Exhibit 10.19
ESI EXCESS PENSION PLAN
TABLE OF CONTENTS
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ARTICLE I ESTABLISHMENT AND PURPOSE OF THE PLAN . . . . . . . . . . . . . . . 1
Section 1.01. Establishment of the Plan. . . . . . . . . . . . . . 1
Section 1.02. Purpose of the Plan. . . . . . . . . . . . . . . . . 1
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE III ELIGIBILITY AND MEMBERSHIP . . . . . . . . . . . . . . . . . . . . 3
Section 3.01. Eligibility. . . . . . . . . . . . . . . . . . . . . 3
Section 3.02. Membership . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 4.01. Amount of Benefit . . . . . . . . . . . . . . . . . 3
Section 4.02. Form and Timing of Payment . . . . . . . . . . . . . 3
Section 4.03. Death Benefits . . . . . . . . . . . . . . . . . . . 4
Section 4.04. Small Benefits . . . . . . . . . . . . . . . . . . . 4
Section 4.05. Facility of Payment . . . . . . . . . . . . . . . . 4
ARTICLE V NONALIENATION OF BENEFITS . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE VI ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 6.01. Plan Administrator . . . . . . . . . . . . . . . . . 4
Section 6.02. Removal and Replacement of Committee Members . . . . 4
Section 6.03. Disqualification and Resignation . . . . . . . . . . 5
Section 6.04. Chairman, Services, and Counsel . . . . . . . . . . 5
Section 6.05. Meetings . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.06. Quorum . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.07. Action Without Meeting . . . . . . . . . . . . . . . 5
Section 6.08. Correction of Defects . . . . . . . . . . . . . . . 5
Section 6.09. Reliance Upon Legal Counsel. . . . . . . . . . . . . 5
Section 6.10. Expenses . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.11. Indemnification. . . . . . . . . . . . . . . . . . . 5
Section 6.12. Powers and Duties of Committee . . . . . . . . . . . 6
ARTICLE VII BENEFIT CLAIMS PROCEDURES . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VIII NATURE OF INTEREST OF MEMBER . . . . . . . . . . . . . . . . . . . 7
Section 8.01. Unsecured General Creditor . . . . . . . . . . . . . 7
Section 8.02. Trust Fund . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Section 9.01. No Member Contributions. . . . . . . . . . . . . . . 7
Section 9.02. Employer Contributions . . . . . . . . . . . . . . . 7
ARTICLE X AMENDMENT AND TERMINATION8
Section 10.01. Authority to Amend. . . . . . . . . . . . . . . . . 8
Section 10.02. Merger, Consolidation, or Change in Control . . . . 8
ARTICLE XI CONTINUED APPROVAL OF PENSION PLANS . . . . . . . . . . . . . . . . 8
ARTICLE XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 12.01. No Enlargement of Employee Benefits . . . . . . . . 8
Section 12.02. Board of Directors . . . . . . . . . . . . . . . . 9
Section 12.03. No Impact on Other Benefits . . . . . . . . . . . . 9
Section 12.04. No Individual Liability . . . . . . . . . . . . . . 9
Section 12.05. Notice of Address . . . . . . . . . . . . . . . . . 9
Section 12.06. Data . . . . . . . . . . . . . . . . . . . . . . . 9
Section 12.07. Misstatements . . . . . . . . . . . . . . . . . . . 9
Section 12.08. Taxes . . . . . . . . . . . . . . . . . . . . . . . 9
Section 12.09. Governing Laws . . . . . . . . . . . . . . . . . . 9
Section 12.10. Severability . . . . . . . . . . . . . . . . . . . 10
Section 12.11. Headings . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE XIII PARTICIPATION BY OTHER EMPLOYERS . . . . . . . . . . . . . . . . . 10
Section 13.01. Adoption of the Plan . . . . . . . . . . . . . . . 10
Section 13.02. Withdrawal from Participation . . . . . . . . . . . 10
Section 13.03. ESI as Agent for Employers . . . . . . . . . . . . 10
ARTICLE IV CONTINUANCE BY A SUCCESSOR . . . . . . . . . . . . . . . . . . . . 10
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ESI EXCESS PENSION PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE OF THE PLAN
SECTION 1.01. ESTABLISHMENT OF THE PLAN. ESI hereby establishes
the Plan, effective as of June 9, 1998, as an unfunded plan of deferred
compensation for the benefit of a select group of management and highly
compensated employees.
SECTION 1.02. PURPOSE OF THE PLAN. The purpose of the Plan is to
restore benefits earned, but not available, to Eligible Employees because of
certain limits imposed on qualified retirement plan benefits by the Code.
ARTICLE II
DEFINITIONS
As used in this document, the following words and phrases, when
capitalized, will have the meaning set forth below, unless a different
meaning is plainly required by the context:
SECTION 2.01. "Actuarial Equivalent" means "Actuarial Equivalent"
as defined in Section 2.01 of the Pension Plan.
SECTION 2.02. "Annuity Starting Date" means, with respect to a
Member, the Member's "Annuity Starting Date," as defined in Section 2.01 of
the Pension Plan.
SECTION 2.03. "Beneficiary" means, with respect to each Member,
the person or persons who are to receive benefits under the Pension Plan
after the Member's death.
SECTION 2.04. "Board of Directors" means the duly constituted
board of directors of ESI.
SECTION 2.05. "Claimant" means a person submitting a claim for
benefits under the Plan.
SECTION 2.06. "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and interpretive rulings and regulations.
SECTION 2.07. "Committee" means the committee established pursuant
to Section 6.01 to serve as administrator of the Plan.
SECTION 2.08. "Eligible Employee" means an Employee who is (1) a
highly compensated employee within the meaning of Code subsection 414(q), (2)
eligible to participate
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in the Pension Plan, and (3) designated by the compensation committee of the
Board of Directors as a key management employee who is eligible for
membership in the Plan pursuant to Article III.
SECTION 2.09. "Employee" means any person employed by the Employer
as a salaried employee, who is paid from a payroll maintained in the United
States, and who receives compensation that the Employer initially reports on
the Federal Wage and Tax Statement (Form W-2).
SECTION 2.10. "Employer" means ESI and any Related Employer that
adopts the Plan pursuant to Article XIII.
SECTION 2.11. "ESI" means ITT Educational Services, Inc. and any
corporation that succeeds to its business and adopts the Pension Plan and
this Plan.
SECTION 2.12. "Limitations" means (a) the limitation on
compensation imposed by Code paragraph 401(a)(17), as reflected in the
applicable provisions of the Pension Plan; and (b) the limitations on
benefits imposed by Code subsections 415(b) and (e), as reflected in the
applicable provisions of the Pension Plan.
SECTION 2.13. "Maximum Benefit" means the maximum benefit
permitted by Limitations payable to a Member under the Pension Plan.
SECTION 2.14. "Member" means any Employee who has been designated
as an Eligible Employee pursuant to Article III and for whom benefits are to
be provided under the Plan.
SECTION 2.15. "Pension Plan" means the Code qualified pension plan
known as the "ESI Pension Plan," as amended from time to time.
SECTION 2.16. "Plan" means the unfunded, nonqualified pension plan
known as the "ESI Excess Pension Plan," as set forth in this instrument, as
it may be amended from time to time.
SECTION 2.17. "Plan Year" means the period from June 9, 1998
through December 31, 1998, and any subsequent calendar year.
SECTION 2.18. "Related Employer" means any employer that, together
with ESI, is under common control or a member of an affiliated service group,
as determined under Code subsections 414(b), (c), (m), and (o).
SECTION 2.19. "Unrestricted Benefit" means, with respect to any
Member, the benefit to which the Member would have been entitled under
Pension Plan, if that benefit had been determined without regard to the
Limitations.
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The use of singular and masculine words are for practical purposes
only and will be deemed to include the plural and feminine, respectively, unless
the context plainly indicates a distinction. Certain other definitions, as
required, appear in the following Articles of the Plan.
ARTICLE III
ELIGIBILITY AND MEMBERSHIP
SECTION 3.01. ELIGIBILITY. The Plan is intended to be an unfunded
plan of deferred compensation for a select group of management and highly
compensated Employees. An Employee shall be an Eligible Employee and thereby
eligible for membership in this Plan only if (1) the Employee is a highly
compensated employee within the meaning of Code subsection 414(q); (2) the
Employee is eligible to participate in the Pension Plan; and (3) the Employee
is designated by the Compensation Committee of the Board of Directors as a
key management employee who is eligible for membership in the Plan.
SECTION 3.02. MEMBERSHIP.
(a) An Eligible Employee shall become a Member as of the date
designated by the compensation committee of the Board of Directors.
(b) A Member shall cease to be a Member as of the date his
benefits under the Plan are totally distributed to him or on his behalf.
(c) If a former Member is reemployed by the Employer, he shall
become a Member again only if and when he satisfies, subsequent to his
reemployment, the eligibility and membership requirements of Sections 3.01
and 3.02, respectively.
ARTICLE IV
BENEFITS
SECTION 4.01. AMOUNT OF BENEFIT. Upon a Member's Annuity Starting
Date, the between his Unrestricted Benefit and his Maximum Benefit. The benefit
payable under this Plan will be calculated after the Member's benefits payable
under the Pension Plan are calculated.
SECTION 4.02. FORM AND TIMING OF PAYMENT.
(1) The form of an excess benefit payable under the Plan to a Member
will be the same form in which a benefit is payable to the Member under
Article VII of the Pension Plan.
(2) The payment of a Member's excess pension benefits under this
Plan will begin as of the same date his benefits under the Pension Plan
begin.
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SECTION 4.03. DEATH BENEFITS. If a Member dies before his Annuity
Starting Date, the Committee or its designee will pay the Member's excess
pension benefit under the Plan to the Member or his Beneficiary at the same time
and in the same form that a death benefit is paid to the Beneficiary under
Article VII of the Pension Plan.
SECTION 4.04. SMALL BENEFITS. Notwithstanding any other provision of
the Plan, where the Actuarial Equivalent present value of a Member's excess
pension payable under this Plan does not exceed $5,000, the Committee or its
designee will pay the excess pension benefit to the Member or his Beneficiary in
a single-sum cash payment equal to the Actuarial Equivalent of the excess
pension benefit otherwise payable.
SECTION 4.05. FACILITY OF PAYMENT. If any benefit under the Plan is
payable to a person whom the Committee knows is a minor or otherwise under legal
incapacity, the Committee or its designee may have the payment made to the legal
guardian of that person or to the person or organization as a court of competent
jurisdiction may direct. To the extent permitted by law, any payment under this
Section will be a complete discharge of any liability under the Plan to that
person.
ARTICLE V
NONALIENATION OF BENEFITS
The Plan will not in any manner be liable for, or subject to, the
debts or liabilities of any Member, Beneficiary, or any other person entitled
to any Plan benefit. No payee may assign any payment due him under the Plan.
No pension or other benefits at any time payable under the Plan will be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, attachment, garnishment, levy, execution, or other legal
or equitable process, or encumbrance of any kind. Any attempt to alienate,
sell, transfer, assign, or otherwise encumber any such benefit, whether
presently or thereafter payable, will be void.
ARTICLE VI
ADMINISTRATION
SECTION 6.01. PLAN ADMINISTRATOR. The ESI Employee Benefits
Plan Administration and Investment Committee will be the administrator of the
Plan. The Committee will consist of the number of members, not fewer than 3,
that is specified from time to time by the Board of Directors or its
designee. A person must be an officer or employee of the Employer to be a
member of the Committee. All members of the Committee will serve without
compensation.
SECTION 6.02. REMOVAL AND REPLACEMENT OF COMMITTEE MEMBERS. The
members of the Committee will hold membership at the pleasure of the Board of
Directors and may be removed by the Board of Directors or its designee with
or without cause. Any vacancy among the members will be filled by the Board
of Directors or its designee.
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SECTION 6.03. DISQUALIFICATION AND RESIGNATION. On the date when
a Committee member is neither an employee nor an officer of an Employer, he
will be disqualified from membership on the Committee. A member of the
Committee may resign by delivering his written resignation to any other
member of the Committee or to the Board of Directors. A resignation will
become effective on the date specified in the instrument of resignation.
SECTION 6.04. CHAIRMAN, SERVICES, AND COUNSEL. The members of the
Committee will elect one of their members as Chairman and will elect a
Secretary, who may be, but need not be, one of the members of the Committee.
The Employer will provide the Committee, at the Employer's expense, with such
clerical, accounting, actuarial, and other services as the Committee may
reasonably require to carry out its responsibilities. The Committee may
employ counsel, who may be, but need not be, counsel to the Employer.
SECTION 6.05. MEETINGS. The Committee will hold meetings upon
such notice, at the places, and at such times as the Committee may from time
to time determine.
SECTION 6.06. QUORUM. A majority of the members of the Committee
at the time holding office will constitute a quorum for the transaction of
business. All resolutions and other actions taken by the Committee at any
meeting will be by the vote of the majority of the members of the Committee
present at the meeting.
SECTION 6.07. ACTION WITHOUT MEETING. Any decision, order,
direction, or other action made in writing and signed by a majority of the
members of the Committee at the time holding office will constitute valid and
effective action of the Committee, whether or not the matter to which that
decision, order, direction, or other action pertains has already been acted
upon at a duly called and held meeting of the Committee.
SECTION 6.08. CORRECTION OF DEFECTS. The Committee may correct
any defect or supply any omission or reconcile any error or inconsistency in
its previous proceedings, decisions, orders, directions, or other actions in
such manner and to the extent as it deems advisable to carry out the Plan's
purposes.
SECTION 6.09. RELIANCE UPON LEGAL COUNSEL. The members of the
Committee, and the Employer and its officers and directors, will be entitled
to rely upon all opinions given by legal counsel selected by the Committee.
SECTION 6.10. EXPENSES. In the performance of its duties, the
Committee is authorized to incur reasonable expenses, including counsel fees,
which will be paid by the Employer.
SECTION 6.11. INDEMNIFICATION. The Employer agrees to indemnify
and hold harmless each member of the Committee against any cost, expense, or
liability (including any sum paid in settlement of any claim with the
approval of the Board of Directors) arising out of any act or omission to act
as a member of the Committee, except only acts and omissions representing
willful misconduct, fraud, or lack of good faith.
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SECTION 6.12. POWERS AND DUTIES OF COMMITTEE. Subject to the
specific limitations stated in this document, the Committee will have the
following powers, duties, and responsibilities:
(a) to carry out the Plan's general administration;
(b) to cause to be prepared all forms necessary or appropriate for
the Plan's administration;
(c) to keep appropriate books and records, including minutes of the
Committee's meetings;
(d) to give directions as to the amounts to be disbursed to
Participants and others under the Plan's provisions;
(e) to determine, with discretionary authority and consistent with
the provisions of this Plan, all questions of the eligibility, rights, and
status of Members and others under the Plan;
(f) to exercise all other powers, duties, and responsibilities
specifically conferred upon the Committee elsewhere in this document;
(g) to interpret, with discretionary authority, the provisions of
the Plan and to resolve, with discretionary authority, all disputed
questions of Plan interpretation and benefit eligibility; and
(h) to employ agents to assist it in performing its administrative
duties.
The Committee will at all times make similar decisions on similar questions
involving similar circumstances. Subject to the provisions of Article VII,
all decisions of the Committee made in good faith on all matters within the
scope of its authority under the provisions of this Plan will be final and
binding upon all persons.
ARTICLE VII
BENEFIT CLAIMS PROCEDURES
Claims for benefits under the Plan will be made in writing to the
Committee or its designee. If a claim for benefits is wholly or partially
denied, the Committee or its designee will notify the Claimant of the claim's
denial within a reasonable period of time. The Committee or its designee is
authorized to develop more fully the Plan's benefit claims procedures by
establishing from time to time various rules and procedures.
Within 60 days after the Claimant's receipt of written notice of
the claim's denial, the Claimant, or his duly authorized representative, may
file a written request with the Committee requesting a full and fair review
of the denial of the Claimant's claim for benefits. In
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connection with the Claimant's appeal of the denial of his claim for
benefits, the Claimant may review pertinent documents in the Committee's
possession and may submit issues and comments in writing. The Committee will
make a decision on review promptly after receipt of the Claimant's request
for review. The decision on review will be in writing and written in a
manner calculated to be understood by the Claimant, and will set forth the
specific reason or reasons for the decision and will contain a specific
reference to the pertinent Plan provisions on which the decision is based.
If the decision on review is not furnished to the Claimant within 60 days of
receipt of the request for review, the claim will be deemed denied on review.
ARTICLE VIII
NATURE OF INTEREST OF MEMBER
SECTION 8.01. UNSECURED GENERAL CREDITOR. The interest of Members
and Beneficiaries in the Plan shall be that of unsecured general creditors,
with no secured or preferential right to any assets of ESI or any Employer or
any other party for payment of benefits under this Plan. Any property held
by ESI or any Employer for the purpose of generating cash flow for benefit
payment shall remain as general, unpledged, and unrestricted assets. Any
Employer's obligation under the Plan shall be an unfunded and unsecured
promise to pay benefits in the future.
SECTION 8.02. TRUST FUND. The applicable Employer shall be
responsible for the payment of benefits provided under the Plan. At its
discretion, the Employer may establish one or more trusts, with such trustees
as the Board of Directors may approve, for the purpose of providing for the
payment of Plan benefits. Any trustees that are appointed shall be bonded in
a manner satisfactory to the Employer. Whether or not such a trust is
irrevocable, its assets shall at all times be subject to the claims of the
Employer's general creditors in the event of the Employer's insolvency. To
the extent any benefits provided under the Plan are paid from such a trust,
the Employer shall have no further obligation to pay Plan benefits. Plan
benefits not paid from the trust shall remain the obligations of the
Employer.
ARTICLE IX
CONTRIBUTIONS
SECTION 9.01. NO MEMBER CONTRIBUTIONS. No contributions to the Plan
by Members will be required or permitted under the Plan.
SECTION 9.02. EMPLOYER CONTRIBUTIONS. During the continuance of the
Plan and for purposes of providing the benefits contemplated under the Plan,
each Employer intends to pay out of its general assets, from time to time, those
sums of money that the Committee deems sufficient to provide the benefits under
the Plan.
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ARTICLE X
AMENDMENT AND TERMINATION
SECTION 10.01. AUTHORITY TO AMEND. ESI, by resolution of its
Board of Directors or by any person or persons duly authorized by resolution
by ESI's Board of Directors, will have the right, authority, and power to
alter, amend, modify, revoke, or terminate the Plan, and ESI, by resolution
of its Board of Directors or by any person or persons duly authorized by
resolution by the Board of Directors, will also have the right, authority,
and power to terminate the Plan and to discontinue or suspend the payment of
benefits under the Plan.
SECTION 10.02. MERGER, CONSOLIDATION, OR CHANGE IN CONTROL. If
ESI should be reorganized by merger, consolidation, transfer of assets, or
otherwise, so that a corporation, partnership, or person shall succeed to all
or substantially all of ESI's business, then the obligations and
responsibilities of ESI under the Plan will be assumed by any successor,
acquiring corporation, or controlling entity, and all of the rights,
privileges, and benefits of the Members under the Plan will continue.
ARTICLE XI
CONTINUED APPROVAL OF PENSION PLANS
The Plan, as set forth in this document, is intended to provide
pension benefits supplemental to those provided under the Pension Plan. The
Plan's implementation and continuance are expressly conditioned upon the
absence of any disqualifying effects of implementation and continuance upon
the Pension Plan under the Code. Any modification, amendment, or termination
of the Plan may be made, retroactive or otherwise, as necessary or
appropriate to maintain the qualification of Pension Plan under the Code or
otherwise to cause the Pension Plan to comply with any applicable
requirements of the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. NO ENLARGEMENT OF EMPLOYEE BENEFITS. This Plan is
strictly a voluntary undertaking on the part of each Employer and will not be
deemed to constitute a contract between the Employer and any Employee or to be
consideration for, or an inducement to, or a condition of, the employment of any
Employee. Nothing contained in the Plan will be deemed to give any Employee the
right to be retained in the service of any Employer or to interfere with the
right of any Employer to discharge any Employee at any time. No person will
have any right to benefits except to the extent provided in the Plan.
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SECTION 12.02. BOARD OF DIRECTORS' POWER TO DELEGATE AUTHORITY.
The Board of Directors may, in its discretion, delegate to any person or
persons all or any part of the Board of Directors' authority and
responsibility under the Plan, including, without limitation, the authority
to amend the Plan.
SECTION 12.03. NO IMPACT ON OTHER BENEFITS. Amounts accrued under
this Plan shall not be included in any Member's compensation for purposes of
calculating benefits under any other plan, program, or arrangement sponsored
by an Employer.
SECTION 12.04. NO INDIVIDUAL LIABILITY. It is the express purpose
and intention of the Plan that no individual liability whatever will attach
to, or be incurred by, the shareholders, officers, or members of the Board of
Directors of any Employer, or the Committee or its members, or any fiduciary
designated pursuant to Article VIII or X, or any representative appointed by
ESI, under or by reason of any of the terms or conditions of the Plan.
SECTION 12.05. NOTICE OF ADDRESS. Each Member and Beneficiary
entitled to benefits under the Plan must submit to the Committee or its
designee his post office address and each change of post office address. Any
communication, statement, or notice addressed to a person at his latest post
office address as filed with the Committee or its designee will, upon deposit
in the United States mail with postage prepaid, be binding upon that person
for all Plan purposes, and the Committee will not be obliged to search for,
or to ascertain the whereabouts of, any person, except as otherwise required
by law.
SECTION 12.06. DATA. Members and Beneficiaries must furnish to
the Committee or its designee any documents, evidence, or information that
the Committee considers necessary or desirable for the purpose of
administering the Plan, or to protect the Committee; and it will be a
condition of the Plan that each person must furnish this information promptly
and sign required documents before any benefits become payable under the Plan.
SECTION 12.07. MISSTATEMENTS. If the age, sex, or any other
relevant facts relating to any person is found to have been misstated, the
benefits payable to a Member or Beneficiary shall be the benefits that would
have been provided on the basis of the correct information. Any excess
payments due to misstatement shall be refunded to the Employer or withheld by
it from any further amounts otherwise payable, and any underpayment shall be
paid in full with the next payment due the Member or Beneficiary.
SECTION 12.08. TAXES. To the extent required by law, amounts
credited under the Plan shall be subject to federal social security and
unemployment taxes during the years of service giving rise to such
contributions or performed (or, if later, when the amount are not subject to
a substantial risk of forfeiture). Each Employer shall withhold from any
distributions made pursuant to the Plan such amounts as may be required by
federal, state, or local law.
SECTION 12.09. GOVERNING LAWS. The Plan will be construed and
administered according to the internal laws of the State of Indiana to the
extent that those laws are not preempted by federal law.
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SECTION 12.10. SEVERABILITY. If any part of the Plan is adjudged
by a court of competent jurisdiction to be contrary to the laws governing the
Plan, then the Plan will, in all other respects, be and remain legally
effective and binding to the full extent permissible under the law.
SECTION 12.11. HEADINGS. The headings of Articles, Sections,
Subsections, Paragraphs, or other parts of the Plan are for convenience of
reference only and do not define, limit, construe, or otherwise affect the
contents of this document.
ARTICLE XIII
PARTICIPATION BY OTHER EMPLOYERS
SECTION 13.01. ADOPTION OF THE PLAN. With ESI's consent, any Related
Employer may become a participating Employer under the Plan by (a) taking any
action necessary to adopt the Plan, (b) filing with ESI a copy of the
resolutions adopted by the Related Employer's board of directors to adopt the
Plan, and (c) executing and delivering any documents and taking any other action
as may be necessary or desirable to put the Plan into effect with respect to
that corporation or entity.
SECTION 13.02. WITHDRAWAL FROM PARTICIPATION. Any Employer may, with
ESI's consent, withdraw from participation in the Plan at any time by filing
with ESI a copy of a resolution of its board of directors to that effect and
giving notice of its intended withdrawal to ESI prior to the effective date of
withdrawal.
SECTION 13.03. ESI AS AGENT FOR EMPLOYERS. Each Related Employer
that becomes a participating Employer pursuant to Section 13.01 (Adoption of the
Plan) or Article XIV (Continuance by a Successor) by so doing will be deemed to
have appointed ESI its agent to exercise on its behalf all of the powers and
authorities conferred upon ESI by the terms of the Plan, including, but not
limited to, the power to amend and terminate the Plan. Each Employer must, from
time to time, upon ESI's request, furnish to ESI any data and information as ESI
requires in the performance of its duties.
ARTICLE IV
CONTINUANCE BY A SUCCESSOR
If ESI or any other Employer is reorganized by way of merger,
consolidation, transfer of assets, or otherwise, so that a corporation,
partnership, or person other than an Employer succeeds to all or substantially
all of an Employer's business, the successor may be substituted for the Employer
under the Plan by adopting the Plan. Benefit payments by the Employer will
automatically be suspended from the effective date of any reorganization until
the date upon which the substitution of the successor corporation for the
Employer under the Plan becomes effective. If, within 90 days following the
effective date of any reorganization, the successor has not elected to become a
party to the Plan, or if the Employer adopts a plan of complete liquidation
other than in connection with a reorganization, the Plan will automatically be
terminated with respect to employees of that Employer as of the close of
business on the 90th day following the effective date of the reorganization or
as of the close of business on the date of adoption of the plan of complete
liquidation, as the case may be.
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ITT Educational Services, Inc. has caused this Plan document for the
ESI Excess Pension Plan to be executed and adopted, effective June 9, 1998, as
evidenced by the signature of its duly authorized officer, this 28th day of
June, 1999.
ITT EDUCATIONAL SERVICES, INC.
BY: /s/ Clark D. Elwood
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Name Clark D. Elwood
Senior Vice President, General Counsel and Secretary
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Title
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