times.
(4) RETIREMENT B ACCOUNT - This account was
established to receive employee contributions credited to the
accounts of those employees who participated in the Ogden Food
Service Corporation Pension Plan and the Nedicks Pension Plan.
No further contributions may be credited to this account under
any circumstances. Any Participant in whose behalf such an
account was established shall be fully vested in such account at
all times.
(5) PENSION SUPPLEMENT ACCOUNT - This account was
established to receive supplemental contributions (and earnings
thereon) credited to the accounts of employees who formerly
participated in the Ogden Allied Services Saving and Security
Plan. No further contributions may be credited to this account
under any circumstances. Any Participant in whose behalf such an
account was established shall be fully vested in such account at
all times.
(6) ATLANTIC DESIGN COMPANY PRIOR ACCOUNT - This
account was established to receive profit sharing contributions
(and earnings thereon) credited to the accounts of employees who
formerly participated in the Atlantic Design Profit Sharing and
Retirement Plan. No further contributions may be credited to
this account under any circumstances. Any Participant in whose
behalf such an account was established shall continue to vest in
such account in accordance with the vesting schedule set forth in
Section 9.2 of the Plan.
(7) STOCK BONUS ACCOUNT - This account was established
to receive stock bonus contributions (and earnings thereon)
credited to the accounts of employees who formerly participated
in the Allied Maintenance Corporation Variable Income (Stock
Savings) Retirement Plan and the Ogden Allied Services Saving and
Security Plan. No further contributions may be credited to this
account under any circumstances. Any Participant in whose behalf
such an account was established shall be fully vested in such
account at all times.
OGDEN PROJECTS PROFIT SHARING PLAN
APPENDIX B
METHOD OF PAYMENT OF RETIREMENT AND
DEATH BENEFITS FROM CERTAIN ACCOUNTS
Introduction. The purpose of this Appendix B is to
establish the rules concerning the distribution of benefits from
the Retirement A Account, Retirement B Account and the Atlantic
Design Company Prior Account. Any reference in this Appendix B
to accounts or benefits shall only apply to these three accounts
and the benefits derived from these three accounts.
B1.01. Payment of Benefits. Any distribution from the
Retirement A Account, Retirement B Account or Atlantic Design
Company Prior Account to which a Participant is entitled under
Sections 8.1, 8.2 or 8.4 of the Plan shall be paid as follows:
(a) Subject to Section B1.02, a Participant who
is married on the date his benefits are scheduled to begin, will
receive his benefits in the form of a nontransferable annuity
contract which provides a survivor benefit equal to 50% of the
rate at which such benefit was payable to the Participant during
his lifetime ("Retirement Annuity").
(b) Subject to Section B1.02, a Participant who
is unmarried on the date his benefits are scheduled to begin,
will receive his benefits in the form of an annuity payable for
his lifetime ("Life Annuity").
(c) Subject to Section B1.02, if a Participant
(who is married on the date of his death) dies before receiving a
distribution from the Plan, his interest shall be distributed to
his surviving spouse in the form of an annuity which is payable
for the spouse's lifetime ("Preretirement Annuity").
(d) If a Participant (who is unmarried on the
date of his death) dies before receiving a distribution from the
Plan, his interest shall be distributed to his Beneficiary in one
lump sum payment.
B1.02. Procedures Concerning Waiver of Annuities.
(a) Within a reasonable time of a Participant's
Normal Retirement Date, the Administrative Committee will provide
the Participant with a general written explanation of the
Retirement Annuity (or, as the case may be, Life Annuity) form of
payment and the financial effect on the Participant's benefit if
he decides to waive the annuity. With the consent of his spouse
(if there is one), pursuant to Section B1.02(d) below, a
Participant may waive the Retirement Annuity within the 90 day
period prior to the date on which his payments are scheduled to
commence. A Participant who waives the Retirement Annuity or Life
Annuity under this Section may cancel his waiver at any time
prior to the date on which payments begin, by submitting a written
cancellation to the Administrative Committee.
(b) The Administrative Committee will provide the
Participant with a general written explanation of the
Preretirement Annuity form of payment and the financial effect on
the Participant's benefit if he decides to waive the annuity. A
Participant may elect to waive the Preretirement Annuity, provided
his spouse (if there is one), consents, pursuant to Section
B1.02(d) below, from the first day of the Plan Year during which
the Participant attains age 32 until his death. If a Participant
terminates employment, he shall have the same election period as
though he had not terminated. A Participant who waives the
Preretirement Annuity under this Section, may cancel his waiver
at any time during the election period.
(c) Any explanation distributed by the
Administrative Committee under Sections B1.02(a) or (b) above shall
include the terms and conditions of the Retirement Annuity, Life
Annuity or the Preretirement Annuity; the Participants right to
make, and the effect of, an election to waive a Retirement Annuity,
Life Annuity or Preretirement Annuity; the rights of the
Participant's spouse with regard to the election to waive the
Retirement Annuity or Preretirement Annuity; and the right of the
Participant to revoke the election to waive the Retirement Annuity,
Life Annuity or the Preretirement Annuity, and the effect of such
a revocation.
(d) Any election to waive a Retirement Annuity or
Preretirement Annuity will not be effective unless the
Participant's spouse consents in writing to such election or to the
alternate beneficiary, or both, and the spouse's consent
acknowledges the effect of the election and is witnessed by a Plan
representative or a notary public. Notwithstanding the foregoing,
the consent of the Participant's spouse to the waiver will
not be required if it is established to the Administrative
Committee's satisfaction that there is no spouse, or that the
spouse cannot be located.
(e) Subject to Section B1.02(d) above, if a
Participant elects to waive the annuity form or benefit specified
in Sections B1.01(a), (b) or (c) above, his accounts shall be
distributed to him in one lump sum payment in accordance with
Section 10.1(a) herein.
(f) If a Participant dies without having waived
the Preretirement Annuity, his spouse may waive the annuity
within one year of his death, and elect a lump sum payment in lie
thereof.
B1.03. Timing of Distribution.
(a) Subject to Section B1.03(b) below, if a
Participant terminates employment before attaining his Normal
Retirement Age, and files appropriate forms requesting a
distribution from the Plan by the end of the month in which he
terminated, the Administrative Committee shall distribute his
interest by the next succeeding month or as soon as practicable
thereafter. If such Participant files such forms after the month
in which he terminated employment, but prior to the last day of the
calendar year in which he terminated, the Administrative Committee
shall distribute his interest as soon as practicable after the last
day of the calendar year in which he terminated. However, if such
Participant does not file such forms until after the calendar year
in which he terminated employment, the Administrative Committee
shall distribute his interest upon his attainment of the Plan's
Normal Retirement Age, or as soon as practicable thereafter.
(b) No such distributions under Section B1.03(a)
of this Section may be made unless the Participant's spouse (if
there is one) consents in writing to such distribution.