As filed with the Securities and Exchange Commission
on August 14, 1996
Registration No. ____________
- ------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
THE DIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 51-0374887
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Dial Tower, Phoenix, Arizona 85077
(Address of Principal Executive Offices) (Zip Code)
THE DIAL CORPORATION 401(k) PLAN
(Full title of plan)
---------------
William A. Arbitman
Associate General Counsel
The Dial Corporation
Dial Tower
Phoenix, Arizona 85077
(Name and address of agent for service)
(602) 207-2800
(Telephone number, including area code,
of agent for service)
---------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
to be Registered Per Share Offering Price Registration
Registered (1) (2) (2) Fee
- ------------------------------------------------------------------------
Common 6,000 $14.1875 $85,125 $100.00
Stock
$0.01 par
value (1)(2)
- ------------------------------------------------------------------------
(1) Represents maximum aggregate number of shares of Common Stock
issuable under the Plan that are covered by this Registration
Statement pursuant to Rule 457(h). This Registration Statement
also pertains to Rights to purchase shares of Junior Participating
Preferred Stock of the Registrant (the "Rights"). One Right is
included with each share of Common Stock. Until the occurrence of
certain prescribed events, the Rights are not exercisable, are
evidenced by the certificates for the Common Stock and will be
transferred along with and only with such securities. Thereafter,
separate Rights certificates will be issued representing one Right
for each share of Common Stock held, subject to adjustment pursuant
to antidilution provisions.
(2) The amounts are based upon the average of the high and low sale
prices for the Common Stock as reported on the New York Stock
Exchange on August 8, 1996, and are used solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) under the
Securities Act of 1933.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is not
being filed with or included in this Form S-8 (by incorporation
by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the
"SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously filed by The Dial
Corporation (the "Corporation") with the SEC pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
are incorporated in this Registration Statement by reference and
shall be deemed to be a part hereof:
(1) Registration Statement No. 1-11793 of the Corporation
on Form 10 declared effective by the SEC on July 30, 1996 (the
"Form 10").
(2) The Annual Report on Form 11-K filed by The Dial
Consumer Products Group 401(k) Plan for the year ended December
31, 1995.
(3) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the registrant document referred to in (1) above.
(4) The description of the Corporation's Common Stock
contained in the Corporation's Form 10.
(5) The description of the Corporation's Rights contained
in the Corporation's Form 10.
In addition, all documents filed by the Corporation pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this registration statement and prior to the filing
of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated in this registration statement by reference and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The legality of the securities offered pursuant to this
Registration Statement has been passed upon for the Corporation
by Peter J. Novak, Vice President and General Counsel of the
Corporation. Mr. Novak will own shares of Common Stock of the
Corporation.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Restated Certificate of Incorporation ("Certificate of
Incorporation") provides that a director of the Corporation will
not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director,
except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174
of the Delaware General Corporation Law ("DGCL"), which concerns
unlawful payments of dividends, stock purchases or redemptions,
or (4) for any transaction from which the director derived an
improper personal benefit.
While the Certificate of Incorporation provides directors
with protection from awards for monetary damages for breaches of
their duty of care, it does not eliminate such duty.
Accordingly, the Certificate of Incorporation will have no effect
on the availability of equitable remedies such as an injunction
or rescission based on a director's breach of his or her duty of
care. The provisions of the Certificate of Incorporation
described above apply to an officer of the Corporation only if he
or she is a director of the Corporation and is acting in his or
her capacity as director, and do not apply to officers of the
Corporation who are not directors.
The Certificate of Incorporation provides that each person
who is or was or had agreed to become a director or officer of
the Corporation, or each such person who is or was serving or who
had agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), will be
indemnified by the Corporation, in accordance with the Bylaws, to
the fullest extent permitted from time to time by the DGCL, as
the same exists or may hereafter be amended (but, if permitted by
applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment) or any other
applicable laws as presently or hereafter in effect. The
Corporation may, by action of the Board of Directors of the
Corporation (the "Board"), provide indemnification to employees
and agents of the Corporation, and to persons serving as
employees or agents of another corporation, partnership, joint
venture, trust or other enterprise, at the request of the
Corporation, with the same scope and effect as the foregoing
indemnification of directors and officers. The Corporation may
be required to indemnify any person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized
by the Board or is a proceeding to enforce such person's claim to
indemnification pursuant to the rights granted by the Certificate
of Incorporation or otherwise by the Corporation. In addition,
the Corporation may enter into one or more agreements with any
person providing for indemnification greater or different than
that provided in the Certificate of Incorporation.
The Bylaws of the Corporation (the "Bylaws") provide that
each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative is
or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or
officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
Proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a
director or officer, will be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL as the
same exists or may in the future be amended (but, if permitted by
applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification
will continue as to a person who has ceased to be a director or
officer and will inure to the benefit of his or her heirs,
executors and administrators; provided, however, except as
described in the second following paragraph with respect to
Proceedings to enforce rights to indemnification, the Corporation
will indemnify any such person seeking indemnification in
connection with a Proceeding (or part thereof) initiated by such
person only if such Proceeding (or part thereof) was authorized
by the Board.
Pursuant to the Bylaws, to obtain indemnification, a
claimant is to submit to the Corporation a written request for
indemnification. Upon such written request by a claimant, a
determination, if required by applicable law, with respect to the
claimant's entitlement to indemnification will be made, if
requested by the claimant, by independent legal counsel, or if
the claimant does not so request, by the Board by a majority vote
of the disinterested directors even though less than a quorum or,
if there are no disinterested directors or the disinterested
directors so direct, by independent legal counsel in a written
opinion to the Board, or if the disinterested directors so
direct, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by
independent legal counsel at the request of the claimant, the
independent legal counsel will be selected by the Board unless
there shall have occurred within two years prior to the date of
the commencement of the action, suit or proceeding for which
indemnification is claimed a change of control, in which case the
independent legal counsel will be selected by the claimant unless
the claimant requests that such selection be made by the Board.
Pursuant to the Bylaws, if a claim described in the
preceding paragraph is not paid in full by the Corporation within
thirty days after a written claim pursuant to the preceding
paragraph has been received by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant will be entitled to be paid also
the expense of prosecuting such claim. The Bylaws provide that it
will be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standard of
conduct which make it permissible under the DGCL for the
Corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense will be on the Corporation.
Neither the failure of the Corporation (including the
disinterested directors, independent legal counsel or
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, nor an
actual determination by the Corporation (including the
disinterested directors, independent legal counsel or
stockholders) that the claimant has not met such applicable
standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct. However, the Corporation will be bound by a
determination pursuant to the procedures set forth in the Bylaws
that the claimant is entitled to indemnification in any suit
brought by a claimant pursuant to the Bylaws.
The Bylaws provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance
of its final disposition conferred in the Bylaws will not be
exclusive of any other right which any person may have or may in
the future acquire under any statute, provision of the
Certificate of Incorporation, the Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise. The Bylaws
permit the Corporation to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss
under the DGCL. The Corporation effective August 15, 1996, has
obtained directors' and officers' liability insurance providing
coverage to its directors and officers. In addition, the Bylaws
authorize the Corporation, to the extent authorized from time to
time by the Board, to grant rights to indemnification and rights
to be paid by the Corporation the expenses incurred in defending
any Proceeding in advance of its final disposition, to any
employee or agent of the Corporation to the fullest extent of the
provisions of the Bylaws with respect to the indemnification and
advancement of expenses of directors and officers of the
Corporation.
The Bylaws provide that the right to indemnification
conferred therein is a contract right and includes the right to
be paid by the Corporation the expenses incurred in defending any
Proceeding in advance of its final disposition, except that if
the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a Proceeding, will be made
only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer, to repay all amounts so
advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under the Bylaws or
otherwise.
It is anticipated that the Corporation will authorize
indemnification agreements for each of the Corporation's
directors (each, an "Indemnification Agreement," and,
collectively, the "Indemnification Agreements"). The
Indemnification Agreements will, among other things, require the
Corporation to indemnify the officers and directors to the
fullest extent permitted by law, and to advance to the directors
all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted.
The Corporation must also indemnify and advance all expenses
incurred by directors seeking to enforce their rights under the
Indemnification Agreements, and cover directors under the
Corporation's directors' liability insurance. Although the
Indemnification Agreements will offer substantially the same
scope of coverage afforded by provisions in the Certificate of
Incorporation and the Bylaws, they provide greater assurance to
directors that indemnification will be available, because, as
contracts, they cannot be modified unilaterally in the future by
the Board or by the stockholders to eliminate the rights
provided, an action that is possible with respect to the relevant
provisions of the Bylaws, at least as to prospective elimination
of such rights.
There has not been in the past and there is not presently
pending any litigation or proceeding involving a director,
officer, employee or agent of the Corporation in which
indemnification would be required or permitted by the new
Indemnification Agreements. In addition, the Board is not aware
of any threatened litigation or proceeding which may result in a
claim for indemnification under any Indemnification Agreement.
The DGCL provides that a contract between a corporation and
a director thereof is not void or voidable solely because the
interested director is present at the meeting authorizing the
contract if the material facts relating to the contract are known
to the board of directors and the board of directors in good
faith authorizes the contract by the affirmative vote of a
majority of the disinterested directors, or the material facts
relating to the contract are known to the stockholders and the
stockholders in good faith authorize the contract, or the
contract is fair to the corporation at the time it is authorized
or approved.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
Exhibit
Number Description
- ------- -----------
4.1 - Restated Certificate of Incorporation of the
Registrant filed as Exhibit 3a to Form 10.*
4.2 - Bylaws of the Registrant filed as Exhibit 3b to
Form 10.*
4.3 - The Dial Corporation 401(k) Plan.
4.4 - Rights Agreement between the Registrant and the
Rights Agent named therein filed as Exhibit 4 to
Form 10.*
5 - Opinion of the Registrant's General Counsel as to
the legality of securities offered under The Dial
Corporation Capital Accumulation Plan.
23.1 - Consent of Independent Auditors, Deloitte & Touche
LLP.
23.2 - Consent of Counsel (contained in the Opinion of
the Registrant's General Counsel, Exhibit 5
hereto).
24 - Power of Attorney (included on signature page of
this Registration Statement).
- ---------------------------------
* Incorporated herein by reference.
Item 9. Undertakings.
------------
(a) The Corporation hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually, or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
Experts
- -------
The financial statements incorporated in this Registration
Statement on Form S-8 by reference from the Corporation's
Registration Statement on Form 10 and the Annual Report on Form
11-K of the Dial Consumer Products Group 401(k) Plan for the year
ended December 31, 1995, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their reports which are
incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix, and
State of Arizona, on the 7th day of August, 1996.
THE DIAL CORPORATION
By: /s/ L.G. Lemon
President
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Ronald G. Nelson, as his attorney-in-fact, with full power of
substitution and resubstitution, to sign and file on his or her behalf
individually and in each such capacity stated below any and all
amendments and post-effective amendments to this Registration
Statement, as fully as such person could do in person, hereby
verifying and confirming all that said attorney-in-fact, or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
Principal Executive
Officer
/s/ L.G. Lemon Director and President 8/7/96
Principal Financial
and Accounting Officer
/s/ Ronald G. Nelson Vice President-Finance 8/7/96
and Treasurer
DIRECTORS:
/s/ F.G. Emerson 8/7/96
/s/ P.J. Novak 8/7/96
<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrators have duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Phoenix, State of Arizona, on the 7th day of August, 1996.
THE DIAL CORPORATION 401(k) PLAN
By: /s/ Bernhard J. Welle
Exhibit 4.3
THE DIAL CORPORATION
401(k) PLAN
THE DIAL CORPORATION 401(k) PLAN
ARTICLE I. - PURPOSE
Effective as of January 5, 1987 (the "Effective Date"), the
Employer adopted the Plan set forth herein.
The Dial Corporation 401(k) Plan, as established by trust
agreement executed effective as of January 5, 1987 is intended to
form a part of the Plan.
The Plan and Trust are intended to meet the requirements of
Sections 401(a), 401(k) and 501(a) of the Internal Revenue Code
of 1986 as amended.
The provisions of this Plan shall apply only to an Eligible
Employee who is actively employed by an Employer after the
Effective Date and who is a Participant, as defined in Section
2.1 of the Plan.
Pursuant to the terms and provisions of that certain
Distribution Agreement entered into between The Dial Corp
(hereinafter referred to by its post-Distribution name "Viad
Corp"), The Dial Corporation, a newly formed corporation, and
Exhibitgroup Inc. (the "Distribution Agreement"), Viad Corp will
spin-off The Dial Corporation to Viad Corp's shareholders as of
the "Distribution Date" as determined in accordance with the
Distribution Agreement. Under the terms of the Distribution
Agreement, the assets and liabilities of the Dial Consumer
Products Group, including the assets and liabilities of this
Plan, will be contributed to the newly formed corporation, The
Dial Corporation in exchange for all of The Dial Corporation's
(hereinafter referred to as the "Company") common stock in a tax
free reorganization and the common stock will be distributed to
all of the outstanding shareholders of Viad Corp in a tax free
spin-off. The Plan is hereby restated and amended to comply with
the terms of the Distribution Agreement and to provide for the
assumption of all assets and liabilities for benefits payable by
the Plan by the Company effective as of the Cut-Off Date as
defined by the Distribution Agreement determined to be July 31,
1996.
ARTICLE II. - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS: Where the following words and phrases
appear in this Plan, they shall have the respective meanings set
forth in this Article, unless the context clearly indicates to
the contrary.
a) ACCOUNT(S): One or all of the Employee Contribution
Account, Wage Reduction Contribution Account and Vested Rollover
Contribution Account, as the case may be, and as appropriate in
the context of each provision of the Plan containing such term,
for each Participant.
b) ACTUAL DEFERRAL PERCENTAGE OR ADP: Shall mean, for
a specified group of Participants for a Plan Year, the average of
the ratios (calculated separately for each Participant in such
group) of (1) the amount of Employer Contributions actually paid
over to the Trust on behalf of such Participant for the Plan Year
to (2) the Participant's Compensation for such Plan Year (whether
or not the Employee was a Participant for the entire Plan Year).
Employer contributions on behalf of any Participant shall
include: any Elective Deferrals made pursuant to the
Participant's deferral election, including Excess Elective
Deferrals of Highly Compensated Employees, but excluding Elective
Deferrals that are taken into account in the Contribution
Percentage test (provided the ADP test is satisfied both with and
without exclusion of these Elective Deferrals). For purposes of
computing Actual Deferral Percentages, an Employee who would be a
Participant but for the failure to make Elective Deferrals shall
be treated as a Participant on whose behalf no Elective Deferrals
are made.
c) ADOPTION AGREEMENT: The agreement executed by an
Affiliate Employer in order to adopt the Plan pursuant to the
provisions of Article XIII.
d) AFFILIATE: A subsidiary of the Company.
e) AGGREGATE LIMIT: The sum of (i) 125 percent of the
greater of the ADP of the non-Highly Compensated Employees for
the Plan Year or the ACP of non-Highly Compensated Employees
under the Plan subject to Code Section 401(m) for the Plan Year
beginning with or within the Plan Year of the CODA and (ii) the
lesser of 200 percent or two plus the lesser of such ADP or ACP.
"Lesser" is substituted for "greater" in "(i)" above, and
"greater" is substituted for "lesser" after "two plus the" in
"(ii)" if it would result in a larger Aggregate Limit.
f) ANNUAL ADDITIONS: With respect to each Year, the
total of the Employer Contributions allocated to a Participant's
Wage Reduction Contribution Account plus the amount of after-tax
contribution, if any, the Participant made for such Year to a
Participant's Employee Contribution Account.
g) AUTHORIZED LEAVE OF ABSENCE: Any absence authorized
by the Employer under the Employer's standard personnel practices
provided that all persons under similar circumstances must be
treated alike in the granting of such Authorized Leaves of
Absence and provided further that the Employee returns to
employment with the Employer or retires within the period of
authorized absence. An absence due to service in the armed
forces of the United States shall be considered an Authorized
Leave of Absence provided that the Employee complies with all of
the requirements of federal law in order to be entitled to
reemployment and provided further that the Employee returns to
employment with the Employer within the period provided by such
law.
h) AVERAGE CONTRIBUTION PERCENTAGE OR ACP: The average
of the Contribution Percentages of the Eligible Participants in a
group.
i) BENEFICIARY: A person or persons (natural or
otherwise) designated by a Participant in accordance with the
provisions of Section 6.4 to receive any death benefit payable
under this Plan.
j) CODA: A cash or deferred arrangement as described
in Section 401(k) of the Code.
k) CODE: The Internal Revenue Code of 1986, as
amended.
l) COMMITTEE: The persons appointed pursuant to
Article VIII by the President of the Company to assist the
Company in the administration of the Plan in accordance with said
Article.
m) COMPENSATION: The total of all amounts paid to a
Participant by the Employer for personal services including for
regular hours, vacation, sick, temporary disability, bereavement,
military, jury, holiday, birthday and retro pay to the extent,
and as would be reported on the Participant's federal income tax
withholding statement (Form W-2) had the Participant not been a
Participant under the Plan or any other Plan sponsored by the
Employer which is qualified under Section 125 or 129 of the Code
exclusive of fringe benefits, overtime and bonuses, if any, and
excluding any benefits paid under this Plan, provided that for
purposes of allocating the Employer's Contribution for the Year
in which a Participant begins or resumes Participation,
Compensation allocable to time periods before his or her
Participation began or resumed shall be disregarded.
The annual Compensation of each Participant taken into
account under the Plan for any year shall not exceeded $200,000,
as adjusted by the Secretary of the Treasury at the same time and
in the same manner as under Section 415 (d) of the Code. If, as
a result of the application of such rules the adjusted $200,000
limitation is exceeded, then the limitation shall be prorated
among affected individuals in proportion to each such
individual's Compensation as determined under Section 415(d)
prior to the application of this limitation. In determining the
Compensation of a Participant for purposes of this limitation,
the rules of Section 414 (q) (6) of the Code shall apply, except
in applying such rules, the term "Family" shall include only the
spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the
Plan Year.
In addition to the other applicable limitations set forth in
the Plan, and notwithstanding any other provision of the Plan to
the contrary, for Plan Years beginning on or after January 1,
1994, the annual Compensation of each Employee taken into account
under the Plan shall not exceed the "OBRA '93 annual compensation
limit". The "OBRA '93 annual compensation limit" is One Hundred
Fifty Thousand Dollars ($150,000.00) as adjusted by the
Commissioner for increases in the cost-of-living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar years applies to any period,
not exceeding twelve (12) months, over which Compensation is
determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than twelve
(12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which
is twelve (12). For Plan Years beginning on or after January 1,
1994, any reference in this Plan to the limitation under Section
401(a)(17) of the Code shall mean the OBRA '93 annual
compensation limit set forth in this provision. If Compensation
for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan
Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for
that prior determination period. For this purpose, for
determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is One Hundred Fifty Thousand Dollars
($150,000.00).
n) CONTRIBUTION PERCENTAGE: The ratio (expressed as a
percentage) of the Participant's Contribution Percentage Amount
to the Participant's Compensation for the Plan Year (whether or
not the Employee was a Participant for the entire Plan Year).
o) CONTRIBUTION PERCENTAGE AMOUNT: The Employee
Contributions made under the Plan on behalf of the Participant
for the Plan Year. Such Contribution Percentage Amount shall
include forfeitures of Excess Aggregate Contributions allocated
to the Participant's account which shall be taken into account in
the year in which such forfeiture is allocated. The Employer may
elect to use Elective Deferrals in the Contribution Percentage
Amount so long as the ADP test is met before the Elective
Deferrals are used in the ACP test and continues to be met
following the exclusion of those elective Deferrals that are used
to meet the ACP test.
p) VIAD CORP STOCK: The common stock, $1.50 par value,
of Viad Corp.
q) DISABILITY: A physical or mental condition which,
in the sole judgment of the Committee, based upon medical reports
and other evidence satisfactory to the Committee, permanently
prevents an Employee from satisfactorily performing his or her
usual duties for the Employer and the duties of any other
position or job for the Employer for which such Employee is
qualified by reason of his or her training, education or
experience.
r) EFFECTIVE DATE: January 5, 1987, the date on which
the provisions of this Plan became effective, or any later date
as specified in Appendix A.
s) ELECTIVE DEFERRALS: Any Employer contributions made
to the Plan at the election of the Participant, in lieu of cash
compensation, and shall include contributions made pursuant to a
salary reduction agreement or other deferral mechanism. With
respect to any taxable year, a Participant's Elective Deferral is
the sum of all Employer Contributions made on behalf of such
Participant pursuant to an election to defer under any qualified
CODA as described in Section 401(k) of the Code, any simplified
Employee pension cash or deferred arrangement as described in
Section 402(h) (1) (B), any eligible deferred compensation plan
under Section 457, any plan as described under Section 501(c)
(18), and any Employer contributions made on behalf of a
Participant for the purchase of an annuity contract under Section
403 (b) pursuant to a salary reduction agreement.
t) ELIGIBLE EMPLOYEE: Any Employee who is covered by a
collective bargaining agreement between the Employer at a
facility designated on Appendix A, attached hereto and by this
reference made a part hereof, and a union representing Employees
(hereinafter "Collective Bargaining Agreement").
u) ELIGIBLE PARTICIPANT: Any Employee who is eligible
to make an Employee Contribution, or an Elective Deferral (if the
Employer takes such contributions into account in the calculation
of the Contribution Percentage). If an Employee Contribution is
required as a condition of Participation in the Plan, any
Employee who would be a Participant in the Plan if such Employee
made such a contribution shall be treated as an Eligible
Participant on behalf of whom no employee Contributions are made.
v) EMPLOYEE: Any person who is actively employed by an
Employer or an Affiliate.
w) EMPLOYEE CONTRIBUTION: Any contribution made to the
Plan by or on behalf of a Participant that is included in the
Participant's gross income in the year in which made and that is
maintained under a separate account to which earnings and losses
are allocated.
x) EMPLOYEE CONTRIBUTION ACCOUNT: The account
maintained pursuant to Section 4.3 hereof, to record for a
Participant his or her after-tax contributions and adjustments
relating thereto.
y) EMPLOYER: The Company, for the facilities listed in
Appendix A or any Affiliate that has adopted and been accepted
into the Plan pursuant to Article XIII and is listed on Appendix
A.
z) ENTRY DATE: The first day of each calendar quarter.
aa) ERISA: Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended.
bb) EXCESS AGGREGATE CONTRIBUTIONS: Shall mean, with
respect to any Plan Year, the excess of:
(1) The aggregate Contribution Percentage Amounts
taken into account in computing the numerator of the
Contribution Percentage actually made on behalf of Highly
Compensated Employees for such Plan Year, over
(2) The maximum Contribution Percentage Amounts
permitted by the ACP test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of their Contribution Percentages beginning with
the highest of such percentages).
Such determination shall be made after first determining
Excess Elective Deferrals and then determining Excess
Contributions.
In computing the Average Contribution Percentage, the
Employer shall take into account, and include as Contribution
Percentage Amounts, Elective Deferrals, and qualified non-elective contributions
under this Plan or any other Plan of the
Employer, as provided by regulations.
Forfeitures of Excess Aggregate Contributions shall be:
(1) Applied to reduce Employer contributions for
the Plan Year in which the excess arose, but allocated as in
(2), below, to the extent the excess exceeds Employer
contributions or the Employer has already contributed for
such Plan Year.
(2) Allocated, after all other forfeitures under
the Plan, to the Wage Reduction Contribution account
of each non-Highly Compensated Participant who made
Elective Deferrals or Employee Contributions in the
ratio which each such Participant's Compensation for
the Plan Year bears to the total Compensation of all
such Participants for such Plan Year.
cc) EXCESS CONTRIBUTION: Shall mean, with respect to
any Plan Year, the excess of:
(1) The aggregate amount of Employer
contributions actually taken into account in computing the
ADP of Highly Compensated Employees for such Plan Year over
(2) The maximum amount of such contributions
permitted by the ADP test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of the ADPs, beginning with the highest of such
percentages).
dd) EXCESS ELECTIVE DEFERRALS: Shall mean those
Elective Deferrals that are includible in a Participant's gross
income under Section 402 (g) of the Code to the extent such
Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under such Code section. Excess Elective
Deferrals shall be treated as annual additions under the Plan.
ee) FAMILY MEMBER: A member of the Employee's family as
defined in Section 414 (q) (6) of the Code.
ff) FIDUCIARIES: The Committee (and any subcommittee
thereof) and the Trustee, but only with respect to the specific
responsibilities of each for Plan and Trust administration, all
as described in Section 8.1.
gg) HIGHLY COMPENSATED EMPLOYEES: Includes active
Highly Compensated Employees and former Highly Compensated
Employees. An active Highly Compensated Employee includes any
Employee who performs service for the Employer during the
determination year, and who during the look-back year: (i)
received Compensation from the Employer in excess of $75,000 (as
adjusted pursuant to Section 415 (d) of the Code); (ii) received
Compensation from the Employer in excess of $50,000 (as adjusted
pursuant to Section 415 (d) of the Code) and was a member of the
top-paid group for such Year; or (iii) was an officer of the
Employer and received Compensation during such Year that is
greater than 50% of the dollar limitation in effect under Section
415 (b) (1) (A) of the Code. The term Highly Compensated
Employee also includes: (i) Employees who are both described in
the preceding sentence if the term "determination year" is
substituted for the term "look-back year" and the Employee is one
of the one hundred (100) Employees who receive the most
Compensation from the Employer during the determination Year; and
(ii) Employees who are 5-percent owners at any time during the
look-back Year or determination Year. If no officer has
satisfied the Compensation requirements of (iii) above during
either a determination year or look-back Year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee. For this purpose, the determination Year shall be the
Plan Year. The look-back Year shall be the twelve-month period
immediately preceding the determination year. A former Highly
Compensated Employee includes any Employee who separated from
service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during
the determination year, and was an active Highly Compensated
Employee for either the separation year or any determination year
ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back
year, a Family Member of either a 5-percent owner who is an
active or former Employee or a Highly Compensated Employee who is
one of the ten (10) most Highly Compensated Employees ranked on
the basis of Compensation paid by the Employer during such Year,
then the Family Member and the 5-percent owner or top ten Highly
Compensated Employee shall be aggregated. In such case, the
Family Member and 5-percent owner or top ten Highly Compensated
Employee shall be treated as a single Employee receiving
Compensation and Plan contributions or benefits equal to the sum
of such Compensation and contributions or benefits of the Family
Member and 5-percent owner or top ten Highly Compensated
Employee. For purposes of this Section, Family Member includes
the spouse, lineal ascendants and descendants of the Employee or
former Employee and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, the top one hundred (100)
Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with
Section 414 (q) of the Code and the regulations thereunder.
The Employer may elect to use the calendar year to determine
whether an Employee is a Highly Compensated Employee (as defined
in Treasury Regulations under Section 414 (q) of the Code) in the
look-back year calculation. The calendar year used will be the
calendar year ending with or within the determination year (as
defined in the regulations under Section 414 (q) of the Code).
The determination year shall be the months (if any) in the
current Plan Year which follow the end of the calendar year look-back year.
If the Employer elects to make the calendar year
calculation election with respect to any plan, entity or
arrangement, such election must apply with respect to all plans,
entities and arrangements of the Employer.
hh) INCOME: The net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends,
realized and unrealized gains and losses on securities, other
investment transactions and expenses paid from the Trust Fund.
In determining the Income of the Trust Fund as of any date,
assets shall be valued on the basis of their fair market value.
ii) INVESTMENT FUND(S): The investment funds described
in Section 7.1.
jj) PARTICIPANT: An Employee participating in the Plan
in accordance with the provisions of Section 3.1.
kk) PARTICIPATION: The period commencing as of the date
the Employee became a Participant and ending on the date his or
her employment with the Employer terminated in accordance with
Section 3.2, hereof.
ll) PLAN: The Dial Corporation 401(k) Plan, the Plan
set forth herein, as amended from time to time.
mm) PLAN YEAR: The 12-month period commencing on
January 1 and ending on December 31. The initial Plan Year will
be a short period commencing on January 5, 1987 and ending
December 31, 1987.
nn) Reserved.
oo) TRUST (OR TRUST FUND): The fund known as The Dial
Corporation 401(k) Plan Trust, maintained in accordance with the
terms of the Trust agreement, as from time to time amended, which
constitutes a part of the Plan.
pp) TRUSTEE: The Company or individuals appointed by
the Board of Directors of the Company to administer the Trust.
qq) VALUATION DATE: Each business day of the Plan Year.
rr) VESTED ROLLOVER CONTRIBUTION ACCOUNT: The account
maintained pursuant to Section 4.5, hereof, to record for a
Participant rollover amounts transferred to the Trust Fund and
adjustments relating thereto.
ss) WAGE REDUCTION CONTRIBUTION ACCOUNT: The account
maintained to record for a Participant his or her pre-tax wage
reduction contributions made by the Employer pursuant to Section
4.1 (a) and 4.2 hereof, and adjustments relating thereto.
tt) THE DIAL CORPORATION STOCK: The common stock, .014
par value, of The Dial Corporation.
2.2 CONSTRUCTION: The words "hereof," "hereunder," and
other similar compounds of the word "here" shall mean and refer
to the entire Plan and not to any particular provision or
Section. Article and Section headings are included for
convenience of reference and are not intended to add to, or
subtract from, the terms of the Plan.
ARTICLE III. - PARTICIPATION
3.1 PARTICIPATION: An Eligible Employee shall become a
Participant as of the later of the Effective Date or the first
Entry Date coincident with or next following the last twelve
consecutive month period, i.e. the "Computation Period" as
defined in the U.S. Department of Labor Regulations, during which
he or she has at least 1,000 Hours of Service with the Employer,
provided in any case that said Eligible Employee has entered into
a duly executed wage reduction agreement under Section 4.2 in
advance of said Effective Date or Entry Date, as the case may be,
and has fulfilled the Plan's enrollment procedures as provided by
the Committee. Participation under the Plan shall cease and a
person shall no longer be a Participant upon termination of
employment with the Employer, as defined in Section 3.2, hereof.
After termination of employment, a rehired Eligible Employee may
become a Participant in the Plan on an Entry Date coincident with
or following the date of his or her reemployment upon entering
into a duly executed wage reduction agreement in advance of said
Entry Date and fulfilling all of the other Plan enrollment
procedures as required for by the Committee. The term "Hour of
Service" shall mean for the purposes hereof, each hour (i) for
which an Eligible Employee is paid, or entitled to payment for
the performance of duties for the Employer during the applicable
computation period or (ii) during which the Eligible Employee is
absent due to vacation, holiday, temporary sickness, maternity or
paternity leave under ERISA Section 203(b) , but in each case
only to the extent such Eligible Employee is entitled to payment
for the performance of his or her regular duties for the
Employer, as reasonably determined by the Committee consistent
with U. S. Department of Labor regulations, during the applicable
computation period.
3.2 TERMINATION OF EMPLOYMENT: Subject to the
provisions of Section 3.3(b) "termination of employment" shall be
deemed to be the date the Participant quit, was terminated or
discharged (for any reason, with or without cause, including, by
reason of Disability), died or retired.
3.3 TRANSFERS:
(a) For the purpose of determining eligibility to
participate in the Plan under Section 3.1, an Eligible Employee
shall receive credit for employment with an Employer or any
entity ("member of the Controlled Group") which, by reason of
Code Section 414(b), or 414 (m), is treated as a single employer
with The Dial Corporation.
(b) If a Participant (i) elects to defer distribution
of his or her benefit pursuant to Section 6.3(d), (ii) is
transferred to employment with a member of the Controlled Group
that has not adopted the Plan, (iii) becomes an Employee who is
no longer employed in a bargaining unit covered by a Collective
Bargaining Agreement, (iv) becomes an Employee who no longer fits
the definition of Eligible Employee or (v) ceases active
employment with an Employer, but is not terminated or discharged
from employment under Section 3.2 (i.e., on Authorized Leave of
Absence, lay off, etc.), his or her Participation under the Plan
shall be suspended, provided, however, that during the period of
his or her inactive status or employment in such ineligible
position: (i) he or she shall cease to have any right to make
contributions pursuant to Article IV, hereof; (ii) he or she
shall continue to participate in Income allocations pursuant to
Section 5.2(a); (iii) the withdrawal privileges under the
provisions of Article VI shall continue to apply; and (iv) the
Investment Fund transfer provisions of Section 7.3 shall continue
to apply.
ARTICLE IV. - CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS: (a) For each Year, the
Employer shall contribute an amount to a Participant's Wage
Reduction Contribution Account equal to the total amount of
contributions agreed to be made by it pursuant to a Wage
Reduction Agreement under Section 4.2 entered into between the
Employer and the Participant for such Year. Contributions made
by the Employer for a given payroll period pursuant to Wage
Reduction Agreements under Section 4.2 shall be promptly
deposited in the Trust Fund as soon as practicable after the
payroll period to which they relate.
4.2 CODE SECTION 401(K) WAGE REDUCTION: (a) In
addition to the other terms and conditions herein, each Eligible
Employee shall enter into, prior to the Entry Date that such
Eligible Employee's Participation under the Plan is to commence
pursuant to Section 3.1, a written wage reduction agreement with
the Employer which will be applicable to all payroll periods
after such Entry Date within such Year. The terms of any such
wage reduction agreement shall provide for the purposes of
Section 4.1(a) hereof, that the Eligible Employee as a
Participant agrees to accept a reduction in wage from the
Employer equal to any whole percentage of his or her Compensation
per payroll period, not to exceed 12 percent of such
Compensation. In consideration of such agreement, the Employer
will make a wage reduction contribution to the Participant's Wage
Reduction Contribution Account on behalf of the Participant for
such Year in an amount equal to the total amount by which the
Participant's Compensation from the Employer was reduced during
the Year pursuant to the wage reduction agreement. Amounts
credited to a Participant's Wage Reduction Contribution Account
are intended to qualify for income tax deferral under Section
401(k) and, as such shall be 100 percent vested and
nonforfeitable at all times. If a Participant enters into a wage
reduction agreement with the Employer for a given Year, his or
her Compensation for such Year for all other purposes of this
Plan, except with respect to a Wage Reduction Agreement under
Section 4.4, hereof, shall be equal to his or her Compensation
after application of the wage reduction agreement.
(b) Unless otherwise amended or terminated in accordance
with (ii), below, a Participant's wage reduction agreement shall
be deemed automatically renewed from year to year, while this
Plan remains in force and effect. Further, wage reduction
agreements shall include, but not by way of limitation, and be
governed by the following:
(i) A wage reduction agreement shall apply to each
payroll period during which an effective wage
reduction agreement is on file with the Employer.
(ii) A wage reduction agreement may be amended or
terminated by a Participant only once during each
calendar quarter if the purpose of the amendment is
to decrease or increase the percentage of such
Participant's Compensation which is subject to wage
reduction during the remainder of such Year.
(iii) Any amendment or termination of a wage reduction
agreement shall be effective on the following Entry
date after at least 30 days prior written notice by
a Participant in the form required by the Employer.
(iv) The Employer may amend or revoke its wage reduction
agreement with any Participant at any time, if the
Committee determines that such revocation or
amendment is necessary to insure that a
Participant's additions for any Year will not exceed
the limitations of Section 415 of the Code or to
insure that the discrimination tests of Section
401(k) and 401(m) of the Code are met for such Year.
(v) The Employer may revoke its wage reduction
agreements with all Participants or amend its wage
reduction agreements with all Participants on a
uniform basis, if it determines that it will not
have sufficient current or accumulated earnings to
make the contributions to the Plan that may be
required by the wage reduction agreements.
(vi) Except as provided above, a wage reduction agreement
applicable to any given Year, once made, may not be
revoked or amended by the Participant.
(vii) No amounts may be withdrawn by a Participant from
any of his or her Accounts, except as provided in
Section 6.5, hereof. All withdrawal elections shall
be made by a Participant on forms supplied by the
Committee for that purpose.
(c) The Committee may from time to time alter and/or add
to the requirements for wage reduction agreements expressed in
Section 4.2(b). The Employer shall abide by the Committee's
determinations and directions with respect to all matters covered
in wage reduction agreements.
4.3 EMPLOYEE CONTRIBUTIONS: Subject to the provisions
of Section 4.4, hereof, a Participant may contribute each Year to
an Employee Contribution Account an amount pursuant to a written
Wage Reduction agreement under Section 4.4 not intended to
qualify for income tax deferral under Section 401(k) of the Code,
but to be subtracted from such Participant's Compensation on an
after-tax basis. Amounts credited to a Participant's Employee
Contribution Account shall remain 100 percent vested and
nonforfeitable at all times.
<PAGE>
4.4 AFTER-TAX WAGE REDUCTION: A Participant may elect
to enter into a written wage reduction agreement with the
Employer which shall be in the form and substance acceptable to
the Employer and the Committee and will be applicable to each
payroll period during which an effective wage reduction agreement
is on file with the Employer. A wage reduction agreement may be
amended or terminated only once during each calendar quarter if
the purpose of the amendment is to decrease or increase the
percentage of such Participant's Compensation which is subject to
a wage reduction agreement during the remainder of such Year.
The terms of such wage reduction agreement shall provide, among
other things, that for the purposes of Section 4.3 the
Participant agrees to accept a reduction from wage from the
Employer equal to any whole percentage of his or her Compensation
per payroll period, not to exceed 10 percent of such
Compensation.
4.5 ROLLOVER CONTRIBUTIONS: (a) Contributions. Any
Employee (whether or not a Participant) who has received a
distribution from a profit sharing plan, stock bonus plan or
pension plan intended to "qualify" under Section 401 of the Code
may transfer such distribution to the Trust Fund if such
contribution to the Trust Fund would constitute, in the sole and
absolute discretion of the Committee, a "rollover contribution"
within the meaning of the applicable provisions of the Code.
Additionally, an Employee may request, with the approval of the
Committee, that the Trustee accept a transfer from the trustee of
another qualified plan. Upon such approval, the Trustee shall
accept such transfer. The Committee may, in it sole discretion,
decline to accept such transfer. For purposes of this plan, both
a "rollover contribution" within the meaning of the applicable
provisions of the Code and a transfer initiated by the Employee
from another plan shall be referred to as a "Rollover
Contribution". If the Committee decides to grant an Employee's
request to make a Rollover Contribution, the Employee may
contribute to the Trust Fund cash or other property acceptable to
the Trustee to the extent of such distribution.
(b) ACCOUNTING AND DISTRIBUTIONS. The Committee shall
credit the Rollover Contribution to a separate account (the
"Vested Rollover Contribution Account") for the Employee's sole
benefit. The separate Vested Rollover Contribution Account shall
be adjusted, valued and credited pursuant to Article V. Any such
Vested Rollover Contribution Account shall be nonforfeitable and
shall be paid to the Employee or his Beneficiary in accordance
with Article VI.
(c) NO GUARANTY. The Committee, the Employer and the
Trustee do not guarantee the Vested Rollover Contribution
Accounts of Participants in any way from loss or depreciation.
The Employer, the Committee and the Trustee do not guarantee the
payment of any money which may be or become due to any person
from a Vested Rollover Contribution Account, and the liability of
the Employer, the Committee or the Trustee to make any payment
therefrom shall at any and all times be limited to the then value
of the Vested Rollover Contribution Account.
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNTS
5.1 INDIVIDUAL ACCOUNTS: The Committee shall create and
maintain adequate records to disclose the interest in the Trust
of each Participant and Beneficiary. Such records shall be in
the form of individual Accounts, and credits and charges shall be
made to such Accounts in the manner herein described. When
appropriate, a Participant shall have three separate Accounts, an
Employee Contribution Account, a Wage Reduction Contribution
Account and a Vested Rollover Contribution Account. The
maintenance of individual Accounts is only for accounting
purposes, and a segregation of the assets of the Trust Fund to
each account shall not be required. Distributions and
withdrawals made from an Account shall be charged to the Account
as of the date paid.
5.2 ACCOUNT ADJUSTMENTS: The Accounts of Participants
shall be adjusted no less frequently than quarterly, recognizing
the Participant's elections pursuant to Section 5.5, hereof, in
accordance with the following:
(a) INCOME: The Income of the Trust Fund for each
calendar quarter shall be allocated to the Accounts of
Participants who had unpaid balances in their Accounts on the
Valuation Date of such calendar quarter in proportion to the
balances in such Accounts at the beginning of such calendar
quarter plus one-half of the contributions made during such
calendar quarter, but after first reducing each such Account
balance by any distributions from the Account during such quarter
and recognizing the Participant's elections pursuant to Section
5.5, hereof. The Committee may in its sole and exclusive
discretion instruct the Trustee to pick a "Special Valuation
Date" to determine the Income since the last Valuation Date, in
which event the Accounts of any Participant whose employment
terminates prior to the next Valuation Date shall be adjusted to
reflect this determination. Each valuation shall be based on the
fair market value of assets in the Trust Fund on the Valuation
Date or Special Valuation Date, as the case may be.
(b) WAGE REDUCTION CONTRIBUTIONS: The Employer
contributions for a calendar quarter made pursuant to a wage
reduction agreement entered into with a Participant under Section
4.2 shall be allocated to the Participant's Wage Reduction
Contribution Account as of each Valuation Date.
(c) CONTRIBUTIONS: A Participant's contributions shall
be allocated to his or her Employee Contribution Account as of
each Valuation Date.
(d) ALTERNATIVE METHOD: Notwithstanding the foregoing,
the Committee may, in its sole and exclusive discretion, require
an alternative method of allocating Income and contributions to
Accounts if such method more accurately reflects the value of
such Accounts.
5.3 ACTUAL DEFERRAL PERCENTAGE TEST: Notwithstanding
any other provisions of the Plan,
(a) The Actual Deferral Percentage (hereinafter "ADP")
for Participants who are Highly Compensated Employees for each
Plan Year and the ADP for Participants who are non-highly
Compensated Employees for the same Plan Year must satisfy one of
the following tests:
(i) The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP
for Participants who are non-Highly Compensated
Employees for the same Plan Year multiplied by 1.25;
or
(ii) The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP
for Participants who are non-Highly Compensated
Employees for the same Plan Year multiplied by 2.0,
provided that the ADP for Participants who are
Highly Compensated Employees does not exceed the ADP
for Participants who are non-Highly Compensated
Employees by more that two (2) percentage points.
(b) The ADP for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
have Elective Deferrals allocated to his or her accounts under
two or more arrangements described in Section 401 (k) of the
Code, that are maintained by the Employer, shall be determined as
if such Elective Deferrals were made under a single arrangement.
If a Highly Compensated Employee participated in two or more cash
or deferred arrangements that have different Plan Years, all cash
or deferred arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
(c) In the event that this Plan satisfies the
requirements of Sections 401(k), 401 (a) (4), or 410 (b) of the
Code only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such Sections of
the Code only if aggregated with this Plan, then this Section
shall be applied by determining the ADP of Employees as if all
such plans were a single Plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in order to satisfy
Section 401 (k) of the Code only if they have the same Plan Year.
(d) For purposes of determining the ADP of a Participant
who is a 5-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Elective Deferrals and
Compensation of such Participant shall include the Elective
Deferrals and Compensation for the Plan Year of Family Members
(as defined in Section 414 (q) (6) of the Code). Family Members,
with respect to such Highly Compensated Employees, shall be
disregarded as separate Employees in determining the ADP both for
Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(e) For purposes of determining the ADP test, Elective
Deferrals must be made before the last day of the twelve-month
period immediately following the Plan Year to which contributions
relate.
(f) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test.
(g) The determination and treatment of the ADP amounts
of any Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST:
Notwithstanding any other provision of the Plan,
(a) Employee Contributions must meet the
nondiscrimination requirements of Section 401 (a) (4) of the
Code, and the Average Contribution Percentage test of Section 401
(m) of the Code. The ACP test is required in addition to the
ADP test under Section 401(k) of the Code.
(b) The ACP for Participants who are Highly Compensated
Employees for each Plan Year and the ACP for Participants who are
non-Highly Compensated Employees for the same Plan Year must
satisfy one of the following tests:
(i) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are non-highly compensated
Employees for the same Plan Year multiplied by 1.25;
or
(ii) The ACP for participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are non-highly Compensated
Employees for the same Plan Year multiplied by two
(2), provided that the ACP for Participants who are
Highly Compensated Employees does not exceed the ACP
for Participants who are non-highly Compensated
Employees by more than two (2) percentage points.
(c) Multiple Use: If one or more Highly Compensated
Employees participate in both a CODA and a plan subject to the
ACP test maintained by the Employer, and the sum of the ADP and
ACP of those Highly Compensated Employees subject to either or
both tests exceeds the Aggregate Limit, then the ACP of those
Highly Compensated Employees who also participate in a CODA will
be reduced (beginning with such Highly Compensated Employee whose
ACP is the highest) so that the limit is not exceeded. The
amount by which each Highly Compensated Employee's Contribution
Percentage Amount is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections
required to meet the ADP and ACP tests. Multiple use does not
occur if either the ADP or ACP of the Highly Compensated
Employees does not exceed 1.25 multiplied by the ADP and ACP of
the non-Highly Compensated Employees.
(d) For purposes of this Section, the Contribution
Percentage for any Participant who is a Highly Compensated
Employee and who is eligible to have Contribution Percentage
Amounts allocated to his or her account under two or more plans
described in Section 401(a) of the Code, or arrangements
described in Section 401(k) of the Code that are maintained by
the Employer, shall be determined as if the total of such
Contribution Percentage Amounts was made under each plan. If a
Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
(e) In the event that this Plan satisfies the
requirements of Sections 401(m), 401(a) (4) or 410(b) of the Code
only if aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of such Sections of the
Code only if aggregated with this Plan, then this Section shall
be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For Plan
Years beginning after December 31, 1989, plans may be aggregated
in order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(f) For purposes of determining the Contribution
percentage of a Participant who is a five-percent owner or one of
the ten most highly-paid Highly Compensated Employees, the
Contribution Percentage Amounts and Compensation of such
Participant shall include the Contribution Percentage Amounts and
Compensation for the Plan Year of Family Members (as defined in
Section 414(q) (6) of the Code). Family Members, with respect to
Highly Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for
Participants who are non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(g) For purposes of determining the Contribution
Percentage test, Employee Contributions are considered to have
been made in the Plan Year in which contributed to the Trust.
The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test.
The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
5.5 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS:
(a) Notwithstanding any other provisions of this Plan,
Excess Aggregate Contributions, plus any Income and minus any
loss allocable thereto, shall be forfeited, if forfeitable, or if
not forfeitable, distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions shall be allocated to Participants who
are subject to the Family Member aggregation rules of Section
414(q) (6) of the Code in the manner prescribed by the
regulations. If such Excess Aggregate Contributions are
distributed more than 2 1/2 months after the last day of the Plan
Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the Plan
with respect to those amounts. Excess Aggregate Contributions
shall be treated as Annual Additions under the Plan.
(b) Excess Aggregate Contributions shall be adjusted for
any Income or loss up to the date of distribution. The Income or
loss allocable to Excess Aggregate Contributions is the Income or
loss allocable to the accounts to which the Participant's
Employee Contributions and, if applicable, Elective Deferrals
were allocated for the plan Year multiplied by a fraction, the
numerator or which is such Participant's Excess Aggregate
Contributions for the Year and the denominator is the
Participant's Account balance(s) attributable to Contribution
Percentage Amounts without regard to any Income or loss occurring
during such Plan Year.
(c) Forfeitures of Excess Aggregate Contributions may
either be reallocated to the Accounts of non-Highly Compensated
Employees or applied to reduce Employer contributions.
(d) Excess Aggregate Contributions shall be forfeited,
if forfeitable, or distributed on a pro-rata basis from the
Participant's Accounts.
5.6 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS:
(a) No Participant shall be permitted to have Elective
Deferrals made under this Plan, or any other qualified Plan
maintained by the Employer, during any taxable year in excess of
the dollar limitation contained in Section 402(g) of the Code in
effect at the beginning of such taxable year.
(b) A Participant may assign to this Plan any Excess
Elective Deferrals made during a taxable year of the Participant
by notifying the Committee on or before the date specified in
Section 5.6(e) of the amount of the Excess Elective Deferrals to
be assigned to the Plan.
(c) Notwithstanding any other provision of the Plan,
Excess Elective Deferrals, plus any income and minus any loss
allocable thereto, shall be distributed no later than April 15 to
any Participant to whose account Excess Elective Deferrals were
assigned for the preceding year.
(d) Excess Elective Deferrals shall be adjusted for any
Income or loss up to the date of distribution. The Income or
loss allocable to Excess Elective Deferrals is the Income or loss
allocable to the Participant's Elective Deferrals for the taxable
year multiplied by a fraction, the numerator of which is such
Participant's Excess Elective Deferrals for the year and the
denominator is the Participant's account balance attributable to
elective deferrals without regard to any income or loss occurring
during such taxable year.
(e) Participants who claim Excess Elective Deferrals for
the preceding taxable year must submit their claims in writing to
the Committee by March 15.
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS:
(a) Notwithstanding any other provision of this Plan,
Excess Contributions, plus any Income and minus any loss
allocable thereto, shall be distributed no later than the last
day of each Plan Year to Participants to whose accounts such
Excess Contributions were allocated for the preceding Plan Year.
If such excess amounts are distributed more than 2 1/2 months after
the last day of the Plan Year in which such excess amounts arose,
a ten (10) percent excise tax will be imposed on the Employer
maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on
the basis of the respective portions of the Excess Contributions
attributable to each of such Employees. Excess Contributions
shall be allocated to Participants who are subject to the Family
Member aggregation rules of Section 414(q) (6) of the Code in the
manner prescribed by the regulations.
(b) Excess Contributions (including the amounts
recharacterized) shall be treated as Annual Additions under the
Plan.
(c) Excess Contributions shall be adjusted for any
Income or loss up to the date of distribution. The Income or
loss allocable to Excess Contributions is the Income or loss
allocable to the accounts to which the Participant's Elective
Deferrals were allocated for the Plan Year multiplied by a
fraction, the numerator of which is such Participant's Excess
Contributions for the year and the denominator is the
Participant's account balance attributable to Elective Deferrals
without regard to any Income or loss occurring during such Plan
Year.
(d) Excess Contributions shall be distributed from the
accounts to which the Participant's Elective Deferrals were
allocated in proportion to the Participant's Elective Deferrals
(to the extent used in the ADP test) for the Plan Year.
5.8 RECHARACTERIZATION:
(a) A Participant may treat his or her Excess
Contributions as an amount distributed to the Participant and
then contributed by the Participant to the Plan. Recharacterized
amounts will remain nonforfeitable and subject to the same
distribution requirements as Elective Deferrals. Amounts may not
be recharacterized by a Highly Compensated Employee to the extent
that such amount in combination with other Employee Contributions
made by that Employee would exceed any stated limit under the
Plan on Employee Contributions. Recharacterization must occur no
later than 2 1/2 months after the last day of the Plan Year in
which such Excess Contributions arose and is deemed to occur no
earlier than the date the last Highly Compensated Employee is
informed in writing of the amount recharacterized and the
consequences thereof. Recharacterized amounts will be taxable to
the Participant for the Participant's tax year in which the
Participant would have received them in cash.
5.9 MAXIMUM ADDITIONS:
(a) Notwithstanding anything contained herein to the
contrary, the total additions made to the Wage Reduction
Contribution Account, and Employee Contribution Account of a
Participant for any year shall not exceed the lesser of
$30,000.00 or 25 percent of the Participant's Compensation (as
defined in Section 415 of the Code and after application of the
wage reduction agreement set forth in Section 4.2) for such Year,
except that such $30,000.00 shall be increased as permitted by
Internal Revenue Service regulations to reflect cost-of-living
adjustments.
(b) If such additions exceed the above limitations, the
contributions for the Year which cause the excess shall be
returned to the Participant in the following order:
(i) Any contributions to such Participant's Employee
Contribution Account, to the extent they would
reduce the excess amount, will be returned to the
Participant.
(ii) If, after the application of paragraph (i) an excess
amount still exists, any contributions to such
Participant's Wage Reduction Contribution Account,
to the extent they would reduce the excess amount,
will be returned to the Participant.
(c) Notwithstanding the foregoing, the otherwise
permissible Annual additions for any Participant under this Plan
may be further reduced to the extent necessary, as determined by
the Committee, to prevent disqualification of the Plan under
Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may
be participating in other tax-qualified pension, profit-sharing,
savings or stock bonus plans maintained by the Employer or any of
the members of the Controlled Group of corporations (for the
purpose of this Section "Employers") of which the Employer is a
part. If an individual is a Participant at any time in both a
defined benefit plan and a defined contribution plan maintained
by any of the Employers, the sum of the defined benefit plan
fraction and the defined contribution plan fraction for any Year
may not exceed 1.0. The defined benefit plan fraction for any
Year is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan (determined at the close
of the Year) and the denominator of which is the lesser of (i)
the product of 1.25, multiplied by the dollar limitation in
effect under Section 415(b) (1) (A) of the Code, or (ii) the
product of 1.4, multiplied by the amount which may be taken into
account under Section 415(b) (1) (B) of the Code with respect to
such Participant under the Plan for such Year. The defined
contribution plan fraction for any Year is a fraction, the
numerator of which is the sum of the annual additions to the
Participant's accounts as of the close of the Year, and the
denominator of which is the sum of the lesser of the following
amounts determined for such Year and for each prior year of
service with the Employer: (i) the product of 1.25, multiplied
by the dollar limitation in effect under Section 415(c) (1) (A)
of the Code, or (ii) the product of 1.4 multiplied by the amount
which may be taken into account under Section 415(c) (1) (B) of
the Code with respect to such Participant under the Plan for such
Year. When the term "Annual Additions" is used in the context of
other defined contribution plans under this Section, it shall
have the same meaning as set forth in Section 2.1(f), hereof, but
with respect to Employer contributions and Employee Contributions
made under such other plans. For purposes of this limitation,
all defined benefit plans of the Employers, whether or not
terminated, are to be treated as one defined benefit plan and all
defined contribution plans of the Employers, including the Plan
whether or not terminated, are to be treated as one defined
contribution plan. As such, annual benefits and Annual additions
of such plans are to be aggregated for the purpose of determining
the defined benefit plan fraction and the defined contribution
plan fraction. The extent to which Annual Additions under the
plan shall be reduced, as compared with the extent to which
annual benefits or Annual Additions under any defined benefit
plans or any other defined contribution plans shall be reduced in
order to achieve compliance with the limitations of Code Section
415 shall be dependent on the provisions of such other plans. To
the extent any such other plan or plans provide for such a
reduction first in benefits from or Annual Additions to such
other plan or plans, the necessary reductions shall be under such
other plan or plans. To the extent any such other plan or plans
do not provide for a reduction first in benefits from or Annual
Additions to such other plan or plans, the reduction in Annual
Additions necessary to achieve compliance with Section 415 of the
Code shall be under this Plan. If the reduction is under this
Plan, the Committee shall advise affected Participants of any
additional limitations on their Annual Additions required by this
Section 5.9.
5.10 RECOGNITION OF DIFFERENT INVESTMENT FUNDS:
(a) Subject to the terms and conditions herein stated,
and as provided in Article VII, initially four Investment Funds
shall be established by the Trustee and each Participant shall
direct what portion of the aggregate of his or her Account
balances shall be deposited in each such Investment Fund. The
Committee may direct the Trustee to change the number and type of
Investment Funds made available under the Plan from time to time.
Consequently, when appropriate, a Participant shall have a
percentage of the aggregate of his or her Wage Reduction
Contribution Account, Vested Rollover Contribution Account and/or
Employee Contribution Account in each such Investment Fund and
the allocations described in Section 5.2 shall be adjusted in
such manner as is appropriate to recognize the existence of such
Investment Funds.
(b) Because Participants have a choice of Investment
Funds, reference in this Plan to a Wage Reduction Contribution
Account, a Vested Rollover Contribution Account or an Employee
Contribution Account shall be deemed to mean and include all
accounts of a like nature which are maintained for the
Participant under each Investment Fund.
ARTICLE VI. - BENEFITS
6.1 ENTITLEMENT TO BENEFITS: If a Participant's
employment with the Employer is terminated as defined in Section
3.2, he or she shall be vested in the entire amount in each of
his or her Accounts. Except as provided in Section 6.3(d),
hereof, payment of benefits shall commence promptly after such
termination of employment.
6.2 DEATH:
(a) In the event that the termination of employment of a
Participant is caused by his or her death, his or her Beneficiary
shall be vested in, and paid the entire amount of, each of the
deceased Participant's Accounts. Payment shall commence promptly
after the Participant's death, but the Beneficiary shall not be
entitled to receive such payment until the Committee is
reasonably satisfied that such Beneficiary is otherwise entitled
to receive such entire amount.
(b) Payment of benefits due under this Section shall be
made in accordance with Section 6.3.
6.3 PAYMENT OF BENEFITS:
(a) Upon a Participant's or Beneficiary's entitlement to
payment of benefits under Section 6.1 or 6.2 he or she shall file
with the Committee his or her written application therefor on
such form or forms, and subject to such reasonable conditions, as
the Committee shall provide.
(b) The Committee shall follow a Participant's
Beneficiary designation made pursuant to Section 6.4. The
Committee shall make payment of benefits in lump sum only.
Payment to a Participant's Beneficiary shall be made or commence
as soon as practicable after a Participant's death upon such
proofs of death and entitlement to benefits as the Committee may
require.
(c) Subject to the provisions of Section 6.8, unless a
Participant elects otherwise, payment of his or her benefits
under the Plan shall be made no later than the 60th day after the
later of (i) the end of the Year of his or her 65th birthday; or
(ii) the end of the Year in which his or her employment
terminates. The foregoing sentence shall not be construed as
providing an election to defer benefits to Participants which is
not otherwise specifically set forth in the Plan.
(d) Subject to the provisions of Section 6.8, at any
time prior to a Participant's termination of employment, such
Participant may elect to defer the lump sum distribution he or
she is entitled to under the Plan for a period of time not to
exceed one year. Such election shall be made in accordance with
the rules and procedures the Committee may prescribe.
The above paragraph notwithstanding, if the present value of
a Participant's accrued benefit is greater than $3,500, such
benefit may not be distributed without the consent of the
Participant.
(e) The amount which a Participant or Beneficiary is
entitled to receive at any time and from time to time may be
paid, at the discretion of the Participant or Beneficiary, in
cash or in Company Stock, or in any combination thereof,
provided, however, payment in Company Stock may be limited to the
extent a Participant's Account balances are invested in whole
shares of such Company Stock under Section 7.1(i), and the
Committee may require that all such Company Stock be transferred
to such Participant or Beneficiary.
6.4 DESIGNATION OF BENEFICIARY:
(a) Subject to the provisions of Section 6.4(c), each
Participant from time to time may designate any person or persons
(who may be designated contingently or successively and who may
be an entity other than a natural person) as his or her
Beneficiary or Beneficiaries to whom his or her Plan benefits are
paid if he or she dies before receipt of all such benefits. Each
Beneficiary designation shall be in the form prescribed by the
Committee, will be effective only when filed with the Committee
during the Participant's lifetime, and, if the Committee allows,
may specify the method of payment of his or her benefits to the
Beneficiary. Each Beneficiary designation filed with the
Committee will cancel all Beneficiary designations previously
filed with the Committee. The revocation of a Beneficiary
designation by a Participant, no matter how effected, shall not
require the consent of any designated Beneficiary unless the
Beneficiary affected is the Participant's spouse, in which case
such spouse's consent shall be required to effect any such
revocation in accordance with Section 6.4(c). By designating a
Beneficiary or Beneficiaries as hereunder provided, a Participant
grants the Committee the discretion, in good faith, to make
benefit payment(s) to any Beneficiary or Beneficiaries named by
such Participant despite any dispute by any person or persons
claiming such benefits, and holds the Plan, the Employer and the
Committee harmless from any claims arising out of any such good
faith payment(s) of benefits. Each Participant, by designating a
Beneficiary or Beneficiaries, authorizes the Committee to retain
any benefits otherwise payable in the Trust Fund or, in its sole
discretion, pay-over such benefits to a court or other tribunal
of competent jurisdiction pending the final and binding
disposition of any dispute as to the proper Beneficiary or
Beneficiaries by agreement of the parties or by a judgment of
such court or other tribunal of competent jurisdiction, as the
case may be.
(b) If any Participant fails to designate a Beneficiary
in the manner provided above, or if the Beneficiary or
Beneficiaries designated by a deceased Participant die(s) before
him or her or before complete distribution of the participant's
benefits, the Committee shall direct the Trustee to distribute
such Participant's benefits (or the balance thereof) to:
(i) The surviving spouse of such Participant, if then
living or,
(ii) The estate of the Participant.
(c) Notwithstanding anything contained herein to the
contrary, a Participant may not name as a Beneficiary someone
other than his or her spouse, and such designation shall have no
effect, unless his or her spouse consents thereto, in a signed
writing, notarized or witnessed by an administrator of the Plan,
or if the Committee determines in its sole discretion that such
consent is not obtainable for good cause shown consistent with
the applicable law.
6.5 WITHDRAWALS:
(a) Subject to Subsections (b), (c), (d) and (e) of this
Section 6.5, any Participant may make a withdrawal of all or part
of his or her Employee Contribution Account, Wage Reduction
Contribution Account and Vested Rollover Contribution Account,
provided, however, that withdrawals must be made of all amounts
in each classification below (listed in descending order) before
amounts in the next lower classification may be withdrawn.
(i) Employee Contribution Account.
(ii) Wage Reduction Contribution Account.
(iii) Vested Rollover Contribution Account.
(b) A Participant must have attained age 59 1/2 or have
been determined by the Committee to have a "financial hardship"
in accordance with Section 6.5(d) in order to qualify for a
withdrawal under Section 6.5(a) with respect to his or her Wage
Reduction Contribution Account and/or Vested Rollover
Contribution Account balances.
(c) Application for withdrawals shall be made on such
forms as the Committee prescribes and as permitted herein, and
may be made once each calendar month. Except as provided in
Section 6.5(e), distribution of withdrawals shall be made in a
lump sum within 45 days following receipt by the Committee of a
properly completed application. Withdrawal distributions shall
be based on the value of the Participant's Account(s) as of the
effective date of the withdrawal, and subject to the provisions
of Section 6.6, and may be made at the discretion of the
Participant in the form of cash or in Company Stock or in any
combination thereof, provided, however, payment in Company Stock
shall be limited to the extent a Participant's Account balances
are invested in whole shares of such Company Stock under Section
7.1(i) and the Committee may require that all such Company Stock
be transferred to such Participant or Beneficiary.
(d) Distribution of wage reduction contributions (and
earnings thereon accrued as of December 31, 1988) may be made to
a Participant in the event of financial hardship. For the
purposes of this Section, financial hardship is defined as an
immediate and heavy financial need of the Employee where such
Employee lacks other available resources. The following are the
only financial needs considered immediate and heavy: deductible
medical expenses (within the meaning of Section 213 (d) of the
Code) of the Employee, the Employee's spouse, children, or
dependents; the purchase (excluding mortgage payments) of a
principal residence for the Employee; payment of tuition for the
next quarter or semester of post-secondary education for the
Employee, the Employee's spouse, children or dependents; or the
need to prevent the eviction of the Employee from, or a
foreclosure on the mortgage of, the Employee's principal
residence. A distribution will be considered necessary to
satisfy an immediate and heavy financial need of the Employee
only if:
(i) The Employee has obtained all distributions other
than hardship distributions, and all nontaxable
loans under all plans maintained by the Employer;
(ii) All plans maintained by the Employer provide that
the Employee's Elective Deferrals (and Employee
Contributions) will be suspended for twelve months
after the receipt of the hardship distribution;
(iii) The distribution is not in excess of the amount of
the immediate and heavy financial need; and
(iv) All plans maintained by the Employer provide that
the Employee may not make Elective Deferrals for the
Employee's taxable year immediately following the
taxable year of the hardship distribution in excess
of the applicable limit under Section 402(g) of the
Code for such taxable year less the amount of such
Employee's Elective Deferrals for the taxable year
of the hardship distribution.
A distribution based upon financial hardship cannot exceed
the amount required to meet the immediate financial need created
by the hardship and not reasonably available from other resources
of the Participant. Entitlement to a distribution based on
financial hardship shall be determined by the Committee in its
sole and exclusive discretion. The Committee may require such
reasonable proof of immediate financial need as it deems
necessary to uniformly and fairly administer this Section 6.5, as
a condition precedent to any distribution by reason of financial
hardship.
(e) Notwithstanding anything contained in Section 6.5(b)
regarding the age of a Participant or financial hardship to the
contrary, a Participant may withdraw all or a portion of his or
her Employee Contribution Account once each calendar month
regardless of his or her age or the existence of any financial
hardship if such Participant satisfies all of the other terms and
conditions contained in this Section 6.5.
6.6 SPOUSAL CONSENT: Notwithstanding anything contained
herein to the contrary, a Participant may not make a withdrawal
unless his or her spouse consents thereto in a signed writing,
notarized or witnessed by an administrator of the Plan, or if the
Committee determines in its sole discretion that such consent is
not obtainable for good cause shown, and consistent with
applicable law.
6.7 DEBITING OF INVESTMENT FUNDS: If a Participant
making less than a total withdrawal of his or her accounts under
Section 6.5 has his or her Accounts invested in more than one
Investment Fund, the amount withdrawn from his or her Accounts
shall be debited, on a pro-rata basis, against each Investment
Fund in which such Accounts are invested.
6.8 REQUIRED DISTRIBUTIONS: Distribution of the Account
balances of a Participant will be made by April 1 of the year
following the calendar year in which such Participant attains age
70 1/2.
6.9 DISTRIBUTION REQUIREMENTS:
(a) Elective Deferrals and Income allocable to them must
comply with the distribution requirements under Section 401 (k)
(2) (B) of the Code.
(b) Elective Deferrals and Income allocable to them are
not distributable to a Participant or his or her Beneficiary or
Beneficiaries in accordance with such Participant's or
Beneficiary or Beneficiaries' election, earlier than upon
separation from service, death or disability.
(c) Such amounts may also be distributed upon:
(i) Termination of the Plan without the establishment of
another defined contribution plan.
(ii) The disposition by a corporation to an unrelated
corporation of substantially all of the assets
(within the meaning of Section 409 (d) (2) of the
Code) used in a trade or business of such
corporation if such corporation continues to
maintain this Plan after the disposition, but only
with respect to Employees who continue employment
with the corporation acquiring such assets.
(iii) The disposition by a corporation to an unrelated
entity of such corporation's interest in a
subsidiary (within the meaning of Section 409 (d)
(3) of the Code) if such corporation continues to
maintain this Plan, but only with respect to
Employees who continue employment with such
subsidiary.
(iv) The attainment of age 59 1/2 in the case of a profit-sharing plan.
(v) The hardship of the Participant subject to the
provisions of Section 6.5(d) of the Plan.
All distributions that may be made pursuant to one or more
of the foregoing distributable events are subject to the spousal
and Participant consent requirements (if applicable) contained in
Sections 401 (a) (11) and 417 of the Code.
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS:
(a) GENERAL. This Section applies to distributions made
on or after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would 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) DEFINITIONS.
(1) "Eligible rollover distribution" An eligible
rollover distribution is 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 includible in gross income (determined
without regard to the exclusion for net unrealized appreciation
with respect to employer securities).
(2) "Eligible retirement plan" An eligible retirement
plan is 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" A distributee includes 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" A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the
distributee.
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND
7.1 INVESTMENT OPTIONS: Each Participant shall
designate the Investment Fund(s) under which contributions made
pursuant to Sections 4.1 (a), 4.3 and 4.5, hereof, are to be
invested. Initially, there shall be at least four such
investment funds, as herein after indicated:
(i) A Common Stock Fund, consisting of Company Stock;
(ii) An Equity Fund, consisting of common stock and other
equity securities, held directly or indirectly;
(iii) A Bond Fund, consisting of Government National
Mortgage Association (GNMA) backed certificates; and
(iv) A Fixed Fund, consisting of insurance company
guaranteed investment contracts.
7.2 INVESTMENT OF CONTRIBUTIONS: Each Participant may
elect with respect to future contributions to his Employee
Contribution Account, Wage Reduction Contribution Account and
Vested Rollover Contribution Account to have the aggregate
contributions to such Account(s) invested in increments of 10
percent of the total contributions in an Investment Fund or
Funds. Any such change may be made in accordance with procedures
established by the Committee.
7.3 INVESTMENT TRANSFERS: Subject to all of the other
provisions herein contained, and any special rules formed by the
Committee with respect to certain Investment Funds which, by
their nature, require special treatment, each Participant may
elect, in accordance with procedures established by the
Committee, to have the assets in any or all Investment Fund(s),
in increments of 10 percent of the total, transferred to any one
or more other Investment Fund(s).
7.4 TRANSFER OF ASSETS: The Committee shall direct the
Trustee to transfer monies or other property from the appropriate
Investment Funds to the other Investment Funds as may be
necessary to carry out the aggregate transfer transactions after
such Committee has caused the necessary entries to be made in the
Participant's Accounts and in the Investment Funds and has
reconciled offsetting transfer elections, in accordance with
uniform rules therefor established by such Committee.
7.5 TRUST FUND:
(a) All contributions under this Plan shall be paid to
the Trustee and deposited in the Trust Fund.
(b) Except as provided above, all assets of the Trust
Fund, including investment Income, shall be retained for the
exclusive benefit of Participants and Beneficiaries and shall be
used to pay benefits to such persons or to pay administrative
expenses of the Plan and Trust Fund to the extent not paid by the
Employer and shall not revert to or inure to the benefit of the
Employer.
7.6 TENDER OFFERS: As soon as practicable after the
commencement of a tender offer or exchange offer ("Offer") for
shares of Finova Stock, Viad Corp Stock or Company Stock, the
Committee shall use its reasonable best efforts to cause each
Participant (who has an Account allocated in whole or in part to
Finova Stock, Viad Corp Stock or Company Stock) to be advised in
writing of the terms of the Offer, together with forms by which
the Participant may instruct the Committee to instruct the
Trustee, or revoke such instruction, to tender shares credited to
his or her Account, to the extent permitted under the terms of
any such Offer. The Trustee shall follow the directions of the
Committee but the Trustee shall not tender shares for which no
instructions are received. In advising Participants of the terms
of the offer, the Committee may include statements from the
management of Finova, Viad Corp, or the Company setting forth its
position with respect to the Offer. The giving of instructions
to the Trustee to tender shares of Finova Stock, Viad Corp Stock
or Company Stock and the tender thereof shall not be deemed a
withdrawal or suspension from the Plan or a forfeiture of any
portion of the Participant's interest in the Plan. The number of
shares of Finova Stock, Viad Corp Stock or Company Stock to which
a Participant may provide instructions shall be the total number
of shares credited to his or her Account(s), as of the close of
business on the day preceding the date on which the tender offer
commences or such earlier date which shall be designated by the
Committee which the Committee, in its sole discretion, deems
appropriate for reasons of administrative convenience. Any
securities received by the Trustee as a result of a tender of
shares hereunder shall be held, and any cash so received shall be
invested in short-term investments, for the account of each
Participant with respect to whom shares of Finova Stock, Viad
Corp Stock or Company Stock were tendered pending any
reinvestment by the Trustee, as it may deem appropriate,
consistent with the purposes of the Plan.
7.7 VOTING OF STOCK: Each Participant (whose Account
has allocated to it any shares of Finova, Viad Corp or Company
Stock) shall be entitled to instruct the Committee to instruct
the Trustee in writing how to vote, at each meeting of
shareholders, such shares of Finova, Viad Corp or Company Stock,
and to revoke any such instruction, to the extent permitted under
the terms of such vote. Such instruction or revocation thereof
shall apply to the total number of shares of Finova, Viad Corp or
Company Stock credited to the Participant's Accounts, whether or
not vested, as of the date coinciding with or immediately
preceding the record date for the shareholders' meeting or such
earlier date which shall be designated by the Committee which the
Committee, in its sole discretion, deems appropriate for reasons
of administrative convenience. All the shares of Finova, Viad
Corp or Company Stock for which no instructions are received
shall be voted by the Trustee in a uniform manner as a single
block in accordance with the instructions received with respect
to a majority of such shares for which instruction is received.
The Committee shall use its reasonable best efforts to cause each
Participant (whose Account has allocated to it any shares of
Finova, Viad Corp or Company Stock) to receive such notices and
informational statements as are furnished to shareholders in
respect of the exercise of voting rights, together with forms by
which the Participant may instruct the Committee to instruct the
Trustee, or revoke such instruction, with respect to the vote of
shares of Finova, Viad Corp or Company Stock credited to his or
her account.
7.8 SPECIAL RULES FOR FINOVA COMMON STOCK FUND:
(a) The Plan is authorized to receive Finova common
stock that is distributed to it when The Dial Corp distributed
such stock to the Plan and its other stockholders.
(b) For Participants who elect to dispose of Finova
Stock it shall be sold in an arm's-length transaction and the
proceeds shall be reinvested in available Funds according to the
Participant's most recent investment election for Elective
Deferrals and shall thereafter be subject to the Plan's normal
rules for investments and distributions in such Accounts.
(c) For Participants who elect to keep Finova Stock, it
shall be invested in the Finova Common Stock Fund and retained
for them in the Finova Common Stock Fund until the time for
distribution under the rules of the Plan, or, if sooner, the time
at which the Participant decides to dispose of the Finova stock.
When a distribution is due from the Finova Common Stock Fund
following a Participant's termination of employment, the usual
rules of the Plan shall apply, except that the Participant or
Beneficiary shall be allowed to elect to receive the distribution
from such Investment Fund in the form of whole shares of Finova
common stock (plus cash in lieu of any fractional shares) instead
of receiving cash. Except in the case of stock dividends, stock
splits, or nontaxable distributions with respect to Finova Stock,
no Finova Stock or other assets shall be added to the Finova
Common Stock Fund, and the dividends on Finova common stock and
any other earnings of the Finova Common Stock Fund shall be
reinvested in other Investment Funds according to the
Participant's most recent investment election for Elective
Deferrals.
7.9 SPECIAL RULES FOR VIAD CORP COMMON STOCK FUND:
(a) The Plan is authorized to receive Viad Corp common
stock that is distributed to it when Viad Corp distributes such
stock to the Plan and its other stockholders.
(b) For Participants who elect to dispose of Viad Corp
Stock, it shall be sold in an arm's-length transaction and the
proceeds shall be invested in available Investment Funds
according to the Participant's most recent investment election
for Elective Deferrals and shall thereafter be subject to the
Plan's normal rules for investments and distributions of balances
in such Accounts.
(c) For Participants who elect to keep Viad Corp Stock,
it shall be invested in the Viad Corp Common Stock Fund and
retained for them in the Viad Corp Common Stock fund until the
time for distribution under the rules of the Plan, or, if sooner,
the time at which the Participant decides to dispose of his Viad
Corp stock. When a distribution is due from the Viad Corp Common
Stock Fund following a Participant's termination of employment,
the usual rules of the Plan shall apply, except that the
Participant or Beneficiary shall be allowed to elect to receive
the distribution from such Investment Fund in the form of whole
shares of Viad Corp common stock (plus cash in lieu of any
fractional shares) instead of receiving cash. Except in the case
of stock dividends, stock splits, or nontaxable distributions
with respect to Viad Corp Stock, no Viad Corp Stock or other
assets shall be added to the Viad Corp Common Stock Fund, and the
dividends on Viad Corp common stock and any other earnings of the
Viad Corp Common Stock Fund shall be reinvested in the other
investment funds according to the Participant's most recent
investment election for Elective Deferrals.
ARTICLE VIII. - ADMINISTRATION
8.1 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR
PLAN AND TRUST ADMINISTRATION: The Fiduciaries shall have only
those specific powers, duties, responsibilities and obligations
as are specifically given them under the Plan or the Trust. The
Board of Directors of the Company shall have the sole authority
to appoint and remove the Trustee. The Company shall have the
sole authority to appoint and remove the Committee, and any
Investment Manager which may be provided for under and defined in
the Trust, and to amend or terminate in whole or in part, this
Plan or the Trust. The Company shall have the final
responsibility for administration of the Plan, which
responsibility is specifically described in this Plan and the
Trust. The Committee, appointed pursuant to Section 8.2, hereof,
shall have the specific delegated powers and duties described in
the further provisions of this Article VIII, and such further
powers and duties as hereinafter may be delegated to it by the
Company. The Trustee shall have sole responsibility for the
administration of the Trust and the management of the assets held
under the Trust, all as specifically provided in the Trust. Each
Fiduciary warrants that any direction given, information
furnished, or action taken by it shall be in accordance with the
provisions of the Plan or the Trust, as the case may be,
authorizing or providing for such direction, information or
action. Furthermore, each Fiduciary may rely upon any such
direction, information or action of another Fiduciary as being
proper under this Plan or the Trust, and is not required under
the Plan or the Trust to inquire into the propriety of any such
direction, information or action. It is intended under the Plan
and the Trust that each Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another Fiduciary.
No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
8.2 APPOINTMENT OF COMMITTEE: A Committee consisting of
at least three persons shall be appointed by and serve at the
pleasure of the President of the Company to assist in the
administration of the Plan. All usual and reasonable expenses of
the Committee may be paid in whole or in part by the Employer,
and any expenses not paid by the Employer shall be paid by the
Trustee out of the principal or Income of the Trust Fund. Any
members of the Committee who are Employees shall not receive
Compensation with respect to their services for the Committee.
8.3 CLAIMS PROCEDURE: The Committee shall make all
determinations as to the right of any person to a benefit. Any
denial by the Committee of the claim for benefits under the Plan
by a Participant or Beneficiary shall be stated in writing by the
Committee and delivered or mailed to the Participant or
Beneficiary at his or her last address shown on Plan records; and
such notice shall set forth the specific reasons for the denial,
written to the best of the Committee's ability in a manner that
may be understood without legal or actuarial counsel. In
addition, the Committee shall afford a reasonable opportunity to
any Participant or Beneficiary whose claim for benefits has been
denied for a review of the decision denying the claim, and in the
event of continued disagreement, may appeal to the Company (or an
appellate benefits review committee appointed by it) whose
decision shall be final.
8.4 RECORDS AND REPORTS: The Company (or the Committee
if so designated by it) shall exercise such authority and
responsibility as it deems appropriate in order to comply with
ERISA, other applicable law and governmental regulations issued
thereunder relating to records of Participant's employment,
Account balances, notifications to Participants' and annual
reports to the Internal Revenue Service and Department of Labor.
Each Employer agrees to abide by the directions of the Company or
its designee, in the exercise of its responsibilities hereunder.
8.5 OTHER COMMITTEE POWERS AND DUTIES: The Committee
shall have such duties and powers as may be necessary to
discharge its duties hereunder, including, but not by way of
limitation, the following:
(a) To construe and interpret the Plan, decide all
questions of eligibility, and determine the amount, manner and
time of payment of any benefits hereunder;
(b) To prescribe procedures to be followed by
Participants and Beneficiaries filing applications for benefits;
(c) To prepare and distribute, in such manner as the
Committee determines to be appropriate, information explaining
the Plan;
(d) To receive from the Employer and from Participants
and Beneficiaries such information as shall be necessary for the
proper administration of the Plan;
(e) To furnish the Employer, upon request, such annual
reports with respect to the administration of the Plan as are
reasonable and appropriate;
(f) To receive, review and keep on file (as it deems
convenient or proper) reports of the financial condition, and of
the receipts and disbursements, of the Trust Fund from the
Trustee;
(g) To appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems
advisable, including legal and actuarial counsel; and
(h) To appoint a financial hardship subcommittee
consisting of at least three persons, to serve at the pleasure of
and subject to the rules of the Committee, and which will
consider in the first instance requests for withdrawals based on
financial hardship under Section 6.5 (d).
The Committee and any subcommittee thereof shall have no
power to add to, subtract from or modify any of the terms of the
Plan, or to change or add to any benefits provided by the Plan,
or to waive or fail to apply any requirements of eligibility for
a benefit under the Plan.
8.6 RULES AND DECISIONS: The Committee may adopt such
rules as it deems necessary, desirable or appropriate. All rules
and decisions of the Committee shall be uniformly and
consistently applied to all Participants and Beneficiaries in
similar circumstances. When making a determination or
calculation, the Committee shall be entitled to rely upon
information furnished by a Participant or Beneficiary, the
Employer, the legal counsel of any such person or the Trustee.
8.7 COMMITTEE PROCEDURES: The Committee may act at a
meeting or in writing without a meeting. The Committee shall
elect one of its members as chairman, appoint a secretary, who
may or may not be a Committee member, and advise the Trustee of
such actions in writing. The secretary shall keep a record of
all meetings and forward all necessary communications to the
Employer, or the Trustee. The Committee may adopt such bylaws
and regulations as it deems desirable for the conduct of its
affairs. All decisions of the Committee shall be made by the
vote of the majority including actions in writing taken without a
meeting. A dissenting Committee member who, within a reasonable
time after he or she has knowledge of any action or failure to
act by the majority, registers his or her dissent in writing
delivered to the other Committee members, the Employer and the
Trustee shall not be responsible for any such action or failure
to act.
8.8 AUTHORIZATION OF BENEFIT PAYMENTS: The Committee
shall issue directions to the Trustee concerning all benefits
which are to be paid from the Trust Fund pursuant to the
provisions of the Plan, and shall warrant to the Trustee that all
such directions are in accordance with the Plan.
8.9 APPLICATION AND FORMS FOR BENEFITS: The Committee
may require a Participant or Beneficiary to complete and file
with the Committee an application for a benefit on the forms
approved by the Committee, and to furnish all pertinent
information requested by the Committee, as a condition precedent
to payment of benefits. The Committee may rely upon all such
information so furnished it, including the Participant's or
Beneficiary's current mailing address.
8.10 FACILITY OF PAYMENT: Whenever, in the Committee's
opinion, a person entitled to receive any payment of a benefit or
installment thereof hereunder is under a legal disability or is
incapacitated in any way so as to be unable to manage his or her
financial affairs, the Committee may direct the Trustee to make
payments to such person or to his or her legal representative or
to a relative or friend of such person for his or her benefit, or
the Committee may direct the Trustee to apply the payment for the
benefit of such person in such manner as the Committee considers
advisable. Any payment of a benefit or installment thereof in
accordance with the provisions of this Section shall be a
complete discharge of any liability for the making of such
payment under the provisions of the Plan.
8.11 INDEMNIFICATION: To the extent permitted by law,
the Company and the adopting Employers shall and do hereby
jointly and severally indemnify and agree to hold harmless their
employees, officers and directors who serve in fiduciary
capacities with respect to the Plan and the Trust Agreement from
all loss, damage, or liability, joint or several, including
payment of expenses in connection with defense against any such
claim, for their acts, omissions and conduct, and for the acts,
omissions and conduct of their duly appointed agents, which acts,
omissions, or conduct constitute or are alleged to constitute a
breach of such individual's fiduciary or other responsibilities
under ERISA or any other law, except for those acts, omissions,
or conduct resulting from his own willful misconduct, willful
failure to act, or gross negligence; provided, however, that if
any party would otherwise be entitled to indemnification
hereunder in respect of any liability and such party shall be
insured against loss as a result of such liability by any
insurance contract or contracts, such party shall be entitled to
indemnification hereunder only to the extent by which the amount
of such liability shall exceed the amount thereof payable under
such insurance contract or contracts.
ARTICLE IX. - MISCELLANEOUS
9.1 NONGUARANTEE OF EMPLOYMENT: Nothing contained in
this Plan shall be construed as a contract of employment between
the Employer and any Employee, or as a right of any Employee to
be continued in the employment of the Employer, or as a
limitation of the right of the Employer to discharge any of its
Employees, with or without cause.
9.2 RIGHTS TO TRUST ASSETS: No Employee, Participant or
Beneficiary shall have any right to, or interest in, any assets
of the Trust Fund at any time, including upon termination of his
or her employment or otherwise, except as provided from time to
time under the Plan, and then only to the extent of the benefits
properly payable under the Plan to a Participant or Beneficiary
out of the assets of the Trust Fund. All payments of benefits as
provided for in the Plan shall be made solely out of the assets
of the Trust Fund to the extent sufficient, and none of the
Fiduciaries of Employers shall be liable therefor in any manner.
9.3 NONALIENATION OF BENEFITS:
(a) Except as provided in Article VI or as required by
law, benefits payable under the Plan shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of
any kind, either voluntary or involuntary, prior to actually
being received by the person entitled to the benefit under the
terms of the Plan; and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise dispose
of any right to benefits payable hereunder, shall be void. The
Trust Fund shall not in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements or torts of any
person entitled to benefits hereunder.
(b) In accordance with procedures consistent with Code
section 414(p) that are established by the Committee (including
procedures requiring prompt notification of the affected
Participant and each potential alternate payee of the Plan's
receipt of a domestic relations order and its procedures for
determining the qualified status of such order), judicial orders
for purposes of enforcing family support obligations or
pertaining to domestic relations (which orders do not alter the
amount, timing or form of benefit other than to have it commence
at the earliest permissible date) shall be honored by the Plan if
the Committee determines that they constitute qualified domestic
relations orders within the meaning of Code section 414(p) and
ERISA section 206(d).
9.4 NONFORFEITABILITY OF BENEFITS: Subject only to the
specific provisions of the Plan, nothing shall be deemed to
divest a Participant of his or her right to the nonforfeitable
benefit to which he or she becomes entitled in accordance with
the provisions of the Plan.
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER:
10.1 AMENDMENTS: The Company reserves the right to make
from time to time any amendment or amendments to the Plan which
do not cause (i) any adverse consequences to any Participant's
rights in his or her Account balances and Funds in which such
balances are invested, or (ii) any part of the Trust Fund to be
used for, or diverted to, any purpose other than the exclusive
benefit of Participants or their Beneficiaries, provided,
however, that the Company may make any amendment it determines
necessary or desirable, with or without retroactive effect, to
comply with the Code and other applicable law.
10.2 ADMINISTRATIVE DISCRETION AND MANDATORY PROCEDURES:
(a) DISCRETION. Whenever in the administration of the
Plan any action is required to be taken by the Committee,
Trustee, the Company., or their delegatees, including, without
limitation, deciding issues of Plan interpretation and
construction, such action shall be taken in the exercise of their
discretion and shall be binding and conclusive upon all persons,
regardless of whether the particular Plan provision being
construed expressly grants such discretion; provided, however,
that any exercise of such discretion shall be uniform and non
discriminatory.
(b) PROCEDURES MANDATORY. In adopting this Plan, the
Company has, in consultation with the bargaining unit
representatives and in compliance with ERISA, developed and
adopted procedures for resolving disputes arising under this Plan
in order to assure a fair and complete review of claims and to
assure proper employer action. To the extent permitted by law,
completion of such claims procedures shall be a mandatory
precondition that must be complied with prior to commencement of
a legal or equitable action in connection with the Plan by a
person claiming rights under the Plan or by another person
claiming rights through such a person. The Company (or its
delegatee as provided herein) may, in its discretion, waive these
procedures as a mandatory precondition to such an action under
circumstances warranting such waiver.
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS
11.1 SUCCESSOR EMPLOYER: In the event of the
dissolution, merger, consolidation or reorganization of an
Employer, provision may be made in the sole discretion of the
Company by which the Plan and Trust will be continued by the
successor; and, in that event, such successor shall be
substituted for the Employer under the Plan. The substitution of
the successor shall constitute an assumption of Plan liability by
the successor and the successor shall have all of the powers,
duties, and responsibilities of the Employer under the Plan.
11.2 CONDITIONS APPLICABLE TO MERGERS OR CONSOLIDATIONS
OF PLANS: In the event of any merger or consolidation of the
Plan with, or transfer in whole or in part of the assets and
liabilities of the Trust Fund to another trust fund held under
any other plan of deferred compensation maintained or to be
established for the benefit of all or some of the Participants of
the Plan, the assets of the Trust Fund applicable to such
Participants shall be merged or consolidated with or transferred
to the other trust fund only if:
(i) Each Participant would (if either this Plan or the
other plan then terminated) receive a benefit
immediately after the merger, consolidation or
transfer which is equal to or greater than the
benefit he would have been entitled to receive
immediately before the merger, consolidation or
transfer (if this Plan had then terminated); and the
determination of such benefits shall be made in the
manner and at the time, prescribed in regulations
issued under ERISA;
(ii) The Employer under the Plan, or of any new or
successor employer of the affected Participants,
shall authorize such transfer of assets; and, in the
case of the new or successor employer of the
affected Participants, its resolutions shall include
an assumption of liabilities with respect to such
Participants' inclusion in the new employer's plan;
and
(iii) Such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
ARTICLE XII. - PLAN TERMINATION
12.1 RIGHT TO TERMINATE: In accordance with the
procedures set forth in this Article, the Company may terminate
the Plan at any time in its entirety or with respect to any
Employer or group of Employees or Participants. An Employer may
terminate the Plan at any time with respect to its Employees or
any group of its Employees or participants, provided such
Employer has made all contributions due to the Plan to the date
of such termination.
12.2 PARTIAL TERMINATION: Upon termination of the Plan
by the Company or by the Employer with respect to such Employer
or a group of Employees or Participants of such Employer, the
Trustee shall, in accordance with the directions of the
Committee, allocate and segregate for the benefit of the
Participants with respect to which the Plan is being terminated
the proportionate interest of such Participants in the Trust
Fund. The funds so allocated and segregated shall be used by the
Trustee to pay benefits to or on behalf of Participants in
accordance with Section 12.3.
12.3 LIQUIDATION OF THE TRUST FUND:
(a) Upon termination or partial termination of the Plan,
the accounts of all Participants affected thereby shall become
fully vested, and the Committee may direct the Trustee: (i) to
continue to administer the Trust Fund and pay Account balances in
accordance with Article VI to Participants affected by the
termination upon their termination of employment or to their
Beneficiaries upon such a Participant's death, until the Trust
Fund has been liquidated; or (ii) to distribute the assets
remaining in the Trust Fund, after payment of any expenses
properly chargeable thereto, to Participants and Beneficiaries in
proportion to their respective Account balances or rights
thereto.
(b) In case the Committee directs liquidation of the
Trust Fund pursuant to (a) above, the expenses of administering
the Plan and Trust, if not paid by the Employer, shall be paid
from the Trust Fund.
(c) The Trustee may delay distribution of assets under
Section 12.3 pending receipt of written determination by the
Internal Revenue Service that the Plan is qualified upon
termination.
ARTICLE XIII. - ADOPTION OF PLAN
13.1 ADOPTION AGREEMENT:
(a) Subject to the approval of the Company, and
consistent with the provisions of ERISA and other applicable law,
an Affiliate may adopt the Plan for its Eligible Employees or a
class of such Employees in a manner not inconsistent with ERISA
by entering into an Adoption Agreement in the form and substance
prescribed by the Committee.
(b) The Company may prospectively revoke or modify any
Employer's participation in the Plan at any time and for any or
no reason, without regard to the terms of any Adoption Agreement,
or terminate the Plan with respect to such Employer's Employee
Participants.
(c) By execution of an Adoption Agreement (each of which
by this reference shall become a part of the Plan), the Employer
agrees to be bound by all the terms and conditions of the Plan.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed by its duly authorized representatives on this 6th day
of August, 1996.
THE DIAL CORPORATION
By: /s/ L.G. Lemon
President
<PAGE>
APPENDIX A
TO
THE DIAL CORPORATION
401(k) PLAN
Facility Adoption Date Bargaining Unit
Memphis 11/01/88 Southern Council of Industrial
Workers #3148
London 01/01/88 United Industrial Workers Serv.
Trans. Professional & Government of
N.A.
Omaha 01/01/91 ICWU #189 International Union of
Operating Engineers #571
Southgate 04/01/88 IBEW #2295, ICWU #1, UAW #509
Clearing 10/01/89 Oil, Chemical, Atomic Workers
International AFL-CIO-#7507
<PAGE>
THE DIAL CORPORATION
401(k) PLAN
TABLE OF CONTENTS
PAGE
Article I: Purpose. . . . . . . . . . . . . . . . . . . . . . . I - 1
Article II: Definitions and Construction . . . . . . . . . . . II - 1
2.1 Definitions. . . . . . . . . . . . . . . . . . . . II - 1
2.2 Construction . . . . . . . . . . . . . . . . . . . II - 8
Article III: Participation . . . . . . . . . . . . . . . . . . III - 1
3.1 Participation. . . . . . . . . . . . . . . . . . . III - 1
3.2 Termination of Employment. . . . . . . . . . . . . III - 1
3.3 Transfers. . . . . . . . . . . . . . . . . . . . . III - 1
Article IV: Contributions. . . . . . . . . . . . . . . . . . . IV - 1
4.1 Employer Contributions . . . . . . . . . . . . . . IV - 1
4.2 Code Section 401(k) Wage Reduction . . . . . . . . IV - 1
4.3 Employee Contributions . . . . . . . . . . . . . . IV - 2
4.4 After-Tax Wage Reduction . . . . . . . . . . . . . IV - 3
4.5 Rollover Contributions . . . . . . . . . . . . . . IV - 3
Article V: Allocations to Participant's Account . . . . . . . . V - 1
5.1 Individual Accounts. . . . . . . . . . . . . . . . . V - 1
5.2 Account Adjustments. . . . . . . . . . . . . . . . . V - 1
5.3 Actual Deferral Percentage Test. . . . . . . . . . . V - 1
5.4 Average Contribution Percentage Test . . . . . . . . V - 3
5.5 Distribution of Excess Aggregate
Contributions. . . . . . . . . . . . . . . . . . . . V - 4
5.6 Distribution of Excess Elective Deferrals. . . . . . V - 5
5.7 Distribution of Excess Contributions . . . . . . . . V - 6
5.8 Recharacterization . . . . . . . . . . . . . . . . . V - 6
5.9 Maximum Additions. . . . . . . . . . . . . . . . . . V - 7
5.10 Recognition of Different Investment Funds. . . . . . V - 8
Article VI: Benefits . . . . . . . . . . . . . . . . . . . . . VI - 1
6.1 Entitlement to Benefits. . . . . . . . . . . . . . VI - 1
6.2 Death. . . . . . . . . . . . . . . . . . . . . . . VI - 1
6.3 Payment of Benefits. . . . . . . . . . . . . . . . VI - 1
6.4 Designation of Beneficiary . . . . . . . . . . . . VI - 2
6.5 Withdrawals. . . . . . . . . . . . . . . . . . . . VI - 3
6.6 Spousal Consent. . . . . . . . . . . . . . . . . . VI - 4
6.7 Debiting of Investment Funds . . . . . . . . . . . VI - 5
6.8 Required Distributions . . . . . . . . . . . . . . VI - 5
6.9 Distribution Requirements. . . . . . . . . . . . . VI - 5
6.10 Eligible Rollover Distributions. . . . . . . . . . .VI - 6
Article VII: Investment Options, Trust Fund. . . . . . . . . . VII - 1
7.1 Investment Options . . . . . . . . . . . . . . . . VII - 1
7.2 Investment of Contributions. . . . . . . . . . . . VII - 1
7.3 Investment Transfers . . . . . . . . . . . . . . . VII - 1
7.4 Transfer of Assets . . . . . . . . . . . . . . . . VII - 1
7.5 Trust Fund . . . . . . . . . . . . . . . . . . . . VII - 1
7.6 Tender Offers. . . . . . . . . . . . . . . . . . . VII - 2
7.7 Voting of Finova Viad Corp or Company
Stock. . . . . . . . . . . . . . . . . . . . . . . VII - 2
7.8 Finova Common Stock Fund . . . . . . . . . . . . .VII -3
7.8 Viad Corp Common Stock Fund. . . . . . . . . . . . .VII -3
Article VIII: Administration . . . . . . . . . . . . . . . . .VIII - 1
8.1 Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration. . . . . . . . VIII - 1
8.2 Appointment of Committee . . . . . . . . . . . . VIII - 1
8.3 Claims Procedure . . . . . . . . . . . . . . . . . VIII -1
8.4 Records and Reports. . . . . . . . . . . . . . . VIII - 2
8.5 Other Committee Powers and Duties. . . . . . . . VIII - 2
8.6 Rules and Decisions. . . . . . . . . . . . . . . VIII - 3
8.7 Committee Procedures . . . . . . . . . . . . . . VIII - 3
8.8 Authorization of Benefit Payments. . . . . . . . VIII - 3
8.9 Application and Forms for Benefits . . . . . . . VIII - 3
8.10 Facility of Payment. . . . . . . . . . . . . . . VIII - 3
8.11 Indemnification. . . . . . . . . . . . . . . . . VIII - 4
Article IX: Miscellaneous. . . . . . . . . . . . . . . . . . . IX - 1
9.1 Nonguarantee of Employment . . . . . . . . . . . . IX - 1
9.2 Rights to Trust Assets . . . . . . . . . . . . . . IX - 1
9.3 Nonalienation of Benefits. . . . . . . . . . . . . IX - 1
9.4 Nonforfeitability of Benefits. . . . . . . . . . . IX - 1
Article X: Amendments and Action by Employer. . . . . . . . . . X - 1
10.1 Amendments . . . . . . . . . . . . . . . . . . . . . X - 1
10.2 Administrative Discretion and Mandatory
Procedures . . . . . . . . . . . . . . . . . . . . . X - 1
Article XI: Successor Employer and Merger or
Consolidation of Plans . . . . . . . . . . . . . . XI - 1
11.1 Successor Employer . . . . . . . . . . . . . . . . XI - 1
11.2 Conditions Applicable to Mergers or
Consolidations of Plans. . . . . . . . . . . . . . XI - 1
Article XII: Plan Termination. . . . . . . . . . . . . . . . . XII - 1
12.1 Right to Terminate . . . . . . . . . . . . . . . . XII - 1
12.2 Partial Termination. . . . . . . . . . . . . . . . XII - 1
12.3 Liquidation of the Trust Fund. . . . . . . . . . . XII - 1
Article XIII: Adoption of Plan . . . . . . . . . . . . . . . XIII - 1
13.1 Adoption Agreement . . . . . . . . . . . . . . . XIII - 1
APPENDIX A: . . . . . . . . . . . . . . . . . . . . . . . . . . A - 1
Exhibit 5
August 14, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: The Dial Corporation Registration Statement on Form S-8
The Dial Corporation 401(k) Plan
Gentlemen:
This opinion is delivered in connection with the
registration by The Dial Corporation, a Delaware corporation (the
"Corporation"), on Form S-8 (the "Registration Statement"), under
the Securities Act of 1933, as amended, of 6,000 shares of the
Corporation's Common Stock ("Common Stock"), together with the
associated preferred stock purchase rights ("Rights"), issuable
pursuant to The Dial Corporation 401(k) Plan (the "Plan").
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Corporation
and others as I have deemed relevant and necessary or appropriate
for the purposes of this opinion.
I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all the documents submitted
to me as certified or photostatic copies, and the authenticity of
the originals of such latter documents.
Based upon the foregoing, I am of the opinion that the 6,000
shares of Common Stock to be sold pursuant to the Registration
Statement, together with the associated Rights, when issued and
delivered by the Corporation in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable
securities of the Corporation.
The provisions of the written documents constituting the
Plan are in compliance with the requirements of ERISA pertaining
to such provisions.
<PAGE>
I hereby consent to the reference to my name in the
Registration Statement and further consent to the inclusion of
this opinion as Exhibit 5 to the Registration Statement. In
giving this consent, I do not hereby admit that I am in the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ Peter J. Novak
Vice President and
General Counsel
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of The Dial Corporation on Form S-8 of our
report dated May 24, 1996, appearing in Registration Statement
No. 1-11793 on Form 10 of The Dial Corporation, and of our report
dated June 7, 1996, appearing in the Annual Report on Form 11-K
of the Dial Consumer Products Group 401(k) Plan for the year
ended December 31, 1995. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Phoenix, Arizona
August 9, 1996
