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 CAPITAL ACCUMULATION 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 1,200,000 $14.1875 $17,025,000 $5,870.69
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) 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.
(3) The description of the Corporation's Common Stock
contained in the Corporation's Form 10.
(4) 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 Capital Accumulation 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 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report which
is incorporated herein by reference, and have been so
incorporated in reliance upon the report 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 CAPITAL
ACCUMULATION PLAN
By: /s/ Bernhard J. Welle
EXHIBIT 4.3
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
EFFECTIVE AS OF JULY 31, 1996
<PAGE>
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
INDEX
Page
Article I. - Introduction. . . . . . . . . . . . . . . . . . . 1
1.1 Establishment and Effective Date . . . . . . . . . 1
1.2 The Spin-Off . . . . . . . . . . . . . . . . . . . 1
1.3 Purpose of Plan. . . . . . . . . . . . . . . . . . 1
1.4 Service and Account Balances. . . . . . . . . . . 1
1.5 Transfer of Assets and Liabilities . . . . . . . . 1
1.6 Treatment of Former Employees. . . . . . . . . . . 1
Article II. - Definitions and Construction . . . . . . . . . . 2
2.1 Definitions. . . . . . . . . . . . . . . . . . . . 2
2.2 Other Definitions. . . . . . . . . . . . . . . . . 11
2.3 Construction . . . . . . . . . . . . . . . . . . . 11
ARTICLE III. - PARTICIPATION . . . . . . . . . . . . . . . . . 12
3.1 Participation. . . . . . . . . . . . . . . . . . . 12
3.2 Termination of Employment. . . . . . . . . . . . . 12
3.3 Transfers. . . . . . . . . . . . . . . . . . . . . 12
3.4 Suspension . . . . . . . . . . . . . . . . . . . . 12
3.5 Transfer of Bargaining Unit Employees. . . . . . . 13
Article IV. - Contributions. . . . . . . . . . . . . . . . . . 14
4.1 Employer Contributions . . . . . . . . . . . . . . 14
4.2 Code Section 401(k) Salary Reduction . . . . . . . 14
4.3 Employee Contributions . . . . . . . . . . . . . . 15
4.4 After-Tax Salary Deduction . . . . . . . . . . . . 15
4.5 Rollovers and Transfers From Other Plans . . . . . 16
4.6 Transfers from the Dial Companies Capital
Accumulation Plan and the Dial Companies
Employees' Stock Ownership Plan. . . . . . . . . . 16
4.7 Trust Fund . . . . . . . . . . . . . . . . . . . . 17
Article V. - Allocations to Participant's Account. . . . . . . 18
5.1 Individual Accounts. . . . . . . . . . . . . . . . 18
5.2 Account Adjustments. . . . . . . . . . . . . . . . 18
5.3 Actual Deferral Percentage Test. . . . . . . . . . 19
5.4 Average Contribution Percentage Test . . . . . . . 21
5.5 Distribution of Excess Aggregate Contributions . . 22
5.6 Distribution of Excess Elective Deferrals. . . . . 23
5.7 Distribution of Excess Contributions . . . . . . . 24
5.8 Maximum Additions. . . . . . . . . . . . . . . . . 25
5.9 Adjustment of Matching Contributions Subaccount. . 26
5.10 Top-Heavy Provisions . . . . . . . . . . . . . . . 27
5.11 Securities Law Requirements. . . . . . . . . . . . 29
Article VI. - Benefits . . . . . . . . . . . . . . . . . . . . 31
6.1 Entitlement to Benefits. . . . . . . . . . . . . . 31
6.2 Death. . . . . . . . . . . . . . . . . . . . . . . 31
6.3 Payment of Benefits. . . . . . . . . . . . . . . . 31
6.4 Designation of Beneficiary . . . . . . . . . . . . 32
6.5 Withdrawals. . . . . . . . . . . . . . . . . . . . 33
6.6 Debiting of Investment Funds . . . . . . . . . . . 34
6.7 Required Distributions . . . . . . . . . . . . . . 35
6.8 Distribution Requirements. . . . . . . . . . . . . 35
6.9 Loans to Participants. . . . . . . . . . . . . . . 36
6.10 Eligible Rollover Distributions. . . . . . . . . . 37
Article VII. - Investment Options, Trust Fund. . . . . . . . . 39
7.1 Participant Directed Individual Account Plan . . . 39
7.2 Employee Selected Investment Options,
Investment Funds . . . . . . . . . . . . . . . . . 39
7.3 Investment Elections . . . . . . . . . . . . . . . 39
7.4 Investment Transfers . . . . . . . . . . . . . . . 39
7.5 Tender Offers. . . . . . . . . . . . . . . . . . . 39
7.6 Voting of Stock. . . . . . . . . . . . . . . . . . 40
7.7 Special Rules for FINOVA Stock Fund. . . . . . . . 41
7.8 Special Rules for Viad Stock Fund. . . . . . . . . 41
7.9 Exercise of Control. . . . . . . . . . . . . . . . 41
7.10 Adjustment Of Accounts . . . . . . . . . . . . . . 42
7.11 Limitation of Liability And Responsibility . . . . 42
7.12 Former Participants And Beneficiaries. . . . . . . 43
Article VIII. - Administration . . . . . . . . . . . . . . . . 44
8.1 Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration. . . . . . . . . 44
8.2 Appointment of Committee . . . . . . . . . . . . . 44
8.3 Claims Procedure . . . . . . . . . . . . . . . . . 44
8.4 Records and Reports. . . . . . . . . . . . . . . . 45
8.5 Other Committee Powers and Duties. . . . . . . . . 46
8.6 Rules and Decisions. . . . . . . . . . . . . . . . 46
8.7 Committee Procedures . . . . . . . . . . . . . . . 46
8.8 Authorization of Benefit Payments. . . . . . . . . 47
8.9 Application and Forms for Benefits . . . . . . . . 47
8.10 Facility of Payment. . . . . . . . . . . . . . . . 47
8.11 Indemnification of the Committee . . . . . . . . . 47
Article IX. - Miscellaneous. . . . . . . . . . . . . . . . . . 48
9.1 Nonguarantee of Employment . . . . . . . . . . . . 48
9.2 Rights to Trust Assets . . . . . . . . . . . . . . 48
9.3 Non-Alienation . . . . . . . . . . . . . . . . . . 48
9.4 Nonforfeitability of Benefits. . . . . . . 48
Article X. - Amendments and Action by Employer . . . . . . . . 49
10.1 Amendments . . . . . . . . . . . . . . . . . . . . 49
10.2 Action by the Company. . . . . . . . . . . . . . . 49
Article XI. - Successor Employer and Merger
or Consolidation of Plans. . . . . . . . . . . . . 50
11.1 Successor Employer . . . . . . . . . . . . . . . . 50
11.2 Conditions Applicable to Mergers or
Consolidations of Plans. . . . . . . . . . . . . . 50
Article XII. - Plan Termination. . . . . . . . . . . . . . . . 51
12.1 Right to Terminate . . . . . . . . . . . . . . . . 51
12.2 Partial Termination. . . . . . . . . . . . . . . . 51
12.3 Liquidation of the Trust Fund. . . . . . . . . . . 51
Article XIII. - Adoption of Plan . . . . . . . . . . . . . . . 52
13.1 Adoption Agreement . . . . . . . . . . . . . . . . 52
<PAGE>
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
Article I. - Introduction
1.1 ESTABLISHMENT AND EFFECTIVE DATE. The Dial
Corporation (the "Company") hereby establishes The Dial
Corporation Capital Accumulation Plan (the "Plan"), effective as
of July 31, 1996 (the "Effective Date").
1.2 THE SPIN-OFF. The Company is a wholly owned
subsidiary of The Dial Corp (soon to be known as ViadCorp
("Viad")). Pursuant to the terms and provisions of a
Distribution Agreement entered into between the Company, Viad and
Exhibitgroup/Giltspur, Inc. (the "Distribution Agreement"), Viad
will spin-off the Company by distributing all of the Company's
common stock, par value $.01 per share, to Viad's stockholders
(the "Spin-Off") as of the "Distribution Date" determined by
Viad.
1.3 PURPOSE OF PLAN. The initial purpose of the Plan is
to provide benefits to Consumer Products Employees (and their
beneficiaries) who immediately prior to the Effective Date were
participants in, or otherwise entitled to benefits under, The
Dial Companies Capital Accumulation Plan ("TRIM") and The Dial
Companies Employees' Stock Ownership Plan (the "ESOP"). In the
future, benefits also will be provided to other Employees of the
Company.
1.4 SERVICE AND ACCOUNT BALANCES. Pursuant to the
Distribution Agreement, each Consumer Products Employee is hereby
granted credit under this Plan for the term of service and any
account balance credited to him as of the Effective Date under
the TRIM and the ESOP as if such service had been rendered to the
Company and as if such account balance had originally been
credited to him under this Plan.
1.5 TRANSFER OF ASSETS AND LIABILITIES. Pursuant to the
Distribution Agreement and the requirements of applicable law,
including section 414(l) of the Internal Revenue Code of 1986
(the "Code"), Viad will instruct the trustee of TRIM, and the
trustee of the ESOP, to transfer certain assets of the trust
funds established with respect to the TRIM and the ESOP to the
Trustee of this Plan. Effective as of the Distribution Date, all
liability for benefits payable to Consumer Products Employees
shall be assumed by this Plan, as provided in the Distribution
Agreement. Pending the actual transfer of assets to the Trust
Fund established for this Plan from the TRIM trust fund and the
ESOP trust fund, however, such benefits shall be paid from the
TRIM trust fund or the ESOP trust fund, as applicable, as
provided in the Distribution Agreement.
1.6 TREATMENT OF FORMER EMPLOYEES. As noted above, this
Plan has, in connection with the Spin-Off, assumed responsibility
for the payment of benefits to retirees and other former
employees who are defined above as "Consumer Products Employees,"
and who, at the time of the termination of their employment,
possessed vested benefits under the TRIM and the ESOP. This Plan
shall determine and pay the benefits to such individuals under
the TRIM or ESOP rules applicable to them, except to the extent,
if any, that this Plan or applicable law requires that such rules
be modified.
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, Employer Contribution Account, Salary 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) ACQUIRED COMPANY: Means any business entity which
has been acquired or whose assets have been acquired by an
Employer as defined in Section 2.1(aa). Participants shall be
credited with their "Hours of Service," as defined in Section
2.1(an), with the Acquired Company and any other prior service
recognized as eligibility or vesting service under a qualified
plan of the Acquired Company. Notwithstanding the foregoing, the
participation of an Acquired Company employee in the Plan shall
be subject to the intent of the acquiring Employer in making the
acquisition which may deny the recognition of service with the
Acquired Company in order to prevent discrimination or to protect
the qualification of the Plan or for any other reason arising out
of the acquisition. The Committee shall ensure that appropriate
records are kept to carry out the terms of this provision.
(c) ACTUAL DEFERRAL PERCENTAGE: 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: (1) 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); and (2) at the
election of the Employer, Qualified Non-elective Contributions
and Qualified Matching Contributions. 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.
(d) ADOPTION AGREEMENT: The agreement executed by each
Affiliate Employer in order to adopt the Plan pursuant to the
provisions of Article XIII.
(e) AFFILIATE: An entity which, by reason of Code
Section 414(b), 414(c), or 414(m), is treated as a single
Employer with the Company.
(f) AGGREGATE LIMIT: The sum of (i) one hundred twenty-five percent
(125%) 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 two hundred percent (200%) or
two (2) plus the lesser of such ADP or ACP. "Lesser" is
substituted for "greater" in "(i)" above, and "greater" is
substituted for "lesser" after "two (2) plus the" in "(ii)" if it
would result in a larger Aggregate Limit.
(g) ANNUAL ADDITIONS: With respect to each Year, the
total of the Employer contributions allocated to a Participant's
Salary Reduction Contribution Account, Employee Contribution
Account and Employer Contribution Account. Amounts allocated,
after March 31, 1984, to an individual medical account, as
defined in Section 415(l)(2) of the Code, which is part of a
pension or annuity plan maintained by the Employer are treated as
Annual Additions to a defined contribution plan. Also amounts
derived from contributions paid or accrued after December 31,
1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits, allocated to
the separate account of a key Employee, as defined in Section
419A(d)(3) of the Code, under a welfare benefit fund, as defined
in Section 419(e) of the Code, maintained by the Employer are
treated as Annual Additions to a defined contribution plan. For
this purpose, any excess amount applied under Section 5.9(b) in
the Year to reduce Employer contributions will be considered
Annual Additions for such Year.
(h) 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.
(i) AVERAGE CONTRIBUTION PERCENTAGE: The average of the
Contribution Percentages of the Eligible Participants in a group.
(j) 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.
(k) CODA: A cash or deferred arrangement as described
in Section 401(k) of the Code.
(l) CODE: The Internal Revenue Code of 1986, as
amended.
(m) COMMITTEE: The persons appointed pursuant to
Article VIII to assist the Company in the administration of the
Plan in accordance with said Article.
(n) COMPANY: The Dial Corporation.
(o) COMPENSATION: Subject to the other provisions of
the Plan and except as defined in the Adoption Agreement of an
Employer in accordance with Article XIII, hereof, the total of
all amounts paid to a Participant by the Employer for personal
services as would be reported on the Participant's Federal Income
Tax Withholding Statement (Form W-2) had Participant not been a
Participant under the Plan or any Plan sponsored by the Employer
which is qualified under Sections 125 or 129 of the Code and
excluding fringe benefits, overtime, bonuses and any benefits
paid under this Plan; provided, however, that the Committee, in
its discretion, may use any definition of "compensation" to
determine whether the various nondiscrimination tests are met as
long as such definition satisfies Code Section 414(s) and is
applied uniformly to all Participants. 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 exceed the "OBRA
'93 annual compensation limit." The "OBRA '93 annual
compensation limit" is One Hundred Fifty Thousand Dollars
($150,000) 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
year applies to any period, not exceeding twelve (12) months,
over which Compensation is determined (the "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). If the
"OBRA '93 compensation limitation is exceeded, then the
limitation shall be prorated among affected individuals in
proportion to each such individual's Compensation as determined
under this Section 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 nineteen
(19) before the close of the year. 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 '94 annual compensation limit is One Hundred Fifty
Thousand Dollars ($150,000).
(p) CONSUMER PRODUCTS EMPLOYEE: Any individual who (1)
immediately prior to the Distribution Date is an officer or
employee of any member of Viad's "Dial Group" or "Consumer
Products Group" and (a) is primarily employed in Viad's "Consumer
Products Business" or (b) will be an employee of the Consumer
Products Group immediately following the Spin-Off or (2)
immediately prior to the Distribution Date is not an officer or
an employee of any member of either Group but at any time prior
to the Distribution Date was an officer or employee of any member
of either Group and throughout such period was primarily employed
in the Consumer Products Business.
(q) CONTRIBUTION PERCENTAGE: The ratio (expressed as a
percentage) of the Participant's Contribution Percentage Amounts
to the Participant's Compensation for the Plan Year (whether or
not the Employee was a Participant for the entire Plan Year).
(r) CONTRIBUTION PERCENTAGE AMOUNTS: The sum of the
Employee Contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent not taken into account for
purposes of the ADP test) made under the plan on behalf of the
Participant for the Plan Year. Such Contribution Percentage
Amounts shall include forfeitures of Excess Aggregate
Contributions or Matching 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
include Qualified Non-elective Contributions in the Contribution
Percentage Amounts. The Employer also may elect to use Elective
Deferrals in the Contribution Percentage Amounts 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.
(s) DISABILITY: A physical or mental condition which,
in the sole judgement 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.
(t) EFFECTIVE DATE: Means July 31, 1996.
(u) ELECTIVE DEFERRALS: Any Employer contributions made
to the Plan at the election of the Participant, in lieu of cash
compensation, including 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 the behalf of a Participant
for the purchase of an annuity contract under Section 403(b)
pursuant to a salary reduction agreement.
(v) ELIGIBLE EMPLOYEE: Any Employee of the Company or
any Affiliate Employer that has adopted this Plan other than
Employees who are included within a unit of employees covered by
a collective bargaining agreement, for whom retirement benefits
were the subject of good faith bargaining, unless the collective
bargaining agreement specifically provides to the contrary.
(w) 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), or to receive a Matching
Contribution (including forfeitures) or a Qualified Matching
Contribution. 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.
(x) EMPLOYEE: Any person who is actively employed by an
Employer or an Affiliate.
(y) 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.
(z) 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.
(aa) EMPLOYER: The Dial Corporation (which was formerly
the Consumer Products Group of Viad (formerly, The Dial Corp and
before that the Greyhound Dial Corporation, and prior to that,
The Greyhound Corporation)), or any Affiliate that has adopted
the Plan.
(bb) EMPLOYER CONTRIBUTION ACCOUNT: The account
maintained pursuant to Section 4.1(b), hereof, to record for a
Participant his or her share of the contributions of the
Employer, if any, and adjustments relating thereto.
(cc) EMPLOYER STOCK: The common stock of The Dial
Corporation.
(dd) ENTRY DATE: The first day of each calendar month.
(ee) ERISA: Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended.
(ff) ESOP: The Dial Companies Employees Stock Ownership
Plan.
(gg) EXCESS AGGREGATE CONTRIBUTIONS: Shall mean, with
respect to any Plan Year, the excess of:
(1) The aggregate Average Contribution Percentage
Amounts taken into account in computing the numerator of the
Average Contribution Percentage actually made on behalf of Highly
Compensated Employees for such Plan Year, over
(2) The maximum Average 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 Matching 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.
The Employer may elect to make Qualified
Non-elective Contributions under the plan on behalf of Employees.
(hh) 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).
(ii) 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 unless such
amounts are distributed no later than the first April 15
following the close of the Participant's taxable year.
(jj) FAMILY MEMBER: A member of the Employee's family as
defined in Section 414(q)(6) of the Code.
(kk) FIDUCIARIES: The Committee 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.
(ll) FINOVA STOCK ACCOUNT: The account maintained
pursuant to Section 5.1 hereof, to record, for a Participant, his
or her shares of common stock of The FINOVA Group Inc. ("FINOVA
Stock") transferred to this Plan from the TRIM.
(mm) HIGHLY COMPENSATED EMPLOYEE: 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 Seventy-Five Thousand Dollars
($75,000) as adjusted pursuant to Section 415(d) of the Code);
(ii) received compensation from the Employer in excess of Fifty
Thousand Dollars ($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 fifty percent
(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
(1) of the one hundred (100) Employees who receive the most
compensation from the Employer during the determination year; and
(ii) Employees who are five-percent (5%) 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 (12) 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 fifty-fifth (55th) birthday.
If an Employee is, during a determination year or look-back
year, a Family Member of either a five-percent (5%) 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 five-percent (5%) owner or
top ten (10) Highly Compensated Employee shall be aggregated. In
such case, the Family Member and five-percent (5%) owner or top
ten (10) 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 five-percent (5%) owner or
top ten (10) 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 in the
look-back year (as defined in Treasury Regulations under Section
414(q) of the Code) 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.
(nn) HOUR OF SERVICE:
(i) An hour for which an Employee is directly or
indirectly compensated, or is entitled to
compensation, by the Employer or an Affiliate
for the performance of duties. Such Hours of
Service shall be credited to the respective
computation period in which the duties were
performed.
(ii) An hour for which an Employee is directly or
indirectly compensated, or is entitled to
compensation, by the Employer or an Affiliate
on account of a period of time during which
no duties are performed (irrespective of
whether the employment relationship has
terminated) due to vacation, holiday,
illness, incapacity (including disability),
layoff, jury duty, military duty or leave of
absence. No more than five hundred one (501)
Hours of Service shall be credited under this
paragraph (ii) for any single continuous
period (whether or not such period occurs in
a single service computation period). Hours
of Service under this paragraph (ii) shall be
calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor
regulations governing the computation of
Hours of Service, which are incorporated
herein by this reference.
(iii) An hour for which back pay (irrespective of
mitigation of damages) is either awarded or
agreed to by the Employer or an Affiliate.
The same Hours of Service shall not be
credited both under paragraph (i) or
paragraph (ii) above, as the case may be, and
under this paragraph (iii). Hours of Service
attributable to back pay credits will be
credited to the respective service
computation period or periods to which the
back pay pertains, rather than to the service
computation period or periods in which the
award, agreement, or payment is made.
(iv) Employees shall also be credited with any
additional Hours of Service required to be
credited pursuant to any Federal law other
than the Act or the Code.
(oo) 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.
(pp) INVESTMENT FUND(S): The investment funds described
in Section 7.2.
(qq) MATCHING CONTRIBUTION: An Employer contribution made
to this or any other defined contribution plan on behalf of a
Participant on account of an Employee Contribution made by such
Participant, or on account of a Participant's Elective Deferral,
under a plan maintained by the Employer.
(rr) PARTICIPANT: An Employee participating in the Plan
in accordance with the provisions of Section 3.1.
(ss) 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.
(tt) PLAN: The Dial Corporation Capital Accumulation
Plan, the Plan set forth herein, as amended from time to time.
(uu) QUALIFIED MATCHING CONTRIBUTIONS: Matching
Contributions which are subject to the distribution and
nonforfeitability requirements under Section 401(k) of the Code
when made.
(vv) QUALIFIED NON-ELECTIVE CONTRIBUTIONS: Contributions
(other than Matching Contributions or Qualified Matching
Contributions) made by the Employer and allocated to
Participants' Accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are
nonforfeitable when made; and that are distributable only in
accordance with the distribution provisions that are applicable
to Elective Deferrals and Qualified Matching Contributions.
(ww) SALARY REDUCTION CONTRIBUTION ACCOUNT: The account
maintained to record for a Participant his or her pre-tax salary
reduction contributions made by the Employer pursuant to Section
4.1(a) and 4.2 hereof, and adjustments relating thereto.
(xx) TRIM: The Dial Companies Capital Accumulation Plan.
(yy) TRUST (OR TRUST FUND): The fund known as The Dial
Corporation Capital Accumulation 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.
(zz) TRUSTEE: The corporation or individuals appointed
by the Board of Directors of the Company to administer the Trust.
(aaa) VALUATION DATE: Each business day of the Plan Year.
(bbb) 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.
(ccc) VIAD STOCK ACCOUNT: The account maintained pursuant
to Section 5.1 hereof, to record for a Participant his or her
shares of common stock of Viad transferred to the Plan from the
ESOP and/or TRIM.
(ddd) YEAR: The twelve (12) month period commencing on
January 1 and ending on December 31.
2.2 OTHER DEFINITIONS: Definitions of terms and phrases
that have a more limited application are set forth in the
sections to which they relate. For purposes of this Plan, the
terms "Distribution Date," "Consumer Products Group," "Consumer
Products Business," "Dial Group," "Group," "Prior Plan Year,"
"Current Plan Year," and "Cut-Off Date" shall be given the
meanings ascribed to such terms in the Distribution Agreement.
2.3 CONSTRUCTION: The words "hereof," "herein,"
"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. Except when otherwise
indicated by the context, any masculine or feminine term shall
also include the other gender, and the use of any term in the
singular or plural shall also include the opposite number.
ARTICLE III. - PARTICIPATION
3.1 PARTICIPATION: Any Eligible Employee who as of the
Effective Date of this Plan was a participant in TRIM or the ESOP
shall become a Participant in this Plan on the Effective Date.
Thereafter, an Eligible Employee shall become a Participant as of
the later of the first Entry Date coincident with or next
following any "eligibility computation period" during which he or
she has at least one thousand (1,000) Hours of Service with the
Employer or an Acquired Company, provided that said Eligible
Employee has entered into a duly executed salary reduction
agreement under Section 4.2 in advance of said Entry Date and has
fulfilled the Plan's enrollment procedures as provided by the
Committee. For purposes of this Section, the initial
"eligibility computation period" is the twelve (12) consecutive
month period commencing on the date on which the Employee first
performs an Hour of Service and the second and subsequent
"eligibility computation periods" are the twelve (12) consecutive
month periods commencing on the anniversaries of said date.
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. A rehired Eligible
Employee shall be credited with all Hours of Service performed
prior to his termination of employment. If a rehired Eligible
Employee was a Participant or had satisfied the eligibility
service requirements of this Section during his prior period of
employment and following his return he is otherwise eligible to
participate in the Plan, he shall commence participation upon the
later of his date of rehire or the date on which he would have
commenced participation if his employment has not terminated.
3.2 TERMINATION OF EMPLOYMENT: "Termination of
Employment" shall be deemed to be the date:
(i) The Participant quit, was discharged (for any
reason, including Disability), died or retired; or
(ii) The first anniversary of the date the Participant
was continuously absent (with or without pay) for
any other reason, such as vacation, holiday,
temporary sickness, Authorized Leave of Absence or
layoff, or the date within such twelve (12) month
period when the Participant quit, was discharged,
died or retired.
3.3 TRANSFERS: For the purposes of determining
eligibility to Participate in the Plan under Section 3.1, an
Eligible Employee shall receive credit for employment with an
Employer or an Affiliate.
3.4 SUSPENSION: If a Participant (i) elects to defer
distribution of his or her benefit pursuant to Section 6.3(c),
(ii) is transferred to employment with an Affiliate that has not
adopted the Plan, (iii) ceases to be an Eligible Employee, (iv)
goes on an unpaid maternity or paternity leave under ERISA
Section 203(b), (v) receives a hardship withdrawal in accordance
with Section 6.5, or (vi) commences an Authorized Leave of
Absence, as reasonably determined by the Committee, his or her
Participation under the Plan shall be suspended, provided,
however, that during the period of his or her employment in such
ineligible status or position: (a) he or she shall cease to have
any right to make contributions pursuant to Article IV, hereof;
(b) his or her Employer Contribution Account shall receive no
Employer contribution allocation under Section 5.2(c); (c) he or
she shall continue to participate in Income allocations pursuant
to Section 5.2(a); (d) the withdrawal privileges under the
provisions of Article VI, other than the loan provision of
Section 6.9, shall continue to apply except for a Participant who
has deferred distribution of his or her benefit pursuant to
Section 6.3(c); and (d) the Investment Fund transfer provisions
of Section 7.3 shall continue to apply.
3.5 TRANSFER OF BARGAINING UNIT EMPLOYEES: If a
Participant becomes included in a unit of employees covered by a
collective bargaining agreement and pursuant to collective
bargaining is excluded from this Plan and included in a
collectively bargained plan, the Committee, in the exercise of
its discretion, may direct that the Participant's Accounts in the
Plan be transferred to the collectively bargained plan if the
collectively bargained plan so provides. The Committee and
Trustee are hereby authorized and directed collectively to take
all actions necessary or appropriate to accomplish such transfer.
The Accounts of the Participant shall be valued and adjusted as
of the transfer effective date, and the sum of the Account
balances so determined shall equal the amount transferred.
Following the transfer, Participants will no longer have any
claim for benefits under this Plan, and the collectively
bargained plan, in accepting the assets transferred from this
Plan, shall be deemed to have accepted the liability for all
amounts due to the Participant.
Article IV. - CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS: (a) For each Year, the
Employer shall contribute an amount to a Participant's Salary
Reduction Contribution Account equal to the total amount of
contributions agreed to be made by it pursuant to a salary
reduction agreement under Section 4.2 entered into between the
Employer and the Participant for such Year. Such deferrals shall
be treated as matchable (and referred to as "Matched Salary
Reduction Contributions" for purposes of this Section 4.1) to the
extent that, for any Participant, they do not exceed three
percent (3%) of his Compensation for the Plan Year.
Contributions made by Employer for a given payroll period
pursuant to salary 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.
(b) In addition, for each Year, each Employer will make
a Matching Contribution on behalf of each eligible Participant in
an amount equal to one hundred percent (100%) of the
Participant's Matched Salary Reduction Contributions for the Plan
Year. The Matching Contributions made on behalf of a Participant
shall be allocated to his Employer Contributions Accounts at the
time provided in Section 5.2(c). All Matching Contributions of
an Employer shall be paid to the Trustee and payment shall be
made not later than the time prescribed by law for filing the
federal income tax return of the Employer, including any
extensions which have been granted for the filing of such tax
return. Amounts credited to a Participant's Employer
Contribution Account shall be one hundred percent (100%) vested
and non-forfeitable at all times.
4.2 CODE SECTION 401(K) SALARY 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 salary reduction agreement with
the Employer which will be applicable to Compensation for payroll
periods after such Entry Date. The terms of any such salary
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 salary from the Employer equal to any
percentage of his Compensation per payroll period, from one
percent (1%) to twelve percent (12%) of such Compensation. In
consideration of such agreement, the Employer will make a salary
reduction contribution to the Participant's Salary 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 salary reduction agreement. Amounts credited to
a Participant's Salary Reduction Contribution Account are
intended to qualify for income tax deferral under Section 401(k)
of the Code and, as such, shall be one hundred percent (100%)
vested and non-forfeitable at all times. If a Participant enters
into a salary 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 salary deduction
agreement under Section 4.4, hereof, shall be equal to his or her
Compensation after application of the salary reduction agreement.
(b) Unless otherwise amended or terminated in accordance
with (ii), below, a Participant's salary reduction agreement
shall be deemed automatically renewed from year to year, while
this Plan remains in force and effect. Further, salary reduction
agreements shall include, but not by way of limitation, and be
governed by the following:
(i) A salary reduction agreement shall apply to
each payroll period during which an effective
salary reduction agreement is on file with
the Employer.
(ii) A salary 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 amount of such Participant's Compensation
which is subject to salary reduction during
the remainder of such Year.
(iii) Any amendment or termination of a salary
reduction agreement shall be effective on the
first day of the following calendar quarter
after at least thirty (30) days prior written
notice by a Participant in the form required
by Employer.
(iv) The Employer may amend or revoke its salary
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.
(c) The Committee may from time to time alter and/or add
to the requirements for salary 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 salary 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
salary deduction agreement under Section 4.4 not intended to
qualify for income tax deferral under Code Section 401(k), 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 one hundred percent (100%)
vested and non-forfeitable at all times. Highly Compensated
Employees may not elect to make Employee Contributions.
4.4 AFTER-TAX SALARY DEDUCTION: A Participant may elect
to enter into a written salary deduction agreement with Employer
which shall be in the form and substance acceptable to Employer
and the Committee and will be applicable to all payroll periods
within a Year. A salary deduction agreement may be amended or
terminated only once during each calendar quarter if the purpose
of the amendment is to decrease or increase the amount of such
Participant's Compensation which is subject to salary deduction
agreement during the remainder of such Year. The terms of such
salary deduction agreement shall provide, among other things,
that for the purposes of Section 4.3 the Participant agrees to
accept a deduction from salary from the Employer equal to any
whole percentage of his Compensation per payroll period, not to
exceed ten percent (10%) of such Compensation.
4.5 ROLLOVERS AND TRANSFERS FROM OTHER PLANS: (a) An
Employee eligible to Participate in the Plan regardless of
whether he or she has satisfied the Participation requirements of
Section 3.1, 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 (the "Other Plan") may
transfer such contribution to the Trust Fund if such contribution
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, a Participant
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 its 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 Participant from another
plan shall be referred to as a "Rollover Contribution." If the
Committee decides to grant a Participant's request to make a
Rollover Contribution, the Participant may contribute to the
Trust Fund cash or other property acceptable to the Trustee to
the extent of such distribution. The procedure approved by the
Committee shall provide that such a transfer may be made only if
the following conditions are met: (a) the transfer occurs on or
before the sixtieth (60th) day following the Employee's receipt
of the distribution from the Other Plan; and (b) the amount
transferred does not exceed the distribution the Employee
received from the Other Plan.
(b) Notwithstanding the foregoing, if an Employee had
deposited a distribution previously received from an Other Plan
into an individual retirement account ("IRA"), as defined in
Section 408 of the Code, he or she may transfer the amount of
such distribution, plus earnings thereon from the IRA, to this
Plan; provided such Rollover Contribution is deposited with the
Trustee on or before the sixtieth (60th) day following receipt
thereof from the IRA.
(c) The Committee shall develop such procedures, and may
require such information from an Employee desiring to make or
effectuate any Rollover Contribution under this Section 4.5, as
it deems necessary or desirable to determine that the proposed
Rollover Contribution will meet the requirements of this Section.
Upon approval by the Committee, the amount transferred shall be
deposited in the Trust Fund and shall be credited to a Vested
Rollover Contribution Account. Such account shall be one hundred
percent (100%) vested in the Employee, shall share in Income
allocations in accordance with Section 5.2(a), but shall not
share in Employer contribution allocations. Upon Termination of
Employment, the total amount of the Employee's Vested Rollover
Contribution Account shall be distributed in accordance with
Article VI.
(d) Upon a Rollover Contribution by an Employee who is
otherwise eligible to participate in the Plan but who has not yet
completed the Participation requirements of Section 3.1, his or
her Vested Rollover Contribution Account shall represent his or
her sole interest in the Plan until he or she becomes a
Participant.
4.6 TRANSFERS FROM THE DIAL COMPANIES CAPITAL
ACCUMULATION PLAN AND THE DIAL COMPANIES EMPLOYEES' STOCK
OWNERSHIP PLAN. The Committee and the Trustee are hereby
authorized and directed to accept the transfer of assets and
liabilities from the TRIM and the ESOP; provided, however, that
the transfers take place as soon as practicable after the receipt
of a favorable determination letter with respect to this Plan or
receipt by Viad of an opinion by counsel reasonably satisfactory
in form and substance to Viad and the Company to the effect that
such counsel believes this Plan to be qualified under Section
401(a) of the Code. After the transfer, Viad shall cease to have
any obligation whatsoever with respect to Consumer Products
Employees (and their beneficiaries). After the transfer, the
Company shall be solely responsible for all liabilities and
obligations with respect to the Consumer Products Employees (and
their beneficiaries), subject to the receipt of an appropriate
amount of assets as set forth in the Distribution Agreement.
Viad shall either be responsible for or make all required
contributions no later than the later of the Distribution Date or
the date such contributions are legally required to be made in
respect of the Consumer Products Employees for all Prior Plan
Years and for the portion of the Current Plan Year ending on the
Cut-Off Date, to the extent not previously made. All amounts
received from TRIM and ESOP shall be credited to the Accounts
established pursuant to this Plan in accordance with Section
5.2(e) of this Plan. The Committee, the Employer, and the
Trustee do not guarantee the amounts transferred from the TRIM
and ESOP in any way from loss or depreciation. The Committee
shall establish special rules and accounting procedures as
necessary to preserve any distribution forms or other valuable
rights that are protected by Code Section 411(d)(6) with respect
to amounts attributable to assets transferred directly to this
Plan from the ESOP or the TRIM, including, to the extent
applicable, rules requiring (i) the tracking of such amounts in
special accounts, and (ii) the preservation, with respect to
balances attributable to transfers from the ESOP, of the Code
Section 409(h) right to receive distributions in the form of
employer securities, the Code Section 409(o) right to receive a
distribution that complies with certain special timing
requirements, and any other rights that are nonterminable under
Code Section 4975 and the regulations issued thereunder.
4.7 TRUST FUND: (a) All contributions under this Plan
shall be paid to the Trustee and deposited in the Trust Fund.
However, all contributions made by the Employer are expressly
conditioned upon the continued qualification of the Plan under
the Code, including any amendments to the Plan. Upon the
Employer's request, a contribution which was made by a mistake of
fact, or conditioned upon qualification of the Plan or any
amendment thereof shall be returned to the Employer within one
year after the payment of the contribution, or the denial of the
qualification, whichever is applicable.
(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.
(c) Notwithstanding anything herein to the contrary, the
maximum amount that may be returned to the Employer pursuant to
subparagraph (a) above is limited to the portion of such
contribution attributable to the mistake of fact or the portion
of such contribution deemed non-deductible (the "excess
contribution"). Earnings attributable to the excess contribution
will not be returned to the Employer, but losses attributable
thereto will reduce the amount returned.
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNT
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 six separate Accounts--an
Employer Contribution Account, an Employee Contribution Account,
a Salary Reduction Contribution Account, a Vested Rollover
Contribution Account, a Viad Stock Account, and a FINOVA Stock
Account. Where necessary, the Committee shall create and
maintain subaccounts adequate to distinguish between funds in an
Account for the purposes of the Plan (e.g., Qualified Matching
Contribution and Matching Contribution subaccounts of the
Employer Contribution Account). The maintenance of individual
Accounts and subaccounts is only for accounting purposes, and a
segregation of the assets of the Trust Fund to each Account or
subaccount shall not be required. Distributions and withdrawals
made from an Account shall be charged to the Account as of the
date paid.
Because Participants have a choice of Investment Funds, any
reference in this Plan to a Salary 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.
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 shall be
allocated to the Accounts of Participants who had unpaid balances
in their Accounts as of each business day during the Plan Year,
in proportion to the balances in such Accounts, as adjusted to
reflect and give appropriate weighting to any receipt or
distributions during the period, based on generally acceptable
principals of trust accounting agreed to by the Committee, the
Trustee, and the recordkeeper for the Plan and consistently
applied. Each valuation shall be based on the fair market value
of assets in the Trust Fund on the appropriate day.
(b) SALARY REDUCTION CONTRIBUTIONS: The Employer
contributions that are made pursuant to a salary reduction
agreement entered into with a Participant under Section 4.2 shall
be allocated to the Participant's Salary Reduction Contribution
Account as soon as possible following receipt by the Trustee.
(c) MATCHING CONTRIBUTIONS: The Employer's Matching
Contribution described in Section 4.1(b), if any, shall be
allocated among the Employer Contribution Accounts of
Participants in accordance with Section 4.1(b) as of the last day
of the relevant Plan Year.
(d) CONTRIBUTIONS: A Participant's contributions shall
be allocated to his or her Employee Contribution Account as soon
as possible following receipt by the Trustee.
(e) ALLOCATION OF AMOUNTS TRANSFERRED FROM TRIM AND
ESOP: The assets transferred to this Plan from TRIM and ESOP
shall be allocated to the appropriate accounts of the Plan
Participants in the following manner:
(i) Amounts allocated to the Participant's
"employee contribution account" in TRIM
(including Employer Stock) shall be allocated
to the Participant's Employee Contribution
Account in this Plan;
(ii) Amounts allocated to the Participant's
"salary reduction contribution account" in
TRIM (including Employer Stock) shall be
allocated to the Participant's Salary
Reduction Contribution Account in this Plan;
(iii) Amounts allocated to the Participant's
"vested rollover contribution account" in
TRIM (including Employer Stock) shall be
allocated to the Participant's Vested
Rollover Contribution Account in this Plan;
(iv) All Viad Stock allocated to the Participant's
accounts in TRIM shall be allocated to the
Participant's Viad Stock Account in this
Plan;
(v) All FINOVA Stock allocated to the
Participant's "FINOVA stock account" in TRIM
shall be allocated to the Participant's
FINOVA Stock Account in this Plan;
(vi) All Viad Stock amounts allocated to the
Participant's accounts in ESOP shall be
allocated to the Participant's Viad Stock
Account in this Plan; and
(vii) Employer Stock allocated to the Participant's
"employer contribution account" in TRIM or
ESOP shall be allocated to the Participant's
Employer Contribution Account in this Plan.
The Participant's Viad Stock Account and FINOVA Stock Account
shall be divided into subaccounts to reflect the portion of such
account that is attributable to each type of contribution.
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 one and twenty-five
one hundredths (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 two (2), 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 than 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 (and Qualified Non-elective Contributions
or Qualified Matching Contributions, or both, if treated as
Elective Deferrals for purposes of the ADP test) 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 (and, if
applicable, such Qualified Non-elective Contributions or
Qualified Matching Contributions, or both) were made under a
single arrangement. 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.
(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 five-percent (5%) owner or one of the ten (10) most
highly-paid Highly Compensated Employees, the Elective Deferrals
(and Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferrals for
purposes of the ADP test) and Compensation of such Participant
shall include the Elective Deferrals (and, if applicable,
Qualified Non-elective Contributions and Qualified Matching
Contributions, or both) 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, Qualified Non-elective Contributions and Qualified
Matching Contributions must be made before the last day of the
twelve (12) 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 and the amount of
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, used in such 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.
(h) Qualified Matching Contributions and Qualified
Non-elective Contributions may be taken into account as Elective
Deferrals for purposes of calculating the Actual Deferral
Percentages.
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST:
Notwithstanding any other provision of the Plan,
(a) Employee Contributions and Matching Contributions
must meet the nondiscrimination requirements of Section 401(a)(4)
of the Code, and the Average Contribution Percentage (hereinafter
ACP) test of Section 401(m) of the Code. The ACP test is
required in addition to the ADP test under Code Section 401(k).
Qualified Matching Contributions and Qualified Non-elective
Contributions used to satisfy the ADP test may not be used to
satisfy the ACP test.
(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 one and twenty-five
one hundredths (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 Amounts 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 One and Twenty-Five One Hundredths
(1.25) multiplied by the ADP and ACP of the Non-highly
Compensated Employees.
(d) For purposes of this Section, the Average
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 Average Contribution
Percentage of a Participant who is a five-percent (5%) owner or
one of the ten (10) most highly-paid Highly Compensated
Employees, the Contribution Percentage Amounts and Compensation
of such Participant shall include the Average 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 Average
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 Average Contribution
Percentage test, Employee Contributions are considered to have
been made in the Plan Year in which contributed to the trust.
Matching Contributions and Qualified Non-elective Contributions
will be considered made for a Plan Year if made no later than the
end of the twelve (12) month period beginning on the day after
the close of the Plan Year.
The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, used in such 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. This
forfeiture or distribution of Excess Aggregate Contributions
shall be made for the Participants who are Highly Compensated
Employees in the order of their contribution percentages
described in Section 5.4, beginning with those having the highest
percentage and then continuing with others who have the next
highest percentage, until the requirements for the ACP test in
Section 5.4 are met. For this purpose, each forfeiture or
distribution of Excess Aggregate Contributions that occurs shall
be treated as reducing both the amount of such contributions and
the adjusted percentage that is determined for the affected
Participant under Section 5.4. 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 two and one-half (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 end of the Plan Year for which they
were determined to occur (excluding any gap period after the end
of that Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Aggregate Contributions shall be as determined under the Plan's
normal method of accounting.
(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.
(e) In addition, in lieu of distributing Excess
Contributions as provided in the Plan, or Excess Aggregate
Contributions as provided in the Plan, the Employer may make
Qualified Non-elective Contributions on behalf of Non-highly
Compensated Employees that are sufficient to satisfy either the
Actual Deferral Percentage test or the Average Contribution
Percentage Test, or both, pursuant to the regulations under the
Code.
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 and who claims Excess Elective
Deferrals for such taxable year. In addition, excess deferrals
and other contributions described in Section 5.3, plus any income
and minus any loss allocable thereto, shall be distributed no
later than the end of each Plan Year to Participants to whose
accounts they were allocated for the preceding Plan Year. This
distribution of excess amounts pursuant to Section 5.3 shall be
made for the Participants who are Highly Compensated Employees in
the order of their deferral percentages described in Section 5.3,
beginning with those having the highest percentage and then
continuing with others who have the next highest percentage,
until the requirements of the ADP test in Section 5.3 are met.
For this purpose, each distribution of excess deferrals and other
contributions that occurs shall be treated as reducing both the
amount of the deferrals and the adjusted percentage that is
determined for the affected Participant under Section 5.3.
(d) Excess Elective Deferrals shall be adjusted for any
income or loss up to the end of the Plan Year for which they were
determined to occur (excluding any gap period after the end of
that Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Elective Deferrals shall be as determined under the Plan's normal
method of accounting.
(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 two and one-half
(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 end of the Plan Year for which they were
determined to occur (excluding any gap period after the end of
the Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Contributions shall be as determined under the Plan's normal
method of accounting.
(d) Excess Contributions shall be distributed from the
accounts to which the Participant's Elective Deferrals and
Qualified Matching Contributions (if applicable) were allocated
in proportion to the Participant's Elective Deferrals and
Qualified Matching Contributions (to the extent used in the ADP
test) for the Plan Year. Excess Contributions shall be
distributed from the Participant's Qualified Non-elective
Contribution account only to the extent that such Excess
Contributions exceed the balance in the Participant's Elective
Deferral account and Qualified Matching Contribution account.
5.8 MAXIMUM ADDITIONS: (a) Notwithstanding anything
contained herein to the contrary, the total Annual Additions made
to the Salary Reduction Contribution Account, Employer
Contribution Account, Employee Contribution Account of a
Participant for any Year shall not exceed the lesser of Thirty
Thousand Dollars ($30,000.00) or twenty-five percent (25%) of the
Participant's Compensation (as defined in Code Section 415 and
after application of the salary reduction agreement set forth in
Section 4.2) for such Year, except that such $30,000 shall be
increased as permitted by Internal Revenue Service regulations to
reflect cost-of-living adjustments.
(b) If such Annual 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 Salary Reduction
Contribution Account, to the extent they
would reduce the excess amount, will be
returned to the Participant.
(iii) If after the application of paragraph (ii) an
excess amount still exists, and the
Participant is covered by the Plan at the end
of the Year, the excess amount in
Participant's account will be used to reduce
Employer Contributions to such Participant's
Employer Contribution Account, for such
Participant in the next Year, and each
succeeding Year if necessary.
(iv) If after the application of paragraph (ii) an
excess amount still exists, and the
Participant is not covered by the Plan at the
end of the Year, the excess amount will be
held unallocated in a suspense account. The
suspense account will be applied to reduce
future Employer contributions of that
Participant's Employer to Employer
Contribution Accounts for all remaining
Participants in the next Year, and each
succeeding Year if necessary. If a suspense
account is in existence at any time during
the Year pursuant to this Section, it will
not participate in the allocation of the
Trust Income.
(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
purposes 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 one (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 one and twenty-five one hundredths
(1.25), multiplied by the dollar limitation in effect under
Section 415(b)(1)(A) of the Code, or (ii) the product of one and
four tenths (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 one and twenty-five
one hundredths (1.25), multiplied by the dollar limitation in
effect under Section 415(c)(1)(A) of the Code for such year, or
(ii) the product of one and four tenths (1.4), multiplied by the
amount which may be taken into account under Section 415(c)(1)(B)
with respect to such Participants 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(g), 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 purposes 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 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 Code
Section 415 shall be under the Plan. If the reduction is under
the Plan, the Committee shall advise affected Participants of any
additional limitations on their Annual Additions required by this
Section 5.9.
5.9 ADJUSTMENT OF MATCHING CONTRIBUTIONS SUBACCOUNT. In
the event that a distribution of excess Elective Deferrals or
Excess Contributions is made pursuant to Section 5.6 or 5.7 of
the Plan, the Matching Contribution subaccount will be adjusted
by the amount of any Employer Contribution attributable to such
excess Elective Deferrals or Excess Contributions (the "excess
matching contribution") plus the income allocable to any such
excess matching contribution. The income allocable to the excess
matching contribution shall be determined by the Committee in
accordance with any method permitted under Treasury Regulation
Sections 1.401(m)-1(e)(3) or 1.401(k)-1(f)(4) as applicable. Any
such excess employer matching contributions (and earnings
allocable thereto) will be forfeited and reallocated among the
unaffected Participant's Accounts pursuant to such rules as shall
be adopted by the Committee, provided that such treatment is
applied uniformly to all Participants under the Plan for the Plan
Year involved.
5.10 TOP-HEAVY PROVISIONS: (a) The following provisions
shall become effective in any Year in which the Plan is
determined to be a Top-Heavy Plan, notwithstanding any contrary
provision in the Plan. The Plan will be considered a Top-Heavy
Plan for the Year if as of the last day of the preceding Year,
(1) the value of the sum of Salary Reduction Contribution
Accounts, Employer Contribution Accounts and Employee
Contribution Accounts (but not including any allocations to be
made as of such last day of the Year except contributions
actually made on or before that date and allocated pursuant to
Section 5.2) of Participants who are Key Employees (as defined in
Section 416(i) of the Code) exceeds sixty percent (60%) of the
value of the sum of Salary Reduction Contribution Accounts,
Employer Contribution Accounts and Employee Contribution Accounts
(but not including any allocations to be made as of such last day
of the Year except contributions actually made on or before that
date and allocated pursuant to Section 5.2) of all Participants
(the "60% Test") or (2) the Plan is part of a required
aggregation group (within the meaning of Section 416(g) of the
Code and the required aggregation group is top-heavy. However,
and notwithstanding the result of the 60% Test, the Plan shall
not be considered a Top-Heavy Plan for any Year in which the Plan
is a part of a required or permissive aggregation group (within
the meaning of Section 416(g) of the Code) which is not
top-heavy.
(b) Notwithstanding any contrary provision of the Plan,
and except as otherwise provided in (c) and (d) below, for any
Year during which the Plan is deemed a Top-Heavy Plan, Employer
contributions pursuant to Section 5.2(c) which are allocated to
Employer Contribution Accounts on behalf of any Participant who
is not a Key Employee shall not be less than the lesser of:
(i) Three percent (3%) of such Participant's
Compensation; or
(ii) In the case where the Employer has no defined
benefit plan which designates the Plan to
satisfy Section 416(f) of the Code, the
largest percentage of Employer contributions
as a percentage of the first One Hundred
Fifty Thousand Dollars ($150,000) of the Key
Employee's Compensation allocated on behalf
of any Key Employee for that Year.
The above mentioned minimum allocation is determined
without regard to any Social Security contribution. The minimum
allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation
for the Year.
(c) The provisions of (b), above, shall not apply to any
Participant who was not employed by the Employer on the last day
of the Year preceding the Year the Plan is considered to be a
Top-Heavy Plan.
(d) The provisions of (b), above, shall not apply to any
Participant to the extent the Participant is covered under any
other plan or plans of the Employer and the Employer has provided
in the Adoption Agreement that the minimum allocation or benefit
requirement applicable to top-heavy plans will be met in the
other plan or plans.
(e) The minimum allocation required in (b), above, (to
the extent required to be nonforfeitable under Section 416(b) of
the Code) may not be forfeited under Code Section 411(a)(3)(B) or
411(a)(3)(D).
(f) If a Participant's Termination of Employment occurs
while the Plan is a Top-Heavy Plan, such Participant's vested
percentage in his Employer Contribution Account shall not be less
than the percentage determined in accordance with the following
table:
Vested Forfeited
Years of Service Percentage Percentage
less than 2 0% 100%
2 but less than 3 20% 80%
3 but less than 4 40% 60%
4 but less than 5 60% 40%
5 but less than 6 80% 20%
6 or more 100% 0%
(g) For any Year in which the Plan is a Top-Heavy Plan,
the compensation limitation described in Section 416(d) of the
Code shall apply.
(h) If the Plan becomes a Top-Heavy Plan and
subsequently ceases to be such, the vesting schedule in
Subsection (f) of this Section to the extent it is more favorable
than any vesting schedule that may be contained in the Plan shall
continue to apply in determining the vested percentage of any
Participant who had at least five years of Service as of December
31 in the last Year of top-heaviness. For other Participants,
said more favorable schedule shall apply only to their Employer
Contribution Account balance as of such December 31. For the
purposes of Subsection (f), Year of Service shall be defined in
the same manner as the term Year of Service is used for vesting
purposes in the event the Plan is amended to include a vesting
provision. In the event that the Plan is amended to change or
modify any vesting schedule, a Participant with at least three
(3) Years of Service as of the expiration of the election period
may elect to have his nonforfeitable percentage computed under
the Plan without regard to such amendment. If a Participant
fails to make such election, then such Participant shall be
subject to the new vesting schedule. The Participant's election
period shall commence on the adoption date of the amendment and
shall end sixty (60) days after the latest of:
(1) the adopted date of the amendment;
(2) the effective date of the amendment, or
(3) the date the Participant receives written
notice of the amendment from the Employer or Administrator.
(i) Notwithstanding any contrary provisions contained
herein, for any Year in which the Plan is a Top-Heavy Plan, any
benefits to which the Participant who is a Key Employee is
entitled shall commence not later than the Participant's taxable
year in which he or she attains age, seventy and one-half (70.5),
whether or not his or her employment has terminated in such year.
If a benefit distribution under the Plan is made to a Key
Employee before he or she attains age fifty nine and one-half
(59.5), and during a Year in which the Plan is a Top-Heavy Plan,
the Participant shall be advised by the Committee that an
additional income tax may be imposed equal to ten percent (10%)
of the portion of the amount so received which is included in his
or her gross income for such taxable year, unless such
distribution is made on account of death or Disability.
(j) For any Year in which the Plan is a Top-Heavy Plan,
Section 5.4(c) shall be read by substituting the number one
(1.00) for the number one and twenty-five one hundredths (1.25)
wherever it appears therein except such substitution shall not
have the effect of reducing any benefit accrued under a defined
benefit plan prior to the first day of the Year in which this
provision becomes applicable.
(k) Neither Elective Deferrals nor Matching
Contributions may be taken into account for the purpose of
satisfying the minimum top-heavy contribution requirement.
5.11 SECURITIES LAW REQUIREMENTS: The Plan is intended
to comply with the requirements for exemption from liability
under Section 16(b) of the Securities Exchange Act of 1934 ("1934
Act") in the case of any transaction that is reportable under
Section 16(a) of the 1934 Act. Accordingly, the Plan shall be
interpreted and administered so as to preserve such exemption
under Rule 16b-3 or any other applicable rules and regulations
promulgated pursuant to Section 16 of the 1934 Act with respect
to any Plan transaction that is reportable by a Participant,
Beneficiary, or other person, including, if applicable, the
Trust, who is a Company officer, director, or ten percent
beneficial owner subject to Section 16 of the 1934 Act
(hereinafter, a "Section 16 Insider").
The Plan is a written pension or retirement plan with broad-based Employee
participation and objective, nondiscriminatory
rules that are subject to the Code's qualification requirements
and the requirements of the Employee Retirement Income Security
Act of 1974 ("ERISA"), including ERISA reporting rules that make
the Plan subject to an annual audit by independent accountants
and ERISA fiduciary rules that protect the interests of all Plan
Participants and Beneficiaries, including Section 16 Insiders.
The Plan is intended to satisfy the revised Section 16 rules
that apply to transactions occurring on or after August 15, 1996.
Under these newly-issued rules, the Plan is designed to be a
"Tax-Conditioned" plan and is designed to comply with the
exemption for "Discretionary Transactions." Under these new
rules, any acquisition or disposition of Employer Stock held in
the Plan, except for Discretionary Transactions, are exempt,
provided that the Plan satisfies the definition of a "qualified
plan." Because the Plan satisfies the coverage and participation
requirements set forth in Section 410 and 401(a)(26) of the Code
(as the new Section 16 rules require), the Plan will be deemed to
be a qualified plan under the new Section 16 rules. Even though
transactions under the Plan involving Employer Stock are
generally exempt under Section 16, Discretionary Transactions
must nevertheless satisfy certain timing requirements. A
Discretionary Transaction is any transaction under the Plan that
(i) is at the volition of a Plan Participant, (ii) is not made in
connection with the Participant's death, disability, retirement,
or termination of employment, (iii) is not required to be made
available to a Plan Participant pursuant to any provision of the
Code, and (iv) results in either an intra-plan transfer involving
Employer Stock, or a cash distribution funded by a volitional
disposition of Employer Stock. A Discretionary Transaction will
be exempt under the new Section 16 rules only if it is effected
pursuant to an election made at least six months following the
date of the most recent election that effected a Discretionary
Transaction that was an acquisition, if the transaction to be
exempted would be a disposition, or a disposition, if the
transaction to be exempted would be an acquisition. The
Committee has the authority to implement such timing restrictions
for Discretionary Transactions with respect to Section 16
Insiders.
Article VI. - BENEFITS
6.1 ENTITLEMENT TO BENEFITS: If a Participant's
employment with the Employer is terminated for any reason, he or
she shall be vested in the entire amount in each of his or her
Accounts. Except as provided in Section 6.3(c) 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 payment.
(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 one lump sum only.
Payment to a Participant's Beneficiary shall be made or commence
as soon as practicable after a Participant's death and upon such
proofs of death and entitlement to benefits as the Committee may
require.
(c) Except as otherwise provided below, every
Participant who has a separation from service for any reason,
including retirement, death or Disability, shall have his or her
vested Account, valued as of the effective date of the
distribution, distributed as soon as practicable following the
separation from service. If the vested balance in a Participant
Account exceeds Three Thousand Five Hundred Dollars ($3,500),
then no distribution shall be made to the Participant before the
date specified in Section 6.7, unless the Participant consents in
writing to an earlier distribution. Thus, if under the age
specified in Section 6.7, a Participant whose vested Account
balance exceeds Three Thousand Five Hundred Dollars ($3,500) may
elect to defer receipt of such balance until that date by
withholding written consent to the distribution. A Beneficiary
does not have a similar right to defer a distribution of the
Participant's vested Account balance following the Participant's
death.
(d) The amount which a Participant or Beneficiary is
entitled to receive at any time and from time to time may be
paid, in the discretion of the Participant or Beneficiary, in
cash or in Employer Stock, or in any combination thereof,
provided, however, payment in Employer Stock may be limited to
the extent a Participant's Account balances are invested in whole
shares of such Employer Stock under Section 7.2, and the
Committee may require that all such Employer Stock be transferred
to such Participant or Beneficiary. To the extent that a
Participant's Account is invested in stock of Viad or The FINOVA
Group Inc., the foregoing rules for Employer Stock shall be
applied as if such other stock was "Employer Stock."
(e) To the extent required by the regulations issued
under Code Section 411(a)(11), at least 30 days but not more than
90 days before a Participant's scheduled benefit commencement
date, the Committee shall provide to the Participant a written
explanation of his right to defer receipt of the distribution.
Such distributions may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the income tax
regulations is given, provided that:
(i) the Committee clearly informs the Participant
that the Participant has a right to a period
of at least 30 days after receiving the
notice to consider the decision of whether or
not to elect a distribution (and, if
applicable, a particular distribution
option); and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
6.4 DESIGNATION OF BENEFICIARY: (a) 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 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 judgement 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, in its sole discretion, may direct the
Trustee to distribute such Participant's benefits (or the balance
thereof) in the following order to:
(i) The surviving spouse of such Participant or,
if not living,
(ii) The estate of such 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 which is notarized or witnessed by a Plan representative,
or if the Committee determines in its sole discretion that such
consent is not obtainable for good cause shown, consistent with
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, Salary 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) Salary Reduction Contribution Account.
(iii) Vested Rollover Contribution Account.
(b) A Participant must have attained age fifty-nine and
one-half (59.5) or have been determined by the Committee to have a
"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
Salary Reduction Contribution Account and/or Vested Rollover
Contribution Account balances. Except for a Participant who is
age fifty-nine and one-half (59.5) or older and who withdraws his
entire Account balances, a Participant may not withdraw any
amounts from his or her Employer Contribution Account.
(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 forty-five (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, may be made in the
discretion of the Participant in the form of cash, or in Employer
Stock or in any combination thereof, provided, however, payment
in Employer Stock shall be limited to the extent a Participant's
Account balances are invested in whole shares of such Employer
Stock under Section 7.2 and the Committee may require that all
such Employer Stock be transferred to such Participant or
Beneficiary. To the extent that a Participant's Account is
invested in stock of Viad or The FINOVA Group Inc., the foregoing
rules for Employer Stock shall be applied as if such other stock
was "Employer Stock."
(d) Distribution of Elective Deferrals (and earnings
thereon accrued as of December 31, 1988) may be made to a
Participant in the event of hardship. For the purposes of this
Section, 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 or room and board 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 as 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 an 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 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.
6.7 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
seventy and one-half (70.5), and any balances that arise
thereafter will be distributed by each December 31 thereafter.
If the Participant has not yet terminated employment and has
balances invested in Employer Stock, the distribution of such
balances shall, to the maximum extent possible, be made in whole
shares of Employer Stock. To the extent that a Participant's
Account is invested in stock of Viad or The FINOVA Group Inc.,
the foregoing rules for Employer Stock shall be applied as if
such other stock was "Employer Stock."
6.8 DISTRIBUTION REQUIREMENTS: (a) Elective Deferrals,
Qualified Non-elective Contributions, and Qualified Matching
Contributions and income allocable to each, must comply with the
distribution requirements under Section 401(k)(2)(B) of the Code.
(b) Elective Deferrals, Qualified Non-elective
Contributions, and Qualified Matching Contributions, and income
allocable to each 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 fifty-nine and one-half
(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.
6.9 LOANS TO PARTICIPANTS: (a) The Committee may, in
its sole discretion, and upon such terms and conditions as it may
require, direct the Trustee to loan a Participant an amount
which, when added to all loans outstanding under the Plan and
made by the Participant does not exceed the allowable portion, as
determined under the following table, of the Participant's total
Account balances:
Maximum Loan
(Allowable Portion of Total
Total Vested Balance Account Balances)
-------------------- ---------------------------
$0 - $999 0%
$1,000 or more 50% but not to
exceed $50,000
(b) If the Participant participates in another plan or
plans by the Employer or any of the members of the controlled
group of corporations of which the Employer is a part which
allow(s) loans, the maximum loan limits reflected in the above
table apply in the aggregate to the Plan and any such other plan
or plans less any Matching Contributions made under the Plan.
(c) For purposes of this Section, "Total Account
Balance" means the total dollar value, as of the effective date
of the loan, of the Participant's Accounts.
(d) Although used in determining the Total Account
Balances, the Employer Contribution Account balance, and the
employer contribution subaccounts of the Viad Stock Account and
FINOVA Stock Account, are not available for loan.
(e) All loans shall be subject to the approval of the
Committee which shall investigate each application for a loan.
(f) In addition to such rules and regulations as the
Committee may adopt, all loans shall comply the following terms
and conditions:
1. An application for a loan by a Participant
shall be made in writing to the Committee
whose action thereon shall be final.
2. The period of repayment for any loan shall be
arrived at by mutual agreement between the
Committee and the borrower, but such period
in no event shall exceed five (5) years,
except that such five (5) year repayment rule
shall not apply to any loan used for the
purpose of acquiring or constructing a home
which is the Participant's principal
residence.
3. Each loan shall be made against collateral
being the assignment of not more than fifty
percent (50%) of the borrower's entire right,
title and interest in and to the Trust Fund,
supported by the borrower's collateral
promissory note for the amount of the loan,
including interest, payable to the order of
the Trustee.
4. Each loan shall bear interest at a rate to be
fixed by the Committee and, in determining
the interest rate, the Committee shall take
into consideration interest rates currently
being charged. The Committee shall not
discriminate among Participants in the matter
of interest rates; but loans granted at
different times may bear different interest
rates if, in the opinion of the Committee,
the difference in rates is justified by a
change in general economic conditions. Each
loan shall bear interest at an effective
annual percentage rate which is not less than
the prime rate currently being charged to the
Trustee in its banking business, provided
that such rate does not violate any
applicable usury laws.
5. No distribution, other than a hardship
withdrawal which is approved by the Committee
pursuant to Section 6.5 shall be made to any
Participant or to a Beneficiary of any such
Participant unless and until all unpaid
loans, including accrued interest thereon,
have been repaid.
6. Notwithstanding anything contained herein to
the contrary, a Participant may not obtain a
loan unless it is consented to by his or her
spouse in a signed writing which is notarized
or witnessed by a Plan representative or if
the Committee determines in its sole
discretion that such consent is not
obtainable for good cause shown, consistent
with applicable law.
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS: (a) 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 Committee, to have any portion of an "eligible
rollover distribution" paid directly to an "eligible retirement
plan" specified by the "distributee" in the "direct rollover."
(b) For purposes of this Section, the following
definitions shall apply:
(i) "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 of net unrealized appreciation with
respect to Employer securities).
(ii) "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 that
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.
(iii) "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.
(iv) "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 PARTICIPANT DIRECTED INDIVIDUAL ACCOUNT PLAN: This
Plan is intended to constitute a participant directed individual
account plan under Section 404(c) of ERISA. As such,
Participants shall be provided the opportunity to exercise
control over the investment of a portion of their Accounts under
the Plan and to choose from a broad range of investment
alternatives.
7.2 EMPLOYEE SELECTED INVESTMENT OPTIONS, INVESTMENT
FUNDS:
(a) Each Participant shall designate, on a form supplied
by the Committee, signed by the Participant and delivered to the
Committee, the Investment Fund(s) established pursuant to
paragraph (b) below to which contributions made pursuant to
Sections 4.1(a), 4.3, 4.5, and 4.6 hereof, are to be invested. A
Participant's Employer Contribution Account balance shall be
invested only in Employer Stock, and the Participant shall have
no choice of Investment Funds with respect to such balance.
(b) The Committee shall direct the Trustee to establish
three (3) or more Investment Funds. The Committee also may
direct the Trustee to change the number and type of Investment
Funds made available under the Plan from time to time, without
the necessity of Board action or Plan amendment.
7.3 INVESTMENT ELECTIONS:
(a) Each Participant may, except as hereinafter
provided, elect with respect to future contributions to his
Employee Contribution Account, Salary Reduction Contribution
Account and Vested Rollover Contribution Account to have the
aggregate contributions to such Account(s) be invested in a
single Fund, or he may direct that ten percent (10%) increments
(or multiples of ten percent (10%) increments), of such Accounts
be invested in such Funds as he shall desire.
(b) Each Participant may change his investment
directions in accordance with the provisions of Section 7.3(a) to
provide for the investment of future contributions among the
various Funds in ten percent (10%) increments (or multiples of
ten percent (10%) increments), as he shall desire. Any such
change may be made in accordance with procedures established by
the Committee.
7.4 INVESTMENT TRANSFERS: Generally, a Participant may
transfer amounts between the Investment Funds in accordance with
procedures established by the Committee. The transfers shall be
made in accordance with Section 7.3 in ten percent (10%)
increments (or multiples of ten percent (10%) increments).
7.5 TENDER OFFERS: As soon as practicable after the
commencement of a tender offer or exchange offer ("Offer") for
shares of Employer Stock, shares of Viad common stock ("Viad
Stock"), or shares of The FINOVA Group Inc. common stock ("FINOVA
Stock"), the Committee shall use its reasonable best efforts to
cause each Participant (who has an Account allocated in whole or
in part to Employer Stock, Viad Stock, or FINOVA 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 Viad setting forth its position with respect to
the Offer. The giving of instructions to the Trustee to tender
shares of Employer Stock, Viad Stock, or FINOVA 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 Employer Stock,
Viad Stock, or FINOVA Stock, as the case may be, to which a
Participant may provide instructions shall be the total number of
shares credited to his or her Account(s), whether or not the
shares are vested, 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 Employer Stock, Viad Stock, or FINOVA Stock were
tendered pending any reinvestment by the Trustee, as it may deem
appropriate, consistent with the purposes of the Plan.
7.6 VOTING OF STOCK: (a) Each Participant (whose
Account has allocated to it any shares of Employer Stock, Viad
Stock, or FINOVA 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 Employer Stock, Viad
Stock, or FINOVA 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 Employer Stock, Viad Stock, or FINOVA 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 Employer Stock, Viad Stock, or
FINOVA 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, unless
the Trustee, in exercising its discretion as a fiduciary with
respect to the voting of such shares, determines that the
interest of Participants and Beneficiaries requires it to vote in
a different way. The Committee shall use its reasonable best
efforts to cause each Participant (whose Account has allocated to
it any shares of Employer Stock, Viad Stock, or FINOVA Stock) to
receive such notices and informational statements as are
furnished to the 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 Employer
Stock, Viad Stock, or FINOVA Stock credited to his or her
Account.
(b) Subsequent to a Participant's investment in any
Investment Fund other than one comprised of Employer Stock, Viad
Stock, or FINOVA Stock, all proxies relating to the exercise of
voting rights incidental to the ownership of any asset which is
held in such Investment Fund shall be passed through, either
directly or indirectly, to the Participant. Each Participant who
so receives any proxies shall be entitled to instruct the
Committee to instruct the Trustee in writing how to vote such
proxies and to revoke any such instruction, to the extent
permitted under the terms of the proxy. Neither the Committee
nor the Trustee shall have authority to vote proxies for which no
instructions have been received.
7.7 SPECIAL RULES FOR FINOVA STOCK FUND: A Participant
who has a balance invested in common stock of The FINOVA Group
Inc. that is transferred to this Plan from the TRIM may retain
such stock in this Plan, but may not add to it by means of new
investments of any sort. This rule shall not limit a
Participant's ability to transfer all or part of his FINOVA Stock
Account out of the FINOVA Stock Fund at such times as investment
changes are permitted pursuant to Section 7.4 and to have the
amount so transferred invested in other Investment Funds in
accordance with the Plan rules for Participant investment
elections. As a result of this rule, a Participant may not
redirect any existing balance from other Investment Funds to the
FINOVA Stock Fund, or any dividends or other amounts that may be
received (in a form other than common stock of The FINOVA Group
Inc.) for the Account of a Participant with respect to an
existing balance in the FINOVA Stock Fund, but such amounts shall
instead be promptly reinvested in other Investment Funds in
accordance with the Participant's current investment election for
new contributions and funds received by the Plan for the
Participant's Account. If a Participant elects to transfer all
or any portion of his employer contribution subaccount in his
FINOVA Stock Account out of the FINOVA Stock Fund, such amount
shall be reinvested in Employer Stock and will be transferred and
allocated to the Participant's Employer Contribution Account.
7.8 SPECIAL RULES FOR VIAD STOCK FUND: A Participant
who has a balance invested in common stock of Viad that is
transferred to this Plan from the TRIM or the ESOP may retain
such stock in this Plan, but may not add to it by means of new
investments of any sort. This rule shall not limit a
Participant's ability to transfer all or part of his Viad Stock
Account out of the Viad Stock Fund at such times as investment
changes are permitted pursuant to Section 7.4 and to have the
amount so transferred invested in other Investment Funds in
accordance with the Plan rules for Participant investment
elections. As a result of this rule, a Participant may not
redirect any existing balance from other Investment Funds to the
Viad Stock Fund, or any dividends or other amounts that may be
received (in a form other than common stock of Viad) for the
Account of a Participant with respect to an existing balance in
the Viad Stock Account, but such amounts shall instead be
promptly reinvested in other Investment Funds in accordance with
the Participant's current investment election for new
contributions and funds received by the Plan for the
Participant's Account. If a Participant elects to transfer all
or any portion of his employer contribution subaccount in his
Viad Stock Account out of the Viad Stock Fund, such amount shall
be reinvested in Employer Stock and will be transferred and
allocated to the Participant's Employer Contribution Account.
7.9 EXERCISE OF CONTROL: (a) The Committee shall
provide each Participant with the opportunity to obtain
sufficient information to make informed decisions with regard to
investment alternatives available under the Plan, and incidents
of ownership appurtenant to such investments. The Committee
shall promulgate and distribute to Participants an explanation
that the Plan is intended to comply with Section 404(c) of ERISA
and any relief from fiduciary liability resulting therefrom, a
description of investment alternatives available under the Plan,
an explanation of the circumstances under which Participants may
give investment instructions and any limitations thereon, along
with all other information and explanations required under
Department of Labor Regulation Section 2550.404c-1(b)(2)(B)(1).
In addition, the Committee shall provide information to
Participants upon request as required by Department of Labor
Regulation Section 2550.404c-1(b)(2)(B)(2). Neither the
Employer, Committee, Trustee, nor any other individual associated
with the Plan or the Employer shall give investment advice to
Participants with respect to Plan investments. The providing of
information pursuant to this Article VII shall not in any way be
deemed to be the providing of investment advice, and shall in no
way obligate the Employer, Committee, Trustee or any other
individual associated with the Plan or the Employer to provide
any investment advice.
(b) The Committee, pursuant to uniform and
nondiscriminatory rules, may charge each Participant's Accounts
for the reasonable expenses of carrying out investment
instructions directly related to such Account, provided that each
Participant is periodically (not less than quarterly) informed of
such actual expenses incurred with respect to his or her
respective Accounts.
(c) The Committee shall decline to implement any
Participant instructions if the instruction is inconsistent with
any provisions of the Plan or Trust Agreement or any investment
direction policies adopted by the Committee from time to time.
The Committee also may decline to implement any Participant
instructions to the extent permitted by Department of Labor
regulations issued under Section 404(c) of ERISA. The Committee,
pursuant to uniform and nondiscriminatory rules, may promulgate
additional limitations on investment instruction consistent with
Section 404(c) of ERISA from time to time.
(d) A Participant shall be given the opportunity to make
independent investment directions. No Plan fiduciary shall
subject any Participant to improper influence with respect to any
investment decisions, nor shall any Plan fiduciary conceal any
non-public facts regarding a Participant's Plan investment unless
disclosure is prohibited by law. Plan fiduciaries shall remain
completely neutral in all regards with respect to Participant
investment direction. A Plan fiduciary may not accept investment
instructions from a Participant known to be legally incompetent,
and any transactions with a fiduciary, otherwise permitted under
this Article VII and the uniform and nondiscriminatory rules
regarding investment direction promulgated by the Committee,
shall be fair and reasonable to the Participant in accordance
with Department of Labor Regulation Section 2550.404c-1(c)(3).
7.10 ADJUSTMENT OF ACCOUNTS: Adjustments pursuant to
Section 5.2 shall be made on a separate fund basis. Gains and
Income or losses attributable to each Investment Fund shall be
allocable strictly to the Investment Fund and Accounts invested
therein. Each Investment Fund shall be invested in accordance
with the provisions of the Plan and the Trust Agreement.
7.11 LIMITATION OF LIABILITY AND RESPONSIBILITY: The
Trustee, the Committee and the Employer shall not be liable for
acting in accordance with the directions of a Participant
pursuant to this Article VII or for failing to act in the absence
of any such direction. The Trustee, the Committee and the
Employer shall not be responsible for any loss resulting from any
direction made by a Participant and shall have no duty to review
any direction made by a Participant. The Trustee shall have no
obligation to consult with any Participant regarding the
propriety or advisability of any selection made by the
Participant.
7.12 FORMER PARTICIPANTS AND BENEFICIARIES: For purposes
of this Article VII, the term "Participant" shall be deemed to
include former Participants and the Beneficiaries of any deceased
Participants.
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. The Board of
Directors of the Company shall have the authority to amend or
terminate, in whole or in part, any provision of this Plan or the
Trust. The Chief Executive Officer of the Company also shall
have the authority to amend any provision of this Plan or the
Trust, provided that such amendment does not materially increase
the cost of the Plan. 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 responsibility with respect to
the Plan as detailed in the Trust Agreement executed by the
Company and the Trustee. 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 (3) persons shall be appointed by and serve at the
pleasure of the Chief Executive Officer 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.
83. CLAIMS PROCEDURE: The Committee shall make all
determinations as to the right of any person to a benefit.
Benefits will begin upon receipt of a written claim in the form
and manner prescribed by the Committee. If an Employee,
Participant, Beneficiary, or any other person is dissatisfied
with the determination of his benefits, eligibility,
participation, or any other right or interest under this Plan,
such person may file a written statement setting forth the basis
of the claim with the Committee in a manner prescribed by the
Committee. In connection with the determination of a claim, or
in connection with review of a denied claim, the claimant may
examine this Plan and any other pertinent documents generally
available to Participants relating to the claim and may submit
comments in writing.
A written notice of the disposition of any such claim shall
be furnished to the claimant within thirty (30) days after the
claim is filed with the Committee, provided that the Committee or
its designee may have an additional period to decide the claim if
it advises the claimant in writing of the need for an extension
and the date on which it expects to decide the claim. The notice
of the disposition of a claim shall refer, if appropriate, to
pertinent provisions of this Plan, shall set forth in writing the
reasons for denial of the claim if the claim is denied (including
references to any pertinent provisions of this Plan), and where
appropriate shall explain how the claimant can perfect the claim.
If the claim is denied, in whole or in part, the claimant
shall also be notified in writing that a review procedure is
available. Thereafter, within ninety (90) days after receiving
the written notice of the Committee's or its designee's
disposition of the claim, the claimant may request in writing,
and shall be entitled to, a review meeting with the Committee or
its designee to present reasons why the claim should be allowed.
The claimant shall be entitled to be represented by counsel at
the review meeting. The claimant also may submit a written
statement of his claim and the reasons for granting the claim.
Such statement may be submitted in addition to, or in lieu of,
the review meeting with the Committee or its designee. The
Committee or its designee shall have the right to request of, and
receive from, a claimant such additional information, documents,
or other evidence as the Committee or its designee may reasonable
require. If the claimant does not request a review meeting
within ninety (90) days after receiving written notice of the
Committee's or its designee's disposition of the claim, the
claimant shall be deemed to have accepted the Committee's or its
designee's written disposition, unless the claimant shall have
been physically or mentally incapacitated so as to be unable to
request review within the ninety (90) day period.
A decision on review shall be rendered in writing by the
Committee or its designee ordinarily not later than sixty (60)
days after review, and a written copy of such decision shall be
delivered to the claimant. If special circumstances require an
extension of the ordinary period, the Committee or its designee
shall so notify the claimant. In any event, if a claim is not
determined within one hundred twenty (120) days after submission
for review, it shall be deemed to be denied.
To the extent permitted by law, a decision on review by the
Committee or its designee shall be binding and conclusive upon
all persons whomsoever. To the extent permitted by law,
completion of the claims procedures described in this section
shall be a mandatory precondition that must be complied with
prior to commencing 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
Committee or its designee, in its sole discretion, may waive
those procedures as a mandatory precondition to such an action.
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 Viad or its
designee, in the exercise of its responsibilities hereunder.
8.5 OTHER COMMITTEE POWERS AND DUTIES: The Committee
shall have such discretionary power and authority as may be
necessary to discharge its duties hereunder, including, but not
by way of limitation, the discretionary authority to do the
following:
(a) To construe and interpret the Plan, decide all
question of eligibility and determine the amount, manner, and
time of payment of any benefits hereunder;
(b) To select, monitor and replace the Investment
Manager or add new Investment Funds;
(c) To prescribe procedures to be followed by
Participants and Beneficiaries filing applications for benefits;
(d) To prepare and distribute, in such manner as the
Committee determines to be appropriate, information explaining
the Plan.
(e) To receive from the Employer and from Participants
and Beneficiaries such information as shall be necessary for the
proper administration of the Plan;
(f) To furnish the Employer, upon request, such annual
reports with respect to the administration of the Plan as are
reasonable and appropriate.
(g) 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; and
(h) 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.
Except as otherwise provided by the Plan, the Committee
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 requirement of
eligibility for a benefit under the Plan. All decisions,
interpretations, and actions of the Committee pursuant to the
Plan shall be conclusive and binding on all persons, and shall be
given the maximum deference permitted by law. The decision of
the Committee upon all matters within the scope of its authority
shall be binding and conclusive on all persons.
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, 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 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 OF THE COMMITTEE: The Committee and
the individual members thereof shall be indemnified by the
Employer and not from the Trust Fund against any and all
liability arising by reason of any act or failure to act made in
good faith pursuant to the provisions of the Plan, including
expenses reasonably incurred in the defense of any claim relating
thereto.
ARTICLE IX. - MISCELLANEOUS
9.1 NONGUARANTEE OF EMPLOYMENT: Nothing contained in
the 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 payment of
benefits as provided for the in Plan shall be made solely out of
the assets of the Trust Fund to the extent sufficient, and none
of the Fiduciaries or Employers shall be liable therefore in any
manner.
9.3 NON-ALIENATION:
(a) Except as permitted by the Plan in accordance with
Code section 401(a)(13) and ERISA section 206(d), no benefit
payable at any time under the Plan shall be subject to the debts
or liabilities of a Participant or his or her Beneficiary, and
any attempt to alienate, sell, transfer, assign, pledge, or
otherwise encumber any such benefit, whether presently or
thereafter payable, shall be void. Subject to the foregoing
exception, no benefit under the Plan shall be subject in any
manner to attachment, garnishment, or encumbrance of any kind.
(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 ACTION BY THE COMPANY: Any action by the Company
under the Plan may be by resolution of its Board of Directors, or
by any person or persons duly authorized by resolution of said
Board to take such action.
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 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 or greater than the benefit
he would have been entitled to receive immediately
before the merger, consolidation or transfer (if
this Plan had then been terminated); and the
determination of such benefits shall be made in the
manner and at the time prescribed in regulations
issued under ERISA;
(ii) Resolutions of the Boards of Directors of 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.
In addition to the foregoing, any merger, consolidation, or
transfer of assets described in this section shall comply with
applicable requirements of Code Section 411(d)(6) to preserve
optional forms of benefits and other valuable rights that are
legally protected.
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. The Board of
Directors of 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: (a) 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 (b) 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 by entering into an Adoption Agreement in the form and
substance prescribed by the Committee. To the extent approved by
the Committee, each Affiliate may:
(i) Modify the definition of Eligible Employee set forth
in Section 2.1(v) hereof, with respect to its
Employees; and
(ii) Modify the definition of Compensation set forth in
Section 2.1(o) hereof, with respect of its
Employees.
Any such modification shall be reflected in the Adoption
Agreement and may be amended from time to time by a written
supplement to the Adoption Agreement with the approval of the
Committee. Each Affiliate may determine the level of Employer
contributions to be made by the Affiliate to the Employer
Contribution Accounts of its Eligible Employees in each Year.
(b) The Committee may prospectively require that all
provisions of the Plan be uniformly applied to all Affiliates, as
set forth in the Plan, notwithstanding any modification
provisions in an Adoption Agreement. The Company may
prospectively revoke or modify any Affiliate'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 Affiliate's Employee Participants.
(c) By Execution of an Adoption Agreement (each of which
by this reference shall become a part of the Plan), the Affiliate
agrees to be bound by all the terms and conditions of the Plan,
and delegates all authority to amend or terminate the Plan, and
to appoint and remove the Committee and Trustee, to the Company.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed by its duly authorized representative on this 6th day of
August, 1996.
THE DIAL CORPORATION
By: /s/ L.G. Lemon
President
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 Capital Accumulation 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 1,200,000 shares of
the Corporation's Common Stock ("Common Stock"), together with
the associated preferred stock purchase rights ("Rights"),
issuable pursuant to The Dial Corporation Capital Accumulation
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
1,200,000 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 the Registration
Statement No. 1-11793 on Form 10 of The Dial Corporation and to
the reference to us under the heading "Experts" in this
Registration Statement.
/s/ Deloitte & Touche LLP
Phoenix, Arizona
August 9, 1996
