THE NEWHALL LAND AND FARMING COMPANY
EMPLOYEE SAVINGS PLAN
(Restatement Effective January 1, 1989)
THE NEWHALL LAND AND FARMING COMPANY
EMPLOYEE SAVINGS PLAN
TABLE OF CONTENTS
PAGE
ARTICLE I ESTABLISHMENT OF THE PLAN . . . . . . . . . . . . . .
1
1.01 Establishment and Restatement of the Plan. . . . . . .
1
1.02 Purpose. . . . . . . . . . . . . . . . . . . . . . . .
1
1.03 Intention. . . . . . . . . . . . . . . . . . . . . . .
1
1.04 Rights of Previous Employees . . . . . . . . . . . . .
1
ARTICLE II DEFINITIONS. . . . . . . . . . . . . . . . . . .
2
2.01 Accounting Date. . . . . . . . . . . . . . . . . . . .
2
2.02 Accounts . . . . . . . . . . . . . . . . . . . . . . .
2
2.03 Affiliated Company . . . . . . . . . . . . . . . . . .
2
2.04 Anniversary Date . . . . . . . . . . . . . . . . . . .
2
2.05 Beneficiary. . . . . . . . . . . . . . . . . . . . . .
2
2.06 Board. . . . . . . . . . . . . . . . . . . . . . . . .
2
2.07 Break in Service . . . . . . . . . . . . . . . . . . .
2
2.08 Code . . . . . . . . . . . . . . . . . . . . . . . . .
3
2.09 Committee. . . . . . . . . . . . . . . . . . . . . . .
3
2.10 Company. . . . . . . . . . . . . . . . . . . . . . . .
3
2.11 Earnings . . . . . . . . . . . . . . . . . . . . . . .
3
2.12 Eligible Employee. . . . . . . . . . . . . . . . . . .
4
2.13 Employee . . . . . . . . . . . . . . . . . . . . . . .
4
2.14 ERISA. . . . . . . . . . . . . . . . . . . . . . . . .
4
2.15 ESOP . . . . . . . . . . . . . . . . . . . . . . . . .
4
2.16 ESOP Account . . . . . . . . . . . . . . . . . . . . .
4
2.17 Fiduciary. . . . . . . . . . . . . . . . . . . . . . .
4
2.18 Five Percent Owner . . . . . . . . . . . . . . . . . .
5
2.19 Highly Paid Employee . . . . . . . . . . . . . . . . .
5
2.20 Highly Paid Participant. . . . . . . . . . . . . . . .
7
2.21 Hour of Service. . . . . . . . . . . . . . . . . . . .
7
2.22 Leased Employee. . . . . . . . . . . . . . . . . . . .
9
2.23 Managing General Partner . . . . . . . . . . . . . . .
9
2.24 One Percent Owner. . . . . . . . . . . . . . . . . . .
9
i.
PAGE
2.25 Participant. . . . . . . . . . . . . . . . . . . . . .
9
2.26 Participating Company. . . . . . . . . . . . . . . . .
9
2.27 Period of Service. . . . . . . . . . . . . . . . . . .
9
2.28 Period of Severance. . . . . . . . . . . . . . . . . .
10
2.29 Plan . . . . . . . . . . . . . . . . . . . . . . . . .
10
2.30 Plan Administrator . . . . . . . . . . . . . . . . . .
10
2.31 Plan Year. . . . . . . . . . . . . . . . . . . . . . .
10
2.32 Regulations. . . . . . . . . . . . . . . . . . . . . .
10
2.33 Related Company. . . . . . . . . . . . . . . . . . . .
10
2.34 Remaining Participant. . . . . . . . . . . . . . . . .
10
2.35 Remuneration . . . . . . . . . . . . . . . . . . . . .
11
2.36 Retirement Plan. . . . . . . . . . . . . . . . . . . .
12
2.37 Seasonal Agricultural Employee . . . . . . . . . . . .
12
2.38 Seniority Service. . . . . . . . . . . . . . . . . . .
12
2.39 Separation Date. . . . . . . . . . . . . . . . . . . .
12
2.40 Suspended Participant. . . . . . . . . . . . . . . . .
12
2.41 Totally Disabled Participant . . . . . . . . . . . . .
13
2.42 Trust. . . . . . . . . . . . . . . . . . . . . . . . .
13
2.43 Trustee. . . . . . . . . . . . . . . . . . . . . . . .
13
2.44 Vested Value . . . . . . . . . . . . . . . . . . . . .
13
2.45 Vested Service . . . . . . . . . . . . . . . . . . . .
13
2.46 Voluntary Employee Contributions . . . . . . . . . . .
13
2.47 Year of Service. . . . . . . . . . . . . . . . . . . .
13
2.48 Other Definitions. . . . . . . . . . . . . . . . . . .
14
ARTICLE III PARTICIPATION. . . . . . . . . . . . . . . . . .
15
3.01 Eligibility. . . . . . . . . . . . . . . . . . . . . .
15
3.02 Application to Participate . . . . . . . . . . . . . .
15
3.03 Participation after Reemployment or Break
in Service. . . . . . . . . . . . . . . . . . . . . .
15
3.04 Transition Rule. . . . . . . . . . . . . . . . . . . .
15
ARTICLE IV PARTICIPANT DEFERRALS. . . . . . . . . . . . . .
17
4.01 Deferral Election. . . . . . . . . . . . . . . . . . .
17
4.02 Dollar Limitation. . . . . . . . . . . . . . . . . . .
18
4.03 Employee Election of Contribution Rate . . . . . . . .
19
4.04 Suspension of Basic Employer Contributions . . . . . .
19
ii.
PAGE
ARTICLE V EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . .
20
5.01 Basic Employer Contributions . . . . . . . . . . . . .
20
5.02 Matching Employer Contributions. . . . . . . . . . . .
20
5.03 Limitation on Annual Additions . . . . . . . . . . . .
21
5.04 Compliance with the Limitation . . . . . . . . . . . .
23
5.05 Return of Contributions. . . . . . . . . . . . . . . .
25
5.06 Rollover Contributions . . . . . . . . . . . . . . . .
26
ARTICLE VI NONDISCRIMINATION REQUIREMENTS FOR BASIC EMPLOYER
CONTRIBUTIONS AND MATCHING EMPLOYER CONTRIBUTIONS. 27
6.01 Limitation on Basic Employer Contributions . . . . . .
27
6.02 Remedial Distributions of Basic Employer
Contributions. . . . . . . . . . . . . . . . . . . . .
29
6.03 Limitation on Matching Contributions . . . . . . . . .
30
6.04 Remedial Distributions of Matching Contributions . . .
32
6.05 Additional Overall Limitation on Deferrals and
Matching Contributions; Remedial Distributions . . . .
32
6.06 Further Discrimination Test Requirements . . . . . . .
33
6.07 Special Contribution . . . . . . . . . . . . . . . . .
35
ARTICLE VII INVESTMENT FUNDS . . . . . . . . . . . . . . . .
37
7.01 Investment of Contributions. . . . . . . . . 37
7.02 Newhall Fund . . . . . . . . . . . . . . . . 37
7.03 Investment Designation . . . . . . . . . . . 37
7.04 Transfer of Account Balances Between Funds . 38
7.05 Purchase Price . . . . . . . . . . . . . . . 38
7.06 Voting and Tender Offers . . . . . . . . . . 38
7.07 Agreements Relating to Trust . . . . . . . . 39
7.08 Establishment of Trust Agreement . . . . . . 39
7.09 Appointment of Investment Manager. . . . . . 40
7.10 Insurance or Annuity Contracts . . . . . . . 40
7.11 Expenses of Trust. . . . . . . . . . . . . . 40
7.12 Voting of Securities in Trust. . . . . . . . 40
iii.
PAGE
ARTICLE VIII ACCOUNTS AND VALUATION . . . . . . . . . . . . .
41
8.01 Participant Accounts . . . . . . . . . . . . . . . . .
41
8.02 Crediting of Contributions . . . . . . . . . . . . . .
41
8.03 Adjustment of Accounts . . . . . . . . . . . . . . . .
41
8.04 Statements . . . . . . . . . . . . . . . . . . . . . .
42
8.05 Value of Accounts. . . . . . . . . . . . . . . . . . .
42
ARTICLE IX WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT .
43
9.01 Withdrawals from Employee Contribution Account . . . .
43
9.02 Withdrawals from Basic Employer Contribution Account .
43
9.03 Withdrawals by Certain Participants. . . . . . . . . .
45
9.04 Loans to Participants. . . . . . . . . . . . . . . . .
45
9.05 Suspension . . . . . . . . . . . . . . . . . . . . . .
48
ARTICLE X VESTING . . . . . . . . . . . . . . . . . . . . . .
49
10.01 Vesting. . . . . . . . . . . . . . . . . . . . . . . .
49
ARTICLE XI DISTRIBUTIONS . . . . . . . . . . . . . . . . . . .
50
11.01 General. . . . . . . . . . . . . . . . . . . . . . . .
50
11.02 Form of Distribution . . . . . . . . . . . . . . . . .
50
11.03 Death of Participant . . . . . . . . . . . . . . . . .
51
11.04 Required Distributions to Certain Participants . . . .
51
11.05 Proof of Death and Right of Beneficiary. . . . . . . .
52
ARTICLE XII ADMINISTRATION OF THE PLAN . . . . . . . . . . .
53
12.01 The Board and the Committee. . . . . . . . . . . . . .
53
12.02 Organization of Committee. . . . . . . . . . . . . . .
53
12.03 Powers and Duties. . . . . . . . . . . . . . . . . . .
53
12.04 Uniform Administration . . . . . . . . . . . . . . . .
54
12.05 Benefit Claims Procedures. . . . . . . . . . . . . . .
54
12.06 Liability of Committee Members . . . . . . . . . . . .
56
12.07 Indemnity. . . . . . . . . . . . . . . . . . . . . . .
56
12.08 Reliance on Reports and Certificates . . . . . . . . .
56
12.09 Member's Own Participation . . . . . . . . . . . . . .
56
iv.
PAGE
12.10 Delegation of Responsibility . . . . . . . . . . . . .
56
12.11 Expenses . . . . . . . . . . . . . . . . . . . . . . .
57
ARTICLE XIII AMENDMENT AND TERMINATION. . . . . . . . . . . .
58
13.01 Amendment. . . . . . . . . . . . . . . . . . . . . . .
58
13.02 Termination. . . . . . . . . . . . . . . . . . . . . .
58
13.03 Successors . . . . . . . . . . . . . . . . . . . . . .
58
13.04 Merger or Transfer of Plan Assets. . . . . . . . . . .
59
13.05 Effect of Amendments by Participating
Companies. . . . . . . . . . . . . . . . . . . . . . .
59
ARTICLE XIV MISCELLANEOUS. . . . . . . . . . . . . . . . . .
60
14.01 Source of Payment. . . . . . . . . . . . . . . . . . .
60
14.02 Inalienability of Benefits . . . . . . . . . . . . . .
60
14.03 No Right to Employment . . . . . . . . . . . . . . . .
61
14.04 Payments to Minors or Incompetents . . . . . . . . . .
61
14.05 Return of Contributions. . . . . . . . . . . . . . . .
61
14.06 Eligible Rollover Distribution . . . . . . . . . . . .
61
14.07 Applicable Law . . . . . . . . . . . . . . . . . . . .
62
ARTICLE XV TOP-HEAVY RULES. . . . . . . . . . . . . . . . .
64
15.01 Definitions. . . . . . . . . . . . . . . . . . . . . .
64
15.02 Top-Heavy Status . . . . . . . . . . . . . . . . . . .
67
15.03 Minimum Benefit. . . . . . . . . . . . . . . . . . . .
68
15.04 Earnings Limit . . . . . . . . . . . . . . . . . . . .
69
15.05 Limitation on Annual Additions . . . . . . . . . . . .
69
ARTICLE XVI EXECUTION. . . . . . . . . . . . . . . . . . . .
70
v.
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.01 ESTABLISHMENT AND RESTATEMENT OF THE PLAN. The Newhall Land
and Farming Company Employee Savings Plan (the "Plan"),
established
effective January 1, 1980, restated in its entirety effective
March 1, 1983, January 1, 1984 and January 1, 1987, is hereby
restated effective January 1, 1989 or as otherwise indicated.
1.02 PURPOSE. The purpose of this Plan is to encourage and
assist
employees of the Participating Companies to invest in their
future
with the Participating Companies by providing a means by which
certain compensation which employees elect to defer and certain
matching Participating Company contributions are invested to pro-
vide additional security to Participating Company employees at
retirement.
1.03 INTENTION. It is the intention of the Participating
Companies
that the Plan hereinafter set forth (a) shall constitute a single
profit sharing plan; (b) shall meet all applicable requirements
of
the Employee Retirement Income Security Act of 1974 (ERISA), as
amended; and (c) shall be qualified under Sections 401(a) and
401(k) of the Internal Revenue Code of 1986, as amended from time
to time, and comply with requirements of the Tax Reform Act of
1986, the Omnibus Budget Reconciliation Act of 1986, the Revenue
Act of 1987, the Technical and Miscellaneous Revenue Act of 1988,
the Omnibus Budget Reconciliation Act of 1990 and other
applicable laws, regulations, and administrative authority.
1.04 RIGHTS OF PREVIOUS EMPLOYEES. The rights and benefits of a
Plan Participant who ceased to be an Employee on or prior to
December 31, 1988 shall be determined in accordance with the
provisions of the Plan in effect on the date on which that
Participant ceased to be an Employee, and any provisions of this
Plan that are specifically made effective to such date.
1.
ARTICLE II
DEFINITIONS
Unless otherwise required by the context, the terms used
herein shall have the meanings set forth in the remaining
paragraphs of this Article II. As used herein, the masculine
pronoun shall include the feminine and the singular shall include
the plural, unless a different meaning is plainly required by the
context.
2.01 ACCOUNTING DATE shall mean the last regular business day of
March, June, September and December, and any other date as
specified by the Committee as of which the assets of the Trust
are
valued for determining the value of each Participant's interest
in
the Plan.
2.02 ACCOUNTS shall mean, with respect to each Participant, his
Employee Contribution Account, his Matching Employer Contribution
Account, his Rollover Account and his Basic Employer Contribution
Account, as described in Section 8.01(a).
With respect to each Participant who was a participant in
the
ESOP prior to its merger into the Plan, the term "Account" shall
also include such Participant's ESOP Account, as described in
Section 8.01(b).
2.03 AFFILIATED COMPANY shall mean each Participating Company and
each entity which is a Related Company with respect to any
Participating Company.
2.04 ANNIVERSARY DATE shall mean January 1 of each year
subsequent
to the effective date of the Plan on January 1, 1980.
2.05 BENEFICIARY shall mean the person or persons entitled to
receive benefits under the Plan upon the death of the Participant
as set forth in Section 11.03.
2.06 BOARD shall mean the Board of Directors of Newhall
Management
Corporation or such other corporate entity as may from time to
time
be, directly or indirectly, the Managing General Partner.
2.07 BREAK IN SERVICE shall mean any Plan Year in which:
(a) a Participant who is not at any time during such
Plan Year a Seasonal Agricultural Employee and who does not
complete more than 500 Hours of Service, or
2.
(b) a Participant who is at any time during such Plan
Year a Seasonal Agricultural Employee and who does not complete
more than 300 Hours of Service.
2.08 CODE shall mean the Internal Revenue Code of 1986 as
amended.
2.09 COMMITTEE shall mean the Employee Benefit Committee
appointed
by the Board in accordance with Article XII and shall include,
where appropriate, any party to whom responsibility has been
properly delegated under Section 12.10.
2.10 COMPANY shall mean The Newhall Land and Farming Company, a
California limited partnership.
2.11 EARNINGS shall mean the compensation reportable for Federal
Income Tax purposes that would have been paid to an Employee if
such Employee had made no Deferral Election or election under any
plan described in Section 125 of the Code, excluding that portion
of compensation imputed for tax purposes as a result of fringe
benefits, any noncash compensation paid in the form of Depositary
Units or rights to acquire Depositary Units and other similar
forms
of compensation as determined in accordance with
nondiscriminatory
rules adopted by the Committee; provided, however, that:
(a) Earnings for any Plan Year shall not exceed the limit
in
effect under Section 401(a)(17) of the Code as adjusted by the
Commissioner for increases in the cost of living in accordance
for
such year.
(b) The compensation of each Highly Paid Employee who is
(i)
a Five Percent Owner or (ii) one of the ten (10) Highly Paid
Employees paid the greatest Remuneration during the year shall,
for
purposes of this Section, include any compensation for such Plan
Year which is paid to (or but for a Deferral Election would have
been paid to) such Participant's spouse or any lineal descendants
of the Participant who have not attained age 19 before the close
of
the Plan Year. To the extent required by applicable Regulations,
if the limitation in subsection (a) is reached for a family
group,
then such limitation amount will be prorated among each member of
the family group in the proportion that each family member's
Earnings bears to the total Earnings of the family group.
(c) With respect to any Plan Year beginning before January
1,
1990, "Earnings" shall exclude any amounts paid to an Employee on
account of any period when he is not eligible to make a Deferral
Election under Section 4.01.
3.
2.12 ELIGIBLE EMPLOYEE shall mean any Employee of a Participating
Company, but excluding:
(a) any Leased Employee; and
(b) any Employee whose compensation and conditions of
employment are established by the terms of a collective
bargaining
agreement in the negotiation of which retirement benefits were
the
subject of good faith bargaining, except that any otherwise
eligible Employee whose compensation and conditions of employment
are established by the terms of a collective bargaining agreement
shall be an Eligible Employee if his participation in this Plan
is
specifically provided for in a collective bargaining agreement
entered into by a Participating Company with such Employee's
lawful
representative or bargaining agent. For purposes of the
preceding
sentence, the term "collective bargaining agreement" shall not
apply if more than two percent (2%) of the employees covered
pursuant to such agreement are "professionals" as defined in
Treas.
Reg. 1.410(b)-9(g).
2.13 EMPLOYEE shall mean (a) any person who is employed by and
engaged in rendering personal services to an Affiliated Company,
or
(b) any Leased Employee unless (i) such individual is covered by
a
money purchase pension plan described in Section 414(n)(5)(A)(i)
of
the Code and (ii) Leased Employees do not constitute more than
twenty percent (20%) of the Affiliated Companies' non-highly
compensated work force (as defined in Section 414(n)(5)(C)(ii) of
the Code).
A person employed by an Affiliated Company as an officer
shall
be deemed an Employee, whether or not he is also a director of
such
Affiliated Company, but no person shall be deemed an Employee
solely by reason of serving as a director of an Affiliated
Company.
2.14 ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended.
2.15 ESOP shall mean The Newhall Land and Farming Company
Employee
Stock Ownership Plan, which was merged into this Plan effective
December 1, 1985.
2.16 ESOP ACCOUNT shall mean the Account in the Plan into which a
Participant's interest in the ESOP was transferred upon the
merger
of the ESOP into this Plan.
2.17 FIDUCIARY shall mean any person who exercises discretionary
authority or control over the management of the Plan assets held
under the Trust, or
4.
disposition of Trust assets; who renders investment advice for
direct or indirect compensation as to assets held under the Plan
or
has any authority or responsibility to do so; or who has any
discretionary authority or responsibility in the administration
of
the Plan. Any person may serve in more than one fiduciary
capacity
with respect to the Plan if so duly appointed or delegated such
responsibility.
2.18 FIVE PERCENT OWNER of an entity shall mean any Participant
who
owns (or is considered as owning, within the meaning of Section
318
of the Code, applied by substituting "one-twentieth" for "50%" in
Section 318(a)(2)(C)) more than five percent (5%) of the capital
or
profits interest of the entity (or, if such entity is a corpora-
tion, more than five percent (5%) of its outstanding stock or
stock
possessing more than five percent (5%) of the total combined
voting
power of all stock).
2.19 HIGHLY PAID EMPLOYEE means, with respect to a Plan Year (the
"current year"), an Employee who, during such year or the
preceding
year,
(a) was at any time a Five Percent Owner,
(b) received aggregate Remuneration from all the Affiliated
Companies in excess of $75,000 (or such greater amount as the
Internal Revenue Service may determine pursuant to Code Section
414(q)(1)),
(c) received aggregate Remuneration from all the Affiliated
Companies in excess of $50,000 (or such greater amount as the
Internal Revenue Service may determine pursuant to Code Section
414(q)(1)) and was in the group of Employees consisting of the
top
20% of Employees when ranked on the basis of Remuneration paid
during such year, or
(d) was at any time an officer and received Remuneration
greater than 50% of the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such year, or, if no officer
received
so much Remuneration, who was the officer who received the
greatest
Remuneration.
For purposes of identifying Highly Paid Employees, the
following rules shall apply:
(I) With respect to the current year, no Employee
(other
than a Five Percent Owner) who was not a Highly Paid Employee for
the preceding year shall be deemed a Highly Paid Employee unless
such Employee is among the 100 Employees paid the greatest
aggregate Remuneration by all Affiliated Companies during the
current year. For purposes of the preceding sentence, an
5.
Employee's status for the preceding year shall be determined
without regard to this item (I).
(II) If any Employee is a member of the family of: (i)
a
Five Percent Owner; or (ii) one of the ten Employees paid the
greatest Remuneration during the year, then for purposes of this
Paragraph such Employee shall not be considered a separate
Employee, and any Remuneration paid to such individual (and any
applicable Pre-Tax Contributions or Matching Contributions made
to
the Accounts of such individual) shall be treated as if paid to
(or
on behalf of) the Five Percent Owner or highly compensated
Employee. "Family" for purposes of the preceding sentence
includes
spouse, lineal ascendants or descendants and the spouses of
lineal
ascendants or descendants.
(III) For purposes of determining the number of
Employees in the top 20% of Employees by Remuneration under
subsection (c) above and the number of Employees to be treated as
officers under item (IV) below, the Committee shall exclude
Employees who: (i) have not completed six (6) months of service;
(ii) normally work less than 17 1/2 hours per week; (iii)
normally
work during not more than six (6) months during any year; (iv)
have
not attained age 21; (v) are included in a unit of employees
covered by a collective bargaining agreement (except to the
extent
provided in Treasury Regulations); or (vi) rendered no services
to
any Affiliated Company during such year.
(IV) For purposes of subsection (d), no more than 50
Employees (or, if less, the greater of three (3) Employees or 10
percent of the Employees) shall be treated as officers.
(V) A former Employee shall be treated as a Highly
Compensated Employee if he was a Highly Compensated Employee
(i)
when he separated from service or (ii) at any time after
attaining
age 55.
(VI) For purposes of this Paragraph,
notwithstanding
Section 2.13, the term "Employee" shall exclude any individual
who
is, at all times during a Plan Year, a nonresident alien and who
receives no earned income (within the meaning of Section
911(d)(2)
of the Code) from any Affiliated Company which constitutes income
from sources within the United States within the meaning of
Section
861(a)(3) of the Code.
6.
2.20 HIGHLY PAID PARTICIPANT means, with respect to a particular
Plan Year, an individual who is both a Highly Paid Employee and a
Participant; provided, however, that for purposes of the
foregoing:
(a) An Eligible Employee who has otherwise met the
eligibility requirements of Article III shall be deemed a
Participant notwithstanding a failure to complete a Deferral
Election under Section 4.01(a);
(b) No individual who is not at any time during the Plan
Year
eligible to have a Basic Employer Contribution made on his behalf
shall be deemed a Participant;
(c) No individual ineligible to receive Matching Employer
Contributions because his employment terminates during the Plan
Year shall be deemed a Participant for purposes of Section 6.03;
and
(d) An Employee who is a member of the family of a Highly
Compensated Employee shall not be considered a separate employee
under the circumstances described in clause II of Section 2.19.
2.21 HOUR OF SERVICE shall mean:
(a) In general:
(1) An hour for which an Employee is paid or entitled
to
payment by an Affiliated Company for the performance of duties.
(2) An hour for which an Employee is paid or entitled
to
payment by an Affiliated Company for a period during which no
duties are performed (whether or not the employment relationship
has been terminated) on account of vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military
duty
or leave of absence; provided, however, that
(i) No hour for which an Employee is directly or
indirectly paid under a plan maintained by an Affiliated Company
solely to comply with applicable worker's compensation, unemploy-
ment compensation or disability insurance laws or solely to reim-
burse the Employee for medical or medically related expenses
incurred by the Employee shall be counted as an Hour of Service,
and
(ii) Under no circumstances shall more than 501
Hours of Service be credited to an Employee for any single
7.
continuous period during which the Employee performs no duties.
(3) An hour (to the extent not already credited under
paragraphs (1) or (2) above) for which an Employee is awarded
back
pay from an Affiliated Company, irrespective of mitigation of
damages.
(b) Subsection (a) shall be applied in accordance with the
following:
(1) The number of Hours of Service to be credited for
periods during which the Employee performs no duties and the
crediting of Hours of Service to specific Plan Years shall be
determined by the Committee in accordance with subsections (b)
and
(c) of Department of Labor Regulations Section 2530.200b-2; and
(2) An Employee whose compensation for the performance
of duties is computed without reference to specific numbers of
hours shall be deemed to have 190 Hours of Service in any
calendar
month in which such Employee completes one Hour of Service.
(c) Solely for the purpose of determining whether a Break
in
Service has occurred, an Hour of Service shall include, effective
for unpaid absences which commence on or after January 1, 1985,
any
unpaid absence from work for any period
(1) By reason of pregnancy of the Employee,
(2) By reason of the birth of a child of the Employee,
(3) By reason of the placement of a child with the
Employee in connection with the adoption of such child by such
Employee, or
(4) For purposes of caring for such child for the
period
beginning immediately following such birth or placement.
For purposes of calculating Hours of Service under this sub-
section, the Plan shall treat as Hours of Service either: (i) the
hours which otherwise would normally have been credited to the
Employee but for such absence; or (ii) in any case in which the
Plan is unable to determine the hours described in clause (i),
eight (8) hours per day of absence.
Provided, however, that no more than 501 Hours of Service
shall be credited for each pregnancy or placement described in
(i) through (iv) above. All Hours of Service credited under this
subsection shall be credited in the Plan Year during
8.
which the first day of the absence described in (i) through (iv)
above occurs if, but only if, the Employee would have had a Break
in Service in such Plan Year were the Hours of Service under this
subsection not credited in such year or, in any other case, in
the
immediately following Plan Year. No Hours of Service will be
credited under this subsection unless the Employee furnishes to
the
Committee such timely information as the Committee may reasonably
require to establish that the absence from work is for reasons
set
forth in paragraphs (1) through (4) above and the total number of
days for which there was such an absence.
2.22 LEASED EMPLOYEE means any person, other than a common law
employee of an Affiliated Company, who pursuant to an agreement
between an Affiliated Company and any other person has performed
services for the Affiliated Company (or for the Affiliated
Company
and related persons determined in accordance with Section
414(n)(6)
of the Code) on a substantially full time basis for a period of
at
least one year, which services are of a type historically
performed
by employees in the business field of the Affiliated Company.
2.23 MANAGING GENERAL PARTNER shall mean Newhall Management
Corporation, a California corporation, the Managing General
Partner
of the managing general partner of the Company, and any successor
managing general partner.
2.24 ONE PERCENT OWNER of an entity shall mean any person who
would
be described by the definition of Five Percent Owner if "one
percent (1%)" were substituted for "five percent (5%)" each place
it appears in such definition.
2.25 PARTICIPANT shall mean any Employee who becomes a
Participant
in the Plan in accordance with Article III. Once an Employee
becomes a Participant he will remain a Participant until his
Separation Date.
2.26 PARTICIPATING COMPANY shall mean the Company and any other
employer which (i) is authorized by the Board to adopt the Plan
and
(ii) adopts the Plan for its employees.
2.27 PERIOD OF SERVICE shall mean, for any person, the period
beginning on the date he first renders an Hour of Service for an
Affiliated Company (or the date he returns to service with an
Affiliated Company following a Period of Severance) and ending on
his Separation Date. A Period of Service shall be determined by
taking into account any period for which a person would have been
a
Leased Employee but for the requirement that the Leased Employee
have provided services for an Affiliated Company (or the
Affiliated
Company and related persons) on a substantially full-time basis
for
a period of at least one year.
9.
2.28 PERIOD OF SEVERANCE shall mean, for any person, that period
which commences with his Separation Date and ends with the first
date thereafter on which he next performs an Hour of Service for
an
Affiliated Company.
2.29 PLAN shall mean The Newhall Land and Farming Company
Employee
Savings Plan, as set forth in this document and as amended from
time to time.
2.30 PLAN ADMINISTRATOR shall mean the Managing General Partner.
2.31 PLAN YEAR shall mean the period from any January 1st to the
following December 31st.
2.32 REGULATIONS shall mean the Federal Income Tax Regulations,
as
amended.
2.33 RELATED COMPANY shall mean, with respect to a particular
Participating Company, (i) each other entity, trade or business
(whether or not incorporated) which is included within a
controlled
group of corporations or a group of trades or businesses under
common control within which such Participating Company is also
included, as determined under Section 414(b) or (c) of the Code,
(ii) any employer which is a member of an affiliated service
group
with such Participating Company, as determined under Section
414(m)
of the Code, and (iii) any other entity required to be aggregated
with such Participating Company pursuant to regulations under
Section 414(o) of the Code. For purposes of the limitation on
benefits set forth in Section 5.03, Sections 414(b) and (c) of
the
Code shall be applied as modified by Section 415(h) of the Code
(relating to the substitution of a 50 percent ownership test for
an
80 percent ownership test).
2.34 REMAINING PARTICIPANT means, with respect to a particular
Plan
Year, a Participant who is not a Highly Paid Participant;
provided,
however, that for purposes of the foregoing:
(a) An Eligible Employee who has otherwise met the
eligibility requirements of Article III shall be deemed a
Participant notwithstanding a failure to complete a Deferral
Election pursuant to Section 4.01(a);
(b) No individual who is not at any time during the Plan
Year
eligible to have a Basic Employer Contribution made on his behalf
shall be deemed a Participant;
(c) No individual ineligible to receive Matching Employer
Contributions because his employment terminates during the Plan
Year shall be deemed a Participant for purposes of Section 6.03;
and
10.
(d) An Employee who is a member of the family of a Highly
Compensated Employee shall not be considered a separate employee
under the circumstances described in clause II of Section 2.19.
2.35 REMUNERATION shall mean a Participant's wages, salaries, and
fees for personal services actually rendered in the course of
employment with an Affiliated Company. Remuneration includes,
but
is not limited to, (i) commissions, compensation for services on
the basis of percentage of profits, overtime payments and
bonuses,
(ii) earned income from sources without the United States
(whether
or not excludable from gross income under Section 911 of the
Code),
(iii) amounts received through accident or health insurance or
through a self-insured medical reimbursement plan for personal
injuries or sickness (but only to the extent includable in gross
income), (iv) in the case of a Participant who has not attained
age
of 65 before the close of the taxable year and who retired on
account of permanent and total disability, wages or payments in
lieu of wages (whether or not excludable from gross income under
Section 105(d) of the Code), (v) amounts paid or reimbursed by
such
Participating Company or any Related Company for moving expenses
(but only to the extent not deductible by the Participant), and
(vi) amounts included in gross income by reason of elections made
under Section 83(b) of the Code. Remuneration does not, however,
include
(a) Basic Employer and Matching Employer Contributions to
this Plan and employer contributions to any other plan of
deferred
compensation, to the extent deductible by, or not includable in
taxable income of, the Participant for the taxable year of
contribution (including employer contributions to a simplified
employee pension plan), and distributions from any funded plan
not
qualified under Section 401 of the Code;
(b) Amounts realized from the exercise of an employee
option
to purchase securities of the employer or a Related Company or
the
disposition of securities acquired upon exercise of such an
option;
(c) Amounts realized upon the vesting of restricted
property;
and
(d) All other amounts which receive special tax benefits
under the Code.
Notwithstanding the foregoing, for purposes of Paragraphs
2.11(b)(ii)), 2.19, 15.01(b), and Article VI:
(I) Remuneration shall include any employer
contribution
under a cash or deferred arrangement to the extent not included
in
gross income under Code Section 402(a)(8) and any amount which
the
11.
employee would have received in cash but for an election under a
cafeteria plan (within the meaning of Code Section 125), and
(II) An Employee's Remuneration shall not exceed the
limitation amount contained in Section 2.11(a).
2.36 RETIREMENT PLAN shall mean The Newhall Land and Farming
Company Retirement Plan.
2.37 SEASONAL AGRICULTURAL EMPLOYEE shall mean any Employee
engaged
as an agricultural worker on a seasonal basis by a component of
any
Affiliated Company that is predominantly involved in producing
agricultural commodities, and who is scheduled to work less than
one thousand five hundred (1500) hours per calendar year.
2.38 SENIORITY SERVICE shall mean, for any person, the aggregate
of
all Periods of Service.
2.39 SEPARATION DATE shall mean:
(a) In general: (i) the date an Employee quits, retires,
dies, is discharged; or (ii) the first anniversary of the first
date of a period in which an Employee remains absent from service
(with or without pay) for any reason other than those specified
in
clause (i), including but not limited to vacation, holiday,
sickness, disability, leave of absence, or layoff.
(b) Notwithstanding subsection (a):
(1) If an Employee quits, retires, or is discharged
and
then returns to employment of an Affiliated Company prior to the
first anniversary of the date of such quit, retirement, or
discharge, he shall not be deemed to have a Separation Date by
reason of such quit, retirement, or discharge.
(2) With respect to an Employee absent from service
for
any reason other than quit, discharge or retirement, if during
such
absence such Employee quits, retires, or is discharged, he shall
not have a Separation Date if he returns to service on or before
the first anniversary of his initial absence from service.
12.
2.40 SUSPENDED PARTICIPANT shall mean:
(a) A Participant who has ceased to be an Eligible Employee
but remains an Employee; or
(b) A Participant whose status is determined pursuant to
Sections 9.01 or 9.04.
2.41 TOTALLY DISABLED PARTICIPANT shall mean a Participant who is
permanently disabled as a result of sickness or injury so that he
has been incapable of performing any services for the
Participating
Company which is (or was immediately prior to such sickness or
injury) his employer for which he is qualified by education,
training, or experience for a period of at least six (6) months
and
is likely to continue to be so disabled in the future. Medical
evidence of disability satisfactory to the Committee shall be
required.
2.42 TRUST shall mean the aggregate of all the assets of the
Plan,
including (1) assets held pursuant to a trust agreement entered
into between the Company and the Trustee, pursuant to Section
7.08,
and (2) assets held pursuant to a contract with an Insurance
Company, pursuant to Section 7.10.
2.43 TRUSTEE shall mean any trustee appointed by the Committee.
2.44 VESTED VALUE shall mean the sum of: (i) a Participant's
Employee Contribution Account; (ii) his Basic Employer
Contribution
Account; (iii) his ESOP Account; and (iv) the vested portion
(determined in accordance with Article X) of his Matching
Employer
Contribution Account on the Accounting Date immediately preceding
or coincident with the date as of which such value is to be
determined, adjusted by the Committee, pursuant to its
discretionary authority to administer and interpret the Plan and
to
determine eligibility for benefits under the Plan. Adjustments
will include increases due to contributions to the Accounts since
the relevant Accounting Date; decreases due to Plan expenses,
distributions, loans, or withdrawals paid from the Accounts since
the relevant Accounting Date; and adjustments for income or loss.
2.45 VESTED SERVICE shall mean, for any person, the aggregate of
all Periods of Service.
2.46 VOLUNTARY EMPLOYEE CONTRIBUTIONS shall mean those after-tax
contributions made to the Plan by Participants prior to January
1,
1987, pursuant to the provisions of the Plan then in effect.
2.47 YEAR OF SERVICE shall mean, with respect to any Employee, a
twelve-month period during which he completes at least 1,000
Hours
of Service (or, if he is at
13.
any time during such period a Seasonal Agricultural Employee, at
least 300 Hours of Service) and which is: (i) the period
beginning
on the date he renders his first Hour of Service with any
Affiliated Company; or (ii) any Plan Year beginning after such
date. In the case of an Employee who has incurred a Break in
Service, the preceding sentence shall be applied as if the date
of
his return to service with any Affiliated Company were the date
he
rendered his first Hour of Service with any Affiliated Company.
Years of Service shall include any period for which the Employee
would have been a Leased Employee but for the requirement that
the
Leased Employee have provided services for an Affiliated Company
(or the Affiliated Company and related persons) on a
substantially
full-time basis for a period of at least one year.
2.48 OTHER DEFINITIONS. The following terms have the meaning
described in the sections listed:
TERM SECTION
Actual Deferral Percentage 6.01(b)
Annual Addition 5.03(a)
Basic Employer Contributions 5.01
Basic Employer Contribution Account 8.01
Contribution Percentage 6.03(b)
Deferral Election 4.01
Direct Rollover 14.06
Distributee 14.06
Dollar Limitation 4.02(a)
Elective Deferrals 4.02(a)
Eligible Retirement Plan 14.06
Eligible Rollover Distribution 14.06
Employee Contribution Account 8.01
Excess Deferrals 4.02(a)
Insurance Company 7.10
Investment Manager 7.09
Matching Employer Contribution 5.02
Matching Employer Contribution Account 8.01
14.
ARTICLE III
PARTICIPATION
3.01 ELIGIBILITY.
(a) Every Eligible Employee who was a Participant on
December 31, 1988 shall continue to be a Participant.
(b) Each other Eligible Employee shall be eligible to
become
a Participant on the first day of the first pay period coinciding
with or next following the date on which he has attained age 19
and
completed one Year of Service.
(c) An Employee who is not an Eligible Employee on the date
he would otherwise be eligible to become a Participant under
subsection (b) shall be eligible to become a Participant on the
first day of the payroll period coincident with or next following
the date on which he thereafter becomes an Eligible Employee.
3.02 APPLICATION TO PARTICIPATE. Each Eligible Employee meeting
the requirements of Section 3.01 may become a Participant by
completing an enrollment form, as provided by the Committee,
indicating the amount of his Basic Employer Contribution as
specified in Section 4.01 and his authorization to his employer
to
withhold such amounts from his Earnings and pay the same into the
Trust as soon as practicable following the end of the pay period
in
which they are withheld. Such Eligible Employee may also make an
investment designation at the same time, in accordance with
Section
7.03.
3.03 PARTICIPATION AFTER REEMPLOYMENT OR BREAK IN SERVICE.
When a Participant or any other Eligible Employee who
has
met the requirements of Section 3.01 and would become a
Participant
upon complying with Section 3.02 terminates employment and is
subsequently reemployed by a Participating Company, he shall be
eligible to become a Participant by complying with Section 3.02
on
the first day of the first pay period next beginning after the
later of: (i) his date of rehire; or (ii) the date he becomes an
Eligible Employee.
3.04 TRANSITION RULE. For purposes of Section 3.01(c), each
Employee shall receive credit for service prior to January 1,
1986
as follows:
(a) An Employee credited with one full year of Vesting
Service prior to January 1, 1986 shall be deemed thereby to have
met the service requirement of Section 3.01(c).
15.
(b) An Employee credited with a fraction of a year of
Vesting
Service shall be entitled to a number of Hours of Service
determined by crediting forty-five (45) Hours of Service to each
7/365 of a year of Vesting Service credited to such Employee.
Such
Hours of Service shall be credited to the Plan Year beginning
January 1, 1986.
16.
ARTICLE IV
PARTICIPANT DEFERRALS
4.01 DEFERRAL ELECTION
(a) Effective January 1, 1987 through December 31, 1993,
subject to subsections (c) and (d), each Participant may execute
a
Deferral Election and thereby elect to have the Participating
Com-
pany which is his employer reduce the amount of Earnings for each
pay period by an amount equal to: (i) a multiple of 1% of such
Earnings before reduction, rounded to the next higher whole
dollar,
but not more than 6% of such unreduced Earnings; plus (ii) if the
percentage elected under clause (i) is 6%, an additional
specified
dollar amount which in the aggregate does not exceed $2,000
annually and contribute an equal amount to the Plan pursuant to
Section 5.01 as a Basic Employer Contribution on such
Participant's
behalf.
(b) Effective January 1, 1994, subject to subsections (c)
and
(d), each Participant may execute a Deferral Election and thereby
elect to have the Participating Company which is his employer
reduce the amount of Earnings for each pay period by an amount
equal to a multiple of 1% of such Earnings before reduction,
rounded to the next higher whole dollar.
(c) No Participant may defer for a Plan Year an amount
greater than the smallest of--
(1) The applicable Dollar Limitation as defined in
Section 4.02(a);
(2) In the case of a Participant who received a
withdrawal under Section 9.02 in the prior year, the reduced
dollar
limitation described in Section 9.02(b)(5); or
(3) In the case of a Highly Paid Participant, such
amount as the Committee determines during the course of such Plan
Year, on the basis of reasonable estimates as to the Basic
Employer
Contributions of all Participants, will enable the Plan to comply
with Section 6.01.
(d) The election made by a Participant under this section
will be automatically suspended during such time as a Participant
is a Suspended Participant. At such time as a Participant ceases
to be a Suspended Participant, the Participant may make a new
Deferral Election under this Section and a new investment
designation under Section 7.01.
17.
4.02 DOLLAR LIMITATION.
(a) For purposes of this Section:
(1) "Dollar Limitation" means the sum of $7,000, or
such
greater amount as may be specified by the Internal Revenue
Service
pursuant to Section 402(g)(5) of the Code.
(2) "Elective Deferrals" means such contributions
under
a qualified cash or deferred arrangement (including Basic
Employer
Contributions to this Plan), a simplified employee pension plan,
or
an annuity contract as are described in Section 402(g)(3) of the
Code.
(3) "Excess Deferrals" means, with respect to a
particular calendar year, the amount by which a Participant's
Elective Deferrals exceed the applicable Dollar Limitation. Any
Basic Employer Contributions for the Plan Year beginning with or
within such taxable year previously distributed to the
Participant
under Section 6.02(a) shall reduce the amount of such
Participant's
Excess Deferrals.
(b) The total amount of Elective Deferrals for a
Participant
for any Plan Year shall not exceed the Dollar Limitation for such
year.
(c) To the extent that a Participant has made Excess
Deferrals to this Plan for a calendar year the amount of such
Excess Deferrals (together with income thereon) shall be
distributed to the Participant no later than the April 15
following
the end of the Plan Year during which such Excess Deferral is
made.
(d) If a Participant notifies the Committee in writing no
later than the first March 1 following the close of the
Participant's taxable year that such Participant's aggregate
Elective Deferrals (to all plans maintained by all employers,
whether or not Affiliated Companies) for such taxable year
exceeded
the Dollar Limitation and specifies the portion of such excess
allocated to his Participant's Pre-Tax Account, the portion of
the
excess so allocated shall be treated as an Excess Deferral and
shall be distributed to the Participant (together with income
thereon) no later than the April 15 following the end of his
taxable year during which such excess elective deferrals were
made.
The Committee may require satisfactory proof that excess elective
deferrals were made before distributing any amount to the
Participant under this subparagraph.
18.
(e) For purposes of this Section, income on distributed
Excess Deferrals shall be determined as follows:
(1) Divide: (i) the amount of Excess Deferrals being
distributed to the Participant by (ii) the balance of the
Participant's Pre-Tax Account as of the end of the Plan Year
adjusted to exclude the year's investment experience by reducing
such balance by the gain allocable to such amount for the year
and
increasing such balance by the loss allocable to such amount for
the year; then
(2) Multiply the result found in (1) by the following
percentage:
DATE OF DISTRIBUTION PERCENTAGE
Before January 15 100%
January 16 to February 15 110%
February 16 to March 15 120%
March 16 to April 15 130%.
4.03 EMPLOYEE ELECTION OF CONTRIBUTION RATE. Subject to
Section 4.02, each Participant may elect to change his Basic
Employer Contribution rate as of: (i) the first pay period
following an Accounting Date; or (ii) such other pay period as
the
Committee may permit, by giving prior written notice of such
change
to his employer no later than 10 days prior to the beginning of
such pay period.
4.04 SUSPENSION OF BASIC EMPLOYER CONTRIBUTIONS. A Participant
may
terminate his Basic Employer Contribution election as of the
first
pay period in any month by giving written notice to his employer
no
later than 10 days prior to the beginning of such pay period.
Such
termination and suspension may last indefinitely or may be
revoked
at any time. A Participant having so terminated and suspended
may
make a new Basic Employer Contribution election effective with
any
pay period by giving written notice to his employer at least 10
days prior to the beginning of such pay period.
19.
ARTICLE V
EMPLOYER CONTRIBUTIONS
5.01 BASIC EMPLOYER CONTRIBUTIONS. Each month each Participating
Company shall contribute to the Plan on behalf of each
Participant
who is employed by it at any time during such month an amount
equal
to the Basic Employer Contribution elected by such Participant
with
respect to his Earnings for such month attributable to such
Participating Company.
5.02 MATCHING EMPLOYER CONTRIBUTIONS.
(a) Subject to subsections (b), (c) and (d), Section 5.03,
and Article VI, each Participating Company shall, with respect to
each Participant employed by it during a Plan Year who is
employed
by any Affiliated Company on the last day of such Plan Year,
contribute to the Trust in cash a Matching Employer Contribution
in
an amount determined by multiplying (i) the aggregate amount of
Basic Employer Contributions not in excess of 6% of a
Participant's
Earnings actually allocated to such Participant's Basic Employer
Contribution Account for such Plan Year by reason of employment
with such Participating Company by (ii) a percentage determined
by
reference to such Participant's years of Seniority Service as of
the end of such Plan Year as follows:
SENIORITY SERVICE PERCENTAGE
1-4 years 25%
5-9 years 50%
10 years or more 75%
(b) With respect to Participants employed by the Company
and
its Related Companies, the Board may, at its option, suspend the
Matching Employer Contributions if it determines that good
business
reasons for such suspension exist. With respect to any
Participating Company not subject to the preceding sentence, the
board of directors or managing general partner of such
Participating Company may, in its discretion, suspend Matching
Employer Contributions if it determines that good business
reasons for such suspension exist.
(c) Notwithstanding subsection (a), in the event that Basic
Employer Contributions initially allocated to a Participant's
Basic
Employer Contribution Account are distributed pursuant to Section
4.02 or 6.02 prior to any allocation of Matching Employer
Contributions with respect thereto, then no Matching Employer
Contributions shall be contributed
20.
with respect to such Basic Employer Contributions. Any Matching
Employer Contributions paid to the Trustee with respect to such
Basic Employer Contributions shall be returned to the
contributing Employer.
5.03 LIMITATION ON ANNUAL ADDITIONS.
(a) For purposes of this Section 5.03, the term "Annual
Addition" shall mean for any Plan Year: (i) the aggregate amount
credited to the Participant's Matching Employer Contribution and
Basic Employer Contribution Accounts under this Plan (and the
Participant's accounts under any other defined contribution plan
of
the Participating Company employing such Participant or any
Related
Company) by reason of employer contributions (including any
Special
Contribution described in Section 6.07) and forfeitures; (ii) the
Participant's voluntary contributions to any other defined
contribution plan of the Participating Company or any of its
Related Companies; (iii) contributions to an individual medical
account (as defined in Section 415(l) of the Code) for a
Participant as part of a defined benefit plan; and (iv) for
purposes of the application of the dollar limit of clause (i) of
subsection (b) to a Participant who is a Key Employee, as defined
in Section 416(i) of the Code, with respect to such Plan Year or
any preceding Plan Year, any amount paid or accrued to such
Participant's account under a welfare benefit fund pursuant to
Section 419A(d) of the Code. No amounts contributed by reason of
rollover from another qualified plan shall be included in the
Annual Addition.
Notwithstanding the preceding sentence:
(I) In determining the Annual Addition for any Plan
Year
prior to 1987 for purposes of Section 5.03(a), a Participant's
own
after-tax contributions shall be taken into account only to the
extent of the lesser of: (i) such contributions in excess of six
percent (6%) of such Participant's Remuneration for such Plan
Year;
or (ii) one-half (1/2) of such contributions;
(II) Basic Employer Contributions distributed to a
Participant pursuant to Section 4.02 or 6.02 shall be disregarded
in determining such Participant's Annual Additions; and
(b) The total Annual Addition to the Accounts of a
Participant employed by any Participating Company or any of its
Related Companies, under this Plan and any other defined con-
tribution plan of such Participating Company or any of its
Related
Companies shall not for any such Plan Year exceed the lesser of:
(i) Thirty thousand dollars ($30,000), or, if
21.
greater, one-fourth (1/4) of the dollar limitation in effect
under
Section 415(b)(1)(A) of the Code for such Plan Year; or
(ii) Twenty-five percent (25%) of the Participant's total
Remuneration from such Participating Company and Related
Companies
for such Plan Year.
(c) For purposes of this Section, an amount shall be
credited
to a Participant's Account under this Plan and to a Participant's
accounts under any other defined contribution plan of an
Affiliated
Company for a Plan Year if, with respect to employer
contributions
(including salary deferral contributions), such contributions are
made during the Plan Year or no later than 30 days following the
end of the taxable year (including extensions) with or within
which
the Plan Year ends.
(d) For purposes of this Section, an amount shall be
credited
to a Participant's Account under this Plan and to a Participant's
accounts under any other defined contribution plan of an
Affiliated
Company for a Plan Year if, with respect to the Participant's own
contributions, such contributions are made during the Plan Year
or
no later than 30 days following the end of such Plan Year.
(e) In the case of any Participant who also participates in
any defined benefit plan of the Participating Company employing
him
or any Related Company, the sum of the Defined Benefit Fraction
and
the Defined Contribution Fraction for any Plan Year shall not
exceed 1.0. In the event the sum of such fractions would with
respect to any Participant exceed 1.0, then remedial action shall
be taken pursuant to the provisions of subsection (f) to the
extent
necessary to avoid such excess. For purposes of this section,
subject to Section 15.04, the following definitions shall apply:
(1) DEFINED BENEFIT FRACTION shall mean that fraction
the numerator of which is the Participant's aggregate projected
annual benefit, determined as of the close of the Plan Year,
under
any defined benefit plan of the Participating Company employing
such Participant and any of its Related Companies and the
denominator of which is the lesser of: (i) the product of
1.25 multiplied by the maximum dollar benefit allowable under
Section 415(b)(1)(A) of the Code for such Plan Year (taking into
account any adjustment permitted for such Plan Year under Section
415(d)); or (ii) the product of 1.4 multiplied by the
Participant's
average annual Remuneration from such Participating Company and
any
of its Related Companies for the three (3) consecutive Plan Years
for which such average is the highest; provided that in the case
of
any individual who was a Participant in a defined benefit plan on
or
22.
before December 31, 1982, the denominator of the Defined Benefit
Fraction shall be no less than the individual's accrued benefit
attributable to service with the Participating Company employing
him and any of its Related Companies under the provisions of such
plan as of December 31, 1982, calculated without regard to plan
amendments or cost-of-living increases occurring after July 1,
1982. A Participant's "projected annual benefit" shall be equal
to
the total annual benefit payable in the form of a single-life
annuity to which such Participant would be entitled under all
defined benefit plans of the Participating Company employing him
and any of its Related Companies and any annuity contract dis-
tributed to the Participant from any such plan, if such
Participant
were to remain an eligible employee until such Participant's
normal
retirement date and were all other relevant factors used to
determine benefits under each such defined benefit plan to remain
constant for all future Plan Years.
(2) DEFINED CONTRIBUTION FRACTION shall mean that
fraction (never greater than one) the numerator of which is the
sum
of the Annual Additions to the Participant's accounts under each
defined contribution plan maintained by the Participating Company
employing him and any of its Related Companies for the Plan Year
and all prior Plan Years (less the amount, if any, permitted to
be
subtracted under: (i) the transitional rule of Section 235(g)(3)
of
the Tax Equity and Fiscal Responsibility Act of 1982; or (ii) the
transitional rule of Section 1106(h)(4) of the Tax Reform Act of
1986) and the denominator of which is the sum of the lesser of
the
following amounts with respect to the Plan Year and each prior
Plan
Year during which the Participant was an Employee of such
Participating Company or any of its Related Companies: (I) the
pro-duct of 1.25 and the maximum dollar limitation in effect
under
Section 415(c)(1)(A) (but without regard to Section 415(c)(6))
of
the Code for such Plan Year; or (II) the product of 1.4 and
twenty-five percent of the Participant's Remuneration from the
Participating Company employing him and any of its Related
Companies for such Plan Year.
5.04 COMPLIANCE WITH THE LIMITATION. In the event that the
Annual
Addition to the Accounts of a Participant would for any Plan Year
exceed the limitations of Section 5.03(b), or in the event the
sum
of the Defined Benefit and Defined Contribution Fractions
applicable to a Participant would otherwise exceed the limitation
of Section 5.03(e) for any Plan Year, the actions specified below
shall be taken in the order listed (unless the Participant
otherwise elects pursuant to Section 5.03(e)) and only to the
extent necessary to satisfy the applicable limitations of
Sections 5.03(b) and (e):
23.
(a) First, the Participant's accrued benefits under the
Retirement Plan attributable to service with the Participating
Company employing him or any of its Related Companies, or under
any
other defined benefit plan of such Participating Company or any
of
its Related Companies, to the extent not already distributed
therefrom in the form of an annuity contract or otherwise, shall
be
limited or reduced.
(b) Then, if any Special Contribution made pursuant to
Section 6.07 has been allocated to the Basic Employer
Contribution
Account of the Participant, such Special Contribution shall be
allocated pro rata to the Basic Employer Contribution Accounts of
other Participants receiving such Special Contributions;
(c) Then, the Participant's Basic Employer Contributions
for
the Plan Year shall be limited, or to the extent already made,
distributed to the Participant with gains or earnings thereon as
a
current cash payment.
(d) Then, if the Participating Company employing such
Participant or any Related Company has not made its Matching
Employer Contribution to the Plan prior to the time a
distribution
of the Participant's share of the Basic Employer Contribution is
effected (under subsection (c) above), the Matching Employer
Contribution of such entity for the Plan Year shall be reduced to
take into account such distribution, and no reallocation of the
Matching Employer Contribution of such entity shall be required.
(e) Then, to the extent that a Matching Employer
Contribution
was made to such Participant's Matching Employer Account by the
Participating Company employing him or any Related Company based
on
the amount of any Basic Employer Contribution distributed in
accor-
dance with subsection (c), such contribution shall be used to
reduce the Matching Employer Contributions for other Participants
employed by such entity for the Plan Year to the extent possible.
Any excess Matching Employer Contributions shall be held unallo-
cated in a suspense account and used to reduce the Matching
Employer Contributions of such entity for the next Plan Year (and
succeeding Plan Years as necessary). No profits or losses
attributable to the assets of the Trust shall be allocated to
such
a suspense account, nor shall any Employer Contributions be made,
while a balance remains in a suspense account, by the entity to
which such balance pertains or any of its Related Companies. If
the Plan terminates, any unallocable balance remaining in a sus-
pense account shall revert to the Company.
(f) Finally, the Annual Addition to the Participant's
accounts under any other qualified defined contribution plan
maintained by the Participating
24.
Company employing him or any Related Company shall be reduced in
accordance with the applicable provisions of such plan.
(g) Notwithstanding the provisions of this Section, each
Participant whose combined Defined Benefit Fraction and Defined
Contribution Fraction exceed 1.0 for any Plan Year may elect in
accordance with procedures established by the Committee that the
remedial action specified in subsection (a) be taken after,
rather
than before, all other remedial actions specified in subsections
(b) through (f).
5.05 RETURN OF CONTRIBUTIONS. Assets held in the Trust Fund
shall
be held for the exclusive benefit of Participants and their
Beneficiaries, and such assets may never revert to or inure to
the
benefit of any Participating Company except under the following
conditions:
(a) If the Internal Revenue Service shall deny a deduction
for any part of a Basic Employer Contribution or Matching
Contribution made by any Participating Company, the amount of the
contribution for which no deduction is allowed shall be returned
to
such Participating Company within one (1) year of such
disallowance, whether by agreement with the Internal Revenue
Service or by final decision of a court of competent
jurisdiction.
Earnings of the Plan attributable to such a contribution may not
be
returned to the Participating Company, but any losses
attributable to such a contribution shall reduce the amount
returned;
(b) If within one (1) year of making a contribution to the
Plan, a Participating Company or the Committee certifies that
such
contribution was made under mistake of fact, the Trustee shall
upon
the direction of the Committee before the expiration of such year
return such contribution to the Participating Company that made
such contribution;
(c) Any balance remaining in the suspense account described
in Section 5.03(e) upon the termination of the Plan shall with
respect to the Participating Company contributing such balance
and
all Related Companies be returned by the Trustee to such
Participating Company; and
(d) If Basic Employer Contributions are refunded to a
Participating Company in accordance with subsections (a) or (b),
such contributions, together with the refunded earnings thereon
(if
any), shall be paid by such Participating Company to the affected
Participants on whose behalf they were made, subject to
satisfaction of all applicable federal and state withholding
requirements.
25.
5.06 ROLLOVER CONTRIBUTIONS.
(a) Subject to the nondiscrimination provisions of Sections
401(a)(4) and 401(a)(26) of the Code, the Committee may authorize
the Trustee to accept a Rollover Contribution. A Rollover
Contribution must be made in cash, and must be attributable to a
qualified total distribution within the meaning of Section
402(a)(5)(E) of the Code, that is received by an Eligible
Employee
from another tax-qualified employee plan. Prior to accepting a
Rollover Contribution, the Committee may require the Eligible
Employee to establish, and to provide, at the Eligible Employee's
expense, an opinion of counsel satisfactory to the Company that
the
proposed Rollover Contribution is attributable to a qualified
total
distribution.
(b) A Rollover Contribution shall be held in the
Participant's Rollover Account, shall be accounted for
separately,
shall be fully vested, and shall be treated for all other Plan
purposes except for Section 5.03 of the Plan, as though it were
attributable to a Company contribution other than a 401(k)
contribution.
26.
ARTICLE VI
NONDISCRIMINATION REQUIREMENTS FOR BASIC EMPLOYER
CONTRIBUTIONS AND MATCHING EMPLOYER CONTRIBUTIONS
6.01 LIMITATION ON BASIC EMPLOYER CONTRIBUTIONS.
(a) With respect to any Plan Year, the Actual Deferral
Percentage (as defined in subsection (b)) of the group consisting
of all Highly Paid Participants shall not exceed the greater of:
(1) 125 percent of the Actual Deferral Percentage for
the group of all Remaining Participants, or
(2) The lesser of: (i) 200 percent of the Actual
Deferral Percentage for the group of all Remaining Participants;
or
(ii) the Actual Deferral Percentage for the group of all
Remaining
Participants plus two (2) percentage points.
(b) The "Actual Deferral Percentage" for a specified group
of
Employees for a Plan Year means the average of the ratios
(calculated separately for each Employee in such group) of (1) to
(2), where:
(1) Is the amount of Basic Employer Contributions
actually allocated for the Plan Year to the Basic Employer
Contribution Account of each Employee in such group, adjusted as
follows:
(i) Reduced (in the case of any Remaining
Participant) by the amount of any excess Basic Employer
Contribution previously distributed to such Employee as described
in Section 4.02;
(ii) Increased by any amount designated by the
Committee pursuant to subsection (c)(1) which is allocated to
such
Employee's Basic Employer Contribution Account for such Plan
Year;
(iii) Increased by any qualified nonelective
contributions designated by the Committee under subsection (c)(2)
and allocated to such Employee's accounts;
(iv) Reduced by the amount of such Employee's
Basic
Employer Contributions taken into account in determining
Contribution Percentages pursuant to Section 6.03(d); and
27.
(v) Reduced by any amount distributed to such
Employee as described in Section 6.02(a); and
(2) Is the Remuneration of such Employee for the Plan
Year, provided, however, that with respect to any Plan Year
beginning before January 1, 1990, amounts paid to an Employee on
account of any period when he is not eligible to make a Deferral
Election shall be excluded.
For purposes of the foregoing:
(I) For Plan Years after December 31, 1984 and before
January 1, 1987, the Actual Deferral Percentage of Participants
who
are eligible to participate in another cash or deferred
arrangement
maintained by any Affiliated Company shall be determined by
treating all the cash or deferred arrangements in which he is
eligible to participate as one arrangement and if the
arrangements
have different Plan Years, the arrangements shall be treated as a
single arrangement with respect to the Plan Years ending with or
within the same calendar year.
(II) The Committee shall take other plans of the
Affiliated Companies into account to the extent provided in
Section
6.06(a).
(III) Amounts shall be treated as allocated for the
Plan Year if: (i) they are actually paid to the Trust no later
than
the end of the twelve-month period immediately following the Plan
Year to which they relate; (ii) the allocation of such amounts to
an Employee's account is not contingent upon his participation in
the Plan or performance of services on any date after the end of
such Plan Year; and (iii) such amounts relate to Earnings that
either: (A) would have been received by the Employee but for his
Deferral Election; or (B) is attributable to services performed
by
the Employee in the Plan Year and, but for the Employee's
Deferral
Election, would have been received by the Employee within two and
one-half (2 1/2) months after the close of the Plan Year.
(IV) For Plan Years beginning after December 31, 1988,
percentages shall be calculated to the nearest one-hundredth of
one
percent.
(c) For purposes of computing Actual Deferral Percentages
for
any Plan Year, the Committee may elect to take into account any
or
all of the following--
28.
(1) Any Special Contribution made under Section 6.07
and
designated by the Employer to be so taken into account.
(2) Any qualified nonelective contributions described
in
Section 6.06(b), provided that: (i) the amount of such contri-
butions so taken into account is not taken into account for
purposes of Section 6.03(b) and satisfies the requirements of
Section 401(a)(4) of the Code; and (ii) the use of such
contributions for purposes of this Section 6.01 does not have the
effect of increasing the difference between the Actual Deferral
Percentage for Highly Paid Participants and the Actual Deferral
Percentage for Remaining Participants.
6.02 REMEDIAL DISTRIBUTIONS OF BASIC EMPLOYER CONTRIBUTIONS.
(a) To the extent required for compliance with the
condition
set forth in Section 6.01(a) for a Plan Year, taking into
account,
to the extent determined by the Committee, amounts described in
Section 6.01(c), the Committee shall direct the Trustee to
distribute, in cash, such Basic Employer Contributions as
determined under subsection (b). Such distribution shall include
income calculated as described in Section 6.06(c).
(b) The Committee or its delegate shall determine the
amounts
to be distributed pursuant to subsection (a) by reducing Basic
Employer Contributions of Highly Paid Participants in order of
the
Actual Deferral Percentages of such Participants, beginning with
the highest such percentage and continuing such reductions until
the condition set forth in Section 6.01(a) is satisfied;
provided,
however, that the amount otherwise distributable to a Highly Paid
Participant under this subparagraph shall be reduced by any
amount
previously distributed to such Participant pursuant to Section
4.02.
(c) The distribution described in subsection (a) shall be
made during the period beginning with the first day after the
close
of the Plan Year for which such Basic Employer Contributions were
made and ending two and one-half (2 1/2) months following the
close
of such Plan Year; provided, however, that a failure to make such
distribution before the end of such period shall not cause the
Plan
to be treated as failing to satisfy the requirements of Section
401
of the Code if such distribution is made before the end of the
Plan
Year following the Plan Year for which such Basic Employer
Contributions were made.
29.
6.03 LIMITATION ON MATCHING CONTRIBUTIONS.
(a) With respect to any Plan Year, the Contribution
Percentage (as defined in subsection (b)) of the group consisting
of all Highly Paid Participants shall not exceed the greater of:
(1) 125 percent of the Contribution Percentage for the
group of all Remaining Participants, or
(2) The lesser of (i) 200 percent of the Contribution
Percentage for the group of all Remaining Participants, or (ii)
the Contribution Percentage for the group of all Remaining
Participants plus two (2) percentage points.
(b) The "Contribution Percentage" for a specified group of
Employees for a Plan Year means the average of the ratios
(calculated separately for each Employee in such group) of (1) to
(2), where:
(1) Is the amount of Matching Employer Contributions
and
forfeitures allocated to the Participant's Matching Employer
Contribution Account for such Plan Year, adjusted as follows:
(i) Increased by any amount designated by the
Committee pursuant to subsection (c)(1) and allocated to the
Basic
Employer Contribution Account of such Employee for such Plan
Year;
(ii) Increased by any qualified nonelective
contri-
butions designated by the Committee under subsection (c)(2) and
allocated to such Employee's account;
(iii) Decreased by any amount distributed to
such Employee pursuant to Section 6.04(b);
(2) Is the Remuneration of such Employee for the Plan
Year, provided, however, that with respect to any Plan Year
beginning before January 1, 1990, amounts paid to an Employee on
account of any period when he is not eligible to make a Deferral
Election shall be excluded.
For purposes of the foregoing:
(I) The Committee shall take other plans of the
Affiliated Companies into account to the extent provided in
Section
6.06(a).
30.
(II) A Matching Contribution shall be taken into
account
for a Plan Year only if: (i) it is allocated to the Participant's
Matching Employer Contribution Account as of a date within the
Plan
Year; (ii) it is actually paid to the Trust no later than the end
of the twelve-month period immediately following such Plan Year;
and (iii) it is made on behalf of an Employee on account of his
Basic Employer Contributions for such Plan Year.
(III) For Plan Years beginning after December 31,
1988, percentages shall be calculated to the nearest
one-hundredth
of one percent.
(c) For purposes of computing Contribution Percentages for
any Plan Year, the Committee may elect to take into account
either
of the following:
(1) Any Special Contribution made under Section 6.07
and
designated by the Employer to be so taken into account; or
(2) Any qualified nonelective contributions described
in
Section 6.06(b) provided that (i) the amount of such
contributions
so taken into account is not taken into account for purposes of
Section 6.01(b) and satisfies the requirements of Section
401(a)(4) of the Code, and (ii) the use of such contributions for
purposes of this Section 6.03 does not have the effect of
increasing the difference between the Contribution Percentage for
Highly Paid Participants and the Contribution Percentage for
Remaining Participants.
(d) For purposes of computing Contribution Percentages for
any Plan Year, the Committee may elect to take into account any
Basic Employer Contributions (or any elective deferrals under any
other qualified cash or deferred arrangement maintained by any
Affiliated Company), provided that--
(1) Those Basic Employer Contributions (or elective
deferrals under another plan), if any, not so taken into account
fulfill the condition of Section 6.01(a) without regard to
Section
6.01(c), and
(2) The requirements of Section 6.01(a) (without
regard
to Section 6.01(c)) are met by such Basic Employer Contributions
(or elective deferrals under another plan) separately and are met
in the aggregate by all Basic Employer Contributions (or elective
deferrals under another plan).
(3) For Plan Years beginning after December 31, 1988,
the plan year of the plan under which such elective deferrals are
made is the same as the Plan Year.
31.
6.04 REMEDIAL DISTRIBUTIONS OF MATCHING CONTRIBUTIONS.
(a) To the extent required for compliance with the
condition
set forth in Section 6.03(a) for a Plan Year, taking into
account,
to the extent determined by the Committee, the amounts described
in
Section 6.03(c), the Committee shall direct the Trustee to
distribute, in cash, such Matching Contributions as are
determined
under subsection (b). Such distribution shall include income
calculated as described in Section 6.06(c).
(b) The Committee or its delegate shall determine the
amounts
to be distributed pursuant to subsection (a) by reducing the
Matching Contributions allocable to the Matching Employer
Contribution Accounts of Highly Paid Participants in order of the
Contribution Percentages of such Participants, beginning with the
highest such percentage and continuing such reductions until the
condition set forth in Section 6.03(a) is satisfied.
(c) The distribution described in subsection (a) shall be
made during the period beginning with the first day after the
close
of the Plan Year for which such Matching Contributions were made
and ending two and one-half (2 1/2) months following the close of
such Plan Year; provided, however, that a failure to make such
distribution before the end of such period shall not cause the
Plan
to be treated as failing to satisfy the requirements of Section
401
of the Code if such distribution is made before the end of the
Plan
Year following the Plan Year for which such contributions were
made.
6.05 ADDITIONAL OVERALL LIMITATION ON DEFERRALS AND MATCHING
CONTRIBUTIONS; REMEDIAL DISTRIBUTIONS.
(a) For purposes of this Section:
(1) "Adjusted Actual Deferral Percentage" for a
specified group of Employees means the "Actual Deferral
Percentage"
(as defined in Section 6.01(b)) for such group, adjusted to take
into account (i) any use of qualified nonelective contributions
to
meet the requirements of Section 401(k)(3)(ii) of the Code and
(ii) any corrective distribution of excess deferrals required
without regard to this Section.
(2) "Adjusted Contribution Percentage" for a specified
group of Employees means the "Contribution Percentage" (as
defined
in Section 6.03(b)) for such group, adjusted to take into account
32.
(i) any use of qualified nonelective contributions and elective
deferrals to meet the requirements of Section 401(m)(2)(A) of the
Code (provided that the use of elective contributions to meet the
requirements of Section 401(m)(2)(A) is limited to the amount
necessary to meet the requirements of Section 401(m)(2)(A)(ii))
and
(ii) any corrective distribution of excess contributions required
without regard to this Section.
(b) Each Plan Year beginning after December 31, 1988 in
which
at least one Highly Paid Participant makes Basic Employer
Contributions and receives an allocation of Matching Employer
Contributions, the sum of the Adjusted Actual Deferral Percentage
for Highly Paid Participants and the Adjusted Contribution
Percentage for Highly Paid Participants shall not exceed the sum
of:
(1) 125 percent of the greater of: (i) the Adjusted
Actual Deferral Percentage for Remaining Participants; or (ii)
the
Adjusted Contribution Percentage for Remaining Participants, plus
(2) Two percent plus the lesser of: (i) the Adjusted
Actual Deferral Percentage for Remaining Participants; or (ii)
the
Adjusted Contribution Percentage for Remaining Participants (but
in
no event shall this paragraph (2) amount to more than 200 percent
of the lesser of the Adjusted Actual Deferral Percentage for
Remaining Participants or the Adjusted Contribution Percentage
for
Remaining Participants).
(c) To the extent necessary to meet the requirements of
subsection (b), the Committee shall, in its discretion, either-
(1) Reduce the Adjusted Actual Deferral Percentage for
Highly
Paid Participants by distributing such amounts to Employees as
may
be determined under procedures set forth in Section 6.02, or
(2) Reduce the Adjusted Contribution Percentage for
Highly Paid Participants by distributing such amounts to
Employees as may be determined under procedures set forth in
Section 6.04.
6.06 FURTHER DISCRIMINATION TEST REQUIREMENTS. For purposes of
this Article:
(a) AGGREGATION OF PLANS.
(1) If the Committee so elects and if this Plan and
other plan maintained by any Affiliated Company (the "other
plan")
are treated as a single plan for purposes of Section 401(a)(4) or
410(b) (other
33.
than Section 410(b)(2)(A)(ii) as in effect for plan years
beginning after 1988) of the Code, then, except as provided in
subsection (a)(2):
(i) The cash or deferred arrangements under such
plans shall be treated as a single arrangement for purposes of
Section 6.01(a) of the Plan and Sections 401(a)(4), 401(k), and
410(b) of the Code, and
(ii) All employee contributions and matching
contri-
butions are to be treated as made under the same plan for
purposes
of Section 6.03(a) of the Plan and Sections 401(a)(4), 401(m),
and
410(b) of the Code.
(2) Notwithstanding subsection (a)(1), for Plan Years
beginning after December 31, 1988:
(i) Contributions and allocations under an
employee stock ownership plan described in Section 4975(e)(7) of
the Code shall not be combined with contributions or allocations
under any plan not so described; and
(ii) Plans may be aggregated under this subsection
only if they have the same plan year.
(b) QUALIFIED NONELECTIVE CONTRIBUTIONS. The Committee may
elect to take into account nonelective employer contributions
under
any other plan sponsored by any Affiliated Company if all of the
following are satisfied:
(1) Such contributions are: (i) fully vested; and
(ii)
are not distributable earlier than the employee's
retirement, death, disability, separation from service, an event
described in Section 401(k)(10) of the Code, (in the case of a
profit-sharing or stock bonus plan) the employee's attainment of
age 59 1/2 or (for Plan Years beginning before January 1, 1989)
hardship.
(2) Such contributions: (i) satisfy the requirements
of
Section 401(a)(4) of the Code, both with and without including
the
amount of such contributions taken into account under this
subsection; and (ii) are not taken into account in determining
whether any other contributions or benefits satisfy Section
401(a)(4) or 401(k)(3) of the Code.
(3) Such contributions: (i) are actually paid to the
trust under such plan no later than the end of the twelve-month
period immediately
34.
following the plan year to which the contribution relates; and
(ii) are allocated to the accounts of participating employees
under
the plan without regard to the employee's participation in the
plan
or performance of services on any date subsequent to the end of
the
plan year to which such contribution relates; provided that, for
plan years beginning after December 31, 1988, the plan year of
the
plan under which such contributions are made is the same as the
Plan Year.
(c) INCOME ON DISTRIBUTED AMOUNTS. Income on an amount
distributed under this Article VI shall be determined by
multiplying such amount by a factor computed as follows:
(1) Divide the amount distributed by the balance, as
of
the end of the Plan Year, of the account under the Plan to which
such amount was (or would have been) allocated, adjusted to
exclude
the year's investment experience by reducing such year-end
balance
by the total gain allocable thereto for the year and increasing
such year-end balance by the loss allocable thereto for the year;
then
(2) Increase the result found in paragraph (1) by ten
percent (10%) for each calendar month beginning with the day
after
the end of the Plan Year for which such amount was distributed
and
ending with the date of the distribution; provided, however, that
a
distribution occurring on or before the fifteenth day of the
month
will be treated as having been made on the last day of the
preceding month, and a distribution occurring after such
fifteenth
day will be treated as having been made on the first day of the
next month.
(d) FAMILY PARTICIPANTS. In any case in which the Actual
Deferral Percentage or Contribution Percentage (or both) of a
Highly Paid Participant is determined in part with respect to
Earnings, Basic Employer Contributions, or Matching Employer
Contributions actually received by a family member and attributed
to such Highly Paid Participant by reason of Section 2.19, any
distribution of excess amounts under Section 6.02 or 6.04 shall
be
determined in accordance with Treasury Regulations.
6.07 SPECIAL CONTRIBUTION
(a) With respect to any Plan Year, a Participating Company
may make a Special Contribution to the Plan, in such an amount
and
on behalf of such Participants as it may specify, provided that:
35.
(1) Such contributions shall be allocated to the Basic
Employer Contribution Accounts of specified Participants without
regard to such Participants' participation in the Plan or
performance of services on any date subsequent to the end of such
Plan Year.
(2) Such contributions shall satisfy the requirements
of
Section 401(a)(4) of the Code and, except as provided in Section
6.01(b) and 6.03(b), shall not be taken into account in
determining
whether any other contributions or benefits satisfy Section
401(a)(4), 401(k)(3), or 401(m) of the Code.
36.
ARTICLE VII
INVESTMENT FUNDS
7.01 INVESTMENT OF CONTRIBUTIONS.
(a) At the direction of the Committee, the Trustee will
establish separate funds to which Participants may direct the
investment of their Accounts. Investment in these funds will be
subject to such restrictions and administrative procedures as are
imposed by the Committee, pursuant to its discretionary authority
to administer and interpret the Plan, including, but not limited
to, procedures for investment of amounts for which no investment
direction is given by a Participant.
(b) A Participant may indicate his or her investment
designation for future Basic Employer Contributions and Matching
Employer Contributions by giving prior written notice to the
Committee on a form provided by the Committee.
(c) A Participant may change his or her investment designa-
tion at any time by written notice to the Committee on a form
provided by the Committee, provided, however, that such change
shall apply only with respect to the investment of Basic Employer
Contributions and Matching Employer Contributions made subsequent
to the first pay period beginning after receipt of such notice by
the Committee.
7.02 NEWHALL FUND. At the discretion of the Committee, the Plan
may acquire and hold qualified employer securities as defined in
Section 407 of ERISA ("Depositary Units"). Participants may
elect
to invest amounts held in their Accounts in shares of a fund
consisting of cash and Depositary Units ("Newhall Fund"). The
Newhall Fund shall be established by the Trustee pursuant to
Section 7.01 of the Plan and shall be subject to such
restrictions
and administrative procedures as are imposed by the Committee,
pursuant to its discretionary authority to administer and
interpret the Plan.
7.03 INVESTMENT DESIGNATION. Effective July 1, 1994:
(a) A Participant may designate up to 100% (in 10%
increments) of future Matching Employer Contributions and up to
30%
(in increments of 10%) of future Basic Employer Contributions be
invested in the Newhall Fund. Such designation shall become
effective as soon as practicable following receipt of such
completed form by the Committee.
(b) As of each Accounting Date, a Participant may elect to
transfer a portion of his or her existing funds into the Newhall
Fund so long as the
37.
aggregate value of his or her Accounts invested in the Newhall
Fund
does not exceed 30% of the value of his or her Accounts. A
transfer that exceeds the percentage limitation shall be reduced
pro rata between the originating investment funds. The election
provided for in the preceding sentence shall be made on a form
provided by the Committee which shall be filed by the Participant
at least 10 days prior to the effective date of the transfer.
7.04 TRANSFER OF ACCOUNT BALANCES BETWEEN FUNDS. Subject to the
limitations in Section 7.03, as of each Accounting Date, a
Participant may elect to transfer all or a portion (in such
percentages as the Committee shall have authorized pursuant to
its
discretionary authority to administer and interpret the Plan) of
the current value of his or her Accounts among investment funds.
The election provided for in the preceding sentence shall be made
on a form provided by the Committee which shall be filed by the
Participant at least 10 days prior to the effective date of the
transfer.
7.05 PURCHASE PRICE. All acquisitions of Depositary Units by the
Newhall Fund will be effected quarterly from either the Company
or
on the open market at the prevailing market price.
7.06 VOTING AND TENDER OFFERS.
(a) A Participant may direct voting of the Depositary Units
underlying the Participant's interest in the Newhall Fund. The
Trustee will vote such Depositary Units in accordance with the
directions of Participants, as communicated in writing to the
Trustee.
(1) A Participant whose Account is invested in the
Newhall Fund will be notified by the Trustee (or by Company,
pursuant to its normal communications with limited partners) of
each occasion for the exercise of voting rights, within a
reasonable time before those voting rights are to be exercised.
This notification will include all the information distributed by
the Company to limited partners generally, regarding the exercise
of voting rights.
(2) To the extent that a Participant fails to direct
the
Trustee, in whole or in part, as to the exercise of voting rights
with respect to any Depositary Units underlying the Participant's
interest in the Newhall Fund, those Depositary Units will not be
voted.
(b) Subject to (b)(3) below, if the Trustee receives a
tender
offer to buy Depositary Units held by the Trustee, a Participant
may direct tender of the of Depositary Units underlying the
Participant's interest in the Newhall
38.
Fund. The Trustee will tender such Depositary Units in
accordance
with the directions of Participants, as communicated in writing
to
the Trustee.
(1) All Participants entitled to tender Depositary
Units
held by the Newhall Fund will be so notified by the Trustee (or
by
the Company) within a reasonable time before the right to tender
is
to be exercised. This notification will include information
received by the Trustee as limited partners, or distributed by
the
Company to limited partners generally, regarding their right to
tender.
(2) To the extent that a Participant fails to direct
the
Trustee, in whole or in part, to tender Depositary Units
underlying
the Participant's interest in the Newhall Fund, those Depositary
Units will not be tendered.
(3) The Trustee will not permit Participants to direct
the tender of Depositary Units, to the extent that the receipt or
holding of the property offered in exchange for the Company
Securities would violate any applicable law, including ERISA.
The
Committee will make investment decisions regarding any non-cash
property received by the Newhall Fund as a result of a tender.
(c) For purposes of this Article VII, the Beneficiary of a
deceased Participant will be treated as though he or she were a
Participant.
7.07 AGREEMENTS RELATING TO TRUST. The assets of the Plan shall
be
held pursuant to one or more written agreements with: (i)
Trustees,
as described in Section 7.08; (ii) Insurance Companies, as
described in Section 7.10; or (iii) a combination.
7.08 ESTABLISHMENT OF TRUST AGREEMENT. Some or all of the assets
of the Plan may be held pursuant to trust agreements with one or
more of the Trustees; the Trustees shall be such one or more
individuals, banks or trust companies as may be designated by the
Committee. Each trust agreement shall provide for the investment
of the trust assets and prescribe the powers, duties, obligations
and functions of the Trustees with respect to the Plan. Each
Trustee shall control and manage the assets of its trust, subject
to the terms of its trust agreement and this Plan. To the extent
the provisions of the Plan and the trust agreement are
inconsistent
or otherwise in conflict with respect to the rights, duties or
obligations of the Trustee, the provisions of the trust agreement
shall control. The Trustee shall be subject to the direction of
any Investment Manager appointed pursuant to Section 7.09 with
respect to acquisition, retention, or disposition of investments
of
that portion of the Trust over which such Investment Manager has
been given authority by the Committee. Each trust agreement
shall
authorize the Trustee to make deposits in the Trustee's
39.
commercial banking department (or in any other bank or similar
financial institution) provided such deposits bear a reasonable
rate of interest.
7.09 APPOINTMENT OF INVESTMENT MANAGER. The Committee, pursuant
to
its discretionary authority to administer and interpret the Plan,
may appoint one or more Investment Managers within the meaning of
Section 3(38) of ERISA, and may authorize such Investment
Managers to direct the Trustee with respect to acquisition,
retention, or disposition of any specified portion of any
investment fund designated by the Committee, up to the whole
thereof. Each such Investment Manager must be: (i) registered as
an investment adviser under the Investment Advisers Act of 1940;
(ii) a bank as defined in that Act; or (iii) an insurance company
qualified to perform such management services under the laws of
more than one state. The Committee shall notify the Trustee in
writing of the appointment of such Investment Manager and cause
such Investment Manager to acknowledge to the Trustee in writing
that such Investment Manager is a fiduciary with respect to the
Plan. If the foregoing conditions are met, such Investment
Manager
shall have the power to manage, acquire or dispose of any Trust
assets. No Investment Manager shall issue directions in
violation
of the Plan or prohibited by the fiduciary responsibility rules
of
ERISA.
7.10 INSURANCE OR ANNUITY CONTRACTS. Some or all of the assets
of
the Plan may be held pursuant to insurance or annuity contracts
or
policies with one or more Insurance Companies which are qualified
to do business as an insurance company under the laws of more
than
one state. Such contracts or policies may include a contract
providing for or guaranteeing a specified rate of interest or
return. Each contract described in this Section 7.10 may be
executed and held either by a Trustee described in Section 7.08
or,
if the Committee so elects, by the Committee.
7.11 EXPENSES OF TRUST. The expenses of the Trust, including
those
relating to reporting obligations, shall be borne by the
Participating Companies. The fees and expenses of the Trustee,
the
Insurance Company, and the Investment Manager, if any, shall be
borne by the Participating Companies. Brokerage fees,
commissions,
stock transfer taxes and other charges and expenses incurred in
connection with transactions relating to the acquisition or
disposition of property for the Trust and distributions from the
Trust, shall be borne by the Trust assets as specified in Section
12.11. Taxes incurred as a result of unrelated business taxable
income will be charged to the Newhall Fund.
7.12 VOTING OF SECURITIES IN TRUST. Subject to Section 7.06,
each
Trustee and Insurance Company shall have the authority to
exercise
any voting rights relating to stock and securities held in its
respective portion of the Trust, except that an Investment
Manager
may exercise voting rights with respect to those securities which
are managed by such Investment Manager by complying with such
procedures as the Committee or the Trustee shall determine.
40.
ARTICLE VIII
ACCOUNTS AND VALUATION
8.01 PARTICIPANT ACCOUNTS.
(a) The Committee shall establish and maintain for each
Participant the following Accounts:
(1) MATCHING EMPLOYER CONTRIBUTION ACCOUNT - this
Account shall be credited with the Participant's share of all
Matching Employer Contributions.
(2) BASIC EMPLOYER CONTRIBUTION ACCOUNT - this Account
shall be credited with the Participant's share of all Basic
Employer Contributions and any Special Contribution made pursuant
to Section 6.07.
(3) EMPLOYEE CONTRIBUTION ACCOUNT - this Account shall
be credited with the value of the Participant's Voluntary
Employee
Contributions under the Plan as in effect prior to January 1,
1987.
(4) ROLLOVER ACCOUNT - this Account shall be credited
with the Participant's share of any Rollover Contributions
accepted
by the Plan.
(b) The Committee shall establish and maintain an ESOP
Account for each Participant who was a participant in the ESOP.
(c) In the event that a Participant for whom one or more
Accounts are being maintained pursuant to subsection (a)
terminates
employment and is subsequently employed by a Participating
Company
which is not a Related Company with respect to such Participant's
former employer, the Committee shall establish and maintain
separate accounts for such Participant with respect to his
participation in the Plan after his transfer of employment.
8.02 CREDITING OF CONTRIBUTIONS. Rollover Contributions and
Basic
Employer Contributions shall be credited to a Participant's
Account
for the respective Funds as soon as practicable following their
receipt by the Trust.
8.03 ADJUSTMENT OF ACCOUNTS. As of each Accounting Date, the
Committee shall determine the fair market value of trust assets
and
shall adjust each Participant's Accounts as follows:
41.
(a) FIRST, all Basic Employer Contributions, Rollover
Contributions and Matching Employer Contributions allocated since
the last preceding Accounting Date and not previously credited to
Accounts shall be credited to the proper Accounts.
(b) NEXT, all withdrawals or distributions made since the
last preceding Accounting Date that have not been charged
previously shall be charged to the proper Accounts.
(c) FINALLY, each Participant's Accounts in each Fund
(including the Accounts of any Suspended Participant), as
adjusted
pursuant to subsections (a) and (b), shall be credited with their
pro rata share of any increase (or charged with their pro rata
share of any decrease) in the value of that Fund as of that
Accounting Date as compared with the immediately preceding
Accounting Date.
8.04 STATEMENTS. As soon as practicable after the last
Accounting
Date in each Plan Year, the Committee shall furnish each
Participant with a statement showing his Account balances in the
respective Funds as of such Accounting Date.
8.05 VALUE OF ACCOUNTS. The value of an Account on any date
shall
be deemed to be the net credit balance of such Account on the
Accounting Date immediately preceding or coincident with the date
as of which such value is to be determined, increased by any
contributions to, and reduced by any distributions or withdrawals
from or forfeitures made with respect to, such Account since such
Accounting Date.
42.
ARTICLE IX
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
9.01 WITHDRAWALS FROM EMPLOYEE CONTRIBUTION ACCOUNT.
(a) A Participant who has, at least 30 days prior to an
Accounting Date, given written notice in the manner and upon a
form
provided by the Committee may withdraw from his Employee
Contribution Account an amount not exceeding the value of such
Account as of such Accounting Date. The amount so requested
shall
be paid to such Participant as soon as practicable after such
Accounting Date.
(b) Any Participant who makes a withdrawal pursuant to this
Section 9.01 shall become a Suspended Participant for all
purposes
under the Plan for a period determined as follows:
(1) If such Participant elected to suspend Basic
Employer Contributions under Section 4.04 at the time notice was
given under subsection (a) of this section, a period of 6 months
beginning on the date of such election and notice; or
(2) In any other case, a period of 6 months beginning
on
the date 15 days prior to the Accounting Date specified in
subsection (a). Provided, however, that the suspension shall
terminate only upon such Participant's written notice to his
employer that the 6-month suspension period has elapsed.
9.02 WITHDRAWALS FROM BASIC EMPLOYER CONTRIBUTION ACCOUNT.
(a) A Participant who satisfies the requirements of
subsection (b) may withdraw on a specified date an amount
determined in accordance with subsection (c); provided, however,
that such Participant shall incur the suspension described in
Section 9.04.
(b) A Participant shall be eligible for an in-service
withdrawal if--
(1) He certifies to the Committee that the requested
withdrawal is on account of one of the following:
(i) Medical expenses (described in Section 213(d)
of the Code) incurred by such Participant, his spouse, or any of
his dependents (as defined in Section 152 of the Code) or
necessary
for these persons to obtain such medical care;
43.
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Participant;
(iii) Payment of tuition for the next twelve
(12) months of post-secondary education for the Participant or
his
spouse, children, or dependents; or
(iv) The need to prevent the eviction of the
Participant from his principal residence or foreclosure on the
mortgage of the employee's principal residence.
(2) He has not received a withdrawal at any time
during
the preceding twelve months (or, in the case of a withdrawal for
payment of tuition described in item (3) of subsection (a), he
has
not received more than two withdrawals in the preceding twelve
months).
(3) He has obtained all other distributions and
nontaxable (at the time of the loan) loans available to him under
the Plan and any other plan maintained by any Affiliated Company.
(4) His participation in this Plan is suspended
pursuant
to Section 9.04, and his participation in each other plan of
deferred compensation maintained by any Affiliated Company is
suspended for a 12-month period beginning on the date of the
withdrawal.
(5) The dollar amount of his Basic Employer
Contributions (and deferrals under any other cash or deferred
arrangement maintained by any Affiliated Company) for the Plan
Year
following the Plan Year in which the withdrawal occurs shall not
exceed the Dollar Amount (as defined in Section 4.02(a)(1) for
such
Plan Year decreased by the amount of his Basic Employer
Contributions for the Plan Year in which the withdrawal occurs.
(c) The amount withdrawn by a Participant under this
Section 9.02 shall not exceed the amount reasonably required for
satisfaction of the need specified in subsection (b)(1), and
further, shall not exceed his Basic Employer Contribution Account
balance as of December 31, 1988, plus the lesser of: (i) the
Participant's Basic Employer Contributions made after December
31,
1988, without added earnings; or (ii) the current value of those
Basic Employer Contributions made after December 31, 1988 (but
not
more than the amount of his Basic Employer Contributions not
previously withdrawn).
(d) All withdrawals from the Plan will be made in a single
sum cash payment.
44.
9.03 WITHDRAWALS BY CERTAIN PARTICIPANTS.
(a) TOTALLY DISABLED PARTICIPANT. Notwithstanding Section
9.02, no more than once during a Plan Year, a Totally Disabled
Participant who has filed a written request with the Committee at
least 30 days prior to an Accounting Date may withdraw: (i) up to
one hundred percent (100%) of his Basic Employer Contribution
Account; and (ii) provided he has withdrawn or concurrently
withdraws the maximum permissible amount from his Employee
Contribution Account and his Basic Employer Contribution Account,
all or such portion as he shall specify of the Vested Value of
his
Matching Employer Contribution Account.
(b) PARTICIPANT OVER AGE 59 1/2. Notwithstanding Section
9.02, no more than once during a Plan Year, a Participant who has
attained age 59 1/2 and who has filed a written request with the
Committee at least 30 days prior to an Accounting Date may
withdraw up to one hundred percent (100%) of his Basic Employer
Contribution Account.
(c) All withdrawals from the Plan will be made in a single
sum cash payment.
9.04 LOANS TO PARTICIPANTS. Not more than once in each calendar
year, upon approval of his application by the Committee (in
accordance with the procedure and criteria set forth in
subsection (a)), a Participant may borrow from the Trust an
amount
as specified in subsection (b), upon the terms and conditions set
forth in subsection (d).
(a) PROCEDURE AND CRITERIA FOR APPROVING LOANS.
(1) Loans shall be available pursuant to the
procedures of this Section to all Participants who are currently
Employees and, to the extent required under ERISA or the Code
(but
only to such extent), to other Participants and to Beneficiaries
of
deceased Participants (collectively referred to as "Borrowers").
(2) A Borrower requesting a loan shall submit to the
Committee a completed form of application supplied by the
Committee, containing the following information:
(i) The dollar amount of the loan requested;
(ii) The term of the loan requested, which shall
not
exceed 5 years;
(iii) In the case of a Borrower who is not
then
an Employee, such information and/or representations as to the
source(s)
45.
of funds for repayment of the loan as the Committee may deem
appropriate;
(iv) In the case of a Borrower whose Basic
Employer Contribution Account is invested in more than one
investment fund or vehicle, the fund or vehicle from which assets
are withdrawn to fund such loan, or, if amounts are to be
withdrawn from more than one fund or vehicle, allocation of loan
amounts between such funds or vehicles; and
(v) Such other information as the Committee may
specify.
(b) AMOUNT OF LOAN.
(1) No loan shall be made for an amount less than
$500.
(2) No loan shall be made for an amount greater than
the
smallest of (i), (ii), or (iii) below.
(i) 50% of the combined balance of the Borrower's
Basic Employer Contribution Account and Matching Employer
Contribution Account (excluding any unvested portion thereof) as
of
the preceding Accounting Date, determined after such balance is
reduced by: (I) the amount of any subsequent in-service
withdrawal under Article IX; and (II) the outstanding balance of
any prior loan(s) on the Accounting Date prior to the Funding
Date;
(ii) The balance of the Borrower's Basic Employer
Contributions Account on the most recent Accounting Date, reduced
by: (I) any amount withdrawn from such Account pursuant to
Article
IX following such Accounting Date; and (II) the outstanding
balance
of any prior loan(s) on such Accounting Date;
(iii) $50,000, reduced by the excess, if any,
of
(I) the Borrower's highest outstanding loan balance under this
Plan and the plans of Affiliated Companies during the 12 month
period ending on the day before the loan is made, over (II) the
Borrower's outstanding loan balance under this Plan and the plans
of Affiliated Companies on the date the loan is made.
46.
In determining the limitations set forth in clauses (i) and
(ii) above, the Committee may, in its discretion, substitute a
more
recent date for the most recent Accounting Date, provided that
such
substitution shall apply to all loans made from the date of such
Committee action to the next Accounting Date.
(c) Funding Loans; Accounting for Loans
(1) Within a reasonable time after receipt of a loan
application, the Committee or its delegate shall approve or
disapprove such application. The Committee shall notify the
Borrower of its decision and, if the application is approved,
shall
instruct the Trustee to make the loan as soon as administrative
feasible.
(2) Upon receipt of instructions as to a Borrower's
loan, the Trustee shall create a Loan Account for such
Participant and fund such Loan Account by transferring assets to
it
from the Participant's Basic Employer Contribution Account,
commencing with amounts invested in the fund or vehicle as
specified by the Participant.
(3) Within a reasonable time after approval of the
Participant's loan application, the Trustee shall disburse the
cash
balance of the Loan Account to the Participant upon receipt of
his
duly executed promissory note (in the form approved by the
Committee). In the case of a Participant with a prior loan
outstanding, the proceeds of the new loan shall first be applied
to
discharge the prior loan in full, including principal and accrued
interest, and the balance of the proceeds of the new loan shall
then be disbursed to the Participant.
(4) Loan payments when received by the Trust shall be
credited to the Participant's Loan Account and appropriately
allocated to principal and interest and shall be invested in such
fund or vehicle as may be designated for all loans by the
Committee, unless otherwise designated by the Participant. As of
each pay period, principal from the Participant's Loan Account,
along with interest allocable to such principal, shall be
reallocated to his Basic Employer Contribution Account.
(d) TERMS AND CONDITIONS OF LOAN.
(1) Each loan shall bear interest at a reasonable rate
determined from time to time by the Committee pursuant to written
procedures.
(2) No loan shall be made for a term in excess of five
(5) years.
47.
(3) Each loan shall be repaid by periodic payments
representing substantially level amortization of such loan over
its
term. During any period in which the Participant is an Employee,
the loan shall be repaid by level payroll deductions. During any
period in which the Participant is not an Employee, the loan
shall
be repaid by check, with level payments due at the end of each
calendar month. Payment amounts shall be determined by the
Committee at the time of the loan and at any subsequent time when
a
change in such amounts is required. Any loan balance may be
prepaid without penalty.
(4) A Participant's loan shall be secured by his
Accounts under the Plan to the extent of fifty percent (50%) of
the
aggregate dollar amount thereof, determined immediately after the
loan is made; the remaining balance of his Accounts shall be
unencumbered. In the event of any failure of the Participant to
make a payment within 30 days of the date due, the Trustee shall
enforce such security interest at the earliest time at which the
Participant is entitled to receive a distribution under Section
9.03 or Article XI of the Plan. In addition, in the event of
such
a failure to repay, the Committee may direct a Trustee to
exercise every creditor's right at law or equity available to the
Trustee.
In the event a Participant whose loan is in default requests a
distribution (including a hardship withdrawal under Section 8.02)
from the Plan, the otherwise distributable amount shall first be
applied (but only to the extent of the security interest
described in the first sentence of this paragraph (4)) to offset
the remaining balance of principal and accrued but unpaid
interest
under the loan, and only the remaining distributable amount shall
be paid over to the Participant.
9.05 SUSPENSION. Any Participant who makes a withdrawal pursuant
to Section 9.02 or 9.03 shall become a Suspended Participant for
all purposes under the Plan for a period of 12 months beginning
on
the date of receipt of the withdrawal. Provided, however, that
the
suspension shall terminate only upon such Participant's written
notice to his employer that the 12-month suspension period has
elapsed.
48.
ARTICLE X
VESTING
10.01 VESTING.
(a) A Participant shall at all times be fully vested in his
Employee Contribution Account, his Rollover Account, his Basic
Employer Contribution Account and his ESOP Account, if any.
(b) Each Participant with an Hour of Service on or after
January 1, 1989 shall be fully vested in his Matching Employer
Contribution Account.
(c) The vesting in the Matching Employer Contribution
Account
of any Participant with no Hour of Service after December 31,
1988
shall be determined in accordance with the Plan as in effect when
he had his last Hour of Service.
49.
ARTICLE XI
DISTRIBUTIONS
11.01 GENERAL. Upon the termination of employment of a
Parti-
cipant, except by death:
(a) If the Participant's Vested Value does not exceed
$3,500,
such Vested Value shall be distributed to such Participant in a
lump sum within 60 days following the Accounting Date which
coincides with or next follows his termination of employment.
(b) If such Participant's Vested Value exceeds $3,500, the
Committee shall distribute such Value in a lump sum upon such
Participant's attainment of age 65 or, if later, within 60 days
following the Accounting Date which coincides with or next
follows his termination of employment.
(c) Notwithstanding subsection (b), a Participant may elect
in writing, within the 60-day period beginning on the date of his
termination of employment, to receive a distribution of his
entire
Vested Value in a lump sum as soon as practicable provided that
such distribution occurs not more than 90 days following such
Participant's election. The Committee shall notify the
Participant of the right to defer any distribution until the
Participant attains age 65. Such notification shall be provided
no
less than 30 days and no more than 90 days prior to the
commencement of benefits.
(d) Distribution may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Regulations
is
given, provided that: (i) the Plan Administrator clearly informs
the Participant that the Participant has a right to a period of
at
least 30 days after receiving the notice to consider the decision
of whether or not to elect a distribution (and, if applicable, a
particular distribution option), and (ii) the Participant, after
receiving the notice, affirmatively elects a distribution.
11.02 FORM OF DISTRIBUTION.
(a) Amounts held in a Participant's Account will be paid in
cash as a total distribution, unless the Participant (or
Beneficiary) elects otherwise pursuant to subsection (b).
(b) When requesting a distribution under this Article XI, a
Participant (or Beneficiary) may elect to receive the portion of
his or her Account that is invested in the Newhall Fund in whole
Depositary Units as determined on the preceding Accounting Date.
The Plan shall not make distributions of
50.
less than 100 Depositary Units. Any balance representing
fractional shares will be distributed in cash.
11.03 DEATH OF PARTICIPANT.
(a) Upon the death of a Participant, the Participant's
Vested
Value shall be distributed to his Beneficiary (determined as
specified in subsections (b) and (c) in a lump sum within 60 days
following the end of the calendar quarter in which the death
occurred.
(b) If a Participant dies after having submitted to the
Com-
mittee on a form supplied by the Committee a written designation
of
a beneficiary which (unless such Participant is unmarried at
death
or unless such Beneficiary is, at the time of death, the spouse
of
such Participant) is consented to by such Participant's spouse in
a
writing which (i) acknowledges the effect of such consent,
(ii) acknowledges the specific non-spouse beneficiary, and (iii)
is
witnessed by a notary public, the beneficiary so designated shall
be the Beneficiary, entitled to the Participant's Vested Value as
set forth in subsection (a).
(c) If a Participant dies without having complied with
subsection (b), then for purposes of subsection (a) the
Beneficiary
shall be the Participant's surviving spouse. If such Participant
is not survived by a spouse, then the Participant's children then
living shall be equal Beneficiaries. If there are no such living
children, then the Beneficiary shall be the estate of the
Participant.
11.04 REQUIRED DISTRIBUTIONS TO CERTAIN PARTICIPANTS.
(a) Effective January 1, 1985, distributions will be made
in
accordance with the Regulations under Section 401(a)(9),
including the minimum distribution incidental benefit requirement
of Section 401(a)(9)(G) of the Code.
(b) Notwithstanding Section 11.01 or any Participant's
consent, distribution shall occur no later than April 1 of the
calendar year following the calendar year during which the
Participant attains age 70 1/2, whether or not his employment has
terminated; provided, however, that:
(1) Any Participant who has not at any time been a
Five
Percent Owner and who has attained age 70 1/2 before January 1,
1988 may elect to defer distribution of his benefits until his
actual retirement, and
51.
(2) Any Participant who attains age 70 1/2 during 1988
shall be treated for purposes of this Section as having attained
age 70 1/2 in 1989.
11.05 PROOF OF DEATH AND RIGHT OF BENEFICIARY. The Committee
may require and rely upon such proof of death and such evidence
of
the right of any Beneficiary to receive the Vested Value of the
Accounts of a deceased Participant as the Committee may deem
proper, and its determination of death and of the right of such
Beneficiary to receive payment shall be conclusive.
52.
ARTICLE XII
ADMINISTRATION OF THE PLAN
12.01 THE BOARD AND THE COMMITTEE.
(a) The Board shall from time to time appoint an Employee
Benefit Committee of two or more members (who may, but need not,
be
members of the Board, officers or individual general partners of
the Company or officers of the Managing General Partner of the
managing general partner) which shall be responsible for the
administration of the Plan. Such members shall serve at the
pleasure of the Company. The Committee and the members thereof
shall be deemed to be the "named fiduciaries" of the Plan for
pur-
poses of Section 402(a) of ERISA.
(b) Any member of the Committee may resign at any time by
giving written notice to the other members and to the Secretary
of
the Company, effective as therein stated. Any member of the
Committee employed by a Participating Company who leaves the
employ
of said Participating Company and who is not thereupon employed
by
any other Participating Company, shall be deemed to have resigned
as a member of the Committee on the date of his termination of
employment. Upon the death, resignation, or removal of any
member,
the Board shall appoint a successor.
12.02 ORGANIZATION OF COMMITTEE.
(a) The members of the Committee shall elect from their
number a chairman. They shall also elect a secretary who may,
but
need not, be one of the members of the Committee.
(b) The Committee shall hold meetings upon such notice, and
at such place or places and at such intervals as it may from time
to time determine.
(c) A majority of the members of the Committee at any time
in
office shall constitute a quorum for the transaction of business.
All resolutions or other actions taken by the Committee shall be
by
vote of a majority of those present at a meeting of the
Committee; or without a meeting by instrument in writing signed
by
a majority of the members of the Committee.
12.03 POWERS AND DUTIES. The Committee shall have full
discretionary authority to administer and interpret the Plan,
including discretionary authority to determine eligibility for
participation and benefits under the Plan. The Committee may,
however, delegate such discretionary authority and such duties
and
53.
responsibilities as it deems appropriate to facilitate the
day-to-
day administration of the Plan as set forth in Section 12.10.
Any
determination by the Committee or the Committee's delegate shall
be
final and conclusive upon all persons. The Committee's duties
shall include, but not be limited to, the following:
(a) To make and enforce such rules and regulations as it
shall deem necessary or proper for the efficient administration
of
the Plan and Trust;
(b) To interpret the Plan and to decide any and all matters
arising hereunder; including the right to remedy possible
ambiguities, inconsistencies or omissions; provided, however,
that
all such interpretations and decisions shall be applied in a
uniform and nondiscriminatory manner to all Employees similarly
situated;
(c) To select or establish funds or vehicles for investment
of Accounts hereunder and to establish rules for allocations of
Accounts among such funds or vehicles;
(d) To compute the Vested Value of an Account which shall
be
payable to any Participant or Beneficiary in accordance with the
provisions of the Plan;
(e) To authorize disbursements from the Trust. Any
instructions of the Committee to the Trustee or Insurance Company
shall be evidenced in writing and signed by a member of the
Committee delegated with such authority by a majority of the
Committee; and
(f) To provide for disclosure of all information and filing
or provision of all reports and statements to Participants,
Beneficiaries, or governmental bodies as shall be required by
ERISA
or the Code.
12.04 UNIFORM ADMINISTRATION. Whenever in the administration
of the Plan any action is required by the Committee, including,
but
not limited to, action with respect to valuation, such action
shall
be uniform in nature as applied to all persons similarly situated
and no such action shall be taken which will discriminate in
favor
of officers, shareholders or highly compensated Participants.
12.05 BENEFIT CLAIMS PROCEDURES.
(a) All applications for benefits under the Plan (including
applications for in-service withdrawals under Article IX) shall
be
submitted to The Newhall Land and Farming Company, Attention:
Employee Benefit Committee, 23823 Valencia Boulevard, Valencia,
California 91355. Applications for benefits (including
in-service withdrawals) must be in writing on the forms
54.
prescribed by the Committee and must be signed by the Participant
or, if he is deceased, by his Beneficiary or legal
representative.
(b) Each application shall be acted upon and approved or
disapproved within sixty (60) days following its receipt by the
Committee. In determining whether to approve or deny any
application for benefits (including in-service withdrawals), the
Committee shall exercise discretionary authority to interpret the
Plan and the facts presented with respect to such application.
If
any application for benefits is denied, in whole or in part, the
Committee shall notify the applicant in writing of such denial
and
of his right to a review by the Committee and shall set forth in
a
manner calculated to be understood by the applicant, specific
reasons for such denial, specific references to pertinent Plan
provisions on which the denial is based, a description of any
additional material or information necessary for the applicant to
perfect his application, an explanation of why such material or
information is necessary, and an explanation of the Plan's review
procedure.
(c) Any person whose application for benefits is denied in
whole or in part, or his duly authorized representative, may
appeal
from such denial to the Committee for a review of the decision by
submitting to the Committee within sixty (60) days after
receiving the written statement described above, a writing:
(1) Requesting a review of his application for
benefits
by the Committee;
(2) Setting forth all of the grounds upon which his
request for review is based and any facts in support thereof; and
(3) Setting forth any issues or comments which the
applicant deems relevant to his application.
(d) The Committee shall act upon each such application
within
sixty (60) days after the later of receipt of the applicant's
request for review by the Committee or receipt of any additional
materials reasonably requested by the Committee from such
applicant.
(e) The Committee shall make a full and fair review of each
such application and any written materials submitted by the
applicant or the employer in connection therewith and may require
the employer or the applicant to submit within thirty (30) days
of
written notice by the Committee therefor, such additional facts,
documents, or other evidence as the Committee, in its sole
discretion, deems necessary or advisable in making such review.
On
the basis of its review and in the exercise of its discretionary
authority
55.
to interpret the Plan and the facts presented with respect to the
request for review, the Committee shall make an independent
determination of the applicant's eligibility for benefits under
the
Plan. The decision of the Committee on any application for
benefits shall be final and conclusive upon all persons.
(f) If the Committee denies an application in whole or in
part, the Committee shall give written notice of its decision to
the applicant setting forth in a manner calculated to be
understood by the applicant the specific reasons for such denial
and specific references to the pertinent plan provisions on which
the Committee decision was based.
12.06 LIABILITY OF COMMITTEE MEMBERS. No member of the
Committee will be liable for any act of omission or commission
except as expressly provided by ERISA.
12.07 INDEMNITY. The Committee and the individual members
thereof shall be indemnified by the Company against any and all
liabilities arising by reason of any act or failure to act made
in
good faith pursuant to the provisions of the Plan, including
expenses reasonably incurred in the defense of any claim relating
thereto.
12.08 RELIANCE ON REPORTS AND CERTIFICATES. The Committee
will
be entitled to rely conclusively upon all certificates, opinions
and reports which will be furnished by an accountant, controller,
counsel or other person who is employed or engaged for such
purposes.
12.09 MEMBER'S OWN PARTICIPATION. No member of the Committee
may act, vote or otherwise influence a decision of the Committee
specifically relating to his own participation under the Plan.
12.10 DELEGATION OF RESPONSIBILITY. The Committee from time
to
time may allocate to one or more of its members and may delegate
to
any other persons or organizations any of its rights, powers,
duties and responsibilities with respect to the operation and
administration of the Plan and may employ, and authorize any
person
to whom any of its fiduciary responsibility has been delegated to
employ, persons to render advice with regard to any fiduciary
responsibility held thereunder; provided, however, that: (i) no
person shall be employed to exercise discretion with respect to
investments except as set forth in Section 7.09; and (ii) the
power
to select or establish investment funds or vehicles and prescribe
rules for allocation of Accounts among such funds or vehicles
under
Section 12.03(c) shall not be delegated. Any such allocation and
delegation shall be reviewed at least annually by the Committee
and
shall be terminable upon such notice as the Committee, in its
sole
discretion, deems reasonable and prudent under the circumstances.
56.
12.11 EXPENSES. Any brokerage commissions, transfer taxes
and
other charges and expenses in connection with the purchase and
sale
of securities or other property for a Fund shall be charged to
that
Fund. Any taxes payable with respect to a Fund shall likewise be
charged to that Fund. Any other investment management or trustee
expenses associated with the administration of the Plan other
than
those stated above shall be charged ratably to each Participating
Company and shall not be charged to the Trust.
57.
ARTICLE XIII
AMENDMENT AND TERMINATION
13.01 AMENDMENT. The Plan, any Trust Agreement, and any con-
tract described in Section 7.10 may be amended at any time and
from
time to time by an instrument in writing executed pursuant to
authority granted by the Board. Any such amendment shall be
effective on the date specified therein without notice to
Participants and beneficiaries. Notwithstanding the foregoing,
however, no such amendment shall:
(a) Increase the duties or responsibilities of any Trustee
or
Insurance Company without its consent thereto in writing;
(b) Have the effect of reverting in the Company or any
other
Affiliated Company the whole or any part of the principal or
income
of the Trust (except as permitted by Section 5.04) or of
diverting any part of the principal or income of the Trust to
purposes other than for the exclusive benefit of the Participants
or their Beneficiaries;
13.02 TERMINATION. The Plan and Trust hereunder is purely
voluntary on the part of the Company and each Participating
Company, and the Company and each Participating Company hereby
reserves the right in its sole discretion (subject to the consent
of the Board) to discontinue its contributions to the Plan or to
terminate the Plan, the Trust Agreement, each contract described
in
Section 7.10, and the Trust hereunder with respect to its
Employees. For the purposes of this Section, a partial
termination shall be deemed to occur only if an event is
determined
to be a partial termination within the meaning of Section
411(d)(3)(A) of the Code, where such determination is either (i)
made or agreed to by the Committee, or (ii) made by the Internal
Revenue Service and approved by a final decision of a court of
competent jurisdiction. Upon complete termination or partial
termination of the Plan, benefits shall be distributed to such
Participants as may be affected, as soon as practicable;
provided,
however, that no amount in an ESOP Account representing the
proceeds of sale of stock of The Newhall Land and Farming
Company,
a corporation (or of depositary receipts received in exchange for
such stock) shall be distributed until permitted under Section
409(d) of the Code.
13.03 SUCCESSORS. In case of the merger, consolidation,
liquidation, dissolution or reorganization of a Participating
Company, or the sale by a Participating Company of all or
substantially all of its assets, provision may be made in written
agreement between the Company and any successor corporation or
other entity acquiring or receiving a substantial part of such
Participating Company's assets, whereby the Plan, each Trust
Agree-
ment and each contract described in Section 7.10 will be
continued by the successor. If the Plan is to be
58.
continued by the successor, then effective as of the date of the
applicable event the successor shall be substituted for the
Participating Company under the Plan and the Trust Agreement.
The
substitution of a successor for a Participating Company shall not
constitute a termination of the Plan for any purpose.
13.04 MERGER OR TRANSFER OF PLAN ASSETS. No merger or
consolidation with, or transfer of assets or liabilities of the
Plan to, any other plan shall occur unless each Participant in
the
Plan would, if the Plan terminated immediately after such merger,
consolidation, or transfer of assets or liabilities, receive a
benefit equal to or greater than the benefit that he would have
been entitled to receive immediately before such merger,
consolidation or transfer if the Plan had then terminated.
13.05 EFFECT OF AMENDMENTS BY PARTICIPATING COMPANIES.
Except
for technical amendments, an amendment to the Plan shall be
binding
upon a Participating Company and its employees when approved in
writing by the Participating Company.
59.
ARTICLE XIV
MISCELLANEOUS
14.01 SOURCE OF PAYMENT. Benefits under the Plan shall be
payable only out of the Trust, and no Participating Company shall
have any legal obligation, responsibility or liability to make
any
direct payment of benefits under the Plan. Neither the
Participating Companies, the Trustee nor the Insurance Company
guarantees the Trust against any loss or depreciation or
guarantees the payment of any benefits hereunder. No persons
shall
have any rights under the Plan with respect to the Trust, or
against the Trustee, Insurance Company, Company or any
Participating Company, except as specifically provided for
herein.
14.02 INALIENABILITY OF BENEFITS.
(a) Subject to subsection (b), benefits under the Plan or
from the Trust may not be assigned or hypothecated, and except to
the extent required by law, no such benefits shall be subject to
legal process or attachment for the payment of any claim against
any person entitled to receive the same.
(b) The prohibition set forth in subsection (a) shall apply
to the creation, assignment or recognition of a right to any
benefit payable with respect to a Participant pursuant to a
Domestic Relations Order (as defined in subsection (c)) unless
the
order is determined to be a Qualified Domestic Relations Order
(as
defined in subsection (d)). Benefits shall be paid in accordance
with the applicable requirements of any Qualified Domestic
Relations Order.
(c) For purposes of this Section, the term "Domestic
Relations Order" means any judgment, decree or order (including
approval of a property settlement agreement) which relates to the
provision of child support, alimony payments or marital property
rights to a spouse, former spouse, child, or other dependent of a
Participant, and is made pursuant to a State domestic relations
law
(including a community property law).
(d) For purposes of this Section, the term "Qualified
Domestic Relations Order" means: (i) a Domestic Relations Order
which creates or recognizes the existence of an alternate payee's
right, or assigns to an alternate payee the right, to receive all
or a portion of the benefits payable with respect to a
Participant under the Plan and with respect to which the
requirements of Section 206(d)(3) of ERISA are met; or (ii) any
other Domestic Relations Order entered prior to January 1, 1985
if:
(I) benefits are being paid by the Plan under such order as of
January 1,
60.
1985; or (II) the Committee elects to treat such order as a
Qualified Domestic Relations Order.
(e) In the case of any Domestic Relations Order received by
the Plan,
(1) The Committee shall promptly notify the
Participant
and any other alternate payee of the receipt of such order and
the
procedures for determining the qualified status of Domestic
Relations Orders, and
(2) Within a reasonable period after receipt of such
order, the Committee shall determine whether such order is a
Qualified Domestic Relations Order and notify the Participant and
each alternate payee of such determination.
(f) The Committee shall establish reasonable procedures to
determine the qualified status of Domestic Relations Orders, to
account separately for amounts during such determination, and to
administer distributions under such orders.
14.03 NO RIGHT TO EMPLOYMENT. Nothing contained herein nor
any
action taken under the provisions hereof shall be construed as
giving any Employee the right to be retained in the employ of his
employer.
14.04 PAYMENTS TO MINORS OR INCOMPETENTS. If a Participant
or
Beneficiary entitled to receive payments hereunder is a minor or
is
deemed by the Committee or is adjudged to be legally incapable of
giving valid receipt and discharge for such payments, they will
be
paid to such persons as the Committee might designate or to the
duly appointed guardian or conservator. Any such payment shall
be
made for the account of such person and shall discharge the Plan
of
any liability therefor.
14.05 RETURN OF CONTRIBUTIONS. This Plan is intended to
qualify, and the Trust is intended to be exempt from tax, under
the
provisions of Section 401(a) and Section 501(a) of the Code, and
all contributions hereunder are intended to be deductible under
Section 404 of the Code. Therefore, all assets held by the
Trustee
or held by any Insurance Company must be held for the exclusive
benefit of the Participants and their Beneficiaries, and such
assets may never revert to or inure to the benefit of a
Participating Company except under the conditions set forth in
Section 5.04.
14.06 ELIGIBLE ROLLOVER DISTRIBUTION.
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to
the
contrary that would
61.
otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed
by
the Plan Administrator, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement
Plan
specified by the Distributee in a Direct Rollover.
(b) For purposes of this Section:
(1) "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the credit
of
the Distributee, except that an Eligible Rollover Distribution
does
not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the
Distributee and the Distributee's designated Beneficiary, or for
a
specified period of ten years or more; any distribution to the
extent such distribution is required under section 401(a)(9) of
the
Code; and the portion of any distribution that is not includable
in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(2) Eligible Retirement Plan means an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a
qualified trust described in Section 401(a) of the Code, that
accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
(3) Distributee means an Employee or former Employee.
In addition, the Employee's or former Employee's surviving spouse
and the Employee's or former Employee's spouse or former spouse
who
is the alternate payee under a qualified domestic relations
order,
as defined in Section 414(p) of the Code, are Distributees with
regard to the interest of the spouse or former spouse.
(4) Direct Rollover means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
14.07 APPLICABLE LAW. The Plan shall be construed,
administered and governed in all respects in accordance with
ERISA
and other pertinent federal laws and in accordance with the laws
of
the State of California to the extent not preempted
62.
by ERISA; provided, however, that if any provision is susceptible
of more than one interpretation, such interpretation shall be
given
thereto as is consistent with the Plan being a qualified
employees'
pension plan within the meaning of the Code. If any provision of
this Plan shall be held by a court of competent jurisdiction to
be
invalid or unenforceable, the remaining provisions of the Plan
shall continue to be fully effective.
63.
ARTICLE XV
TOP-HEAVY RULES
15.01 DEFINITIONS. For purposes of this Article XV, the
following terms shall have the meanings indicated:
(a) Determination Date shall mean, for any Plan Year, the
last day of the preceding Plan Year.
(b) Key Employee with respect to a particular Participating
Company for a particular Plan Year, a Participant or former
Participant (or the Beneficiary of a deceased Participant) who,
at
any time during the Plan Year containing the Determination Date
for
the Plan Year in question or any of the four immediately
preceding Plan Years, was:
(1) An officer of such Participating Company or any of
its Related Companies having aggregate annual Remuneration from
all
such entities for a Plan Year greater than one hundred fifty
percent (150%) of the maximum dollar limitation in effect under
Code Section 415(c)(1)(A) for the calendar year in which such
Plan
Year ended;
(2) One of the ten employees of such Participating
Company or any of its Related Companies owning the largest
interests in value of any such entity, provided that: (i) such
employee owns more than a one-half percent ( 1/2%) interest in
such
entity; and (ii) such employee's aggregate annual Remuneration
from
all such entities exceeds the maximum dollar limitation under
Section 415(c)(1)(A) of the Code;
(3) A Five-Percent Owner of such Participating Company
or any of its Related Companies; or
(4) A One-Percent Owner of such Participating Company
or
any of its Related Companies whose aggregate annual Remuneration
from all such entities exceeds $150,000.
The determination of Key Employee status shall be made
pursuant to the following:
(I) For purposes of determining ownership in any
entity
under this subsection, the attribution principles of Section 318
of
the Code shall apply by substituting "5%" for "50%" in Section
318(a)(2)(C).
64.
(II) For purposes of item (I) above, the individuals
actually considered as Key Employees with respect to a
Participating Company by virtue of being officers: (i) shall not
in number exceed the lesser of fifty (50) or that number not in
excess of the greater of three (3) officers or ten percent (10%)
of
the total number of employees of the Participating Company and
its
Related Companies; and (ii) shall be those individuals belonging
to
the group of all Participants determined to be officers for the
Plan Year containing the Determination Date or any of the
preceding four (4) Plan Years, who received the highest annual
Remuneration from such entities for any Plan Year during such
five
(5) year period. Notwithstanding the preceding sentence, no
entity
other than a corporation shall be deemed to have officers for
purposes of clause (1) for any Plan Year beginning before March
1,
1985.
(III) For purposes of item (II) above, should two
employees own the same percentage interest in an entity, then the
employee having the greater annual Remuneration shall be deemed
to
own the larger percentage interest.
(c) Top-Heavy Ratio of a plan or group of plans with
respect to a particular Participating Company and its Related
Companies shall be a fraction, the numerator of which is the sum
of: (i) the present value of all cumulative accrued benefits for
all Key Employees under this Plan and under each other defined
benefit plan included in the determination; and (ii) the account
balances for all Key Employees under each defined contribution
plan
(including any simplified employee pension plan) included in the
determination, and the denominator of which is the sum of: (A)
the
present value of the cumulative accrued benefits for all
Participants under this Plan and each other defined benefit plan
included in the determination; and (B) the account balances for
all
Participants under each defined contribution plan (including any
simplified employee pension plan) included in the determination,
disregarding any accrued benefits or account balances not
provided with respect to an Employee of such Participating
Company
or any of its Related Companies.
In determining the Top-Heavy Ratio with respect to a
particular Participating Company, the following rules apply:
(1) In determining the accrued benefits and account
balances of a Participant employed by a particular Participating
Company, benefits attributable to service with an entity other
than
such Participating Company or any of its Related Companies
(including service with a predecessor employer) shall be
excluded.
65.
(2) Present value of accrued benefits shall be
calculated in accordance with the provisions of the Plan (or such
other defined benefit plan to which such benefits pertain). The
value of account balances shall be determined as of the most
recent
valuation date that falls within or ends with the 12-month period
ending on the Determination Date. Amounts attributable to
employer contributions and employee contributions (other than
deductible contributions) shall be taken into account. In the
event that two or more plans with different plan years are
included
in the determination, accrued benefits under such plans shall be
aggregated as of the Determination Dates for such plans that fall
within the same calendar year. Account balances and accrued
benefits so determined shall be adjusted for the amount of any
contributions: (i) made after the date of such valuation but on
or
before the Determination Date; or (ii) due but unpaid as of the
Determination Date, and, except as otherwise provided in
paragraphs (3) or (4) below, shall include any amount distributed
during the 5-year period ending on the Determination Date.
(3) The accrued benefit of any Participant who is not
a
Key Employee with respect to the Plan Year in question, will be
treated as accruing at the slowest rate applicable to any plan
maintained by the Participating Company.
(4) With respect to a transfer from one qualified plan
to another (by rollover or plan-to-plan transfer) which is: (i)
incident to a merger or consolidation of two or more plans or a
division of a single plan into two or more plans; (ii) made
between
two plans maintained by the same employer or by employers
required to be aggregated under Section 414(b), (c), or (m) of
the
Code; or (iii) otherwise not initiated by the employee, a
Participant's accrued benefit or account balance under a plan
shall
include any amount attributable to any such transfer received or
accepted by such plan on or before the Determination Date but
shall
not include any amount transferred by such plan to any other plan
in such a transfer on or before the Determination Date. With
respect to any rollover or plan-to-plan transfer not described in
the preceding sentence, a Participant's accrued benefit or
account
balance under a plan shall include: (I) any amount distributed or
transferred by such plan, unless the distributed or transferred
amount is excludable under paragraph (2); and (II) any amount
attributable to assets received in any such transfer accepted
prior
to January 1, 1984, but such accrued benefit or account balance
shall not include any amount attributable to assets received by
such plan in any such transfer accepted after December 31, 1983.
66.
(5) No accrued benefit or account balance for any
Participant shall be taken into account with respect to: (i) a
Participant who is not a Key Employee with respect to the Plan
Year
in question, but who was a Key Employee with respect to a prior
Plan Year; or (ii) for Plan Years commencing after December 31,
1984, an Employee who has not performed services for the
Participating Company or any of its Related Companies within the
five (5)-year period ending with the Determination Date.
(6) Account shall be taken of any accrued benefit or
account balance payable to a beneficiary (or group of
beneficiaries) after the death of a Participant by disregarding
the
death of such Participant.
(d) Required Aggregation Group means a group of two or more
plans consisting of: (i) a qualified plan of a Participating
Company or any of its Related Companies (including a simplified
employee pension plan) in which at least one Key Employee
participates (or has participated in the five (5)-year period
ending with the Determination Date); and (ii) any other qualified
plan or plans which enable the plan described in (i) to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
(e) Permissive Aggregation Group means a group of plans
consisting of: (i) one or more qualified plans of a Participating
Company in which at least one Key Employee participates (or has
participated in the five (5)-year period ending with the
Determination Date) or one or more Required Aggregation Groups of
plans; and (ii) any other qualified plan or plans of the
Participating Company or any of its Related Companies which, when
considered as a group with the plan or plans specified in (i),
would continue to satisfy the requirements of Sections 401(a)(4)
and 410 of the Code.
15.02 TOP-HEAVY STATUS.
(a) Subject to subsection (b), with respect to a particular
Participating Company, this Plan shall be considered "Top-Heavy"
with respect to any Plan Year if, as of the Determination Date
for
such Plan Year, either:
(1) The Top-Heavy Ratio for the Participating
Company's
portion of this Plan exceeds sixty percent (60%) and the
Participating Company's portion of this Plan is not part of any
Required Aggregation Group; or
67.
(2) The Participating Company's portion of this Plan
is
part of a Required Aggregation Group of plans and the Top-Heavy
Ratio for the Required Aggregation Group exceeds sixty percent
(60%).
(b) Notwithstanding subsection (a), if the Participating
Company's portion of this Plan is part of one or more Permissive
Aggregation Groups of plans for which the Top-Heavy Ratio does
not
exceed sixty percent (60%), this Plan shall not be Top-Heavy with
respect to such Participating Company.
15.03 MINIMUM BENEFIT.
(a) With respect to any Plan Year for which the Plan is
Top-
Heavy, each Participant who is not a Key Employee, and who has
not
ceased to be an Employee prior to the end of such Plan Year,
shall
be entitled to a contribution under this section. No Participant
otherwise entitled to an allocation under this subsection shall
be
ineligible for such allocation solely because he or she has not
completed 1,000 Hours of Service for the Plan Year.
(b) Solely for the purposes of this section, years of
Cumulative Vesting Service shall not include a particular year of
service if: (i) the Plan was not Top-Heavy with respect to such
Participating Company for any Plan Year ending during such year
of
service; or (ii) such year of service was completed in a Plan
Year
beginning before January 1, 1984.
(c) The benefit of each Participant who meets the
requirements of subsection (a), and who does not participate in
any
defined benefit plan of any Affiliated Company, shall be such
Participant's Company Contribution (including forfeitures) under
the other provisions of the Plan; provided that the total
employer
contribution (including forfeitures) allocated to the Account of
such Participant shall be not less than an amount which, when
added
to such Participant's allocable share of employer contributions
and
forfeitures under any other defined contribution plan of any of
the
Affiliated Companies, equals at least 4% of his or her
Remuneration. The benefit described in this subsection (b) is
subject to the following:
(i) In the event that the percentage of employer
contributions and forfeitures under the plans in which such
Participant participates for the Plan Year on behalf of the Key
Employee for whom such percentage is greatest is less than 4% of
such Key Employee's Remuneration for the Plan Year, then such
Participant shall not be entitled to a contribution under this
subsection (b) for the Plan Year in excess of such percentage of
such Participant's
68.
Remuneration, unless this Plan enables a defined benefit plan
included in a Required Aggregation Group with this Plan to
satisfy the requirements of Section 401(a) or 410 of the Code
(except the average benefits test).
(ii) Notwithstanding the preceding paragraph, if the
highest rate allocated to a Key Employee is less than 3%, amounts
contributed as a result of a salary reduction agreement shall be
included when determining contributions made on behalf of Key
Employees.
(iii) If a Participant also participates in a defined
benefit plan of an Affiliated Company, then the minimum
contribution requirement of this Section with respect to such
Participant shall be fulfilled in accordance with the floor
offset
approach under which the defined benefit minimum is provided in
the
Retirement Plan and is offset by the benefits provided under the
this Plan.
15.04 EARNINGS LIMIT. With regard to any Plan Year for which
the Plan is Top-Heavy with respect to a particular Participating
Company, neither the annual Remuneration nor the annual Earnings
of
any Participant from such Participating Company and all its
Related
Companies taken into account for any purpose under the Plan
(other
than for the purposes of Sections 5.03) shall exceed the limit in
effect under Section 401(a)(17) of the Code (as adjusted by the
Commissioner for increase in cost of living for such year).
15.05 LIMITATION ON ANNUAL ADDITIONS. With regard to any
Plan
Year for which the Plan would be Top-Heavy with respect to a
particular Participating Company if "ninety percent (90%)" were
substituted for "sixty percent (60%)" each place it appears in Section 15.02,
Section 5.04 shall be modified by substituting
"1.0"
in place of "1.25" in the definitions of "Defined Contribution
Fraction" and "Defined Benefit Fraction" with respect to such
Participating Company and its Related Companies, provided that in
no event shall the accrued benefit or account balance of any
Participant be reduced below the amount of such accrued benefit
or
account balance immediately before the Plan becomes Top-Heavy
with
respect to such Participating Company.
69.
ARTICLE XVI
EXECUTION
To record the adoption of this amendment and restatement,
Newhall Management Corporation, a California corporation,
managing
general partner of Newhall Management Limited Partnership, a
California limited partnership, managing general partner of The
Newhall Land and Farming Company, a California limited
partnership, has caused this Plan to be executed on behalf of
such
partnership by its duly authorized officer this 9th day of May,
1994.
THE NEWHALL LAND & FARMING COMPANY
(A CALIFORNIA LIMITED PARTNERSHIP)
By: NEWHALL MANAGEMENT LIMITED PARTNERSHIP,
MANAGING GENERAL PARTNER
By: NEWHALL MANAGEMENT CORPORATION,
MANAGING GENERAL PARTNER
By /s/ Robert D. Wilke
__________________________________
Robert D. Wilke
Its Vice Chairman
70.