<PAGE> 1
EXHIBIT 4.4
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY
EMPLOYEES
AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 1998
<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....................................................................................... 10
ARTICLE IV. - CONTRIBUTIONS............................................................................... 10
4.1 EMPLOYER CONTRIBUTIONS......................................................................... 10
4.2 CODE SECTION 401(K) WAGE REDUCTION............................................................. 11
4.3 EMPLOYEE CONTRIBUTIONS......................................................................... 12
4.4 AFTER-TAX WAGE REDUCTION....................................................................... 12
4.5 ROLLOVER CONTRIBUTIONS......................................................................... 13
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNTS........................................................ 13
5.1 INDIVIDUAL ACCOUNTS............................................................................ 13
5.2 ACCOUNT ADJUSTMENTS............................................................................ 14
5.3 ACTUAL DEFERRAL PERCENTAGE TEST................................................................ 16
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........................................................... 20
5.8 RECHARACTERIZATION............................................................................. 20
5.9 MAXIMUM ADDITIONS.............................................................................. 20
5.10 RECOGNITION OF DIFFERENT INVESTMENT FUNDS...................................................... 22
ARTICLE VI. - BENEFITS.................................................................................... 22
6.1 ENTITLEMENT TO BENEFITS........................................................................ 22
6.2 DEATH.......................................................................................... 22
6.3 PAYMENT OF BENEFITS............................................................................ 23
6.4 DESIGNATION OF BENEFICIARY..................................................................... 23
6.5 WITHDRAWALS.................................................................................... 24
6.6 SPOUSAL CONSENT................................................................................ 26
6.7 DEBITING OF INVESTMENT FUNDS................................................................... 26
6.8 REQUIRED DISTRIBUTIONS......................................................................... 26
6.9 DISTRIBUTION REQUIREMENTS...................................................................... 26
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS................................................................ 27
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND............................................................. 28
7.1 INVESTMENT OPTIONS............................................................................. 28
</TABLE>
-1-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
7.2 INVESTMENT OF CONTRIBUTIONS.................................................................... 28
7.3 INVESTMENT TRANSFERS........................................................................... 28
7.4 TRANSFER OF ASSETS............................................................................. 29
7.5 TRUST FUND..................................................................................... 29
7.6 TENDER OFFERS.................................................................................. 29
7.7 VOTING OF STOCK................................................................................ 29
7.8 SPECIAL RULES FOR FINOVA STOCK................................................................. 30
7.9 SPECIAL RULES FOR VIADCORP STOCK FUND.......................................................... 31
ARTICLE VIII. - ADMINISTRATION OF THE PLAN................................................................ 31
8.1 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST ADMINISTRATION............... 32
8.2 APPOINTMENT OF COMMITTEE....................................................................... 32
8.3 AUTHORITY OF COMMITTEE......................................................................... 33
8.4 ACTION BY THE RETIREMENT COMMITTEE............................................................. 33
8.5 EMPLOYMENT OF THIRD PARTIES.................................................................... 34
8.6 ALLOCATION AND DELEGATION...................................................................... 34
8.7 REPORTS........................................................................................ 34
8.8 CLAIMS PROCEDURE............................................................................... 34
8.9 APPLICATION AND FORMS FOR BENEFITS............................................................. 34
8.10 FACILITY OF PAYMENT............................................................................ 35
8.11 INDEMNIFICATION................................................................................ 35
ARTICLE IX. - MISCELLANEOUS............................................................................... 35
9.1 NONGUARANTEE OF EMPLOYMENT..................................................................... 35
9.2 RIGHTS TO TRUST ASSETS......................................................................... 35
9.3 NONALIENATION OF BENEFITS...................................................................... 35
9.4 NONFORFEITABILITY OF BENEFITS.................................................................. 36
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER............................................................ 36
10.1 AMENDMENTS.................................................................................... 36
10.2 ADMINISTRATIVE DISCRETION AND MANDATORY PROCEDURES............................................ 36
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS..................................... 37
11.1 SUCCESSOR EMPLOYER............................................................................ 37
11.2 CONDITIONS APPLICABLE TO MERGERS OR CONSOLIDATIONS OF PLANS................................... 37
ARTICLE XII. - PLAN TERMINATION........................................................................... 37
12.1 RIGHT TO TERMINATE............................................................................ 37
12.2 PARTIAL TERMINATION........................................................................... 38
12.3 LIQUIDATION OF THE TRUST FUND................................................................. 38
ARTICLE XIII. - ADOPTION OF PLAN.......................................................................... 38
13.1 ADOPTION AGREEMENT............................................................................ 38
APPENDIX A................................................................................................ I
PLAN SUPPLEMENTS.......................................................................................... II
</TABLE>
-2-
<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 Exhibitgroup/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
-1-
<PAGE> 5
a Plan Year, the average of the ratios (calculated separately for each
Participant in such group) of (1) the amount of Employer contributions actually
paid over to the Trust on behalf of such Participant for the Plan Year to (2)
the Participant's Compensation for such Plan Year (whether or not the Employee
was a Participant for the entire Plan Year). Employer contributions on behalf of
any Participant shall include: (1) any Elective Deferrals made pursuant to the
Participant's deferral election, including Excess Elective Deferrals of Highly
Compensated Employees, but excluding Elective Deferrals that are taken into
account in the Contribution Percentage test (provided the ADP test is satisfied
both with and without exclusion of these Elective Deferrals), and (2) at the
election of the employer, 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 Limitation 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 Limitation 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
Plan 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 Plan 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 Plan Year.
In addition to the other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary, for Plan
Years 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
-3-
<PAGE> 7
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 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 Plan 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
-4-
<PAGE> 8
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 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
-5-
<PAGE> 9
Contributions under this Plan or any other Plan of the Employer, as provided by
regulations.
Forfeitures of Excess Aggregate Contributions shall be:
(1) Applied to reduce Employer contributions for the Plan
Year in which the excess arose, but allocated as in
(2), below, to the extent the excess exceeds Employer
contributions or the Employer has already contributed
for such Plan Year.
(2) Allocated, after all other forfeitures under the
plan, to the Matching Contribution account of each
Non-Highly Compensated Participant who made Elective
Deferrals or Employee Contributions in the ratio
which each such Participant's Compensation for the
Plan Year bears to the total Compensation of all such
Participants for such Plan Year.
(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
-6-
<PAGE> 10
limitation in effect under Section 415(b)(1)(A) of the Code. The term Highly
Compensated Employee also includes: (i) Employees who are both described in the
preceding sentence if the term "determination year" is substituted for the term
"look-back year" and the Employee is one of the 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.
-7-
<PAGE> 11
(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 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 December 1 and ending
on November 30. The first Plan Year of the amended and restated Plan shall
commence as of December 1, 1998.
(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.
-8-
<PAGE> 12
(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.
(xx) Minimum Company Contribution: Means the contributions made by the
Company under the Plan in accordance with the provisions of Section 4.1(c).
(yy) Limitation Year: The 12-month period commencing on January 1 and
ending on December 31.
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.
-9-
<PAGE> 13
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 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 Plan 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
Plan 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
-10-
<PAGE> 14
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 will be applicable to all
payroll periods after such Entry Date within such Plan 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 Plan Year in an amount equal to the total amount by which the
Participant's Compensation from the Employer was reduced during the Plan 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 Plan Year, his or her Compensation for
such Plan 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 Plan 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.
-11-
<PAGE> 15
(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 Limitation 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 Plan Year.
(v) The Employer may revoke its wage reduction agreements
with all Participants or amend its wage reduction
agreements with all Participants on a uniform basis,
if it determines that it will not have sufficient
current or accumulated earnings to make the
contributions to the Plan that may be required by the
wage reduction agreements.
(vi) Except as provided above, a wage reduction agreement
applicable to any given Plan 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 Plan 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 Plan 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
-12-
<PAGE> 16
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
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.
-13-
<PAGE> 17
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.
(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) Minimum Company Contribution. 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
-14-
<PAGE> 18
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 Subsection 5.2(e)(iv) shall be allocated to 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 Subsection 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(ll) 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
-15-
<PAGE> 19
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 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
-16-
<PAGE> 20
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.
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
-17-
<PAGE> 21
Contribution. The ADP and ACP of the Highly Compensated Employees are determined
after any corrections required to meet the ADP and ACP tests. Multiple use does
not occur if either the ADP or ACP of the Highly Compensated Employees does not
exceed 1.25 multiplied by the ADP and ACP of the Non-Highly Compensated
Employees.
(d) For purposes of this Section, the Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or her account under two or
more plans described in Section 401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage Amounts was made
under each plan. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement.
(e) In the event that this Plan satisfies the requirements of Sections
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this Plan, then this Section shall
be applied by determining the Contribution Percentage of Employees as if all
such plans were a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Section 401(m) of the Code only if
they have the same Plan Year.
(f) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include the Contribution Percentage
Amounts and Compensation for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code). Family Members, with respect to Highly
Compensated Employees, shall be disregarded as separate Employees in determining
the Contribution Percentage both for Participants who are Non-Highly Compensated
Employees and for Participants who are Highly Compensated Employees.
(g) For purposes of determining the Contribution Percentage test,
Employee Contributions are considered to have been made in the Plan Year in
which contributed to the trust. 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
-18-
<PAGE> 22
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.
(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.
-19-
<PAGE> 23
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
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 Limitation Year shall not exceed
the lesser of $30,000.00 or 25 percent of the
-20-
<PAGE> 24
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 Limitation
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 Limitation 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 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 Limitation Year may not exceed 1.0. The
defined benefit plan fraction for any Limitation Year is a fraction, the
numerator of which is the Participant's projected annual benefit under the Plan
(determined at the close of the Limitation 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 Limitation Year. The defined contribution plan fraction for any Limitation
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 Limitation Year, and the
denominator of which is the sum of the lesser of the following amounts
determined for such Limitation 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 Limitation 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
-21-
<PAGE> 25
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 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.
-22-
<PAGE> 26
(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.
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
-23-
<PAGE> 27
effected, shall not require the consent of any designated Beneficiary unless the
Beneficiary affected is the Participant's spouse, in which case such spouse's
consent shall be required to effect any such revocation in accordance with
Section 6.4(c). By designating a Beneficiary or Beneficiaries as hereunder
provided, a Participant grants the Committee the discretion, in good faith, to
make benefit payment(s) to any Beneficiary or Beneficiaries named by such
Participant despite any dispute by any person or persons claiming such benefits,
and holds the Plan, the Employer and the Committee harmless from any claims
arising out of any such good faith payment(s) of benefits. Each Participant, by
designating a Beneficiary or Beneficiaries, authorizes the Committee to retain
any benefits otherwise payable in the Trust Fund or, in its sole discretion,
pay-over such benefits to a court or other tribunal of competent jurisdiction
pending the final and binding disposition of any dispute as to the proper
Beneficiary or Beneficiaries by agreement of the parties or by a judgment of
such court or other tribunal of competent jurisdiction, as the case may be.
(b) If any Participant fails to designate a Beneficiary in the manner
provided above, or if the Beneficiary or Beneficiaries designated by a deceased
Participant die(s) before him or her or before complete distribution of the
Participant's benefits, the Committee shall direct the Trustee to distribute
such Participant's benefits (or the balance thereof) to:
(i) The surviving spouse of such Participant, if then
living or,
(ii) The estate of the Participant.
(c) Notwithstanding anything contained herein to the contrary, a
Participant may not name as a Beneficiary someone other than his or her spouse,
and such designation shall have no effect, unless his or her spouse consents
thereto, in a signed writing, notarized or witnessed by an administrator of the
Plan, or if the Committee determines in its sole discretion that such consent is
not obtainable for good cause shown, consistent with 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.
-24-
<PAGE> 28
(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:
(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
-25-
<PAGE> 29
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.
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
-26-
<PAGE> 30
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".
(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
-27-
<PAGE> 31
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
(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).
-28-
<PAGE> 32
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 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
-29-
<PAGE> 33
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.
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
-30-
<PAGE> 34
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
VaidCorp 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, 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
-31-
<PAGE> 35
8.1 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST
ADMINISTRATION.
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 APPOINTMENT OF COMMITTEE.
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.
(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
-32-
<PAGE> 36
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 AUTHORITY OF COMMITTEE.
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.
(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 ACTION BY THE RETIREMENT COMMITTEE
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.
-33-
<PAGE> 37
8.5 EMPLOYMENT OF THIRD PARTIES.
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 ALLOCATION AND DELEGATION.
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 REPORTS.
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 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.
-34-
<PAGE> 38
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.
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,
-35-
<PAGE> 39
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.
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
-36-
<PAGE> 40
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 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
-37-
<PAGE> 41
due to the Plan to the date of such termination.
12.2 PARTIAL TERMINATION
Upon termination of the Plan by the Company or by the Employer with
respect to such Employer or a group of Employees or Participants of such
Employer, the Trustee shall, in accordance with the directions of the Committee,
allocate and segregate for the benefit of the Participants with respect to which
the Plan is being terminated the proportionate interest of such Participants in
the Trust Fund. The funds so allocated and segregated shall be used by the
Trustee to pay benefits to or on behalf of Participants in accordance with
Section 12.3.
12.3 LIQUIDATION OF THE TRUST FUND
(a) Upon termination or partial termination of the Plan, the accounts
of all Participants affected thereby shall become fully vested, and the
Committee may direct the Trustee: (i) to continue to administer the Trust Fund
and pay Account balances in accordance with Article VI to Participants affected
by the termination upon their termination of employment or to their
Beneficiaries upon such a Participant's death, until the Trust Fund has been
liquidated; or (ii) to distribute the assets remaining in the Trust Fund, after
payment of any expenses properly chargeable thereto, to Participants and
Beneficiaries in proportion to their respective Account balances or rights
thereto.
(b) In case the Committee directs liquidation of the Trust Fund
pursuant to (a) above, the expenses of administering the Plan and Trust, if not
paid by the Employer, shall be paid from the Trust Fund.
(c) The Trustee may delay distribution of assets under Section 12.3
pending receipt of written determination by the Internal Revenue Service that
the Plan is qualified upon termination.
ARTICLE XIII. - ADOPTION OF PLAN
13.1 ADOPTION AGREEMENT
(a) Subject to the approval of the Company, and consistent with the
provisions of ERISA and other applicable law, an Affiliate may adopt the Plan
for its Eligible Employees or a class of such Employees in a manner not
inconsistent with ERISA by entering into an Adoption Agreement in the form and
substance prescribed by the Committee.
(b) The Company may prospectively revoke or modify any Employer's
participation in the Plan at any time and for any or no reason, without regard
to the terms of any Adoption Agreement, or terminate the Plan with respect to
such Employer's Employee Participants.
(c) By execution of an Adoption Agreement (each of which by this
reference shall become a part of the Plan), the Employer agrees to be bound by
all the terms and conditions of the Plan.
-38-
<PAGE> 42
IN WITNESS WHEREOF, the Company has caused this amended and restated Plan to be
executed by its duly authorized representative on this 30th day of December,
1998, effective as of January 1, 1998.
THE DIAL CORPORATION
By: /s/ BERNHARD J. WELLE
------------------------------------------
Its: SVP Human Resources
------------------------------------------
-39-
<PAGE> 43
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> 44
PLAN SUPPLEMENTS
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<S> <C>
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 Amount Any whole percentage (not to exceed 12%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.2
After-Tax Wage Reduction Any whole percentage (not to exceed 10%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.3 and 4.4
Matching Contribution Amount Pursuant to Plan Section 4.1(b)
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
</TABLE>
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> 45
(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> 46
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> 47
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<S> <C>
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 Amount Any whole percentage (not to exceed 12%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.2
After-Tax Wage Reduction Any whole percentage (not to exceed 10%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.3 and 4.4
Matching Contribution Amount Pursuant to Plan Section 4.1(b)
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
</TABLE>
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> 48
(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> 49
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<S> <C>
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 Amount Any whole percentage (not to exceed 12%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.2
After-Tax Wage Reduction Any whole percentage (not to exceed 10%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.3 and 4.4
Matching Contribution Amount Pursuant to Plan Section 4.1(b)
For period beginning 11/01/92 and thereafter:
The lesser of 25% of the Participant's Elective Deferral for that
week, or $4.00
</TABLE>
-VII-
<PAGE> 50
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<S> <C>
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 Amount Any whole percentage (not to exceed 12%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.2
After-Tax Wage Reduction Any whole percentage (not to exceed 10%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.3 and 4.4
Matching Contribution Amount Pursuant to Plan Section 4.1(b)
For period 07/03/95 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
</TABLE>
-VIII-
<PAGE> 51
THE DIAL CORPORATION
401(k) PLAN FOR HOURLY EMPLOYEES
<TABLE>
<S> <C>
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 Amount Any whole percentage (not to exceed 12%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.2
After-Tax Wage Reduction Any whole percentage (not to exceed 10%)
of Compensation authorized by the
Participant pursuant to Plan Section 4.3 and 4.4
Matching Contribution Amount Pursuant to Plan Section 4.1(b)
For period 04/01/94 and thereafter:
The lesser of 25% of the Participant's Elective Deferral for that
week, or $4.00
</TABLE>
-IX-
