<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1999
REGISTRATION NO. 333-________
================================================================================
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)
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, ARIZONA 85260-1619
(Address of registrant's principal
executive offices)
THE DIAL CORPORATION AMENDED AND RESTATED
401(K) PLAN FOR HOURLY EMPLOYEES
(Full title of the plan)
JANE E. OWENS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE DIAL CORPORATION
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, ARIZONA 85260-1619
(602) 754-3425
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 150,000 32 13/16 $4,921,875 $1,369.00
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act of 1933. 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 Common Stock.
<PAGE> 2
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 June 10, 1999,
and are used solely for the purpose of calculating the registration fee pursuant
to Rule 457(c) and (h) under the Securities Act of 1933.
Note: Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered and sold pursuant to The Dial Corporation Amended and Restated 401(k)
Plan for Hourly Employees.
-2-
<PAGE> 3
EXPLANATORY NOTE
This Registration Statement is filed pursuant to Instruction E to Form
S-8 to register additional Common Stock issuable under Registrant's Amended and
Restated 401(K) Plan for Hourly Employees.
Pursuant to Instruction E to Form S-8, the Registrant hereby
incorporates by reference into this Registration Statement the contents of the
Registrant's Registration Statement on Form S-8 (File No. 333-10157) and all
post-effective amendments thereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 -- Restated Certificate of Incorporation of the Company filed
as Exhibit 3(a) to the Form 10.*
4.2 -- Bylaws of the Company filed as Exhibit 3(b) to the Form
10-Q for the quarter ended July 4, 1998.*
4.3 -- Form of Rights Agreement between the Company and the Rights
Agent named therein filed as Exhibit 4 to the Form 10.*
4.4 -- The Dial Corporation Amended and Restated 401(k) Plan for
Hourly Employees (As Amended and Restated Effective
January 1, 1998).
5 -- Opinion of counsel as to the legality of obligations and
securities offered under the Plan.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of counsel (included on Exhibit 5 hereto).
24 -- Power of Attorney (included on signature page of this
Registration Statement).
- ----------------------------------
*Incorporated herein by reference.
-1-
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that 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 Scottsdale, State of Arizona, on June 14, 1999.
THE DIAL CORPORATION
/s/ Malcolm Jozoff
------------------------------------------
By: Malcolm Jozoff
Its: Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Malcolm Jozoff and Susan J. Riley and each of them as attorneys-in-fact, with
full power of substitution and resubstitution, to execute in the name and on
behalf of such person, individually and in each capacity stated below, and to
file, any and all amendments to this Registration Statement, including any and
all post-effective amendments, as fully as such person could do in person,
hereby verifying and confirming all that such attorneys-in-fact, or their
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 indicated on June 14, 1999.
SIGNATURE TITLE
- --------------------------- -------------------------------------------
/s/ Malcolm Jozoff Chairman of the Board, President and
- --------------------------- Chief Executive Officer (Principal
Malcolm Jozoff Executive Officer)
/s/ Susan J. Riley Senior Vice President and Chief Financial
- --------------------------- Officer (Principal Financial and Accounting
Susan J. Riley Officer)
/s/ Joy A. Amundson Director
- ---------------------------
Joy A. Amundson
/s/ Herbert M. Baum Director
- ---------------------------
Herbert M. Baum
-2-
<PAGE> 5
/s/ Joe T. Ford Director
- ---------------------------
Joe T. Ford
/s/ Thomas L. Gossage Director
- ---------------------------
Thomas L. Gossage
/s/ Donald E. Guinn Director
- ---------------------------
Donald E. Guinn
/s/ Michael T. Riordan Director
- ---------------------------
Michael T. Riordan
/s/ Barbara S. Thomas Director
- ---------------------------
Barbara S. Thomas
/s/ Salvador M. Villar Director
- ---------------------------
Salvador M. Villar
Constituting a majority of the Board of Directors.
Pursuant to the requirements of the Securities Act of 1933, the
committee that administers the Plan has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Scottsdale, State of Arizona, on June 14, 1999.
/s/ Susan J. Riley /s/ Douglas Schoenoff
- --------------------------- ---------------------------
Susan J. Riley Douglas Schoenoff
/s/ Bernhard J. Welle /s/ Jeffrey S. Weiss
- --------------------------- ---------------------------
Bernhard J. Welle Jeffrey S. Weiss
-3-
<PAGE> 6
INDEX TO EXHIBITS
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company [filed as
Exhibit 3(a) to the Form 10.*
4.2 Bylaws of the Company filed as Exhibit 3(b) to the Form 10-Q
for the quarter ended July 4, 1998.*
4.3 Form of Rights Agreement between the Company and the Rights
Agent named therein filed as Exhibit 4 to the Form 10.*
4.4 The Dial Corporation Amended and Restated 401(k) Plan for
Hourly Employees (As Amended and Restated Effective
January 1, 1998).
5 Opinion of counsel as to the legality of obligations and
securities offered under the Plan.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of counsel (included on Exhibit 5 hereto).
24 Power of Attorney (included on signature page of this
Registration Statement).
- ------------------------------------------
* Incorporated herein by reference.
-2-
<PAGE> 1
Exhibit 4.4
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY
EMPLOYEES
<PAGE> 2
THE DIAL CORPORATION
401(K) PLAN FOR HOURLY
EMPLOYEES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. - PURPOSE.............................................................................................. 1
ARTICLE II. - DEFINITIONS AND CONSTRUCTION........................................................................ 1
2.1 DEFINITIONS............................................................................................ 1
2.2 CONSTRUCTION........................................................................................... 9
ARTICLE III. - PARTICIPATION...................................................................................... 9
3.1 PARTICIPATION.......................................................................................... 9
3.2 TERMINATION OF EMPLOYMENT.............................................................................. 9
3.3 TRANSFER............................................................................................... 9
ARTICLE IV. - CONTRIBUTIONS....................................................................................... 10
4.1 EMPLOYER CONTRIBUTIONS................................................................................. 10
4.2 CODE SECTION 401(K) WAGE REDUCTION..................................................................... 10
4.3 EMPLOYEE CONTRIBUTIONS................................................................................. 12
4.4 AFTER-TAX WAGE REDUCTION............................................................................... 12
4.5 ROLLOVER CONTRIBUTIONS................................................................................. 12
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNTS................................................................ 13
5.1 INDIVIDUAL ACCOUNTS.................................................................................... 13
5.2 ACCOUNT ADJUSTMENTS.................................................................................... 13
5.3 ACTUAL DEFERRAL PERCENTAGE TEST........................................................................ 15
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST................................................................... 17
5.5 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS......................................................... 18
5.6 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS.............................................................. 19
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS................................................................... 19
5.8 RECHARACTERIZATION..................................................................................... 20
5.9 MAXIMUM ADDITIONS...................................................................................... 20
5.10 RECOGNITION OF DIFFERENT INVESTMENT FUNDS.............................................................. 21
ARTICLE VI. - BENEFITS............................................................................................ 22
6.1 ENTITLEMENT TO BENEFITS................................................................................ 22
6.2 DEATH.................................................................................................. 22
6.3 PAYMENT OF BENEFITS.................................................................................... 22
6.4 DESIGNATION OF BENEFICIARY............................................................................. 23
6.5 WITHDRAWALS............................................................................................ 24
6.6 SPOUSAL CONSENT........................................................................................ 25
6.7 DEBITING OF INVESTMENT FUNDS........................................................................... 25
6.8 REQUIRED DISTRIBUTIONS................................................................................. 25
6.9 DISTRIBUTION REQUIREMENTS.............................................................................. 26
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS........................................................................ 26
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND..................................................................... 27
7.1 INVESTMENT OPTIONS..................................................................................... 27
7.2 INVESTMENT OF CONTRIBUTIONS............................................................................ 28
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
7.3 INVESTMENT TRANSFERS................................................................................... 28
7.4 TRANSFER OF ASSETS..................................................................................... 28
7.5 TRUST FUND............................................................................................. 28
7.6 TENDER OFFERS.......................................................................................... 28
7.7 VOTING OF STOCK........................................................................................ 29
7.8 SPECIAL RULES FOR FINOVA STOCK......................................................................... 30
7.9 SPECIAL RULES FOR VIADCORP STOCK FUND.................................................................. 30
ARTICLE VIII. -ADMINISTRATION OF THE PLAN......................................................................... 31
8.1 [NO TITLE]............................................................................................. 31
8.2 [NO TITLE]............................................................................................. 31
8.3 [NO TITLE]............................................................................................. 32
8.4 [NO TITLE]............................................................................................. 33
8.5 [NO TITLE]............................................................................................. 33
8.6 [NO TITLE]............................................................................................. 33
8.7 [NO TITLE}............................................................................................. 33
8.8 CLAIMS PROCEDURE....................................................................................... 33
8.9 APPLICATION AND FORMS FOR BENEFITS..................................................................... 34
8.10 FACILITY OF PAYMENT.................................................................................... 34
8.11 INDEMNIFICATION........................................................................................ 34
ARTICLE IX. - MISCELLANEOUS....................................................................................... 34
9.1 NONGUARANTEE OF EMPLOYMENT............................................................................. 34
9.2 RIGHTS TO TRUST ASSETS................................................................................. 35
9.3 NONALIENATION OF BENEFITS.............................................................................. 35
9.4 NONFORFEITABILITY OF BENEFITS.......................................................................... 35
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER.................................................................... 35
10.1 AMENDMENTS............................................................................................ 35
10.2 ADMINISTRATIVE DISCRETION AND MANDATORY PROCEDURES.................................................... 36
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS............................................. 36
11.1 SUCCESSOR EMPLOYER.................................................................................... 36
11.2 CONDITIONS APPLICABLE TO MERGERS OR CONSOLIDATIONS OF PLANS........................................... 36
ARTICLE XII. - PLAN TERMINATION................................................................................... 37
12.1 RIGHT TO TERMINATE.................................................................................... 37
12.2 PARTIAL TERMINATION................................................................................... 37
12.3 LIQUIDATION OF THE TRUST FUND......................................................................... 37
ARTICLE XIII. - ADOPTION OF PLAN.................................................................................. 37
13.1 ADOPTION AGREEMENT.................................................................................... 37
APPENDIX A........................................................................................................ I
PLAN SUPPLEMENTS.................................................................................................. II
</TABLE>
<PAGE> 4
THE DIAL CORPORATION
401(K) PLAN FOR HOURLY
EMPLOYEES
ARTICLE I. - PURPOSE
This Plan has been established, effective as of October 1, 1991, to
receive a direct transfer of assets from The Dial Corporation 401(k) Plan and
thereafter to allow Participants to continue to elect to make Internal Revenue
Code Section 401(k) pretax contributions and also to begin receiving related
Company matching contributions, as provided hereunder in accordance with the
collective bargaining agreements applicable to this Plan. Except as otherwise
provided, the Plan provisions set forth herein are applicable only to Eligible
Employees in the employ of the Company on or after October 1, 1991. With respect
to any Participant who has a balance transferred directly to this Plan from The
Dial Corporation 401(k) Plan, as well as with respect to such transferred
balance and investment adjustments to that balance, this Plan, to the full
extent legally required, shall be treated as a continuation of such transferor
plan, shall include all the Participant's years of active participation in such
transferor plan prior to his or her participation in this Plan, and shall
preserve all valuable rights of the Participant that are legally protected, as
well as all withdrawal restrictions that are legally required to be maintained.
Pursuant to the terms and provisions of that certain Distribution
Agreement entered into between The Dial Corp (hereinafter referred to by its
post-Distribution name, "ViadCorp"), The Dial Corporation, a newly formed
corporation, and Exhibit group/Giltspur, Inc. (the "Distribution Agreement"),
ViadCorp will spin-off The Dial Corporation to ViadCorp's shareholders as of the
"Distribution Date" as determined in accordance with the Distribution Agreement.
Under the terms of the Distribution Agreement, the assets and the liabilities of
the Dial Consumer Products Group, including the assets and liabilities of this
Plan, will be exchanged for all of The Dial Corporation's (hereinafter referred
to as the "Company") common stock in a tax free reorganization and the common
stock will be distributed to all of the outstanding shareholders of ViadCorp in
a tax free spin-off. The Plan is hereby restated and amended to comply with the
terms of the Distribution Agreement and to provide for the assumption of all
assets and liabilities for benefits payable by the Plan by the Company effective
as of the Cut-off Date as defined in the Distribution Agreement determined to be
July 31, 1996.
ARTICLE II. - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS
Where the following words and phrases appear in this Plan, they shall have
the respective meanings set forth in this Article, unless the context clearly
indicates to the contrary.
(a) Account(s): One or all of the Employee Contribution Account, Wage
Reduction Contribution Account, Employer Contribution Account, and Vested
Rollover Contribution Account, as the case may be, and as appropriate in the
context of each provision of the Plan containing such term, for each
Participant.
(b) Actual Deferral Percentage: 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
<PAGE> 5
(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, 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.
(c) Adoption Agreement: The agreement executed by an Affiliate Employer
in order to adopt the Plan pursuant to the provisions of Article XIII.
(d) Affiliate: A subsidiary of the Company.
(e) Aggregate Limit: The sum of (i) 125 percent of the greater of the
ADP of the Non-Highly Compensated Employees for the Plan Year or the ACP of
Non-Highly Compensated Employees under the plan subject to Code Section 401(m)
for the Plan Year beginning with or within the Plan Year of the CODA and (ii)
the lesser of 200% or two plus the lesser of such ADP or ACP. "Lesser" is
substituted for "greater" in "(i)" above, and "greater" is substituted for
"lesser" after "two plus the" in "(ii)" if it would result in a larger Aggregate
Limit.
(f) Annual Additions: With respect to each Year, the total of the
Employer Contributions allocated to a Participant's Wage Reduction Contribution
Account and Employer Contribution Account, plus the amount of after-tax
contribution, if any, the Participant made for such Year to a Participant's
Employee Contribution Account.
(g) Authorized Leave of Absence: Any absence authorized by the Employer
under the Employer's standard personnel practices provided that all persons
under similar circumstances must be treated alike in the granting of such
Authorized Leaves of Absence and provided further that the Employee returns to
employment with the Employer or retires within the period of authorized absence.
An absence due to service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the Employee complies
with all of the requirements of Federal law in order to be entitled to
reemployment and provided further that the Employee returns to employment with
the Employer within the period provided by such law.
(h) Average Contribution Percentage: The average of the Contribution
Percentages of the Eligible Participants in a group.
(i) Beneficiary: A person or persons (natural or otherwise) designated
by a Participant in accordance with the provisions of Section 6.4 to receive any
death benefit payable under this Plan.
2
<PAGE> 6
(j) CODA: A cash or deferred arrangement as described in Section 401(k)
of the Code.
(k) Code: The Internal Revenue Code of 1986, as amended.
(l) Committee: The Retirement Committee appointed to administer the Plan
pursuant to Article VIII.
(m) Compensation: the total of all amounts paid to a Participant by the
Employer for personal services including for regular hours, vacation, sick,
temporary disability, bereavement, military, jury, holiday, birthday and retro
pay to the extent and as would be reported on the Participant's Federal Income
Tax Withholding Statement (Form W-2) had the Participant not been a Participant
under the Plan or any other plan sponsored by the Employer which is qualified
under Section 125 or Section 129 of the Code exclusive of fringe benefits,
overtime and bonuses, if any, and excluding any benefits paid under this Plan,
provided that for purposes of allocating the Employer's contribution for the
Year in which a Participant begins or resumes Participation, Compensation
allocable to time periods before his or her Participation began or resumed shall
be disregarded.
The annual Compensation of each Participant taken into account under the
Plan for any year shall not exceed $200,000, as adjusted by the Secretary of
Treasury at the same time and in the same manner as under Section 415(d) of the
Code. If, as a result of the application of such rules the adjusted $200,000
limitation is exceeded, then the limitation shall be prorated among affected
individuals in proportion to each such individual's Compensation as determined
under 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 19 before the close of
the Year.
In addition to the other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
on or after January 1, 1994, the annual Compensation of each Employee taken into
account under the Plan shall not exceed the "OBRA '93 annual compensation
limit". The "OBRA '93 annual compensation limit" is One Hundred Fifty Thousand
Dollars ($150,000.00) as adjusted by the Commissioner for increases in the
cost-of-living in accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies to any period,
not exceeding twelve (12) months, over which Compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than twelve (12) months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which
is twelve (12). For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Section 401(a)(17) of the Code
shall mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect in that prior determination period. For this
purpose, for determination periods beginning before the first
3
<PAGE> 7
day of the Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is One Hundred Fifty Thousand Dollars ($150,000.00).
(n) Contribution Percentage: The ratio (expressed as a percentage) of
the Participant's Contribution Percentage Amount to the Participant's
Compensation for the Plan Year (whether or not the Employee was a Participant
for the entire Plan Year).
(o) Contribution Percentage Amount: The sum of the Employee
Contributions and 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 Amount shall include forfeitures
of Excess Aggregate Contributions allocated to the Participant's account which
shall be taken into account in the Year in which such forfeiture is allocated.
The Employer may elect to use Elective Deferrals in the Contribution Percentage
Amount so long as the ADP test is met before the Elective Deferrals are used in
the ACP test and continues to be met following the exclusion of those elective
Deferrals that are used to meet the ACP test.
(p) ViadCorp Stock: The common stock, $1.50 par value, of ViadCorp.
(q) Disability: A physical or mental condition which, in the sole
judgment of the Committee, based upon medical reports and other evidence
satisfactory to the Committee, permanently prevents an Employee from
satisfactorily performing his or her usual duties for the Employer and the
duties of any other position or job for the Employer for which such Employee is
qualified by reason of his or her training, education or experience.
(r) Effective Date: October 1, 1991, the date on which the provisions of
this Plan became effective, or any later date as specified in Appendix A.
(s) Elective Deferrals: Any Employer contributions made to the Plan at
the election of the Participant, in lieu of cash compensation, and shall include
contributions made pursuant to a salary reduction agreement or other deferral
mechanism. With respect to any taxable year, a Participant's Elective Deferral
is the sum of all Employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified CODA as described in
Section 401(k) of the Code, any simplified Employee pension cash or deferred
arrangement as described in Section 402(h)(1)(B), any eligible deferred
compensation plan under Section 457, any plan as described under Section
501(c)(18), and any Employer contributions made on behalf of a Participant for
the purchase of an annuity contract under Section 403(b) pursuant to a salary
reduction agreement.
(t) Eligible Employee: Any Employee who is covered by a collective
bargaining agreement between the Employer at company operated facilities
designated on Appendix A attached hereto and by this reference made a part
hereof, which calls for participation in this Plan, and a union representing
Employees (hereinafter "Collective Bargaining Agreement").
(u) Eligible Participant: Any Employee who is eligible to make an
Employee Contribution, or an Elective Deferral (if the Employer takes such
contributions into account in the calculation of the Contribution Percentage) or
to receive a Matching Contribution. If an Employee Contribution is required as a
condition of Participation in the plan, any Employee who
4
<PAGE> 8
would be a Participant in the Plan if such Employee made such a contribution
shall be treated as an Eligible Participant on behalf of whom no employee
Contributions are made.
(v) Employee: Any person who is actively employed by an Employer or an
Affiliate.
(w) Employee Contribution: Any contribution made to the Plan by or on
behalf of a Participant that is included in the Participant's gross income in
the year in which made and that is maintained under a separate account to which
earnings and losses are allocated.
(x) Employee Contribution Account: The account maintained pursuant to
Section 4.3 hereof, to record for a Participant his or her after-tax
contributions and adjustments relating thereto.
(y) Employer: The Company, for the facilities listed in Appendix A, or
any Affiliate that has adopted and been accepted into the Plan pursuant to
Article XIII and is listed on Appendix A.
(z) Employer Contribution Account: The account maintained pursuant to
Section 4.1(b), hereof, to record for a Participant his or her share of the
Matching Contribution, of the Employer, if any, and adjustments relating
thereto.
(aa) Entry Date: the first day of each calendar quarter.
(bb) ERISA: Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as amended.
(cc) Excess Aggregate Contributions: Shall mean, with respect to any Plan
Year, the excess of:
(1) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such plan year, over
(2) The maximum Contribution Percentage Amounts permitted by the
ACP test (determined by reducing contributions made on behalf
of Highly Compensated Employees in order of their Contribution
Percentages beginning with the highest of such percentages).
Such determination shall be made after first determining Excess Elective
Deferrals and then determining Excess Contributions.
In computing the Average Contribution Percentage, the Employer shall take
into account, and include as Contribution Percentage Amounts Elective Deferrals,
and Qualified Non-elective Contributions under this Plan or any other Plan of
the Employer, as provided by regulations.
5
<PAGE> 9
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.
(dd) 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).
(ee) 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.
(ff) Family Member: A member of the Employee's family as defined in
Section 414(q)(6) of the Code.
(gg) Fiduciaries: The Committee (and any subcommittee thereof) and the
Trustee, but only with respect to the specific responsibilities of each for Plan
and Trust administration, all as described herein.
(hh) Highly Compensated Employees: Includes active Highly Compensated
Employees and former Highly Compensated Employees. An active Highly Compensated
Employee includes any Employee who performs services for the Employer during the
determination year, and who during the look-back year: (i) received compensation
from the Employer in excess of $75,000 as adjusted pursuant to Section 415(d) of
the Code); (ii) received compensation from the Employer in excess of $50,000 (as
adjusted pursuant to Section 415(d) of the Code) and was a member of the
top-paid group for such year; or (iii) was an officer of the Employer and
received Compensation during such year that is greater than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code. The term Highly
Compensated Employee also includes: (i) Employees who are both described in the
preceding sentence if the term "determination year" is substituted for the term
"look-back year" and the Employee is one
6
<PAGE> 10
of the 100 Employees who receive the most Compensation from the Employer during
the determination year; and (ii) Employees who are 5-percent owners at any time
during the look-back year or determination year. If no officer has satisfied the
Compensation requirements of (iii) above during either a determination year or
look-back year, the highest paid officer for such year shall be treated as a
Highly Compensated Employee. For this purpose, the determination year shall be
the Plan Year. The look-back year shall be the twelve-month period immediately
preceding the determination year. A former Highly Compensated Employee includes
any Employee who separated from service (or was deemed to have separated) prior
to the determination year, performs no service for the Employer during the
determination year, and was an active Highly Compensated Employee for either the
separation year or any determination year ending on or after the Employee's 55th
birthday.
If an Employee is, during a determination year or look-back year, a Family
Member of either a 5-percent owner who is an active or former Employee or a
Highly Compensated Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of Compensation paid by the Employer during such
year, then the Family Member and the 5-percent owner or top ten Highly
Compensated Employee shall be aggregated. In such case, the Family Member and
5-percent owner or top ten Highly Compensated Employee shall be treated as a
single Employee receiving Compensation and Plan contributions or benefits equal
to the sum of such Compensation and contributions or benefits of the Family
Member and 5-percent owner or top ten Highly Compensated Employee. For purposes
of this Section, Family member includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top 100 Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
The Employer may elect to use the calendar year to determine whether an
Employee is a Highly Compensated Employee (as defined in Treasury Regulations
under Section 414(q) of the Code) in the look-back year calculation. The
calendar year used will be the calendar year ending with or within the
determination year (as defined in the regulations under Section 414(q) of the
Code). The determination year shall be the months (if any) in the current Plan
Year which follow the end of the calendar year look-back year. If the Employer
elects to make the calendar year calculation election with respect to any plan,
entity or arrangement, such election must apply with respect to all plans,
entities and arrangements of the Employer.
(ii) 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.
(jj) 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
7
<PAGE> 11
maintained by the Employer. Such contributions shall be subject to the
distribution and nonforfeitability requirements under Section 401(k) of the Code
when made.
(kk) Investment Fund(s): The investment funds described in Section 7.1.
(ll) Participant: An Employee participating in the Plan in accordance
with the provisions of Section 3.1.
(mm) 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.
(nn) Plan: The Dial Corporation 401(k) Plan For Hourly Employees, the
Plan set forth herein, as amended from time to time.
(oo) Plan Supplement: The document which is incorporated by reference
into the Plan as an integral part thereof for the purposes of determining
certain elements of the definition of the benefits available to a Participant
under the Plan.
A Plan Supplement is applicable to an Eligible Employee when he or she is
a member of a collective bargaining unit, to whose members a Plan Supplement is
applicable.
(pp) Plan Year: The 12-month period commencing on January 1 and ending on
December 31. The initial Year will be a short period commencing on October 1,
1991 and ending December 31, 1991.
(qq) Reserved.
(rr) Trust (or Trust Fund): The fund known as The Dial Corporation 401(k)
Plan For Hourly Employees, maintained in accordance with the terms of the trust
agreement, as from time to time amended, which constitutes a part of the Plan.
(ss) Trustee: The corporation or individuals appointed by the Board of
Directors of the Company to administer the Trust.
(tt) Valuation Date: Each business day of the Plan Year.
(uu) 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.
(vv) Wage Reduction Contribution Account: The account maintained to
record for a Participant his or her pre-tax wage reduction contributions made by
the Employer pursuant to Section 4.1(a) and 4.2 hereof, and adjustments relating
thereto.
(ww) The Dial Corporation Stock: The common stock, $.01 par value, of the
Company.
8
<PAGE> 12
(xx) Minimum Company Contribution: Means the contributions made by the
Company under the Plan in accordance with the provisions of Section 4.1(c).
2.2 CONSTRUCTION
The words "hereof," "hereunder," and other similar compounds of the word
"here" shall mean and refer to the entire Plan and not to any particular
provision or section. Article and section headings are included for convenience
of reference and are not intended to add to, or subtract from, the terms of the
Plan.
ARTICLE III. - PARTICIPATION
3.1 PARTICIPATION
An Eligible Employee shall become a Participant as of the later of the
Effective Date or the first Entry Date coincident with or next following the
last twelve consecutive month period, i.e. the "Computation Period" as defined
in the U.S. Department of Labor Regulations, during which he or she has at least
1,000 hours of service with the Employer, provided in any case that said
Eligible Employee has entered into a duly executed wage reduction agreement
under Section 4.2 in advance of said Effective Date or Entry Date, as the case
may be, and has fulfilled the Plan's enrollment procedures as provided by the
Committee. Participation under the Plan shall cease and a person shall no longer
be a Participant upon termination of employment with the Employer, as defined in
Section 3.2, hereof. After termination of employment, a rehired Eligible
Employee may become a Participant in the Plan on an Entry Date coincident with
or following the date of his or her reemployment upon entering into a duly
executed wage reduction agreement in advance of said Entry Date and fulfilling
all of the other Plan enrollment procedures as required by the Committee. The
term "Hour of Service" shall mean for the purposes hereof, each hour (i) for
which an Eligible Employee is paid, or entitled to payment for the performance
of duties for the Employer during the applicable computation period or (ii)
during which the Eligible Employee is absent due to vacation, holiday, temporary
sickness, maternity or paternity leave under ERISA Section 203(b) , but in each
case only to the extent such Eligible Employee is entitled to payment for the
performance of his or her regular duties for the Employer, as reasonably
determined by the Committee consistent with U. S. Department of Labor
regulations, during the applicable computation period.
3.2 TERMINATION OF EMPLOYMENT
Subject to the provisions of Section 3.3(b) "Termination of Employment"
shall be deemed to be the date the Participant quit, was terminated or
discharged (for any reason, with or without cause, including, by reason of
Disability), died or retired.
3.3 TRANSFER
(a) For the purpose of determining eligibility to Participate in the
Plan under Section 3.1, an Eligible Employee shall receive credit for employment
with an Employer or any entity ("member of the Controlled Group") which by
reason of Code Section 414(b), or 414(m) is treated as a single employer with
the Company.
(b) If a Participant (i) elects to defer distribution of his or her
benefit pursuant to Section 6.3(d), (ii) is transferred to employment with a
member of the Controlled Group that has not adopted the Plan, (iii) becomes an
Employee who is no longer employed in a bargaining unit
9
<PAGE> 13
covered by a Collective Bargaining Agreement, (iv) becomes an Employee who no
longer fits the definition of Eligible Employee or (v) ceases active employment
with an Employer, but is not terminated or discharged from employment under
Section 3.2 (i.e., on authorized leave of absence, lay off, etc.), his or her
Participation under the Plan shall be suspended, provided, however, that during
the period of his or her inactive status or employment in such ineligible
position: (i) he or she shall cease to have any right to make contributions
pursuant to Article IV, hereof; (ii) he or she shall continue to participate in
Income allocations pursuant to Section 5.2(a); (iii) the withdrawal privileges
under the provisions of Article VI shall continue to apply; and (iv) the
investment fund transfer provisions of Section 7.3 shall continue to apply.
ARTICLE IV. - CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS
(a) For each Year, the Employer shall contribute an amount to a
Participant's Wage Reduction Contribution Account equal to the total amount of
contributions agreed to be made by it pursuant to a wage reduction agreement
under Section 4.2 entered into between the Employer and the Participant for such
Year. Contributions made by the Employer for a given payroll period pursuant to
wage reduction agreements under Section 4.2 shall be promptly deposited in the
Trust Fund as soon as practicable after the payroll period to which they relate.
(b) In addition, for each week in which an Elective Deferral is made on
behalf of a Participant, the Employer shall contribute to that Participant's
Employer Contribution Account, in the form of a Matching Contribution, an amount
equal to the amount specified in the Plan Supplement for the unit at which the
Participant is employed. Amounts credited to a Participant's Employer
Contribution Account shall be 100% vested and non-forfeitable at all times.
(c) For each Plan Year the Company shall make contributions to the Plan
in the form of employer contributions (within the meaning of Section 404 of the
Code), in cash or stock, at least equal to a specified dollar amount, on behalf
of those individuals who are entitled to an allocation under Section 5.2(e) of
the Plan. Such amount shall be determined by the board of directors of the
Company, or the delegate of such board, by appropriate resolution on or before
the last day of the Company's taxable year that ends within such Plan Year.
The Minimum Company Contribution for a Plan Year shall be paid by the
Company in one or more installments without interest. The Company shall pay the
Minimum Company Contribution at any time during the Plan Year, and for purposes
of deducting such contribution, shall make the contribution, not later than the
time prescribed by the Code for filing the Company's income tax return including
extensions, for its taxable year that ends within such Plan Year.
Notwithstanding any provision of the Plan to the contrary, the Minimum Company
Contribution made to the Plan by the Company shall not revert to, or be returned
to the Company.
4.2 CODE SECTION 401(k) WAGE REDUCTION
(a) In addition to the other terms and conditions herein, each Eligible
Employee shall enter into, prior to the Entry Date that such Eligible Employee's
Participation under the plan is to commence pursuant to Section 3.1, a written
wage reduction agreement with the Employer which
10
<PAGE> 14
will be applicable to all payroll periods after such Entry Date within such
Year. The terms of any such wage reduction agreement shall provide, for the
purpose of Section 4.1(a) hereof, that the Eligible Employee as a Participant
agrees to accept a reduction in wage from the Employer equal to any whole
percentage of his Compensation per payroll period, not to exceed the percentage
specified in the Plan Supplement for the unit at which the Participant is
employed. In consideration of such agreement, the Employer will make a wage
reduction contribution to the Participant's Wage Reduction Contribution Account
on behalf of the Participant for such Year in an amount equal to the total
amount by which the Participant's Compensation from the Employer was reduced
during the Year pursuant to the wage reduction agreement. Amounts credited to a
Participant's Wage Reduction Contribution Account are intended to qualify for
income tax deferral under Section 401(k) of the Code and, as such shall be 100%
vested and non-forfeitable at all times. If a Participant enters into a wage
reduction agreement with the Employer for a given Year, his or her Compensation
for such Year for all other purposes of this Plan, except with respect to a wage
deduction agreement under Section 4.4, hereof, shall be equal to his or her
Compensation after application of the wage reduction agreement.
(b) Unless otherwise amended or terminated in accordance with (ii),
below, a Participant's wage reduction agreement shall be deemed automatically
renewed from year to year, while this Plan remains in force and effect. Further,
wage reduction agreements shall include, but not by way of limitation, and be
governed by the following:
(i) A wage reduction agreement shall apply to each payroll period
during which an effective wage reduction agreement is on file
with the Employer.
(ii) A wage reduction agreement may be amended or terminated by a
Participant only once during each calendar quarter if the
purpose of the amendment is to decrease or increase the
percentage of such, Participant's Compensation which is
subject to wage reduction during the remainder of such Year.
(iii) Any amendment or termination of a wage reduction agreement
shall be effective on the following Entry Date after at least
30 days prior written notice by a Participant in the form
required by the Employer.
(iv) The Employer may amend or revoke its wage reduction agreement
with any Participant at any time, if the Committee determines
that such revocation or amendment is necessary to insure that
a Participant's Additions for any Year will not exceed the
limitations of Section 415 of the Code or to insure that the
discrimination tests of Section 401(k) and 401(m) of the Code
are met for such Year.
(v) The Employer may revoke its wage reduction agreements with all
Participants or amend its wage reduction agreements with all
Participants on a uniform basis, if it determines that it will
not have sufficient current or accumulated earnings to make
the contributions to the Plan that may be required by the wage
reduction agreements.
11
<PAGE> 15
(vi) Except as provided above, a wage reduction agreement
applicable to any given Year, once made, may not be revoked or
amended by the Participant.
(vii) No amounts may be withdrawn by a Participant from any of his
Accounts, except as provided in Section 6.5 hereof, or the
Plan Supplements. All withdrawal elections shall be made by a
Participant on forms supplied by the Committee for that
purpose.
(c) The Committee may from time to time alter and/or add to the
requirements for wage reduction agreements expressed in Section 4.2(b). The
Employer shall abide by the Committee's determinations and directions with
respect to all matters covered in wage reduction agreements.
4.3 EMPLOYEE CONTRIBUTIONS
Subject to the provisions of Section 4.4, hereof, a Participant may
contribute each Year to an Employee Contribution Account an amount pursuant to a
written wage 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 100% vested and
non-forfeitable at all times.
4.4 AFTER-TAX WAGE REDUCTION
A Participant may elect to enter into a written wage reduction agreement
with the Employer which shall be in the form and substance acceptable to the
Employer and the Committee and will be applicable to each payroll period during
which an effective wage reduction agreement is on file with the Employer. A wage
reduction agreement may be amended or terminated only once during each calendar
quarter if the purpose of the amendment is to decrease or increase the
percentage of such Participant's Compensation which is subject to wage reduction
agreement during the remainder of such Year. The terms of such wage reduction
agreement shall provide, among other things, that for the purposes of Section
4.3 the Participant agrees to accept a reduction from wage from the Employer
equal to any whole percentage of his Compensation per payroll period, not to
exceed the amount specified in the Plan Supplement for the unit at which the
Participant is employed.
4.5 ROLLOVER CONTRIBUTIONS
(a) Contribution. Any Employee (whether or not a Participant) who has
received a distribution from a profit sharing plan, stock bonus plan or pension
plan intended to "qualify" under Section 401 of the Code may transfer such
distribution to the Trust Fund if such contribution to the Trust Fund would
constitute, in the sole and absolute discretion of the Committee, a "rollover
contribution" within the meaning of the applicable provisions of the Code.
Additionally, an Employee may request, with the approval of the Committee, that
the Trustee accept a transfer from the trustee of another qualified plan. Upon
such approval, the Trustee shall accept such transfer. The Committee may, in 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 Employee from another plan shall be
referred to as a "Rollover Contribution". If the Committee decides to grant an
12
<PAGE> 16
Employee's request to make a Rollover Contribution, the Employee may contribute
to the Trust Fund cash or other property acceptable to the Trustee to the extent
of such distribution.
(b) Accounting and Distributions. The Committee shall credit the
Rollover Contribution to a separate account (the "Vested Rollover Contribution
Account") for the Employee's sole benefit. The separate Vested Rollover
Contribution Account shall be adjusted, valued and credited pursuant to Article
V. Any such Vested Rollover Contribution Account shall be nonforfeitable and
shall be paid to the Employee or his Beneficiary in accordance with Article VI.
(c) No Guaranty. The Committee, the Employer and the Trustee do not
guarantee the Vested Rollover Contribution Accounts of Participants in any way
from loss or depreciation. The Employer, the Committee and the Trustee do not
guarantee their payment of any money which may be or become due to any person
from a Vested Rollover Contribution Account, and the liability of the Employer,
the Committee and or the Trustee to make any payment therefrom shall at any and
all times be limited to the then value of the Vested Rollover Contribution
Account.
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNTS
5.1 INDIVIDUAL ACCOUNTS
The Committee shall create and maintain adequate records to disclose the
interest in the Trust of each Participant and Beneficiary. Such records shall be
in the form of individual Accounts, and credits and charges shall be made to
such Accounts in the manner herein described. When appropriate, a Participant
shall have four separate Accounts; an Employee Contribution Account, an Employer
Contribution Account, a Wage Reduction Contribution Account and a Vested
Rollover Contribution Account. The maintenance of individual Accounts is only
for accounting purposes, and a segregation of the assets of the Trust Fund to
each account shall not be required. Distributions and withdrawals made from an
Account shall be charged to the Account as of the date paid.
5.2 ACCOUNT ADJUSTMENTS
The Accounts of Participants shall be adjusted no less frequently than
quarterly, recognizing the Participants' elections pursuant to Section 5.5,
hereof, in accordance with the following:
(a) Income. The Income of the Trust Fund for each calendar quarter shall
be allocated to the Accounts of Participants who had unpaid balances in their
Accounts on the Valuation Date of such calendar quarter in proportion to the
balances in such Accounts at the beginning of such calendar quarter plus
one-half of the contributions made during such calendar quarter, but after first
reducing each such Account balance by any distributions from the Account during
such quarter and recognizing the Participant's elections pursuant to Section
5.5, hereof. The Committee may in its sole and exclusive discretion instruct the
Trustee to pick a "Special Valuation Date" to determine the Income since the
last Valuation Date, in which event the Accounts of any Participant whose
employment terminates prior to the next Valuation Date shall be adjusted to
reflect this determination. Each valuation shall be based on the fair market
value of assets in the Trust Fund on the Valuation Date or Special Valuation
Date, as the case may be.
13
<PAGE> 17
(b) Wage Reduction Contributions. The Employer contributions for a
calendar quarter made pursuant to a wage reduction agreement entered into with a
Participant under Section 4.2 shall be allocated to the Participant's Wage
Reduction Contribution Account as of each Valuation Date.
(c) Contributions. A Participant's contributions shall be allocated to
his or her Employee Contribution Account as of each Valuation Date.
(d) Alternative Method. Notwithstanding the foregoing, the Committee
may, in its sole and exclusive discretion, require an alternative method of
allocating Income and contributions to Accounts if such method more accurately
reflects the value of such Accounts.
(e) The Minimum Company Contribution for the Plan Year shall be
allocated as follows:
(i) First, the Minimum Company Contribution for the Plan Year
shall be allocated during the Plan Year to each Employee of
the Company who is an Eligible Participant on the first day of
the Plan Year as Wage Reduction Contributions pursuant to
Section 4.1(a) and as Employer Matching Contributions pursuant
to Section 4.1(b). These allocations shall be made to each
such Eligible Participant's Wage Reduction Contribution
Account and Employer Contribution Account, respectively.
(ii) Second, the balance of the Minimum Company Contribution
remaining after the allocation in Section 5.2(e)(i) shall be
allocated to the Employer Contribution Account of each
individual who is an Eligible Participant on the first day of
the Plan Year and who is employed by the Company on the last
day of the Plan Year, in the ratio that such Eligible
Participant's Wage Reduction Contributions during the Plan
Year bears to the Wage Reduction Contributions of all such
Eligible Participants during the Plan Year.
(iii) Third, notwithstanding Section 5.9 of the Plan, if the total
contributions allocated to a Participant's Accounts including
the Minimum Company Contribution exceeds the Participant's
maximum Annual Addition limit for any limitation year, then
such excess shall be held in a suspense account. Such amounts
shall be used to reduce employer contributions in the next,
and succeeding, limitation years.
(iv) Fourth, the balance of the Minimum Company Contribution
remaining after the allocations under Section 5.2(e)(i), (ii)
and (iii), shall be allocated as a nonelective contribution to
each Employee of the Company who is an Eligible Participant on
the first day of the Plan Year, in the ratio that such
Eligible Participant's Compensation for the Plan Year bears to
the Compensation for the Plan Year of all such Eligible
Participants. Contributions made pursuant to this Section
5.2(e)(iv) shall be allocated to
14
<PAGE> 18
the Employer Contribution Account of such Eligible Participant
and are distributable only in accordance with the distribution
provisions applicable to Employer Matching Contributions.
Contributions made pursuant to this Section shall be one
hundred percent (100%) vested and non-forfeitable at all
times. Such contribution shall be invested under the Plan in
the manner designated by such Eligible Participant.
Notwithstanding Section 2.1(II) of the Plan, an Eligible
Participant who receives an allocation of a contribution under
this Section 5.2(e) shall be treated as a Participant under
the Plan for all purposes.
(v) Each installment of the Minimum Company Contribution shall be
held in a contribution suspense account unless, or until,
allocated on or before the end of the Plan Year in accordance
with this Section 5.2(e). Such suspense account shall not
participate in the allocation of investment gains, losses,
income and deductions of the Trust Fund as a whole, but shall
be invested separately and all gains, losses, income and
deductions attributable to such investment shall be applied to
reduce Plan expenses, and thereafter, to reduce employer
contributions.
(vi) The Minimum Company Contributions allocated to the Employer
Contribution Account of an Eligible Participant pursuant to
Section 5.2(e)(ii) are distributable only in accordance with
the distribution provisions applicable to Employer Matching
Contributions. Contributions made pursuant to Section
5.2(e)(ii) shall be one hundred percent (100%) vested and
non-forfeitable at all times. Such contribution shall be
invested under the Plan in the manner designated by such
Eligible Participant.
(vii) Notwithstanding any of the foregoing provisions to the
contrary, any allocation of Wage Reduction Contributions shall
be made under either Section 5.2(b) or this Section 5.2(e),
but not both Sections. Similarly, any allocation of a Matching
Employer Contribution shall be made under either Section
4.1(b) or this Section 5.2(e), as appropriate, but not both
Sections.
5.3 ACTUAL DEFERRAL PERCENTAGE TEST
Notwithstanding any other provisions of the Plan,
(a) the Actual Deferral Percentage (hereinafter "ADP") for Participants
who are Highly Compensated Employees for each Plan Year and the ADP for
Participants who are Non-Highly Compensated Employees for the same Plan Year
must satisfy one of the following tests:
(i) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who are
Non-Highly Compensated Employees for the same Plan Year multiplied
by 1.25; or
(ii) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who are
Non-Highly
15
<PAGE> 19
Compensated Employees for the same Plan Year multiplied by 2.0,
provided that the ADP for Participants who are Highly Compensated
Employees does not exceed the ADP for Participants who are
Non-Highly Compensated Employees by more that two (2) percentage
points.
(b) The ADP for any Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to have Elective Deferrals (and Matching
Contributions 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 Matching
Contributions) were made under a single arrangement. If a Highly Compensated
Employee participated in two or more cash or deferred arrangements that have
different Plan Years, all cash or deferred arrangements ending with or within
the same calendar year shall be treated as a single arrangement.
(c) In the event that this Plan satisfies the requirements of Sections
401(k), 401(a)(4), or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this Plan, then this Section shall
be applied by determining the ADP of Employees as if all such plans were a
single plan. For Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(k) of the Code only if they have the
same Plan Year.
(d) For purposes of determining the ADP of a Participant who is a
5-percent owner or one of the ten most highly-paid Highly Compensated Employees,
the Elective Deferrals (and Matching Contributions if treated as Elective
Deferrals for purposes of the ADP test) and Compensation of such Participant
shall include the Elective Deferrals and Compensation for the Plan Year of
Family Members (as defined in Section 414(q)(6) of the Code). Family Members,
with respect to such highly Compensated Employees, shall be disregarded as
separate Employees in determining the ADP both for Participants who are
Non-Highly Compensated Employees and for Participants who are Highly Compensated
Employees.
(e) For purposes of determining the ADP test, elective Deferrals must be
made before the last day of the twelve-month period immediately following the
Plan Year to which contributions relate.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test, and the amount of Matching Contributions 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) Matching Contributions may be taken into account as Elective
Deferrals for purposes of calculating the Actual Deferral Percentages.
16
<PAGE> 20
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST
Notwithstanding any other provision of the Plan,
(a) Employee Contributions must meet the nondiscrimination requirements
of Section 401(a)(4) of the Code, and the Average Contribution Percentage
(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).
(b) The ACP for Participants who are Highly Compensated Employees for
each Plan Year and the ACP for Participants who are Non-Highly Compensated
Employees for the same Plan Year must satisfy one of the following tests:
(i) The ACP for Participants who are Highly Compensated Employees
for the Plan year shall not exceed the ACP for Participants
who are Non-Highly Compensated Employees for the same Plan
Year multiplied by 1.25; or
(ii) The ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants
who are Non-Highly Compensated Employees for the same Plan
Year multiplied by two (2), provided that the ACP for
Participants who are Highly Compensated Employees does not
exceed the ACP for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(c) Multiple Use: If one or more Highly Compensated Employee
participates in both a CODA and a plan subject to the ACP test maintained by the
Employer and the sum of the ADP and ACP of those Highly Compensated Employees
subject to either or both tests exceeds the Aggregate limit, then the ACP of
those Highly Compensated Employees who also participate in a CODA will be
reduced (beginning with such Highly Compensated Employee whose ACP is the
highest) so that the limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage Amount is reduced shall be
treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to meet the
ADP and ACP tests. Multiple use does not occur if either the ADP or ACP of the
Highly Compensated Employees does not exceed 1.25 multiplied by the ADP and ACP
of the Non-Highly Compensated Employees.
(d) For purposes of this Section, the Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or her account under two or
more plans described in Section 401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage Amounts was made
under each plan. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement.
(e) In the event that this Plan satisfies the requirements of Sections
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this Plan,
17
<PAGE> 21
then this Section shall be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For Plan Years beginning
after December 31, 1989, plans may be aggregated in order to satisfy Section
401(m) of the Code only if they have the same Plan Year.
(f) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include the Contribution Percentage
Amounts and Compensation for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code). Family Members, with respect to Highly
Compensated Employees, shall be disregarded as separate Employees in determining
the Contribution Percentage both for Participants who are Non-Highly Compensated
Employees and for Participants who are Highly Compensated Employees.
(g) For purposes of determining the Contribution Percentage test,
Employee Contributions are considered to have been made in the Plan Year in
which contributed to the trust. Matching Contributions will be considered made
for a Plan year if made no later than the end of the twelve-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.
The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
5.5 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS
(a) Notwithstanding any other provisions of this Plan, Excess Aggregate
Contributions, plus any Income and minus any loss allocable thereto, shall be
forfeited, if forfeitable, or if not forfeitable, distributed no later than the
last day of each Plan year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions shall be allocated to Participants who are subject to
the family member aggregation rules of Section 414(q)(6) of the Code in the
manner prescribed by the regulations. If such Excess Aggregate Contributions are
distributed more that 2 1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as Annual Additions under the plan.
(b) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to Excess
Aggregate Contributions is the income or loss allocable to the accounts to which
the Participant's Employee Contributions, Matching Contributions (if any, and if
all amounts therein are not used in the ADP test) and, if applicable, Elective
Deferrals were allocated for the plan Year multiplied by a fraction, the
numerator or which is such Participant's Excess Aggregate Contributions for the
year and the denominator is the Participant's Account balance(s) attributable to
Contribution Percentage Amounts without regard to any income or loss occurring
during such Plan Year.
(c) Forfeitures of Excess Aggregate Contributions may either be
reallocated to the Accounts of Non-Highly Compensated Employees or applied to
reduce Employer contributions.
18
<PAGE> 22
(d) Excess Aggregate Contributions shall be forfeited, if forfeitable or
distributed on a pro-rata basis from the Participant's Accounts.
5.6 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS
(a) No Participant shall be permitted to have Elective Deferrals made
under this Plan, or any other qualified plan maintained by the Employer, during
any taxable year in excess of the dollar limitation contained in Section 402(g)
of the Code in effect at the beginning of such taxable year.
(b) A Participant may assign to this Plan any Excess Elective Deferrals
made during a taxable year of the Participant by notifying the Committee on or
before the date specified in Section 5.6(e) of the amount of the Excess Elective
Deferrals to be assigned to the Plan.
(c) Notwithstanding any other provision of the Plan, Excess Elective
Deferrals, plus any Income and minus any loss allocable thereto, shall be
distributed no later than April 15 to any Participant to whose account Excess
Elective Deferrals were assigned for the preceding year.
(d) Excess Elective Deferrals shall be adjusted for any Income or loss
up to the date of distribution. The Income or loss allocable to Excess Elective
Deferrals is the Income or loss allocable to the Participant's Elective
Deferrals for the taxable year multiplied by a fraction, the numerator of which
is such Participant's Excess Elective Deferrals for the year and the denominator
is the Participant's account balance attributable to elective deferrals without
regard to any Income or loss occurring during such taxable year.
(e) Participants who claim Excess Elective Deferrals for the preceding
taxable year must submit their claims in writing to the Committee by March 15.
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS
(a) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any Income and minus any loss allocable thereto, shall be
distributed no later than the last day of each Plan Year to Participants to
whose accounts such Excess Contributions were allocated for the preceding Plan
Year. If such excess amounts are distributed more than 2 1/2 months after the
last day of the Plan Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the Plan with respect to
such amounts. Such distributions shall be made to Highly Compensated Employees
on the basis of the respective portions of the Excess Contributions attributable
to each of such Employees. Excess Contributions shall be allocated to
Participants who are subject to the Family Member aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by the regulations.
(b) Excess Contributions (including the amounts recharacterized) shall
be treated as Annual Additions under the Plan.
(c) Excess Contributions shall be adjusted for any Income or loss up to
the date of distribution. The Income or loss allocable to Excess Contributions
is the Income or loss allocable to the accounts to which the Participant's
Elective Deferrals (and, if applicable, Matching Contributions) were allocated
for the Plan Year multiplied by a fraction, the numerator of which is such
Participant's Excess Contributions for the year and the denominator is the
19
<PAGE> 23
Participant's account balance attributable to Elective Deferrals (and Matching
Contributions if any such contributions are included in the ADP test) without
regard to any Income or loss occurring during such Plan Year.
(d) Excess Contributions shall be distributed from the accounts to which
the Participant's Elective Deferrals and Matching Contributions (if applicable)
were allocated in proportion to the Participant's Elective Deferrals and
Matching Contributions (to the extent used in the ADP test) for the Plan Year.
5.8 RECHARACTERIZATION
A Participant may treat his or her Excess Contributions as an amount
distributed to the Participant and then contributed by the Participant to the
Plan. Recharacterized amounts will remain nonforfeitable and subject to the same
distribution requirements as Elective Deferrals. Amounts may not be
recharacterized by a Highly Compensated Employee to the extent that such amount
in combination with other Employee Contributions made by that Employee would
exceed any stated limit under the Plan on Employee Contributions.
Recharacterization must occur no later than two and one-half months after the
last day of the Plan Year in which such Excess Contributions arose and is deemed
to occur no earlier than the date the last Highly Compensated Employee is
informed in writing of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the Participant's
tax year in which the Participant would have received them in cash.
5.9 MAXIMUM ADDITIONS
(a) Notwithstanding anything contained herein to the contrary, the total
Additions made to the Wage Reduction Contribution Account, and Employee
Contribution Account of a Participant for any Year shall not exceed the lesser
of $30,000.00 or 25 percent of the Participant's Compensation (as defined in
Code Section 415 and after application of the wage reduction agreement set forth
in Section 4.2) for such Year, except that such $30,000.00 shall be increased as
permitted by Internal Revenue Service regulations to reflect cost-of-living
adjustments.
(b) If such Additions exceed the above limitations, the contributions
for the Year which caused the excess shall be returned to the Participant in the
following order:
(i) Any contributions to such Participant's Employee Contribution
Account, to the extent they would reduce the excess amount,
will be returned to the Participant.
(ii) If after the Application of paragraph (i) an excess amount
still exists, any contributions to such Participant's Wage
Reduction Contribution Account, to the extent they would
reduce the excess amount, will be returned to the Participant.
(c) Notwithstanding the foregoing, the otherwise permissible annual
Additions for any Participant under this Plan may be further reduced to the
extent necessary, as determined by the Committee, to prevent disqualification of
the Plan under Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may
20
<PAGE> 24
be participating in other tax-qualified pension, profit-sharing, savings or
stock bonus plans maintained by the Employer or any of the members of the
controlled group of corporations (for the purpose of this Section "Employers")
of which the Employer is a part: if an individual is a Participant at any time
in both a defined benefit plan and a defined contribution plan maintained by any
of the Employers, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for any Year may not exceed 1.0. The defined benefit
plan fraction for any Year is a fraction, the numerator of which is the
Participant's projected annual benefit under the Plan (determined at the close
of the Year) and the denominator of which is the lesser of (i) the product of
1.25, multiplied by the dollar limitation in effect under Section 415(b)(1)(A)
of the Code, or (ii) the product of 1.4, multiplied by the amount which may be
taken into account under Section 415(b)(1)(B) of the Code with respect to such
Participant under the Plan for such Year. The defined contribution plan fraction
for any Year is a fraction, the numerator of which is the sum of the annual
Additions to the Participant's accounts as of the close of the Year, and the
denominator of which is the sum of the lesser of the following amounts
determined for such Year and for each prior year of service with the Employer:
(i) the product of 1.25, multiplied by the dollar limitation in effect under
Section 415(c)(1)(A) of the Code, or (ii) the product of 1.4 multiplied by the
amount which may be taken into account under Section 415(c)(1)(B) of the Code
with respect to such Participant under the Plan for such Year. When the term
"Annual Additions" is used in the context of other defined contribution plans
under this Section, it shall have the same meaning as set forth in Section
2.1(f), hereof, but with respect to Employer contributions and Employee
Contributions made under such other plans. For purposes of this limitation, all
defined benefit plans of the employers, whether or not terminated, are to be
treated as one defined benefit plan and all defined contribution plans of the
Employers, including the Plan whether or not terminated, are to be treated as
one defined contribution plan. As such, annual benefits and annual Additions of
such plans are to be aggregated for the 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 such a reduction first in benefits from or Annual Additions to
such other plan or plans, the necessary reductions shall be under such other
plan or plans. To the extent any such other plan or plans do not provide for a
reduction first in benefits from or Annual Additions to such other plan or
plans, the reduction in Annual Additions necessary to achieve compliance with
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.
5.10 RECOGNITION OF DIFFERENT INVESTMENT FUNDS
(a) Subject to the terms and conditions herein stated, and as provided
in Article VII, initially four Investment Funds shall be established by the
Trustee and each Participant shall direct what portion of the aggregate of his
or her Account balances shall be deposited in each such Investment Fund. The
Committee may direct the Trustee to change the number and type of Investment
Funds made available under the Plan from time to time. Consequently, when
appropriate, a Participant shall have a percentage of the aggregate of his or
her Wage Reduction Contribution Account, Vested Rollover Contribution Account
and/or Employee Contribution
21
<PAGE> 25
Account in each such Investment Fund and the allocations described in Section
5.2 shall be adjusted in such manner as is appropriate to recognize the
existence of such Investment Funds.
(b) Because Participants have a choice of Investment Funds, the
reference in this Plan to a Wage Reduction Contribution Account, a Vested
Rollover Contribution Account or an Employee Contribution Account shall be
deemed to mean and include all accounts of a like nature which are maintained
for the Participant under each Investment Fund.
ARTICLE VI. - BENEFITS
6.1 ENTITLEMENT TO BENEFITS
If a Participant's employment with the Employer is terminated as defined
in Section 3.2, he or she shall be vested in the entire amount in each of his or
her Accounts. Except as provided in Section 6.3(d), hereof, payment of benefits
shall commence promptly after such termination of employment.
6.2 DEATH
(a) In the event that the termination of employment of a Participant is
caused by his or her death, his or her Beneficiary shall be vested in, and paid
the entire amount of, each of the deceased Participant's Accounts. Payment shall
commence promptly after the Participant's death, but the Beneficiary shall not
be entitled to receive such payment until the Committee is reasonably satisfied
that such Beneficiary is otherwise entitled to receive such entire amount.
(b) Payment of benefits due under this Section shall be made in
accordance with Section 6.3.
6.3 PAYMENT OF BENEFITS
(a) Upon a Participant's or Beneficiary's entitlement to payment of
benefits under Section 6.1 or 6.2 he or she shall file with the Committee his or
her written application therefor on such form or forms, and subject to such
reasonable conditions, as the Committee shall provide.
(b) The Committee shall follow a Participant's Beneficiary designation
made pursuant to Section 6.4. The Committee shall make payment of benefits in
lump sum only. Payment to a Participant's Beneficiary shall be made or commence
as soon as practicable after a Participant's death and upon such proofs of death
and entitlement to benefits as the Committee may require.
(c) Subject to the provisions of Section 6.8, unless a Participant
elects otherwise, payment of his or her benefits under the Plan shall be made no
later than the 60th day after the later of (i) the end of the Year of his or her
65th birthday; or (ii) the end of the Year in which his or her employment
terminates. The foregoing sentence shall not be construed as providing an
election to defer benefits to Participants which is not otherwise specifically
set forth in the Plan.
(d) Subject to the provisions of Section 6.8, at any time prior to
Participant's termination of employment such Participant may elect to defer the
lump sum distribution he or she is entitled to under the Plan for a period of
time not to exceed one year. Such election shall be made in accordance with the
rules and procedures the Committee may prescribe.
22
<PAGE> 26
The above paragraph notwithstanding, if the present value of a
Participant's accrued benefit is greater than $3,500, such benefit may not be
distributed without the consent of the Participant.
(e) the amount which a Participant or Beneficiary is entitled to receive
at any time and from time to time may be paid, at the discretion of the
Participant or Beneficiary, in cash or in Company Stock, or in any combination
thereof, provided, however, payment in Company Stock may be limited to the
extent a Participant's Account balances are invested in whole shares of such
Company Stock under Section 7.1(i), and the Committee may require that all such
Company Stock be transferred to such Participant or Beneficiary.
6.4 DESIGNATION OF BENEFICIARY
(a) Subject to the provisions of Section 6.4(c), each Participant from
time to time may designate any person or persons (who may be designated
contingently or successively and who may be an entity other than a natural
person) as his or her Beneficiary or Beneficiaries to whom his Plan benefits are
paid if he or she dies before receipt of all such benefits. Each Beneficiary
designation shall be in the form prescribed by the Committee, will be effective
only when filed with the Committee during the Participant's lifetime, and, if
the Committee allows, may specify the method of payment of his or her benefits
to the Beneficiary. Each Beneficiary designation filed with the Committee will
cancel all Beneficiary designations previously filed with the Committee. The
revocation of a Beneficiary designation by a Participant, no matter how
effected, shall not require the consent of any designated Beneficiary unless the
Beneficiary affected is the Participant's spouse, in which case such spouse's
consent shall be required to effect any such revocation in accordance with
Section 6.4(c). By designating a Beneficiary or Beneficiaries as hereunder
provided, a Participant grants the Committee the discretion, in good faith, to
make benefit payment(s) to any Beneficiary or Beneficiaries named by such
Participant despite any dispute by any person or persons claiming such benefits,
and holds the Plan, the Employer and the Committee harmless from any claims
arising out of any such good faith payment(s) of benefits. Each Participant, by
designating a Beneficiary or Beneficiaries, authorizes the Committee to retain
any benefits otherwise payable in the Trust Fund or, in its sole discretion,
pay-over such benefits to a court or other tribunal of competent jurisdiction
pending the final and binding disposition of any dispute as to the proper
Beneficiary or Beneficiaries by agreement of the parties or by a judgment of
such court or other tribunal of competent jurisdiction, as the case may be.
(b) If any Participant fails to designate a Beneficiary in the manner
provided above, or if the Beneficiary or Beneficiaries designated by a deceased
Participant die(s) before him or her or before complete distribution of the
Participant's benefits, the Committee shall direct the Trustee to distribute
such Participant's benefits (or the balance thereof) to:
(i) The surviving spouse of such Participant, if then living or,
(ii) The estate of the Participant.
(c) Notwithstanding anything contained herein to the contrary, a
Participant may not name as a Beneficiary someone other than his or her spouse,
and such designation shall have no
23
<PAGE> 27
effect, unless his or her spouse consents thereto, in a signed writing,
notarized or witnessed by an administrator of the Plan, or if the Committee
determines in its sole discretion that such consent is not obtainable for good
cause shown, consistent with applicable law.
6.5 WITHDRAWALS
(a) Subject to Sections (b), (c), (d) and (e) of this Section 6.5, any
Participant may make a withdrawal of all or part of his or her Employee
Contribution Account, Wage Reduction Contribution Account and Vested Rollover
Contribution Account, provided, however, that withdrawals must be made of all
amounts in each classification below (listed in descending order) before amounts
in the next lower classification may be withdrawn.
(i) Employee Contribution Account.
(ii) Wage Reduction Contribution Account.
(iii) Vested Rollover Contribution Account.
(b) A Participant must have attained age 59 1/2 or have been determined
by the Committee to have a "financial hardship" in accordance with Section
6.5(d) in order to qualify for a withdrawal under Section 6.5(a) with respect to
his or her Wage Reduction Contribution Account and/or Vested Rollover
Contribution Account balances.
(c) Application for withdrawals shall be made on such forms as the
Committee prescribes and as permitted herein, and may be made once each calendar
month. Except as provided in Section 6.5(e), distribution of withdrawals shall
be made in a lump sum within 45 days following receipt by the Committee of a
properly completed application. Withdrawal distributions shall be based on the
value of the Participant's Account(s) as of the effective date of the
withdrawal, and subject to the provisions of Section 6.6, and may be made at the
discretion of the Participant in the form of cash, or in Company Stock or in any
combination thereof, provided, however, payment in Company Stock shall be
limited to the extent a Participant's Account balances are invested in whole
shares of such Company Stock under Section 7.1(i) and the Committee may require
that all such Company Stock be transferred to such Participant or Beneficiary.
(d) Distribution of Wage Reduction Contributions (and earnings thereon
accrued as of December 31, 1988) may be made to a Participant in the event of
hardship. For the purpose 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 for the next quarter or semester of
post-secondary education for the Employee, the Employee's spouse, children or
dependents; or the need to prevent the eviction of the Employee from, or a
foreclosure on the mortgage of, the Employee's principal residence. A
distribution will be considered necessary to satisfy an immediate and heavy
financial need of the Employee only if:
24
<PAGE> 28
(i) The Employee has obtained all distributions other than
hardship distributions, and all nontaxable loans under all
plans maintained by the Employer;
(ii) All plans maintained by the Employer provide that the
Employee's Elective Deferrals (and Employee Contributions)
will be suspended for twelve months after the receipt of the
hardship distribution;
(iii) The distribution is not in excess of the amount of the
immediate and heavy financial need; and
(iv) All plans maintained by the Employer provide that the Employee
may not make elective Deferrals for the Employee's taxable
year immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Section
402(g) of the Code for such taxable year less the amount of
such Employee's Elective Deferrals for the taxable year of the
hardship distribution.
A distribution based upon financial hardship cannot exceed the amount
required to meet the immediate financial need created by the hardship and not
reasonably available from other resources of the Participant. Entitlement to a
distribution based on financial hardship shall be determined by the Committee in
its sole and exclusive discretion. The Committee may require such reasonable
proof of immediate financial need as it deems necessary to uniformly and fairly
administer this Section 6.5, as a condition precedent to any distribution by
reason of financial hardship.
(e) Notwithstanding anything contained in Section 6.5(b) regarding the
age of a Participant or financial hardship, to the contrary, a Participant may
withdraw all or a portion of his or her Employee Contribution Account once each
calendar month regardless of his or her age or the existence of any financial
hardship if such Participant satisfies all of the other terms and conditions
contained in this Section 6.5.
6.6 SPOUSAL CONSENT
Notwithstanding anything contained herein to the contrary, a Participant
may not make a withdrawal unless his or her spouse consents thereto in a signed
writing, notarized or witnessed by an administrator of the Plan, or if the
Committee determines in its sole discretion that such consent is not obtainable
for good cause shown, and consistent with applicable law.
6.7 DEBITING OF INVESTMENT FUNDS
If a Participant making less than a total withdrawal of his or her
accounts under either Section 6.5 or the Plan Supplement applicable to him or
her has his or her Accounts invested in more than one Investment Fund, the
amount withdrawn from his or her Accounts shall be debited, on a pro rata basis,
against each Investment Fund in which such Accounts are invested.
6.8 REQUIRED DISTRIBUTIONS
(a) Distribution of the Account balances of a Participant will be made
by April 1 of the year following: (i) the calendar year in which such
Participant attains age 70 1/2.
25
<PAGE> 29
6.9 DISTRIBUTION REQUIREMENTS
(a) Elective Deferrals, 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, 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 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, or Participant loans subject to
the provisions of the Plan Supplement applicable to such
Participant.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and Participant
consent requirements (if applicable) contained in Sections 401(a)(11) and 417 of
the Code.
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS
(a) General. This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Section, a distributee
may elect, at the time and in the manner prescribed by the Plan Administrator,
to have any portion of an "eligible rollover distribution" paid directly to an
"eligible retirement plan" specified by the "distributee" in a "direct
rollover".
26
<PAGE> 30
(b) Definitions.
(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 for 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 the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the Surviving Spouse, an
eligible retirement plan is an individual retirement account
or individual retirement annuity.
(iii) "Distributee" A distributee includes an employee or former
employee. In addition, the employee's or former employee's
Surviving 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 INVESTMENT OPTIONS
Each Participant shall designate the Investment Fund(s) under which
contributions made pursuant to Sections 4.1(a), 4.3 and 4.5, hereof, are to be
invested. Initially, there shall be at least four such investment funds, as
herein after indicated:
(i) A Common Stock Fund, consisting of the Company Stock;
(ii) An Equity Fund, consisting of common stock and other equity
securities, held directly or indirectly;
(iii) A Bond Fund, consisting of Government National Mortgage
Association (GNMA) backed certificates; and
27
<PAGE> 31
(iv) A Fixed Fund, consisting of insurance company guaranteed
investment contracts.
7.2 INVESTMENT OF CONTRIBUTIONS
Each Participant may elect with respect to future contributions to his
Employer Contribution Account, Employee Contribution Account, Wage Reduction
Contribution Account and Vested Rollover Contribution Account to have the
aggregate contributions to such Account(s) invested in increments of 10% of the
total contributions in an Investment Fund or Funds. Any such change may be made
in accordance with procedures established by the Committee.
7.3 INVESTMENT TRANSFERS
Subject to all of the other provisions herein contained, and any special
rules formed by the Committee with respect to certain Investment Funds which, by
their nature, require special treatment, each Participant may elect, in
accordance with procedures established by the Committee, to have the assets in
any or all Investment Fund(s), in increments of 10% of the total, transferred to
any one or more other Investment Fund(s).
7.4 TRANSFER OF ASSETS
The Committee shall direct the Trustee to transfer monies or other
property from the appropriate Investment Funds to the other Investment Funds as
may be necessary to carry out the aggregate transfer transactions after such
Committee has caused the necessary entries to be made in the Participant's
Accounts and in the Investment Funds and has reconciled offsetting transfer
elections, in accordance with uniform rules therefor established by such
Committee.
7.5 TRUST FUND
(a) All contributions under this Plan shall be paid to the Trustee and
deposited in the Trust Fund.
(b) Except as provided above, all assets of the Trust Fund, including
investment income, shall be retained for the exclusive benefit of Participants
and Beneficiaries and shall be used to pay benefits to such persons or to pay
administrative expenses of the Plan and Trust Fund to the extent not paid by the
Employer and shall not revert to or inure to the benefit of the Employer.
7.6 TENDER OFFERS
As soon as practicable after the commencement of a tender offer or
exchange offer ("Offer") for shares of Finova Stock, ViadCorp Stock or Company
Stock, the Committee shall use its reasonable best efforts to cause each
Participant (who has an Account allocated in whole or in part to Finova Stock,
ViadCorp Stock or Company Stock) to be advised in writing of the terms of the
Offer, together with forms by which the Participant may instruct the Committee
to instruct the Trustee, or revoke such instruction, to tender shares credited
to his or her Account, to the extent permitted under the terms of any such
Offer. The Trustee shall follow the directions of the Committee but the Trustee
shall not tender shares for which no instructions are received. In advising
Participants of the terms of the offer, the Committee may include statements
from the management of Finova, ViadCorp or the Company setting forth its
position with respect to the
28
<PAGE> 32
Offer. The giving of instructions to the Trustee to tender shares of Finova,
ViadCorp or Company Stock and the tender thereof shall not be deemed a
withdrawal or suspension from the Plan or a forfeiture of any portion of the
Participant's interest in the Plan. The number of shares of Finova, ViadCorp or
Company Stock to which a Participant may provide instructions shall be the total
number of shares credited to his or her Account(s), as of the close of business
on the day preceding the date on which the tender offer commences or such
earlier date which shall be designated by the Committee which the Committee, in
its sole discretion, deems appropriate for reasons of administrative
convenience. Any securities received by the Trustee as a result of a tender of
shares hereunder shall be held, and any cash so received shall be invested in
short-term investments, for the account of each Participant with respect to whom
shares of Employer Stock were tendered pending any reinvestment by the Trustee,
as it may deem appropriate, consistent with the purposes of the Plan.
7.7 VOTING OF STOCK
(a) Each Participant (whose Account has allocated to it any shares of
ViadCorp Stock, Finova stock, or Company stock) shall be entitled to instruct
the Committee to instruct the Trustee in writing how to vote, at each meeting of
shareholders, such shares of ViadCorp Stock, Finova Stock, or Company Stock, and
to revoke any such instruction, to the extent permitted under the terms of such
vote. Such instruction or revocation thereof shall apply to the total number of
shares of ViadCorp Stock, Finova Stock, or Company Stock credited to the
Participant's Accounts, whether or not vested, as of the date coinciding with or
immediately preceding the record date for the shareholders' meeting or such
earlier date which shall be designated by the Committee which the Committee, in
its sole discretion, deems appropriate for reasons of administrative
convenience. All the shares of ViadCorp Stock, Finova Stock, or Company Stock
for which no instructions are received shall be voted by the Trustee in a
uniform manner as a single block in accordance with the instructions received
with respect to a majority of such shares for which instruction is received,
unless the Trustee, in exercising its direction 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 ViadCorp Stock, Finova Stock, or Company Stock) to
receive such notices and informational statements as are furnished to
shareholders in respect of the exercise of voting rights, together with forms by
which the Participant may instruct the Committee to instruct the Trustee, or
revoke such instruction, with respect to the vote of shares of ViadCorp Stock,
Finova Stock, or Company Stock credited to his or her account.
(b) Subsequent to a Participant's investment in any Investment Fund
other than one comprised of ViadCorp Stock, Finova Stock, or Company 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
proxy 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.
29
<PAGE> 33
7.8 SPECIAL RULES FOR FINOVA STOCK
(a) The Plan is authorized to receive Finova common stock that is
distributed to it (i) when The Dial Corp distributes such stock to the Plan and
its other stockholders.
(b) For Participants who elect to dispose of Finova Stock, it shall be
sold in an arms-length transaction and the proceeds shall be reinvested in
available Investment Funds according to the Participant's most recent election
for Elective Deferrals and shall thereafter be subject to the Plan's normal
rules for investments and distributions of balances in such Accounts.
(c) For Participants who elect to keep Finova Stock, it shall be
invested in the Finova Common Stock Fund and retained for them in the Finova
Common Stock Fund until the time for distribution under the rules of the Plan,
or, if sooner, the time at which the Participant decides to dispose of his
Finova stock, provided, however, that it may be converted to cash for the
purposes of making a loan in accordance with the special rules in Section 7.8(d)
below. When a distribution is due from the Finova Common Stock Fund following a
Participant's termination of employment, the usual rules of the Plan shall
apply, except that the Participant or Beneficiary shall be allowed to elect to
receive the distribution from such Investment Fund in the form of whole shares
of Finova common stock (plus cash in lieu of any fractional shares) instead of
receiving cash. Except in the case of stock dividends, stock splits, or
nontaxable distributions with respect to Finova Stock, no Finova Stock or other
assets shall be added to the Finova Common Stock Fund, and the dividends on
Finova common stock and any other earnings of the Finova Common Stock Fund shall
be reinvested according to the Participant's most recent election for Elective
Deferrals.
(d) Finova Stock that is being retained in a Participant's Employee
Contribution Account, Wage Reduction Account, or Vested Rollover Account (but
not Finova Stock that is being retained in a Participant's Employer Contribution
Account) shall be liquidated to the extent necessary to provide a loan to the
Participant. To the extent that loan funds are provided to a Participant from
The Finova Stock Fund, the Participant's loan repayment shall be reinvested
according to the Participant's most recent investment election for Elective
Deferrals.
7.9 SPECIAL RULES FOR VIADCORP STOCK FUND
(a) The Plan is authorized to receive ViadCorp common stock that is
distributed to it (i) when ViadCorp distributes such stock to the Plan and its
other stockholders.
(b) For Participants who elect to dispose of ViadCorp Stock, it shall be
sold in an arms-length transaction and the proceeds shall be reinvested in
available Investment Funds according to the Participant's most recent election
for Elective Deferrals and shall thereafter be subject to the Plan's normal
rules for investments and distributions of balances in such Accounts.
(c) For Participants who elect to keep ViadCorp Stock, it shall be
invested in the ViadCorp Common Stock Fund and retained for them in the ViadCorp
Common Stock Fund until the time for distribution under the rules of the Plan,
or, if sooner, the time at which the Participant decides to dispose of his
ViadCorp stock, provided, however, that it may be converted to cash for the
purposes of making a loan in accordance with the special rules in Section 7.9(d)
below. When a distribution is due from the ViadCorp Common Stock Fund following
a Participant's termination of employment, the usual rules of the Plan shall
apply,
30
<PAGE> 34
except that the Participant or Beneficiary shall be allowed to elect to
receive the distribution from such Investment Fund in the form of whole shares
of ViadCorp common stock (plus cash in lieu of any fractional shares) instead of
receiving cash. Except in the case of stock dividends, stock splits, or
nontaxable distributions with respect to ViadCorp Stock, no ViadCorp Stock or
other assets shall be added to the ViadCorp Common Stock Fund, and the dividends
on ViadCorp common stock and any other earnings of the ViadCorp Common Stock
Fund shall be reinvested according to the Participant's most recent election for
Elective Deferrals.
(d) ViadCorp Stock that is being retained in a Participant's Employee
Contribution Account, Wage Reduction Account, or Vested Rollover Account (but
not ViadCorp Stock that is being retained in a Participant's Employer
Contribution Account) shall be liquidated to the extent necessary to provide a
loan to the Participant. To the extent that loan funds are provided to a
Participant from the ViadCorp Stock Fund, the Participant's loan repayment shall
be reinvested according to the Participant's most recent investment election for
Elective Deferrals.
ARTICLE VIII. - ADMINISTRATION OF THE PLAN
8.1 [NO TITLE]
A Retirement Committee, composed of at least three members, shall be
appointed by the Board of Directors. Each member of the Retirement Committee
shall serve at the will of the Board and without compensation. The Retirement
Committee shall be the "named fiduciaries" of the Plan within the meaning of
Section 402(a) of ERISA. A member of the Retirement Committee shall cease to be
a member of such committee either automatically upon ceasing to be an officer,
director or employee of the Company or upon resignation delivered in writing to
the Board. In the event of such a vacancy in membership, the remaining members
of the Retirement Committee shall have full power to act until such vacancy is
filled. The usual and reasonable expenses of the Retirement Committee shall be
paid by the Company, to the extent not paid by the Plan.
8.2 [NO TITLE]
Except as may be reserved elsewhere in this Plan, the Retirement Committee
shall administer the Plan and shall have the sole responsibility for the
administration thereof. In exercising any of its discretionary powers with
respect to the administration of the Plan, the Retirement Committee shall act in
a uniform and nondiscriminatory manner and for the exclusive benefit of the
Participants, retired Participants and their Beneficiaries. The Retirement
Committee shall have all powers and duties necessary and proper to carry out its
responsibilities under the Plan including, but not by way of limitation,
(a) To construe and interpret the Plan and the Trust, resolve any
ambiguities and decide all questions as to eligibility and the determination of
the amount, manner and time of payment of any benefits thereunder.
(b) To prescribe procedures to be followed and forms to be used by
Participants or Beneficiaries of the Plan, and to establish such rules and
guidelines as may be necessary or desirable for the proper administration of the
Plan.
31
<PAGE> 35
(c) To prepare and distribute, in such manner as it determines to be
appropriate, all reports, returns and information related to the Plan, whether
as required by law or at the request of Participants, Beneficiaries or other
persons, or otherwise.
(d) To receive from the Company and from Participants and Beneficiaries
such information as shall be necessary for the proper administration of the
Plan.
(e) To furnish the Company upon request, such reports with respect to
the administration of the Plan as are reasonable and appropriate.
(f) To employ such experts, counsel and agents, and to secure such
accounting, actuarial and other services as it may deem advisable in carrying
out its powers and duties under the Plan.
(g) To authorize the payment of Plan benefits due to Participants and
Beneficiaries.
(h) To appoint a subcommittee consisting of at least three persons, to
serve at the pleasure of and subject to the rules of the Retirement Committee,
to consider requests for hardship withdrawals and loans under the applicable
provisions of the Plan.
The Retirement Committee shall also have the powers and duties conferred
upon it elsewhere in the Plan. Except as may be otherwise provided in the Plan,
the decision of the Retirement Committee as to any dispute or question arising
hereunder, including questions of construction, interpretation and
administration, shall be final and conclusive.
8.3 [NO TITLE]
The Retirement Committee shall have all powers and duties necessary and
proper for the management and investment of the assets of the Plan, including,
but not by way of limitation,
(a) To establish a funding policy within the meaning of and consistent
with ERISA Section 402(b).
(b) To appoint one or more trustees, to negotiate and enter into on
behalf of the Plan a trust agreement with any such trustee and to terminate the
management of or replace any such trustee.
(c) To appoint one or more investment managers (within the meaning of
Section 3(38) of ERISA) to manage any or all assets of the Plan, to negotiate
and enter into on behalf of the Plan an agreement with any such investment
manager and to terminate the engagement of or replace any such investment
manager.
(d) To provide direction and give instructions to any trustee or
investment manager on all matters within the Retirement Committee's discretion
under the terms of any trust agreement or investment management agreement.
(e) To execute or deliver any instrument or make any payment in behalf
of the Plan.
32
<PAGE> 36
(f) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts and
disbursements, of the Trust.
(g) To select, monitor and replace the Investment Funds.
8.4 [NO TITLE]
The Retirement Committee shall appoint a chairman and a secretary from its
members. Action by the Retirement Committee shall be taken by a vote of the
majority of its members present at a meeting at which a quorum is present or
signed by a majority of its members in writing without a meeting. A majority of
the members of the Retirement Committee present at a meeting duly called shall
constitute a quorum. The Retirement Committee shall make and maintain minutes of
each meeting and shall maintain other appropriate books and records. The
Retirement Committee may establish such rules as it deems necessary or desirable
for its own operations.
8.5 [NO TITLE]
The Retirement Committee may employ one or more persons to render advice
or services with regard to any responsibility it has under the Plan or Trust.
The compensation of such person or persons shall be fixed by the Retirement
Committee.
8.6 [NO TITLE]
Except as limited in this Section 8.6 of this Article VIII the Retirement
Committee may allocate among its members, or delegate to any person who is not a
member, any responsibility which it has hereunder. No responsibility with
respect to the management or control of the assets of the Trust may be so
delegated or allocated; provided, however, that the Retirement Committee may
appoint one or more investment managers in respect of the assets of the Trust.
Any delegation or allocation of responsibility pursuant to this Section 8.6
shall be evidenced by the minutes of the meeting at which such delegation or
allocation was approved or, if no such meeting was held, by the writing under
which such action was taken. Any action of a person to whom such responsibility
has been allocated or delegated shall have the same force and effect for all
purposes hereunder as if taken by the Retirement Committee. Any allocation or
delegation to any person may be revoked upon written notice delivered to such
person. The Retirement Committee shall monitor any person to which it allocates
or delegates any responsibility pursuant to this Section 8.6 and shall require
such person periodically to report regarding the discharge of such
responsibility.
8.7 [NO TITLE}
The Retirement Committee shall report to the Board of Directors not less
than annually regarding the administration of the Plan, including, but not
limited to, the management of the assets of the Plan.
8.8 CLAIMS PROCEDURE
The Committee shall make all determinations as to the right of any person
to a benefit. Any denial by the Committee of the claim for benefits under the
Plan by a Participant or Beneficiary shall be stated in writing by the Committee
and delivered or mailed to the Participant or Beneficiary at his or her last
address shown on Plan records; and such notice shall set forth the specific
reasons for the denial, written to the best of the Committee's ability in a
manner that may
33
<PAGE> 37
be understood without legal or actuarial counsel. In addition, the Committee
shall afford a reasonable opportunity to any Participant or Beneficiary whose
claim for benefits has been denied for a review of the decision denying the
claim, and in the event of continued disagreement, may appeal to the Company (or
an appellate benefits review committee appointed by it) whose decision shall be
final.
8.9 APPLICATION AND FORMS FOR BENEFITS
The Committee may require a Participant or Beneficiary to complete and
file with the Committee an application for a benefit on the forms approved by
the Committee, and to furnish all pertinent information requested by the
Committee, as a condition precedent to payment of benefits. The Committee may
rely upon all such information so furnished it, including the Participant's or
Beneficiary's current mailing address.
8.10 FACILITY OF PAYMENT
Whenever, in the Committee's opinion, a person entitled to receive any
payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage his or
her financial affairs, the Committee may direct the Trustee to make payments to
such person or to his or her legal representative or to a relative or friend of
such person for his or her benefit, or the Committee may direct the Trustee to
apply the payment for the benefit of such person in such manner as the Committee
considers advisable. Any payment of a benefit or installment thereof in
accordance with the provisions of this Section shall be a complete discharge of
any liability for the making of such payment under the provisions of the Plan.
8.11 INDEMNIFICATION
To the extent permitted by law, the Company and any adopting Employer
shall and do hereby jointly and severally indemnify and agree to hold harmless
their employees, officers and directors who serve in fiduciary capacities with
respect to the Plan and Trust Agreement from all loss, damage, or liability,
joint or several, including payment of expenses in connection with defense
against any such claim, for their acts, omissions and conduct, and for the acts,
omissions and conduct of their duly appointed agents, which acts, omissions, or
conduct constitute or are alleged to constitute a breach of such individual's
fiduciary or other responsibilities under ERISA or any other law, except for
those acts, omissions, or conduct resulting from his own willful misconduct,
willful failure to act, or gross negligence; provided, however, that if any
party would otherwise be entitled to indemnification hereunder in respect of any
liability and such party shall be insured against loss as a result of such
liability by any insurance contract or contracts, such party shall be entitled
to indemnification hereunder only to the extent by which the amount of such
liability shall exceed the amount thereof payable under such insurance contract
or contracts.
ARTICLE IX. - MISCELLANEOUS
9.1 NONGUARANTEE OF EMPLOYMENT
Nothing contained in this Plan shall be construed as a contract of
employment between the Employer and any Employee, or as a right of any Employee
to be continued in the employment of the Employer, or as a limitation of the
right of the Employer to discharge any of its Employees, with or without cause.
34
<PAGE> 38
9.2 RIGHTS TO TRUST ASSETS
No Employee, Participant or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund at any time, including upon
termination of his or her employment or otherwise, except as provided from time
to time under the Plan, and then only to the extent of the benefits properly
payable under the Plan to a Participant or Beneficiary out of the assets of the
Trust Fund. All payments of benefits as provided for in the Plan shall be made
solely out of the assets of the Trust Fund to the extent sufficient, and none of
the Fiduciaries or Employers shall be liable therefor in any manner.
9.3 NONALIENATION OF BENEFITS
(a) Except as provided in Article VI or as required by law, benefits
payable under the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, either voluntary or involuntary,
prior to actually being received by the person entitled to the benefit under the
terms of the Plan; and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber, charge or otherwise dispose of any right to benefits
payable hereunder, shall be void. The Trust Fund shall not in any manner be
liable for, or subject to, the debts, contracts, liabilities, engagements or
torts of any person entitled to benefits hereunder.
(b) In accordance with procedures consistent with Code Section 414(p)
that are established by the Committee (including procedures requiring prompt
notification of the affected Participant and each potential alternate payee of
the Plan's receipt of a domestic relations order and its procedures for
determining the qualified status of such order), judicial orders for the
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.
35
<PAGE> 39
10.2 ADMINISTRATIVE DISCRETION AND MANDATORY PROCEDURES
(a) Discretion. Whenever in the administration of the Plan any action is
required to be taken by the Committee, Trustee, the Company, or their
delegatees, including, without limitation, deciding issues of Plan
interpretation and construction, such action shall be taken in the exercise of
their discretion and shall be binding and conclusive upon all persons,
regardless of whether the particular Plan provision being construed expressly
grants such discretion; provided, however that any exercise of such discretion
shall be uniform and nondiscriminatory.
(b) Procedures Mandatory. In adopting this Plan, the Company has, in
consultation with the bargaining unit representatives and in compliance with
ERISA, developed and adopted procedures for resolving disputes arising under
this Plan in order to assure a fair and complete review of claims and to assure
proper employer action. To the extent permitted by law, completion of such
claims procedures shall be a mandatory precondition that must be complied with
prior to commencement of a legal or equitable action in connection with the Plan
or by another person claiming rights through such a person. the Company (or its
delegatee as provided herein) may, in its discretion, waive these procedures as
a mandatory precondition to such an action under circumstances warranting such
waiver.
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS
11.1 SUCCESSOR EMPLOYER
In the event of the dissolution, merger, consolidation or reorganization
of an Employer, provision may be made in the sole discretion of the Company by
which the Plan and Trust will be continued by the successor; and, in that event,
such successor shall be substituted for the Employer under the Plan. The
substitution of the successor shall constitute an assumption of Plan liability
by the successor and the successor shall have all of the powers, duties, and
responsibilities of the Employer under the Plan.
11.2 CONDITIONS APPLICABLE TO MERGERS OR CONSOLIDATIONS OF PLANS
In the event of any merger or consolidation of the Plan with, or transfer
in whole or in part of the assets and liabilities of the Trust Fund to another
trust fund held under any other plan of deferred compensation maintained or to
be established for the benefit of all or some of the Participants of the Plan,
the assets of the Trust Fund applicable to such Participants shall be merged or
consolidated with or transferred to the other trust fund only if:
(i) Each Participant would (if either this Plan or the other plan
then terminated) receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater
than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if
this Plan had then terminated); and the determination of such
benefits shall be made in the manner and at the time,
prescribed in regulations issued under ERISA;
(ii) The Employer under the Plan, or of any new or successor
employer of the affected Participants, shall authorize such
transfer of assets; and, in the case of the new or successor
employer of the affected Participants, its
36
<PAGE> 40
resolutions shall include an assumption of liabilities with
respect to such Participants' inclusion in the new Employer's
plan; and
(iii) Such other plan and trust are qualified under Sections 401(a)
and 501(a) of the Code.
ARTICLE XII. - PLAN TERMINATION
12.1 RIGHT TO TERMINATE
In accordance with the procedures set forth in this Article, the Company
may terminate the Plan at any time in its entirety or with respect to any
Employer or group of Employees or Participants. An Employer may terminate the
Plan at any time with respect to its Employees or any group of its Employees or
Participants, provided such Employer has made all contributions due to the Plan
to the date of such termination.
12.2 PARTIAL TERMINATION
Upon termination of the Plan by the Company or by the Employer with
respect to such Employer or a group of Employees or Participants of such
Employer, the Trustee shall, in accordance with the directions of the Committee,
allocate and segregate for the benefit of the Participants with respect to which
the Plan is being terminated the proportionate interest of such Participants in
the Trust Fund. The funds so allocated and segregated shall be used by the
Trustee to pay benefits to or on behalf of Participants in accordance with
Section 12.3.
12.3 LIQUIDATION OF THE TRUST FUND
(a) Upon termination or partial termination of the Plan, the accounts of
all Participants affected thereby shall become fully vested, and the Committee
may direct the Trustee: (i) to continue to administer the Trust Fund and pay
Account balances in accordance with Article VI to Participants affected by the
termination upon their termination of employment or to their Beneficiaries upon
such a Participant's death, until the Trust Fund has been liquidated; or (ii) to
distribute the assets remaining in the Trust Fund, after payment of any expenses
properly chargeable thereto, to Participants and Beneficiaries in proportion to
their respective Account balances or rights thereto.
(b) In case the Committee directs liquidation of the Trust Fund pursuant
to (a) above, the expenses of administering the Plan and Trust, if not paid by
the Employer, shall be paid from the Trust Fund.
(c) The Trustee may delay distribution of assets under Section 12.3
pending receipt of written determination by the Internal Revenue Service that
the Plan is qualified upon termination.
ARTICLE XIII. - ADOPTION OF PLAN
13.1 ADOPTION AGREEMENT
(a) Subject to the approval of the Company, and consistent with the
provisions of ERISA and other applicable law, an Affiliate may adopt the Plan
for its Eligible Employees or a
37
<PAGE> 41
class of such Employees in a manner not inconsistent with ERISA by entering into
an Adoption Agreement in the form and substance prescribed by the Committee.
(b) The Company may prospectively revoke or modify any Employer's
participation in the Plan at any time and for any or no reason, without regard
to the terms of any Adoption Agreement, or terminate the Plan with respect to
such Employer's Employee Participants.
(c) By execution of an Adoption Agreement (each of which by this
reference shall become a part of the Plan), the Employer agrees to be bound by
all the terms and conditions of the Plan.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly
authorized representative on this ________ day of ________, 1996.
THE DIAL CORPORATION
BY: _____________________________
Its: _____________________________
38
<PAGE> 42
APPENDIX A
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<CAPTION>
AFFILIATE ADOPTION DATE BARGAINING UNIT
--------- ------------- ---------------
<S> <C> <C>
October 1, 1991 Aurora, IL. UFCW #100A
October 1, 1991 Fort Madison, IA UFCW #617
November 1, 1992 New Berlin, WI UFCW #73A
April 1, 1994 Bristol, PA OCAW #8-373
July 3, 1995 St. Louis, MO APAIE #618
</TABLE>
I
<PAGE> 43
PLAN SUPPLEMENTS
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
Plan Supplement
Effective Date October 1, 1991
Plant Location Aurora, Illinois
Bargaining Agent United Food and Commercial Workers Union Local #100A
Amendment Date April 1, 1995
Elective Deferral Any whole percentage (not to exceed 12%) of Compensation
Amount authorized by the Participant pursuant to Plan
Section 4.2
After-Tax Wage Any whole percentage (not to exceed 10%) of Compensation
Reduction authorized by the Participant pursuant to Plan
Section 4.3 and 4.4
Matching Contribution Pursuant to Plan Section 4.1(b)
Amount For period 10/01/90 through 9/3/95:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $4.00
For period 9/4/95 through 9/6/97:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $5.00
For period beginning 9/7/97 and thereafter:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $6.00
Special Provision Concerning Participant Loans:
(a) From and after September 4, 1995 the Committee may, in its sole
discretion, and upon such terms and conditions as it may require including full
repayment of any outstanding loans, direct the Trustee to loan a Participant an
amount which does not exceed the allowable portion, as determined under the
following table, of the Participant's total account balances:
<TABLE>
<CAPTION>
Total Vested Balance Maximum Loan (Allowable Portion of Total Account Balances)
-------------------- ----------------------------------------------------------
<S> <C>
0 to 999 0%
$1,000 or more 50% but not to exceed $50,000
</TABLE>
II
<PAGE> 44
(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 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 Valuation Date coinciding with or immediately preceding
the date of the loan, of the Participant's Accounts.
(d) Although used in determining the Total Account Balance, the Employer
Contribution Account balance is 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 with the following terms and conditions:
1. An application for a loan by a Participant shall be made in writing
to the Committee (or its designee) whose action thereon shall be final.
2. The period of repayment for any loan shall be by mutual agreement
between the Committee and the borrower, but such period shall be in six
(6) month increments and for not less than six (6) months nor more than
five (5) years, except that such five-year repayment rule shall not apply
to any loan used for the purpose of establishing or preserving a home
which is the Participant's principal residence.
3. Each loan shall be made against collateral being the assignment 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 Trust.
4. Each loan shall bear interest at the prime rate displayed in the
Wall Street Journal on the first business day of the month of December,
March, June or September immediately preceding the date the loan is
approved. Therefore, loans granted at different times may bear different
interest rates.
5. No distributions, other than a hardship withdrawal which is approved
by the Committee pursuant to Section 6.5(d) of the Plan, shall be made to
any Participant or to any Beneficiary of any such Participant unless and
until all unpaid loans, including accrued interest thereon, have been
repaid.
III
<PAGE> 45
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 it sole discretion that
such consent is not obtainable for good cause shown, consistent with
applicable law.
IV
<PAGE> 46
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
Plan Supplement
Effective Date October 1, 1991
Plant Location Fort Madison, Iowa
Bargaining Agent United Food and Commercial Workers Union Local #617
Amendment Date October 1, 1995
Elective Deferral Any whole percentage (not to exceed 12%) of Compensation
Amount authorized by the Participant pursuant to Plan
Section 4.2
After-Tax Wage Any whole percentage (not to exceed 10%) of Compensation
Reduction authorized by the Participant pursuant to Plan
Section 4.3 and 4.4
Matching Contribution Pursuant to Plan Section 4.1(b)
Amount For period 10/01/90 through 9/3/95:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $4.00
For period 10/1/95 through 10/4/97:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $5.00
For period beginning 10/5/97 and thereafter:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $6.00
Special Provision Concerning Participant Loans:
(a) From and after October 1, 1995 the Committee may, in its sole discretion,
and upon such terms and conditions as it may require including full repayment of
any outstanding loans, direct the Trustee to loan a Participant an amount which
does not exceed the allowable portion, as determined under the following table,
of the Participant's total account balances:
<TABLE>
<CAPTION>
Total Vested Balance Maximum Loan (Allowable Portion of Total Account Balances)
-------------------- ----------------------------------------------------------
<S> <C>
0 to 999 0%
$1,000 or more 50% but not to exceed $50,000
</TABLE>
(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 plans less
any Matching Contributions made under the Plan.
V
<PAGE> 47
(c) For purposes of this Section, "Total Account Balance" means the total
dollar value, as of the Valuation Date coinciding with or immediately preceding
the date of the loan, of the Participant's Accounts.
(d) Although used in determining the Total Account Balance, the Employer
Contribution Account balance is 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 with the following terms and conditions:
1. An application for a loan by a Participant shall be made in writing
to the Committee (or its designee) whose action thereon shall be final.
2. The period of repayment for any loan shall be by mutual agreement
between the Committee and the borrower, but such period shall be in six
(6) month increments and for not less than six (6) months nor more than
five (5) years, except that such five-year repayment rule shall not apply
to any loan used for the purpose of establishing or preserving a home
which is the Participant's principal residence.
3. Each loan shall be made against collateral being the assignment 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 Trust.
4. Each loan shall bear interest at the prime rate displayed in the
Wall Street Journal on the first business day of the month of December,
March, June or September immediately preceding the date the loan is
approved. Therefore, loans granted at different times may bear different
interest rates.
5. No distributions, other than a hardship withdrawal which is approved
by the Committee pursuant to Section 6.5(d) of the Plan, shall be made to
any Participant or to any 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 it sole discretion that
such consent is not obtainable for good cause shown, consistent with
applicable law.
VI
<PAGE> 48
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
Plan Supplement
Effective Date November 1, 1992
Plant Location New Berlin, Wisconsin
Bargaining Agent United Food and Commercial Workers Intl. Union
Local #73-A
Amendment Date November 1, 1992
Elective Deferral Any whole percentage (not to exceed 12%) of Compensation
Amount authorized by the Participant pursuant to Plan
Section 4.2
After-Tax Wage Any whole percentage (not to exceed 10%) of Compensation
Reduction authorized by the Participant pursuant to Plan
Section 4.3 and 4.4
Matching Contribution Pursuant to Plan Section 4.1(b) For period beginning
Amount 11/01/92 and thereafter:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $4.00
VII
<PAGE> 49
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
Plan Supplement
Effective Date July 3, 1995
Plant Location St. Louis, Missouri
Bargaining Agent Automotive, Petroleum and Allied Industries Employees
Union, Local #618
Amendment Date July 3, 1995
Elective Deferral Any whole percentage (not to exceed 12%) of Compensation
Amount authorized by the Participant pursuant to Plan
Section 4.2
After-Tax Wage Any whole percentage (not to exceed 10%) of Compensation
Reduction authorized by the Participant pursuant to Plan Section
4.3 and 4.4
Matching Contribution Pursuant to Plan Section 4.1(b) For period 07/03/95
Amount to 07/01/97:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $4.00
For period 07/02/97 and thereafter:
The lesser of 25% of the Participant's Elective
Deferral for the week, of $6.00
VIII
<PAGE> 50
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
Plan Supplement
Effective Date April 1, 1994
Plant Location Bristol, Pennsylvania
Bargaining Agent Oil, Chemical, and Atomic Workers Intl. Union
AFL-CIO Local #8-373
Amendment Date April 1, 1994
Elective Deferral Any whole percentage (not to exceed 12%) of Compensation
Amount authorized by the Participant pursuant to Plan
Section 4.2
After-Tax Wage Any whole percentage (not to exceed 10%) of Compensation
Reduction authorized by the Participant pursuant to Plan
Section 4.3 and 4.4
Matching Contribution Pursuant to Plan Section 4.1(b) For period 04/01/94 and
Amount thereafter:
The lesser of 25% of the Participant's Elective
Deferral for that week, or $4.00
IX
<PAGE> 1
Exhibit 5
June 14, 1999
The Dial Corporation
15501 North Dial Boulevard
Scottsdale, Arizona 85260-1619
RE: REGISTRATION STATEMENT ON FORM S-8 FOR THE DIAL CORPORATION 401(k)
PLAN FOR HOURLY EMPLOYEES (AS AMENDED AND RESTATED EFFECTIVE AS OF
JANUARY 1, 1998) (THE "PLAN")
Ladies and Gentlemen:
This opinion is delivered in connection with the registration by The Dial
Corporation, a Delaware corporation (the "Company"), on Form S-8 (the
"Registration Statement"), under the Securities Act of 1933 (the "Act"), as
amended, of an additional 150,000 shares of common stock of the Company, par
value $.01 per share (the "Common Stock"), together with the associated
preferred stock purchase rights (the "Rights"), issuable pursuant to the Plan.
In arriving at this opinion, I have examined such corporate instruments,
documents, statements and records of the Company, and I have examined such
statutes and regulations and have conducted such legal analysis, as I have
deemed relevant, necessary and 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. I also have assumed that
any future changes to the terms and conditions of the Plans will be duly
authorized by the Company and will comply with all applicable laws.
Based on the foregoing, I am of the opinion that the additional 150,000
shares of Common Stock to be issued pursuant to the Registration Statement,
together with the associated Rights, have been duly authorized and, when issued
and delivered by the Company in accordance with the terms and conditions of the
Plan, will be legally issued, fully paid and nonassessable securities of the
Company.
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
<PAGE> 2
is required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission.
The opinion expressed herein is solely for your benefit in connection with
the Registration Statement and may not be relied on in any manner or for any
purpose by any other person or entity and may not be quoted in whole or in part
without my prior written consent.
Very truly yours,
/s/ Jane E. Owens
-------------------------------------------
Jane E. Owens
Senior Vice President, General Counsel
and Secretary
<PAGE> 1
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 reports dated January 29, 1999 and
June 7, 1999, appearing in the Annual Report on Form 10-K of The Dial
Corporation for the year ended December 31,1998 and in the Annual Report on
Form 11-K of The Dial Corporation 401(k) Plan for Hourly Employees for the
eleven-month period ended November 30, 1998, respectively.
Phoenix, Arizona
June 14, 1999
