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EXHIBIT 4.4
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 1998
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THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
INDEX
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ARTICLE I. - INTRODUCTION.........................................................................................1
1.1 ESTABLISHMENT AND EFFECTIVE DATE.......................................................................1
1.2 THE SPIN-OFF...........................................................................................1
1.3 PURPOSE OF PLAN........................................................................................1
1.4 SERVICE AND ACCOUNT BALANCES...........................................................................1
1.5 TRANSFER OF ASSETS AND LIABILITIES.....................................................................1
1.6 TREATMENT OF FORMER....................................................................................1
ARTICLE II. - DEFINITIONS AND CONSTRUCTION........................................................................2
2.1 DEFINITIONS............................................................................................2
2.2 OTHER DEFINITIONS.....................................................................................10
2.3 CONSTRUCTION..........................................................................................10
ARTICLE III. - PARTICIPATION.....................................................................................11
3.1 PARTICIPATION.........................................................................................11
3.2 TERMINATION OF EMPLOYMENT.............................................................................11
3.3 TRANSFERS.............................................................................................11
3.4 SUSPENSION............................................................................................11
3.5 TRANSFER OF BARGAINING UNIT EMPLOYEES.................................................................12
ARTICLE IV. - CONTRIBUTIONS......................................................................................12
4.1 EMPLOYER CONTRIBUTIONS................................................................................12
4.2 CODE SECTION 401(K) SALARY REDUCTION..................................................................13
4.3 EMPLOYEE CONTRIBUTIONS................................................................................14
4.4 AFTER-TAX SALARY DEDUCTION............................................................................14
4.5 ROLLOVERS AND TRANSFERS FROM OTHER PLANS..............................................................14
4.6 TRANSFERS FROM THE DIAL COMPANIES CAPITAL ACCUMULATION PLAN AND THE DIAL COMPANIES EMPLOYEES' STOCK
OWNERSHIP PLAN........................................................................................15
4.7 TRUST FUND............................................................................................16
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNT................................................................16
5.1 INDIVIDUAL ACCOUNTS...................................................................................16
5.2 ACCOUNT ADJUSTMENTS...................................................................................16
5.3 ACTUAL DEFERRAL PERCENTAGE TEST.......................................................................19
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST..................................................................21
5.5 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS........................................................22
5.6 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS.............................................................23
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS..................................................................24
5.8 MAXIMUM ADDITIONS.....................................................................................24
5.9 ADJUSTMENT OF MATCHING CONTRIBUTIONS SUBACCOUNT.......................................................26
5.10 TOP-HEAVY PROVISIONS..................................................................................26
5.11 SECURITIES LAW REQUIREMENTS...........................................................................29
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ARTICLE VI. - BENEFITS...........................................................................................30
6.1 ENTITLEMENT TO BENEFITS...............................................................................30
6.2 DEATH.................................................................................................30
6.3 PAYMENT OF BENEFITS...................................................................................31
6.4 DESIGNATION OF BENEFICIARY............................................................................32
6.5 WITHDRAWALS...........................................................................................32
6.6 DEBITING OF INVESTMENT FUNDS..........................................................................34
6.7 REQUIRED DISTRIBUTIONS................................................................................34
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THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
INDEX
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6.8 DISTRIBUTION REQUIREMENTS.............................................................................34
6.9 LOANS TO PARTICIPANTS.................................................................................35
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS.......................................................................37
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND....................................................................37
7.1 PARTICIPANT DIRECTED INDIVIDUAL ACCOUNT PLAN..........................................................37
7.2 EMPLOYEE SELECTED INVESTMENT OPTIONS, INVESTMENT FUNDS................................................38
7.3 INVESTMENT ELECTIONS..................................................................................38
7.4 INVESTMENT TRANSFERS..................................................................................38
7.5 TENDER OFFERS.........................................................................................38
7.6 VOTING OF STOCK.......................................................................................39
7.7 SPECIAL RULES FOR FINOVA STOCK FUND...................................................................39
7.8 SPECIAL RULES FOR VIAD STOCK FUND.....................................................................40
7.9 EXERCISE OF CONTROL...................................................................................40
7.10 ADJUSTMENT OF ACCOUNTS................................................................................41
7.11 LIMITATION OF LIABILITY AND RESPONSIBILITY............................................................41
7.12 FORMER PARTICIPANTS AND BENEFICIARIES.................................................................41
ARTICLE VIII. - ADMINISTRATION OF THE PLAN.......................................................................41
8.1 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST ADMINISTRATION......................41
8.2 APPOINTMENT OF COMMITTEE..............................................................................42
8.3 AUTHORITY OF COMMITTEE................................................................................42
8.4 ACTION BY THE RETIREMENT COMMITTEE....................................................................43
8.5 EMPLOYMENT OF THIRD PARTIES...........................................................................43
8.6 ALLOCATION AND DELEGATION.............................................................................43
8.7 REPORTS...............................................................................................44
8.8 CLAIMS PROCEDURE......................................................................................44
8.9 APPLICATION AND FORMS FOR BENEFITS....................................................................45
8.10 FACILITY OF PAYMENT...................................................................................45
8.11 INDEMNIFICATION OF THE COMMITTEE......................................................................45
ARTICLE IX. - MISCELLANEOUS......................................................................................45
9.1 NONGUARANTEE OF EMPLOYMENT............................................................................45
9.2 RIGHTS TO TRUST ASSETS................................................................................45
9.3 NON-ALIENATION........................................................................................46
9.4 NONFORFEITABILITY OF BENEFITS.........................................................................46
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER...................................................................46
10.1 AMENDMENTS............................................................................................46
10.2 ACTION BY THE COMPANY.................................................................................46
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS............................................46
11.1 SUCCESSOR EMPLOYER....................................................................................46
11.2 CONDITIONS APPLICABLE TO MERGERS OR CONSOLIDATIONS OF PLANS...........................................47
ARTICLE XII. - PLAN TERMINATION..................................................................................47
12.1 RIGHT TO TERMINATE....................................................................................47
12.2 PARTIAL TERMINATION...................................................................................47
12.3 LIQUIDATION OF THE TRUST FUND.........................................................................47
ARTICLE XIII. - ADOPTION OF PLAN.................................................................................48
13.1 ADOPTION AGREEMENT....................................................................................48
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THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
ARTICLE I. - INTRODUCTION
1.1 ESTABLISHMENT AND EFFECTIVE DATE.
The Dial Corporation (the "Company") hereby establishes The Dial
Corporation Capital Accumulation Plan (the "Plan"), effective as of July 31,
1996 (the "Effective Date").
1.2 THE SPIN-OFF.
The Company is a wholly owned subsidiary of The Dial Corp (soon to be
known as ViadCorp ("Viad")). Pursuant to the terms and provisions of a
Distribution Agreement entered into between the Company, Viad and
Exhibitgroup/Giltspur, Inc. (the "Distribution Agreement"), Viad will spin-off
the Company by distributing all of the Company's common stock, par value $.01
per share, to Viad's stockholders (the "Spin-Off") as of the "Distribution Date"
determined by Viad.
1.3 PURPOSE OF PLAN.
The initial purpose of the Plan is to provide benefits to Consumer
Products Employees (and their beneficiaries) who immediately prior to the
Effective Date were participants in, or otherwise entitled to benefits under,
The Dial Companies Capital Accumulation Plan ("TRIM") and The Dial Companies
Employees' Stock Ownership Plan (the "ESOP"). In the future, benefits also will
be provided to other Employees of the Company.
1.4 SERVICE AND ACCOUNT BALANCES.
Pursuant to the Distribution Agreement, each Consumer Products Employee
is hereby granted credit under this Plan for the term of service and any account
balance credited to him as of the Effective Date under the TRIM and the ESOP as
if such service had been rendered to the Company and as if such account balance
had originally been credited to him under this Plan.
1.5 TRANSFER OF ASSETS AND LIABILITIES.
Pursuant to the Distribution Agreement and the requirements of
applicable law, including Section 414(l) of the Internal Revenue Code of 1986
(the "Code"), Viad will instruct the trustee of TRIM, and the trustee of the
ESOP, to transfer certain assets of the trust funds established with respect to
the TRIM and the ESOP to the Trustee of this Plan. Effective as of the
Distribution Date, all liability for benefits payable to Consumer Products
Employees shall be assumed by this Plan, as provided in the Distribution
Agreement. Pending the actual transfer of assets to the Trust Fund established
for this Plan from the TRIM trust fund and the ESOP trust fund, however, such
benefits shall be paid from the TRIM trust fund or the ESOP trust fund, as
applicable, as provided in the Distribution Agreement.
1.6 TREATMENT OF FORMER.
As noted above, this Plan has, in connection with the Spin-Off, assumed
responsibility for the payment of benefits to retirees and other former
employees who are defined above as "Consumer Products Employees," and who, at
the time of the termination of their employment, possessed vested benefits under
the TRIM and the ESOP. This Plan shall determine and pay the benefits to such
individuals under the TRIM or ESOP rules applicable to them, except to the
extent, if any, that this Plan or applicable law requires that such rules be
modified.
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ARTICLE II. - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS.
Where the following words and phrases appear in this Plan, they shall
have the respective meanings set forth in this Article, unless the context
clearly indicates to the contrary.
(A) Account(s): One or all of the Employee Contribution Account,
Employer Contribution Account, Salary Reduction Contribution Account and Vested
Rollover Contribution Account, as the case may be, and as appropriate in the
context of each provision of the Plan containing such term, for each
Participant.
(B) Acquired Company: Means any business entity which has been acquired
or whose assets have been acquired by an Employer as defined in Section 2.1(AA).
Participants shall be credited with their "Hours of Service," as defined in
Section 2.1(NN), with the Acquired Company and any other prior service
recognized as eligibility or vesting service under a qualified plan of the
Acquired Company. Notwithstanding the foregoing, the participation of an
Acquired Company employee in the Plan shall be subject to the intent of the
acquiring Employer in making the acquisition which may deny the recognition of
service with the Acquired Company in order to prevent discrimination or to
protect the qualification of the Plan or for any other reason arising out of the
acquisition. The Committee shall ensure that appropriate records are kept to
carry out the terms of this provision.
(C) Actual Deferral Percentage: shall mean, for a specified group of
Participants for a Plan Year, the average of the ratios (calculated separately
for each Participant in such group) of (1) the amount of Employer contributions
actually paid over to the Trust on behalf of such Participant for the Plan Year
to (2) the Participant's Compensation for such Plan Year (whether or not the
Employee was a Participant for the entire Plan Year). Employer contributions on
behalf of any Participant shall include: (1) any Elective Deferrals made
pursuant to the Participant's deferral election, including Excess Elective
Deferrals of Highly Compensated Employees, but excluding Elective Deferrals that
are taken into account in the Contribution Percentage test (provided the ADP
test is satisfied both with and without exclusion of these Elective Deferrals);
and (2) at the election of the Employer, Qualified Non-elective Contributions
and Qualified Matching Contributions. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for the failure to make
Elective Deferrals shall be treated as a Participant on whose behalf no Elective
Deferrals are made.
(D) Adoption Agreement: The agreement executed by each Affiliate
Employer in order to adopt the Plan pursuant to the provisions of Article XIII.
(E) Affiliate: An entity which, by reason of Code Section 414(b),
414(c), or 414(m), is treated as a single Employer with the Company.
(F) Aggregate Limit: The sum of (i) one hundred twenty-five percent
(125%) of the greater of the ADP of the Non-highly Compensated Employees for the
Plan Year or the ACP of Non-highly Compensated Employees under the Plan subject
to Code Section 401(m) for the Plan Year beginning with or within the Plan Year
of the CODA and (ii) the lesser of two hundred percent (200%) or two (2) plus
the lesser of such ADP or ACP. "Lesser" is substituted for "greater" in "(i)"
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above, and "greater" is substituted for "lesser" after "two (2) plus the" in
"(ii)" if it would result in a larger Aggregate Limit.
(G) Annual Additions: With respect to each Limitation Year, the total
of the Employer contributions allocated to a Participant's Salary Reduction
Contribution Account, Employee Contribution Account and Employer Contribution
Account. Amounts allocated, after March 31, 1984, to an individual medical
account, as defined in Section 415(l)(2) of the Code, which is part of a pension
or annuity plan maintained by the Employer are treated as Annual Additions to a
defined contribution plan. Also amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date, which
are attributable to post-retirement medical benefits, allocated to the separate
account of a key Employee, as defined in Section 419A(d)(3) of the Code, under a
welfare benefit fund, as defined in Section 419(e) of the Code, maintained by
the Employer are treated as Annual Additions to a defined contribution plan. For
this purpose, any excess amount applied under Section 5.9 in the Limitation Year
to reduce Employer contributions will be considered Annual Additions for such
Limitation Year.
(H) Authorized Leave of Absence: Any absence authorized by the Employer
under the Employer's standard personnel practices provided that all persons
under similar circumstances must be treated alike in the granting of such
Authorized Leaves of Absence and provided further that the Employee returns to
employment with the Employer or retires within the period of authorized absence.
An absence due to service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the Employee complies
with all of the requirements of federal law in order to be entitled to
reemployment and provided further that the Employee returns to employment with
the Employer within the period provided by such law.
(I) Average Contribution Percentage: The average of the Contribution
Percentages of the Eligible Participants in a group.
(J) Beneficiary: A person or persons (natural or otherwise) designated
by a Participant in accordance with the provisions of Section 6.4 to receive any
death benefit payable under this Plan.
(K) CODA: A cash or deferred arrangement as described in Section 401(k)
of the Code.
(L) Code: The Internal Revenue Code of 1986, as amended.
(M) Committee: The Retirement Committee appointed to administer the
Plan pursuant to Article VIII.
(N) Company: The Dial Corporation.
(O) Compensation: Subject to the other provisions of the Plan and
except as defined in the Adoption Agreement of an Employer in accordance with
Article XIII, hereof, the total of all amounts paid to a Participant by the
Employer for personal services as would be reported on the Participant's Federal
Income Tax Withholding Statement (Form W-2) had Participant not been a
Participant under the Plan or any Plan sponsored by the Employer which is
qualified under Sections 125 or 129 of the Code and excluding fringe benefits,
overtime, bonuses and any benefits paid under this Plan; provided, however, that
the Committee, in its discretion, may use any definition of "compensation" to
determine whether the various nondiscrimination tests are met as long as such
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definition satisfies Code Section 414(s) and is applied uniformly to all
Participants. 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 year shall not exceed the "OBRA '93 annual compensation limit."
The "OBRA '93 annual compensation limit" is One Hundred Fifty Thousand Dollars
($150,000) as adjusted by the Commissioner for increases in the cost-of-living
in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
twelve (12) months, over which Compensation is determined (the "determination
period") beginning in such calendar year. If a determination period consists of
fewer than twelve (12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is twelve (12). If the "OBRA
'93 compensation limitation is exceeded, then the limitation shall be prorated
among affected individuals in proportion to each such individual's Compensation
as determined under this Section prior to the application of this limitation. In
determining the Compensation of a Participant for purposes of this limitation,
the rules of Section 414(q)(6) of the Code shall apply, except in applying such
rules, the term "Family" shall include only the spouse of the Participant and
any lineal descendants of the Participant who have not attained age nineteen
(19) before the close of the year. Any reference in this Plan to the limitation
under Section 401(a)(17) of the Code shall mean the OBRA '93 annual compensation
limit set forth in this provision. If Compensation for any prior determination
period is taken into account in determining an Employee's benefits accruing in
the current Plan Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or after January 1,
1994, the OBRA '94 annual compensation limit is One Hundred Fifty Thousand
Dollars ($150,000).
(P) Consumer Products Employee: Any individual who (1) immediately
prior to the Distribution Date is an officer or employee of any member of Viad's
"Dial Group" or "Consumer Products Group" and (a) is primarily employed in
Viad's "Consumer Products Business" or (b) will be an employee of the Consumer
Products Group immediately following the Spin-Off or (2) immediately prior to
the Distribution Date is not an officer or an employee of any member of either
Group but at any time prior to the Distribution Date was an officer or employee
of any member of either Group and throughout such period was primarily employed
in the Consumer Products Business.
(Q) Contribution Percentage: The ratio (expressed as a percentage) of
the Participant's Contribution Percentage Amounts to the Participant's
Compensation for the Plan Year (whether or not the Employee was a Participant
for the entire Plan Year).
(R) Contribution Percentage Amounts: The sum of the Employee
Contributions, Matching Contributions, and Qualified Matching Contributions (to
the extent not taken into account for purposes of the ADP test) made under the
plan on behalf of the Participant for the Plan Year. Such Contribution
Percentage Amounts shall include forfeitures of Excess Aggregate Contributions
or Matching Contributions allocated to the Participant's account which shall be
taken into account in the year in which such forfeiture is allocated. The
Employer may include Qualified Non-elective
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Contributions in the Contribution Percentage Amounts. The Employer also may
elect to use Elective Deferrals in the Contribution Percentage Amounts so long
as the ADP test is met before the Elective Deferrals are used in the ACP test
and continues to be met following the exclusion of those Elective Deferrals that
are used to meet the ACP test.
(S) Disability: A physical or mental condition which, in the sole
judgement of the Committee, based upon medical reports and other evidence
satisfactory to the Committee, permanently prevents an Employee from
satisfactorily performing his or her usual duties for the Employer and the
duties of any other position or job for the Employer for which such Employee is
qualified by reason of his or her training, education or experience.
(T) Effective Date: Means July 31, 1996.
(U) Elective Deferrals: Any Employer contributions made to the Plan at
the election of the Participant, in lieu of cash compensation, including
contributions made pursuant to a salary reduction agreement or other deferral
mechanism. With respect to any taxable year, a Participant's Elective Deferral
is the sum of all Employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified CODA as described in
Section 401(k) of the Code, any simplified Employee pension cash or deferred
arrangement as described in Section 402(h)(1)(B), any eligible deferred
compensation plan under Section 457, any plan as described under Section
501(c)(18), and any Employer contributions made on the behalf of a Participant
for the purchase of an annuity contract under Section 403(b) pursuant to a
salary reduction agreement.
(V) Eligible Employee: Any Employee of the Company or any Affiliate
Employer that has adopted this Plan other than Employees who are included within
a unit of employees covered by a collective bargaining agreement, for whom
retirement benefits were the subject of good faith bargaining, unless the
collective bargaining agreement specifically provides to the contrary.
(W) Eligible Participant: Any Employee who is eligible to make an
Employee Contribution, or an Elective Deferral (if the Employer takes such
contributions into account in the calculation of the Contribution Percentage),
or to receive a Matching Contribution (including forfeitures) or a Qualified
Matching Contribution. If an Employee Contribution is required as a condition of
participation in the plan, any Employee who would be a Participant in the plan
if such Employee made such a contribution shall be treated as an Eligible
Participant on behalf of whom no Employee Contributions are made.
(X) Employee: Any person who is actively employed by an Employer or an
Affiliate.
(Y) Employee Contribution: Any contribution made to the Plan by or on
behalf of a Participant that is included in the Participant's gross income in
the year in which made and that is maintained under a separate account to which
earnings and losses are allocated.
(Z) Employee Contribution Account: The account maintained pursuant to
Section 4.3, hereof, to record for a Participant his or her after-tax
contributions and adjustments relating thereto.
(AA) Employer: The Dial Corporation (which was formerly the Consumer
Products Group of Viad (formerly, The Dial Corp and before that the Greyhound
Dial Corporation, and prior to that, The Greyhound Corporation)), or any
Affiliate that has adopted the Plan.
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(BB) Employer Contribution Account: The account maintained pursuant to
Section 4.1(B), hereof, to record for a Participant his or her share of the
contributions of the Employer, if any, and adjustments relating thereto.
(CC) Employer Stock: The common stock of The Dial Corporation.
(DD) Entry Date: The first day of each calendar month.
(EE) ERISA: Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as amended.
(FF) ESOP: The Dial Companies Employees Stock Ownership Plan.
(GG) Excess Aggregate Contributions: Shall mean, with respect to any
Plan Year, the excess of:
(1) The aggregate Average Contribution Percentage Amounts
taken into account in computing the numerator of the
Average Contribution Percentage actually made on
behalf of Highly Compensated Employees for such Plan
Year, over
(2) The maximum Average Contribution Percentage Amounts
permitted by the ACP test (determined by reducing
contributions made on behalf of Highly Compensated
Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determination shall be made after first determining Excess
Elective Deferrals and then determining Excess Contributions.
In computing the Average Contribution Percentage, the Employer shall
take into account, and include as Contribution Percentage Amounts, Elective
Deferrals and Qualified Non-elective Contributions under this plan or any other
plan of the Employer, as provided by regulations.
Forfeitures of Excess Aggregate Contributions shall be:
(1) Applied to reduce Employer contributions for the Plan
Year in which the excess arose, but allocated as in
(2), below, to the extent the excess exceeds Employer
contributions or the Employer has already contributed
for such Plan Year.
(2) Allocated, after all other forfeitures under the
plan, to the Matching Contribution account of each
Non-highly Compensated Participant who made Elective
Deferrals or Employee Contributions in the ratio
which each such Participant's Compensation for the
Plan Year bears to the total Compensation of all such
Participants for such Plan Year.
The Employer may elect to make Qualified Non-elective Contributions
under the plan on behalf of Employees.
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(HH) Excess Contribution: Shall mean, with respect to any Plan Year,
the excess of:
(1) The aggregate amount of Employer contributions
actually taken into account in computing the ADP of
Highly Compensated Employees for such Plan Year over
(2) The maximum amount of such contributions permitted by
the ADP test (determined by reducing contributions
made on behalf of Highly Compensated Employees in
order of the ADPs, beginning with the highest of such
percentages).
(II) Excess Elective Deferrals: shall mean those Elective Deferrals
that are includible in a Participant's gross income under Section 402(g) of the
Code to the extent such Participant's Elective Deferrals for a taxable year
exceed the dollar limitation under such Code section. Excess Elective Deferrals
shall be treated as annual additions under the Plan unless such amounts are
distributed no later than the first April 15 following the close of the
Participant's taxable year.
(JJ) Family Member: A member of the Employee's family as defined in
Section 414(q)(6) of the Code.
(KK) Fiduciaries: The Committee and the Trustee, but only with respect
to the specific responsibilities of each for Plan and Trust administration, all
as described herein.
(LL) FINOVA Stock Account: The account maintained pursuant to Section
5.1 hereof, to record, for a Participant, his or her shares of common stock of
The FINOVA Group Inc. ("FINOVA Stock") transferred to this Plan from the TRIM.
(MM) Highly Compensated Employee: Includes active Highly Compensated
Employees and former Highly Compensated Employees. An active Highly Compensated
Employee includes any Employee who performs service for the Employer during the
determination year and who during the look-back year: (i) received compensation
from the Employer in excess of Seventy-Five Thousand Dollars ($75,000) as
adjusted pursuant to Section 415(d) of the Code); (ii) received compensation
from the Employer in excess of Fifty Thousand Dollars ($50,000) (as adjusted
pursuant to Section 415(d) of the Code) and was a member of the top-paid group
for such year; or (iii) was an officer of the Employer and received compensation
during such year that is greater than fifty percent (50%) of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code. The term Highly
Compensated Employee also includes: (i) Employees who are both described in the
preceding sentence if the term "determination year" is substituted for the term
"look-back year" and the Employee is one (1) of the one hundred (100) Employees
who receive the most compensation from the Employer during the determination
year; and (ii) Employees who are five-percent (5%) owners at any time during the
look-back year or determination year. If no officer has satisfied the
compensation requirements of (iii) above during either a determination year or
look-back year, the highest paid officer for such year shall be treated as a
Highly Compensated Employee. For this purpose, the determination year shall be
the Plan Year. The look-back year shall be the twelve (12) month period
immediately preceding the determination year. A former Highly Compensated
Employee includes any Employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no service for the Employer
during the determination year,
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and was an active Highly Compensated Employee for either the separation year or
any determination year ending on or after the Employee's fifty-fifth (55th)
birthday.
If an Employee is, during a determination year or look-back year, a
Family Member of either a five-percent (5%) owner who is an active or former
Employee or a Highly Compensated Employee who is one of the ten (10) most Highly
Compensated Employees ranked on the basis of compensation paid by the Employer
during such year, then the Family Member and the five-percent (5%) owner or top
ten (10) Highly Compensated Employee shall be aggregated. In such case, the
Family Member and five-percent (5%) owner or top ten (10) Highly Compensated
Employee shall be treated as a single Employee receiving compensation and Plan
contributions or benefits equal to the sum of such compensation and
contributions or benefits of the Family Member and five-percent (5%) owner or
top ten (10) Highly Compensated Employee. For purposes of this Section, Family
Member includes the spouse, lineal ascendants and descendants of the Employee or
former Employee and the spouses of such lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the top-paid
group, the top one hundred (100) Employees, the number of Employees treated as
officers and the compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the regulations thereunder.
The Employer may elect to use the calendar year to determine whether an
Employee is a Highly Compensated Employee in the look-back year (as defined in
Treasury Regulations under Section 414(q) of the Code) calculation. The calendar
year used will be the calendar year ending with or within the determination year
(as defined in the regulations under Section 414(q) of the Code). The
determination year shall be the months (if any) in the current Plan Year which
follow the end of the calendar year look back year. If the Employer elects to
make the calendar year calculation election with respect to any plan, entity or
arrangement, such election must apply with respect to all plans, entities and
arrangements of the Employer.
(NN) Hour of Service:
(1) An hour for which an Employee is directly or
indirectly compensated, or is entitled to
compensation, by the Employer or an Affiliate for the
performance of duties. Such Hours of Service shall be
credited to the respective computation period in
which the duties were performed.
(2) An hour for which an Employee is directly or
indirectly compensated, or is entitled to
compensation, by the Employer or an Affiliate on
account of a period of time during which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence.
No more than five hundred one (501) Hours of Service
shall be credited under this paragraph (2) for any
single continuous period (whether or not such period
occurs in a single service computation period). Hours
of Service under this paragraph (2) shall be
calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor regulations
governing the computation of Hours of Service, which
are incorporated herein by this reference.
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<PAGE> 12
(3) An hour for which back pay (irrespective of
mitigation of damages) is either awarded or agreed to
by the Employer or an Affiliate. The same Hours of
Service shall not be credited both under paragraph
(1) or paragraph (2) above, as the case may be, and
under this paragraph (3). Hours of Service
attributable to back pay credits will be credited to
the respective service computation period or periods
to which the back pay pertains, rather than to the
service computation period or periods in which the
award, agreement, or payment is made.
(4) Employees shall also be credited with any additional
Hours of Service required to be credited pursuant to
any Federal law other than the Act or the Code.
(OO) Income: The net gain or loss of the Trust Fund from investments,
as reflected by interest payments, dividends, realized and unrealized gains and
losses on securities, other investment transactions and expenses paid from the
Trust Fund. In determining the Income of the Trust Fund as of any date, assets
shall be valued on the basis of their fair market value.
(PP) Investment Fund(s): The investment funds described in Section 7.2.
(QQ) Matching Contribution: An Employer contribution made to this or
any other defined contribution plan on behalf of a Participant on account of an
Employee Contribution made by such Participant, or on account of a Participant's
Elective Deferral, under a plan maintained by the Employer.
(RR) Participant: An Employee participating in the Plan in accordance
with the provisions of Section 3.1.
(SS) Participation: The period commencing as of the date the Employee
became a Participant and ending on the date his or her employment with the
Employer terminated in accordance with Section 3.2, hereof.
(TT) Plan: The Dial Corporation Capital Accumulation Plan, the Plan set
forth herein, as amended from time to time.
(UU) Qualified Matching Contributions: Matching Contributions which are
subject to the distribution and nonforfeitability requirements under Section
401(k) of the Code when made.
(VV) Qualified Non-elective Contributions: Contributions (other than
Matching Contributions or Qualified Matching Contributions) made by the Employer
and allocated to Participants' Accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals and Qualified Matching
Contributions.
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(WW) Salary Reduction Contribution Account: The account maintained to
record for a Participant his or her pre-tax salary reduction contributions made
by the Employer pursuant to Sections 4.1(A) and 4.2 hereof, and adjustments
relating thereto.
(XX) TRIM: The Dial Companies Capital Accumulation Plan.
(YY) Trust (or Trust Fund): The fund known as The Dial Corporation
Capital Accumulation Plan Trust, maintained in accordance with the terms of the
trust agreement, as from time to time amended, which constitutes a part of the
Plan.
(ZZ) Trustee: The corporation or individuals appointed by the Board of
Directors of the Company to administer the Trust.
(AAA) Valuation Date: Each business day of the Plan Year.
(BBB) Vested Rollover Contribution Account: The account maintained
pursuant to Section 4.5, hereof, to record for a Participant rollover amounts
transferred to the Trust Fund and adjustments relating thereto.
(CCC) Viad Stock Account: The account maintained pursuant to Section
5.1 hereof, to record for a Participant his or her shares of common stock of
Viad transferred to the Plan from the ESOP and/or TRIM.
(DDD) Plan Year: The twelve (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.
(EEE) Minimum Company Contribution: Means the contributions made by the
Company under the Plan in accordance with the provisions of Section 4.1(C).
(FFF) Limitation Year: The 12-month period commencing on January 1 and
ending on December 31.
2.2 OTHER DEFINITIONS.
Definitions of terms and phrases that have a more limited application
are set forth in the sections to which they relate. For purposes of this Plan,
the terms "Distribution Date," "Consumer Products Group," "Consumer Products
Business," "Dial Group," "Group," "Prior Plan Year," "Current Plan Year," and
"Cut-Off Date" shall be given the meanings ascribed to such terms in the
Distribution Agreement.
2.3 CONSTRUCTION.
The words "hereof," "herein," "hereunder," and other similar compounds
of the word "here" shall mean and refer to the entire Plan and not to any
particular provision or section. Article and section headings are included for
convenience of reference and are not intended to add to, or subtract from, the
terms of the Plan. Except when otherwise indicated by the context, any masculine
or feminine term shall also include the other gender, and the use of any term in
the singular or plural shall also include the opposite number.
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ARTICLE III. - PARTICIPATION
3.1 PARTICIPATION.
Any Eligible Employee who as of the Effective Date of this Plan was a
participant in TRIM or the ESOP shall become a Participant in this Plan on the
Effective Date. Thereafter, an Eligible Employee shall become a Participant as
of the later of the first Entry Date coincident with or next following any
"eligibility computation period" during which he or she has at least one
thousand (1,000) Hours of Service with the Employer or an Acquired Company,
provided that said Eligible Employee has entered into a duly executed salary
reduction agreement under Section 4.2 in advance of said Entry Date and has
fulfilled the Plan's enrollment procedures as provided by the Committee. For
purposes of this Section, the initial "eligibility computation period" is the
twelve (12) consecutive month period commencing on the date on which the
Employee first performs an Hour of Service and the second and subsequent
"eligibility computation periods" are the twelve (12) consecutive month periods
commencing on the anniversaries of said date. Participation under the Plan shall
cease and a person shall no longer be a Participant upon termination of
employment with the Employer, as defined in Section 3.2, hereof. A rehired
Eligible Employee shall be credited with all Hours of Service performed prior to
his termination of employment. If a rehired Eligible Employee was a Participant
or had satisfied the eligibility service requirements of this Section during his
prior period of employment and following his return he is otherwise eligible to
participate in the Plan, he shall commence participation upon the later of his
date of rehire or the date on which he would have commenced participation if his
employment has not terminated.
3.2 TERMINATION OF EMPLOYMENT.
"Termination of Employment" shall be deemed to be the date:
(A) The Participant quit, was discharged (for any reason, including
Disability), died or retired; or
(B) The first anniversary of the date the Participant was continuously
absent (with or without pay) for any other reason, such as vacation, holiday,
temporary sickness, Authorized Leave of Absence or layoff, or the date within
such twelve (12) month period when the Participant quit, was discharged, died or
retired.
3.3 TRANSFERS.
For the purposes of determining eligibility to Participate in the Plan
under Section 3.1, an Eligible Employee shall receive credit for employment with
an Employer or an Affiliate.
3.4 SUSPENSION.
If a Participant (i) elects to defer distribution of his or her benefit
pursuant to Section 6.3(C), (ii) is transferred to employment with an Affiliate
that has not adopted the Plan, (iii) ceases to be an Eligible Employee, (iv)
goes on an unpaid maternity or paternity leave under ERISA Section 203(b), (v)
receives a hardship withdrawal in accordance with Section 6.5(D), or (vi)
commences an Authorized Leave of Absence, as reasonably determined by the
Committee, his or her Participation under the Plan shall be suspended, provided,
however, that during the period of his or her employment in such ineligible
status or position: (a) he or she shall cease to have any right to make
contributions pursuant to Article IV, hereof; (b) his or her Employer
Contribution Account shall receive no Employer contribution allocation under
Section 5.2(C); (c) he or she shall continue to participate in Income
allocations pursuant to Section 5.2(A); (d) the withdrawal privileges under the
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<PAGE> 15
provisions of Article VI, other than the loan provision of Section 6.9, shall
continue to apply except for a Participant who has deferred distribution of his
or her benefit pursuant to Section 6.3(C); and (d) the Investment Fund transfer
provisions of Section 7.3 shall continue to apply.
3.5 TRANSFER OF BARGAINING UNIT EMPLOYEES.
If a Participant becomes included in a unit of employees covered by a
collective bargaining agreement and pursuant to collective bargaining is
excluded from this Plan and included in a collectively bargained plan, the
Committee, in the exercise of its discretion, may direct that the Participant's
Accounts in the Plan be transferred to the collectively bargained plan if the
collectively bargained plan so provides. The Committee and Trustee are hereby
authorized and directed collectively to take all actions necessary or
appropriate to accomplish such transfer. The Accounts of the Participant shall
be valued and adjusted as of the transfer effective date, and the sum of the
Account balances so determined shall equal the amount transferred. Following the
transfer, Participants will no longer have any claim for benefits under this
Plan, and the collectively bargained plan, in accepting the assets transferred
from this Plan, shall be deemed to have accepted the liability for all amounts
due to the Participant.
ARTICLE IV. - CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS.
(A) For each Plan Year, the Employer shall contribute an amount to a
Participant's Salary Reduction Contribution Account equal to the total amount of
contributions agreed to be made by it pursuant to a salary reduction agreement
under Section 4.2 entered into between the Employer and the Participant for such
Plan Year. Such deferrals shall be treated as matchable (and referred to as
"Matched Salary Reduction Contributions" for purposes of this Section 4.1) to
the extent that, for any Participant, they do not exceed three percent (3%) of
his Compensation for the applicable payroll period. Contributions made by
Employer for a given payroll period pursuant to salary reduction agreements
under Section 4.2 shall be promptly deposited in the Trust Fund as soon as
practicable after the payroll period to which they relate.
(B) In addition, for each Plan Year, each Employer will make a Matching
Contribution on behalf of each eligible Participant in an amount equal to one
hundred percent (100%) of the Participant's Matched Salary Reduction
Contributions for the Plan Year. The Matching Contributions made on behalf of a
Participant shall be allocated to his Employer Contributions Accounts at the
time provided in Section 5.2(C). All Matching Contributions of an Employer shall
be paid to the Trustee and payment shall be made not later than the time
prescribed by law for filing the federal income tax return of the Employer,
including any extensions which have been granted for the filing of such tax
return. Amounts credited to a Participant's Employer Contribution Account shall
be one hundred percent (100%) vested and non-forfeitable at all times.
(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(F) of the Plan. Such amount shall be determined by the board of directors of
the Company, or the delegate of such Board, by resolution on or before the last
day of the Company's taxable year that ends within such Plan Year.
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<PAGE> 16
The Minimum Company Contribution for a Plan Year shall be paid by the
Company in one or more installments without interest. The Company shall pay the
Minimum Company Contribution at any time during the Plan Year, and for purposes
of deducting such contribution, shall make the contribution, not later than the
time prescribed by the Code for filing the Company's income tax return including
extensions, for its taxable year that ends within such Plan Year.
Notwithstanding any provision of the Plan to the contrary, the Minimum Company
Contribution made to the Plan by the Company shall not revert to, or be returned
to the Company.
4.2 CODE SECTION 401(k) SALARY REDUCTION.
(A) In addition to the other terms and conditions herein, each Eligible
Employee shall enter into prior to the Entry Date that such Eligible Employee's
Participation under the Plan is to commence pursuant to Section 3.1 a written
salary reduction agreement with the Employer which will be applicable to
Compensation for payroll periods after such Entry Date. The terms of any such
salary reduction agreement shall provide for the purposes of Section 4.1(A)
hereof that the Eligible Employee as a Participant agrees to accept a reduction
in salary from the Employer equal to any percentage of his Compensation per
payroll period, from one percent (1%) to twelve percent (12%) of such
Compensation. In consideration of such agreement, the Employer will make a
salary reduction contribution to the Participant's Salary Reduction Contribution
Account on behalf of the Participant for such 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 salary reduction agreement. Amounts
credited to a Participant's Salary Reduction Contribution Account are intended
to qualify for income tax deferral under Section 401(k) of the Code and, as
such, shall be one hundred percent (100%) vested and non-forfeitable at all
times. If a Participant enters into a salary reduction agreement with the
Employer for a given Plan Year, his or her Compensation for such Plan Year for
all other purposes of this Plan, except with respect to a salary deduction
agreement under Section 4.4, hereof, shall be equal to his or her Compensation
after application of the salary reduction agreement.
(B) Unless otherwise amended or terminated in accordance with (ii),
below, a Participant's salary reduction agreement shall be deemed automatically
renewed from year to year, while this Plan remains in force and effect. Further,
salary reduction agreements shall include, but not by way of limitation, and be
governed by the following:
(1) A salary reduction agreement shall apply to each
payroll period during which an effective salary
reduction agreement is on file with the Employer.
(2) A salary reduction agreement may be amended or
terminated by a Participant only once during each
calendar quarter if the purpose of the amendment is
to decrease or increase the amount of such
Participant's Compensation which is subject to salary
reduction during the remainder of such Plan Year.
(3) Any amendment or termination of a salary reduction
agreement shall be effective on the first day of the
following calendar quarter after at least thirty (30)
days prior written notice by a Participant in the
form required by Employer.
(4) The Employer may amend or revoke its salary reduction
agreement with any Participant at any time, if the
Committee determines that such revocation or
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<PAGE> 17
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.
(C) The Committee may from time to time alter and/or add to the
requirements for salary reduction agreements expressed in Section 4.2(B). The
Employer shall abide by the Committee's determinations and directions with
respect to all matters covered in salary reduction agreements.
4.3 EMPLOYEE CONTRIBUTIONS.
Subject to the provisions of Section 4.4, hereof, a Participant may
contribute each Plan Year to an Employee Contribution Account an amount pursuant
to a written salary deduction agreement under Section 4.4 not intended to
qualify for income tax deferral under Code Section 401(k), but to be subtracted
from such Participant's Compensation on an after-tax basis. Amounts credited to
a Participant's Employee Contribution Account shall remain one hundred percent
(100%) vested and non-forfeitable at all times. Highly Compensated Employees may
not elect to make Employee Contributions.
4.4 AFTER-TAX SALARY DEDUCTION.
A Participant may elect to enter into a written salary deduction
agreement with Employer which shall be in the form and substance acceptable to
Employer and the Committee and will be applicable to all payroll periods within
a Plan Year. A salary deduction agreement may be amended or terminated only once
during each calendar quarter if the purpose of the amendment is to decrease or
increase the amount of such Participant's Compensation which is subject to
salary deduction agreement during the remainder of such Plan Year. The terms of
such salary deduction agreement shall provide, among other things, that for the
purposes of Section 4.3 the Participant agrees to accept a deduction from salary
from the Employer equal to any whole percentage of his Compensation per payroll
period, not to exceed ten percent (10%) of such Compensation.
4.5 ROLLOVERS AND TRANSFERS FROM OTHER PLANS.
(A) An Employee eligible to Participate in the Plan regardless of
whether he or she has satisfied the Participation requirements of Section 3.1,
who has received a distribution from a profit sharing plan, stock bonus plan or
pension plan intended to "qualify" under Section 401 of the Code (the "Other
Plan") may transfer such contribution to the Trust Fund if such contribution
would constitute, in the sole and absolute discretion of the Committee, a
"rollover contribution" within the meaning of the applicable provisions of the
Code. Additionally, a Participant may request, with the approval of the
Committee, that the Trustee accept a transfer from the trustee of another
qualified plan. Upon such approval, the Trustee shall accept such transfer. The
Committee may, in its sole discretion decline to accept such transfer. For
purposes of this Plan, both a "rollover contribution" within the meaning of the
applicable provisions of the Code and a transfer initiated by the Participant
from another plan shall be referred to as a "Rollover Contribution." If the
Committee decides to grant a Participant's request to make a Rollover
Contribution, the Participant may contribute to the Trust Fund cash or other
property acceptable to the Trustee to the extent of such distribution. The
procedure approved by the Committee shall provide that such a transfer may be
made only if the following conditions are met: (a) the transfer occurs on or
before the sixtieth (60th) day following the Employee's receipt of the
distribution from the Other Plan; and (b) the amount transferred does not exceed
the distribution the Employee received from the Other Plan.
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<PAGE> 18
(B) Notwithstanding the foregoing, if an Employee had deposited a
distribution previously received from an Other Plan into an individual
retirement account ("IRA"), as defined in Section 408 of the Code, he or she may
transfer the amount of such distribution, plus earnings thereon from the IRA, to
this Plan; provided such Rollover Contribution is deposited with the Trustee on
or before the sixtieth (60th) day following receipt thereof from the IRA.
(C) The Committee shall develop such procedures, and may require such
information from an Employee desiring to make or effectuate any Rollover
Contribution under this Section 4.5, as it deems necessary or desirable to
determine that the proposed Rollover Contribution will meet the requirements of
this Section. Upon approval by the Committee, the amount transferred shall be
deposited in the Trust Fund and shall be credited to a Vested Rollover
Contribution Account. Such account shall be one hundred percent (100%) vested in
the Employee, shall share in Income allocations in accordance with Section
5.2(A), but shall not share in Employer contribution allocations. Upon
Termination of Employment, the total amount of the Employee's Vested Rollover
Contribution Account shall be distributed in accordance with Article VI.
(D) Upon a Rollover Contribution by an Employee who is otherwise
eligible to participate in the Plan but who has not yet completed the
Participation requirements of Section 3.1, his or her Vested Rollover
Contribution Account shall represent his or her sole interest in the Plan until
he or she becomes a Participant.
4.6 TRANSFERS FROM THE DIAL COMPANIES CAPITAL ACCUMULATION PLAN AND THE
DIAL COMPANIES EMPLOYEES' STOCK OWNERSHIP PLAN.
The Committee and the Trustee are hereby authorized and directed to
accept the transfer of assets and liabilities from the TRIM and the ESOP;
provided, however, that the transfers take place as soon as practicable after
the receipt of a favorable determination letter with respect to this Plan or
receipt by Viad of an opinion by counsel reasonably satisfactory in form and
substance to Viad and the Company to the effect that such counsel believes this
Plan to be qualified under Section 401(a) of the Code. After the transfer, Viad
shall cease to have any obligation whatsoever with respect to Consumer Products
Employees (and their beneficiaries). After the transfer, the Company shall be
solely responsible for all liabilities and obligations with respect to the
Consumer Products Employees (and their beneficiaries), subject to the receipt of
an appropriate amount of assets as set forth in the Distribution Agreement. Viad
shall either be responsible for or make all required contributions no later than
the later of the Distribution Date or the date such contributions are legally
required to be made in respect of the Consumer Products Employees for all Prior
Plan Years and for the portion of the Current Plan Year ending on the Cut-Off
Date, to the extent not previously made. All amounts received from TRIM and ESOP
shall be credited to the Accounts established pursuant to this Plan in
accordance with Section 5.2(E) of this Plan. The Committee, the Employer, and
the Trustee do not guarantee the amounts transferred from the TRIM and ESOP in
any way from loss or depreciation. The Committee shall establish special rules
and accounting procedures as necessary to preserve any distribution forms or
other valuable rights that are protected by Code Section 411(d)(6) with respect
to amounts attributable to assets transferred directly to this Plan from the
ESOP or the TRIM, including, to the extent applicable, rules requiring (i) the
tracking of such amounts in special accounts, and (ii) the preservation, with
respect to balances attributable to transfers from the ESOP, of the Code Section
409(h) right to receive distributions in the form of employer securities, the
Code Section 409(o) right to receive a distribution that complies with certain
special timing requirements, and any other rights that are nonterminable under
Code Section 4975 and the regulations issued thereunder.
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<PAGE> 19
4.7 TRUST FUND.
(A) All contributions under this Plan shall be paid to the Trustee and
deposited in the Trust Fund. However, all contributions made by the Employer are
expressly conditioned upon the continued qualification of the Plan under the
Code, including any amendments to the Plan. Upon the Employer's request, a
contribution which was made by a mistake of fact, or conditioned upon
qualification of the Plan or any amendment thereof shall be returned to the
Employer within one year after the payment of the contribution, or the denial of
the qualification, whichever is applicable.
(B) Except as provided above, all assets of the Trust Fund, including
investment Income, shall be retained for the exclusive benefit of Participants
and Beneficiaries and shall be used to pay benefits to such persons or to pay
administrative expenses of the Plan and Trust Fund to the extent not paid by the
Employer and shall not revert to or inure to the benefit of the Employer.
(C) Notwithstanding anything herein to the contrary, the maximum amount
that may be returned to the Employer pursuant to subparagraph (A) above is
limited to the portion of such contribution attributable to the mistake of fact
or the portion of such contribution deemed non-deductible (the "excess
contribution"). Earnings attributable to the excess contribution will not be
returned to the Employer, but losses attributable thereto will reduce the amount
returned.
ARTICLE V. - ALLOCATIONS TO PARTICIPANT'S ACCOUNT
5.1 INDIVIDUAL ACCOUNTS.
The Committee shall create and maintain adequate records to disclose
the interest in the Trust of each Participant and Beneficiary. Such records
shall be in the form of individual Accounts, and credits and charges shall be
made to such Accounts in the manner herein described. When appropriate, a
Participant shall have six separate Accounts--an Employer Contribution Account,
an Employee Contribution Account, a Salary Reduction Contribution Account, a
Vested Rollover Contribution Account, a Viad Stock Account, and a FINOVA Stock
Account. Where necessary, the Committee shall create and maintain subaccounts
adequate to distinguish between funds in an Account for the purposes of the Plan
(e.g., Qualified Matching Contribution and Matching Contribution subaccounts of
the Employer Contribution Account). The maintenance of individual Accounts and
subaccounts is only for accounting purposes, and a segregation of the assets of
the Trust Fund to each Account or subaccount shall not be required.
Distributions and withdrawals made from an Account shall be charged to the
Account as of the date paid.
Because Participants have a choice of Investment Funds, any reference
in this Plan to a Salary Reduction Contribution Account, a Vested Rollover
Contribution Account or an Employee Contribution Account shall be deemed to mean
and include all accounts of a like nature which are maintained for the
Participant under each Investment Fund.
5.2 ACCOUNT ADJUSTMENTS.
The Accounts of Participants shall be adjusted no less frequently than
quarterly, recognizing the Participant's elections pursuant to Section 5.5,
hereof, in accordance with the following:
(A) Income: The Income of the Trust Fund shall be allocated to the
Accounts of Participants who had unpaid balances in their Accounts as of each
business day during the Plan Year, in proportion to the balances in such
Accounts, as adjusted to reflect and give appropriate
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weighting to any receipt or distributions during the period, based on generally
acceptable principals of trust accounting agreed to by the Committee, the
Trustee, and the recordkeeper for the Plan and consistently applied. Each
valuation shall be based on the fair market value of assets in the Trust Fund on
the appropriate day.
(B) Salary Reduction Contributions: The Employer contributions that are
made pursuant to a salary reduction agreement entered into with a Participant
under Section 4.2 shall be allocated to the Participant's Salary Reduction
Contribution Account as soon as possible following receipt by the Trustee.
(C) Matching Contributions: The Employer's Matching Contribution
described in Section 4.1(B), if any, shall be allocated among the Employer
Contribution Accounts of Participants in accordance with Section 4.1(B) as of
the last day of the relevant Plan Year.
(D) Contributions: A Participant's contributions shall be allocated to
his or her Employee Contribution Account as soon as possible following receipt
by the Trustee.
(E) Allocation of Amounts Transferred from TRIM and ESOP: The assets
transferred to this Plan from TRIM and ESOP shall be allocated to the
appropriate accounts of the Plan Participants in the following manner:
(1) Amounts allocated to the Participant's "employee
contribution account" in TRIM (including Employer
Stock) shall be allocated to the Participant's
Employee Contribution Account in this Plan;
(2) Amounts allocated to the Participant's "salary
reduction contribution account" in TRIM (including
Employer Stock) shall be allocated to the
Participant's Salary Reduction Contribution Account
in this Plan;
(3) Amounts allocated to the Participant's "vested
rollover contribution account" in TRIM (including
Employer Stock) shall be allocated to the
Participant's Vested Rollover Contribution Account in
this Plan;
(4) All Viad Stock allocated to the Participant's
accounts in TRIM shall be allocated to the
Participant's Viad Stock Account in this Plan;
(5) All FINOVA Stock allocated to the Participant's
"FINOVA stock account" in TRIM shall be allocated to
the Participant's FINOVA Stock Account in this Plan;
(6) All Viad Stock amounts allocated to the Participant's
accounts in ESOP shall be allocated to the
Participant's Viad Stock Account in this Plan; and
(7) Employer Stock allocated to the Participant's
"employer contribution account" in TRIM or ESOP shall
be allocated to the Participant's Employer
Contribution Account in this Plan.
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<PAGE> 21
The Participant's Viad Stock Account and FINOVA Stock Account shall be divided
into subaccounts to reflect the portion of such account that is attributable to
each type of contribution.
(F) Minimum Company Contribution: The Minimum Company Contribution for
the Plan Year shall be allocated as follows:
(1) 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
Salary 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 Salary
Reduction Contribution Account and Employer
Contribution Account, respectively.
(2) Second, the balance of the Minimum Company
Contribution remaining after the allocation in
Section 5.2(F)(1) shall be allocated to the Employer
Contribution Account of each individual who is not a
Highly Compensated Employee (as defined in Section
2.1(MM) of the Plan) and 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 Salary Reduction Contributions during
the Plan Year bears to the Salary Reduction
Contributions of all such Eligible Participants
during the Plan Year.
(3) Third, notwithstanding Section 5.8 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.
(4) Fourth, the balance of the Minimum Company
Contribution remaining after the allocations under
Section 5.2(F) (1), (2) and (3), shall be allocated
as a nonelective contribution to each Employee of the
Company who is not a Highly Compensated Employee (as
defined in Section 2.1(MM) of the Plan) and 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(F)(4) 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.
(5) Each installment of the Minimum Company Contribution
shall be held in a contribution suspense account
unless, or until, allocated on or before the end
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of the Plan Year in accordance with this Section
5.2(F). 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.
(6) The Minimum Company Contribution allocated to the
Employer Contribution Account of an Eligible
Participant pursuant to Section 5.2(F)(2) shall be
treated in the same manner as Employer Matching
Contributions for all purposes of the Plan.
(7) Notwithstanding any of the foregoing provisions to
the contrary, any allocation of Salary Reduction
Contributions shall be made under either Section
5.2(B) or this Section 5.2(F), but not both Sections.
Similarly, any allocation of a Matching Employer
Contribution shall be made under either Section
5.2(C) or this Section 5.2(F), as appropriate, but
not both Sections.
(8) Notwithstanding Section 2.1(RR) of the Plan, an
Eligible Participant who receives an allocation of a
contribution under this Section 5.2(F) shall be
treated as a Participant under the Plan for all
purposes.
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:
(1) The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP
for Participants who are Non-highly Compensated
Employees for the same Plan Year multiplied by one
and twenty-five one hundredths (1.25); or
(2) The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP
for Participants who are Non-highly Compensated
Employees for the same Plan Year multiplied by two
(2), provided that the ADP for Participants who are
Highly Compensated Employees does not exceed the ADP
for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(B) The ADP for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferrals (and Qualified
Non-elective Contributions or Qualified Matching Contributions, or both, if
treated as Elective Deferrals for purposes of the ADP test) allocated to his or
her accounts under two or more arrangements described in Section 401(k) of the
Code, that are maintained by the Employer, shall be determined as if such
Elective Deferrals (and, if applicable, such Qualified Non-elective
Contributions or Qualified Matching Contributions, or both) were made under a
single arrangement. If a Highly Compensated Employee participates in
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<PAGE> 23
two or more cash or deferred arrangements that have different Plan Years, all
cash or deferred arrangements ending with or within the same calendar year shall
be treated as a single arrangement.
(C) In the event that this Plan satisfies the requirements of Sections
401(k), 401(a)(4), or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this plan, then this Section shall
be applied by determining the ADP of Employees as if all such plans were a
single plan. For Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(k) of the Code only if they have the
same Plan Year.
(D) For purposes of determining the ADP of a Participant who is a
five-percent (5%) owner or one of the ten (10) most highly-paid Highly
Compensated Employees, the Elective Deferrals (and Qualified Non-elective
Contributions or Qualified Matching Contributions, or both, if treated as
Elective Deferrals for purposes of the ADP test) and Compensation of such
Participant shall include the Elective Deferrals (and, if applicable, Qualified
Non-elective Contributions and Qualified Matching Contributions, or both) and
Compensation for the Plan Year of Family Members (as defined in Section
414(q)(6) of the Code). Family Members, with respect to such Highly Compensated
Employees, shall be disregarded as separate Employees in determining the ADP
both for Participants who are Non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(E) For purposes of determining the ADP test, Elective Deferrals,
Qualified Non-elective Contributions and Qualified Matching Contributions must
be made before the last day of the twelve (12) month period immediately
following the Plan Year to which contributions relate. Elective Deferrals will
be taken into consideration in performing the Actual Deferral Percentage Test
only if each of the following requirements is satisfied:
(1) The Elective Contribution is allocated to the
Participant's Salary Reduction Contribution Account
as of a date within the Plan Year. For purposes of
this paragraph (1), an Elective Deferral is
considered allocated as of a date within a Plan Year
only if (a) the allocation is not contingent upon the
Participant's participation in the Plan or
performance of services on any date subsequent to
that date, and (b) the Elective Deferral is actually
paid to the Trust no later than the end of the twelve
(12) month period immediately following the Plan Year
to which the Elective Contribution relates; and
(2) The Elective Deferral relates to Compensation that
either (a) would have been received by the
Participant in the Plan Year but for the Employee's
election to defer under Section 4.2 or (b) is
attributable to services performed by the Participant
in the Plan Year and, but for the Participant's
election to defer under Section 4.2 would have been
received by the Participant within two and one-half
(2-1/2) months after the close of the Plan Year.
(F) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-elective
Contributions or Qualified Matching Contributions, or both, used in such test.
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<PAGE> 24
(G) The determination and treatment of the ADP amounts of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
(H) Qualified Matching Contributions and Qualified Non-elective
Contributions may be taken into account as Elective Deferrals for purposes of
calculating the Actual Deferral Percentages.
5.4 AVERAGE CONTRIBUTION PERCENTAGE TEST.
Notwithstanding any other provision of the Plan,
(A) Employee Contributions and Matching Contributions must meet the
nondiscrimination requirements of Section 401(a)(4) of the Code, and the Average
Contribution Percentage (hereinafter ACP) test of Section 401(m) of the Code.
The ACP test is required in addition to the ADP test under Code Section 401(k).
Qualified Matching Contributions and Qualified Non-elective Contributions used
to satisfy the ADP test may not be used to satisfy the ACP test.
(B) The ACP for Participants who are Highly Compensated Employees for
each Plan Year and the ACP for Participants who are Non-highly Compensated
Employees for the same Plan Year must satisfy one of the following tests:
(1) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are Non-highly Compensated
Employees for the same Plan Year multiplied by one
and twenty-five one hundredths (1.25); or
(2) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are non-highly Compensated
Employees for the same Plan Year multiplied by two
(2), provided that the ACP for Participants who are
Highly Compensated Employees does not exceed the ACP
for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(C) Multiple Use: If one or more Highly Compensated Employees
participate in both a CODA and a plan subject to the ACP test maintained by the
Employer and the sum of the ADP and ACP of those Highly Compensated Employees
subject to either or both tests exceeds the Aggregate Limit, then the ACP of
those Highly Compensated Employees who also participate in a CODA will be
reduced (beginning with such Highly Compensated Employee whose ACP is the
highest) so that the limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage Amounts is reduced shall be
treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to meet the
ADP and ACP tests. Multiple use does not occur if either the ADP or ACP of the
Highly Compensated Employees does not exceed One and Twenty-Five One Hundredths
(1.25) multiplied by the ADP and ACP of the Non-highly Compensated Employees.
(D) For purposes of this Section, the Average Contribution Percentage
for any Participant who is a Highly Compensated Employee and who is eligible to
have Contribution Percentage Amounts allocated to his or her account under two
or more plans described in Section 401(a) of the Code, or arrangements described
in Section 401(k) of the Code that are maintained by the Employer,
-21-
<PAGE> 25
shall be determined as if the total of such Contribution Percentage Amounts was
made under each plan. If a Highly Compensated Employee participates in two or
more cash or deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement.
(E) In the event that this Plan satisfies the requirements of Sections
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this Plan, then this Section shall
be applied by determining the Contribution Percentage of Employees as if all
such plans were a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Section 401(m) of the Code only if
they have the same Plan Year.
(F) For purposes of determining the Average Contribution Percentage of
a Participant who is a five-percent (5%) owner or one of the ten (10) most
highly-paid Highly Compensated Employees, the Contribution Percentage Amounts
and Compensation of such Participant shall include the Average Contribution
Percentage Amounts and Compensation for the Plan Year of Family Members (as
defined in Section 414(q)(6) of the Code). Family Members, with respect to
Highly Compensated Employees, shall be disregarded as separate Employees in
determining the Average Contribution Percentage both for Participants who are
Non-highly Compensated Employees and for Participants who are Highly Compensated
Employees.
(G) For purposes of determining the Average Contribution Percentage
test, Employee Contributions are considered to have been made in the Plan Year
in which contributed to the trust. Matching Contributions and Qualified
Non-elective Contributions will be considered made for a Plan Year if made no
later than the end of the twelve (12) month period beginning on the day after
the close of the Plan Year.
The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-elective
Contributions or Qualified Matching Contributions, or both, used in such test.
The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
5.5 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS.
(A) Notwithstanding any other provisions of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall be
forfeited, if forfeitable, or if not forfeitable, distributed no later than the
last day of each Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan Year. This
forfeiture or distribution of Excess Aggregate Contributions shall be made for
the Participants who are Highly Compensated Employees in the order of their
contribution percentages described in Section 5.4, beginning with those having
the highest percentage and then continuing with others who have the next highest
percentage, until the requirements for the ACP test in Section 5.4 are met. For
this purpose, each forfeiture or distribution of Excess Aggregate Contributions
that occurs shall be treated as reducing both the amount of such contributions
and the adjusted percentage that is determined for the affected Participant
under Section 5.4. Excess Aggregate Contributions shall be allocated to
Participants who are subject to the family member aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by the regulations. If such
Excess Aggregate
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<PAGE> 26
Contributions are distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which such excess amounts arose, a ten (10)
percent excise tax will be imposed on the Employer maintaining the plan with
respect to those amounts. Excess Aggregate Contributions shall be treated as
Annual Additions under the Plan.
(B) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the end of the Plan Year for which they were determined to occur
(excluding any gap period after the end of that Plan Year and up to the date of
distribution in the subsequent Plan Year). The income or loss allocable to
Excess Aggregate Contributions shall be as determined under the Plan's normal
method of accounting.
(C) Forfeitures of Excess Aggregate Contributions may either be
reallocated to the Accounts of Non-highly Compensated Employees or applied to
reduce Employer contributions.
(D) Excess Aggregate Contributions shall be forfeited, if forfeitable
or distributed on a pro-rata basis from the Participant's Accounts.
(E) In addition, in lieu of distributing Excess Contributions as
provided in the Plan, or Excess Aggregate Contributions as provided in the Plan,
the Employer may make Qualified Non-elective Contributions on behalf of
Non-highly Compensated Employees that are sufficient to satisfy either the
Actual Deferral Percentage test or the Average Contribution Percentage Test, or
both, pursuant to the regulations under the Code.
5.6 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS.
(A) No Participant shall be permitted to have Elective Deferrals made
under this Plan, or any other qualified plan maintained by the Employer, during
any taxable year in excess of the dollar limitation contained in Section 402(g)
of the Code in effect at the beginning of such taxable year.
(B) A Participant may assign to this plan any Excess Elective Deferrals
made during a taxable year of the Participant by notifying the Committee on or
before the date specified in Section 5.6(E) of the amount of the Excess Elective
Deferrals to be assigned to the Plan.
(C) Notwithstanding any other provision of the Plan, Excess Elective
Deferrals, plus any income and minus any loss allocable thereto, shall be
distributed no later than April 15 to any Participant to whose account Excess
Elective Deferrals were assigned for the preceding year and who claims Excess
Elective Deferrals for such taxable year. In addition, excess deferrals and
other contributions described in Section 5.3, plus any income and minus any loss
allocable thereto, shall be distributed no later than the end of each Plan Year
to Participants to whose accounts they were allocated for the preceding Plan
Year. This distribution of excess amounts pursuant to Section 5.3 shall be made
for the Participants who are Highly Compensated Employees in the order of their
deferral percentages described in Section 5.3, beginning with those having the
highest percentage and then continuing with others who have the next highest
percentage, until the requirements of the ADP test in Section 5.3 are met. For
this purpose, each distribution of excess deferrals and other contributions that
occurs shall be treated as reducing both the amount of the deferrals and the
adjusted percentage that is determined for the affected Participant under
Section 5.3.
(D) Excess Elective Deferrals shall be adjusted for any income or loss
up to the end of the Plan Year for which they were determined to occur
(excluding any gap period after the end of
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<PAGE> 27
that Plan Year and up to the date of distribution in the subsequent Plan Year).
The income or loss allocable to Excess Elective Deferrals shall be as determined
under the Plan's normal method of accounting.
(E) Participants who claim Excess Elective Deferrals for the preceding
taxable year must submit their claims in writing to the Committee by March 15.
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS.
(A) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of each Plan Year to Participants to
whose accounts such Excess Contributions were allocated for the preceding Plan
Year. If such excess amounts are distributed more than two and one-half (2-1/2)
months after the last day of the Plan Year in which such excess amounts arose, a
ten (10) percent excise tax will be imposed on the Employer maintaining the Plan
with respect to such amounts. Such distributions shall be made to Highly
Compensated Employees on the basis of the respective portions of the Excess
Contributions attributable to each of such Employees. The Excess Contribution
for a Highly Compensated Employee shall be determined in the following manner:
first, the Actual Deferral Percentage of the Highly Compensated Employee with
the highest Actual Deferral Percentage is reduced to the extent necessary to
satisfy the Actual Deferral Percentage Test described in Section 5.3 or cause
such Actual Deferral Percentage to equal the Actual Deferral Percentage of the
Highly Compensated Employee with the next highest ratio; second, the process is
repeated until the Actual Deferral Percentage Test is satisfied. The method of
correcting Excess Contributions must, in any event, satisfy the
nondiscrimination requirements of Section 401(a)(4) of the Code. Excess
Contributions shall be allocated to Participants who are subject to the family
member aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by the regulations.
(B) Excess Contributions (including the amounts recharacterized) shall
be treated as Annual Additions under the Plan.
(C) Excess Contributions shall be adjusted for any income or loss up to
the end of the Plan Year for which they were determined to occur (excluding any
gap period after the end of the Plan Year and up to the date of distribution in
the subsequent Plan Year). The income or loss allocable to Excess Contributions
shall be as determined under the Plan's normal method of accounting.
(D) Excess Contributions shall be distributed from the accounts to
which the Participant's Elective Deferrals and Qualified Matching Contributions
(if applicable) were allocated in proportion to the Participant's Elective
Deferrals and Qualified Matching Contributions (to the extent used in the ADP
test) for the Plan Year. Excess Contributions shall be distributed from the
Participant's Qualified Non-elective Contribution account only to the extent
that such Excess Contributions exceed the balance in the Participant's Elective
Deferral account and Qualified Matching Contribution account.
5.8 MAXIMUM ADDITIONS.
(A) Notwithstanding anything contained herein to the contrary, the
total Annual Additions made to the Salary Reduction Contribution Account,
Employer Contribution Account, Employee Contribution Account of a Participant
for any Limitation Year shall not exceed the lesser
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<PAGE> 28
of Thirty Thousand Dollars ($30,000.00) or twenty-five percent (25%) of the
Participant's Compensation (as defined in Code Section 415 and after application
of the salary reduction agreement set forth in Section 4.2) for such Limitation
Year, except that such $30,000 shall be increased as permitted by Internal
Revenue Service regulations to reflect cost-of-living adjustments.
(B) If such Annual Additions exceed the above limitations, the
contributions for the Limitation Year which cause the excess shall be returned
to the Participant in the following order:
(1) Any contributions to such Participant's Employee
Contribution Account, to the extent they would reduce
the excess amount, will be returned to the
Participant.
(2) If after the application of paragraph (1) an excess
amount still exists, any contributions to such
Participant's Salary Reduction Contribution Account,
to the extent they would reduce the excess amount,
will be returned to the Participant.
(3) If after the application of paragraph (2) an excess
amount still exists, and the Participant is covered
by the Plan at the end of the Limitation Year, the
excess amount in Participant's account will be used
to reduce Employer Contributions to such
Participant's Employer Contribution Account, for such
Participant in the next Limitation Year, and each
succeeding Limitation Year if necessary.
(4) If after the application of paragraph (2) an excess
amount still exists, and the Participant is not
covered by the Plan at the end of the Limitation
Year, the excess amount will be held unallocated in a
suspense account. The suspense account will be
applied to reduce future Employer contributions of
that Participant's Employer to Employer Contribution
Accounts for all remaining Participants in the next
Limitation Year, and each succeeding Limitation Year
if necessary. If a suspense account is in existence
at any time during the Limitation Year pursuant to
this Section, it will not participate in the
allocation of the Trust Income.
(C) Notwithstanding the foregoing, the otherwise permissible Annual
Additions for any Participant under this Plan may be further reduced to the
extent necessary, as determined by the Committee, to prevent disqualification of
the Plan under Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may be
participating in other tax-qualified pension, profit-sharing, savings or stock
bonus plans maintained by the Employer or any of the members of the controlled
group of corporations (for the purposes of this Section "Employers") of which
the Employer is a part: If an individual is a Participant at any time in both a
defined benefit plan and a defined contribution plan maintained by any of the
Employers, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for any Limitation Year may not exceed one (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 one and twenty-five one hundredths (1.25),
multiplied by the dollar limitation in effect under Section 415(b)(1)(A) of the
Code, or (ii) the product of one and four tenths (1.4), multiplied
-25-
<PAGE> 29
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 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 year and for each prior year
of service with the Employer; (i) the product of one and twenty-five one
hundredths (1.25), multiplied by the dollar limitation in effect under Section
415(c)(1)(A) of the Code for such year, or (ii) the product of one and four
tenths (1.4), multiplied by the amount which may be taken into account under
Section 415(c)(1)(B) with respect to such Participants under the Plan for such
year. When the term "Annual Additions" is used in the context of other defined
contribution plans under this Section, it shall have the same meaning as set
forth in Section 2.1(G), hereof, but with respect to Employer contributions and
Employee contributions made under such other plans. For purposes of this
limitation, all defined benefit plans of the Employers, whether or not
terminated, are to be treated as one defined benefit plan and all defined
contribution plans of the Employers, including the Plan whether or not
terminated, are to be treated as one defined contribution plan. As such, annual
benefits and Annual Additions of such plans are to be aggregated for the
purposes of determining the defined benefit plan fraction and the defined
contribution plan fraction. The extent to which Annual Additions under the Plan
shall be reduced, as compared with the extent to which annual benefits or Annual
Additions under any defined benefit plans or any other defined contribution
plans shall be reduced in order to achieve compliance with the limitations of
Code Section 415 shall be dependent on the provisions of such other plans. To
the extent any such other plan or plans provide for a reduction first in
benefits from or Annual Additions to such other plan or plans, the necessary
reductions shall be under such other plan or plans. To the extent any such other
plan or plans do not provide for a reduction first in benefits from or Annual
Additions to such other plan or plans, the reduction in Annual Additions
necessary to achieve compliance with Code Section 415 shall be under the Plan.
If the reduction is under the Plan, the Committee shall advise affected
Participants of any additional limitations on their Annual Additions required by
this Section 5.8.
5.9 ADJUSTMENT OF MATCHING CONTRIBUTIONS SUBACCOUNT.
In the event that a distribution of excess Elective Deferrals or Excess
Contributions is made pursuant to Section 5.6 or 5.7 of the Plan, the Matching
Contribution subaccount will be adjusted by the amount of any Employer
Contribution attributable to such excess Elective Deferrals or Excess
Contributions (the "excess matching contribution") plus the income allocable to
any such excess matching contribution. The income allocable to the excess
matching contribution shall be determined by the Committee in accordance with
any method permitted under Treasury Regulation Sections 1.401(m)-1(e)(3) or
1.401(k)-1(f)(4) as applicable. Any such excess employer matching contributions
(and earnings allocable thereto) will be forfeited and reallocated among the
unaffected Participant's Accounts pursuant to such rules as shall be adopted by
the Committee, provided that such treatment is applied uniformly to all
Participants under the Plan for the Plan Year involved.
5.10 TOP-HEAVY PROVISIONS.
(A) The following provisions shall become effective in any Plan Year in
which the Plan is determined to be a Top-Heavy Plan, notwithstanding any
contrary provision in the Plan. The Plan will be considered a Top-Heavy Plan for
the Plan Year if as of the last day of the preceding Plan Year, (1) the value of
the sum of Salary Reduction Contribution Accounts, Employer Contribution
Accounts and Employee Contribution Accounts (but not including any allocations
to be made as of such last day of the Plan Year except contributions actually
made on or before that date and allocated pursuant to Section 5.2) of
Participants who are Key Employees (as defined in Section
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<PAGE> 30
416(i) of the Code) exceeds sixty percent (60%) of the value of the sum of
Salary Reduction Contribution Accounts, Employer Contribution Accounts and
Employee Contribution Accounts (but not including any allocations to be made as
of such last day of the Plan Year except contributions actually made on or
before that date and allocated pursuant to Section 5.2) of all Participants (the
"60% Test") or (2) the Plan is part of a required aggregation group (within the
meaning of Section 416(g) of the Code and the required aggregation group is
top-heavy. However, and notwithstanding the result of the 60% Test, the Plan
shall not be considered a Top-Heavy Plan for any Plan Year in which the Plan is
a part of a required or permissive aggregation group (within the meaning of
Section 416(g) of the Code) which is not top-heavy.
(B) Notwithstanding any contrary provision of the Plan, and except as
otherwise provided in (C) and (D) below, for any Plan Year during which the Plan
is deemed a Top-Heavy Plan, Employer contributions pursuant to Section 5.2(C)
which are allocated to Employer Contribution Accounts on behalf of any
Participant who is not a Key Employee shall not be less than the lesser of:
(1) Three percent (3%) of such Participant's
Compensation; or
(2) In the case where the Employer has no defined benefit
plan which designates the Plan to satisfy Section
416(f) of the Code, the largest percentage of
Employer contributions as a percentage of the first
One Hundred Fifty Thousand Dollars ($150,000) of the
Key Employee's Compensation allocated on behalf of
any Key Employee for that Plan Year.
The above mentioned minimum allocation is determined without regard to
any Social Security contribution. The minimum allocation shall be made even
though, under other Plan provisions, the Participant would not otherwise be
entitled to receive an allocation, or would have received a lesser allocation
for the Plan Year.
(C) The provisions of (B), above, shall not apply to any Participant
who was not employed by the Employer on the last day of the Plan Year preceding
the Plan Year the Plan is considered to be a Top-Heavy Plan.
(D) The provisions of (B), above, shall not apply to any Participant to
the extent the Participant is covered under any other plan or plans of the
Employer and the Employer has provided in the Adoption Agreement that the
minimum allocation or benefit requirement applicable to top-heavy plans will be
met in the other plan or plans.
(E) The minimum allocation required in (B), above, (to the extent
required to be nonforfeitable under Section 416(b) of the Code) may not be
forfeited under Code Section 411(a)(3)(B) or 411(a)(3)(D).
(F) If a Participant's Termination of Employment occurs while the Plan
is a Top-Heavy Plan, such Participant's vested percentage in his Employer
Contribution Account shall not be less than the percentage determined in
accordance with the following table:
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<PAGE> 31
<TABLE>
<CAPTION>
Vested Forfeited
Years of Service Percentage Percentage
---------------- ---------- ----------
<S> <C> <C> <C>
less than 2 0% 100%
2 but less than 3 20% 80%
3 but less than 4 40% 60%
4 but less than 5 60% 40%
5 but less than 6 80% 20%
6 or more 100% 0%
</TABLE>
(G) For purposes of this Section 5.10, Compensation shall have the
meaning given such term in Treasury Regulation Section 1.415-2(d)(2) and (3);
provided, however, that for the limited purpose of determining whether an
Employee is a Key Employee, Compensation shall include amounts such as Elective
Deferrals to this Plan which are not currently includible in the Participant's
gross taxable income by reason of the application of Sections 125,402(e)(3) or
402(h)(1)(B) of the Code, if such amounts are attributable to the performance of
services for the Company or an Affiliate.
(H) If the Plan becomes a Top-Heavy Plan and subsequently ceases to be
such, the vesting schedule in Section (F) of this Section to the extent it is
more favorable than any vesting schedule that may be contained in the Plan shall
continue to apply in determining the vested percentage of any Participant who
had at least five years of Service as of December 31 in the last Plan Year of
top-heaviness. For other Participants, said more favorable schedule shall apply
only to their Employer Contribution Account balance as of such December 31. For
the purposes of Section (F), Year of Service shall be defined in the same manner
as the term Year of Service is used for vesting purposes in the event the Plan
is amended to include a vesting provision. In the event that the Plan is amended
to change or modify any vesting schedule, a Participant with at least three (3)
Years of Service as of the expiration of the election period may elect to have
his nonforfeitable percentage computed under the Plan without regard to such
amendment. If a Participant fails to make such election, then such Participant
shall be subject to the new vesting schedule. The Participant's election period
shall commence on the adoption date of the amendment and shall end sixty (60)
days after the latest of:
(1) the adopted date of the amendment;
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice of
the amendment from the Employer or Administrator.
(I) Notwithstanding any contrary provisions contained herein, for any
Plan Year in which the Plan is a Top-Heavy Plan, any benefits to which the
Participant who is a Key Employee is entitled shall commence not later than the
Participant's taxable year in which he or she attains age, seventy and one-half
(70-1/2), whether or not his or her employment has terminated in such year. If a
benefit distribution under the Plan is made to a Key Employee before he or she
attains age fifty nine and one-half (59-1/2), and during a Plan Year in which
the Plan is a Top-Heavy Plan, the Participant shall be advised by the Committee
that an additional income tax may be imposed equal to ten percent (10%) of the
portion of the amount so received which is included in his or her gross income
for such taxable year, unless such distribution is made on account of death or
Disability.
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(J) For any Plan Year in which the Plan is a Top-Heavy Plan, Section
5.4(C) shall be read by substituting the number one (1.00) for the number one
and twenty-five one hundredths (1.25) wherever it appears therein except such
substitution shall not have the effect of reducing any benefit accrued under a
defined benefit plan prior to the first day of the Plan Year in which this
provision becomes applicable.
(K) Neither Elective Deferrals nor Matching Contributions may be taken
into account for the purpose of satisfying the minimum top-heavy contribution
requirement.
(L) Notwithstanding anything in this Section 5.10 to the contrary, in
the event that the Plan shall be determined by the Committee (in its sole and
absolute discretion, but pursuant to the provisions of Section 416 of the Code)
to be a constituent in an "aggregation group", this Plan shall be considered a
Top-Heavy Plan only if the "aggregation group" is a "top-heavy group." For
purposes of this Section 5.10, an "aggregation group" shall include the
following:
(1) Each plan intended to qualify under Section 401(a) of
the Code sponsored by the Company or an Affiliate in
which one (1) or more Key Employees participate;
(2) Each other plan of the Company or an Affiliate that
is considered in conjunction with a plan referred to
in clause (1) in determining whether or not the
nondiscrimination and coverage requirements of
Section 401(a)(4) or Section 410 of the Code are met;
and
(3) If the Committee, in the exercise of its discretion,
so chooses, any other such plan of the Company or an
Affiliate which, if considered as a unit with the
plans referred to in clauses (1) and (2), satisfies
the requirements of Code Section 401(a) and Code
Section 410.
A "top-heavy group" for purposes of this Section 5.10 is an "aggregation group"
in which the sum of the present value of the cumulative accrued benefits for Key
Employees under all "defined benefit plans" (as defined in Section 414(j) of the
Code) included in such group plus the aggregate of the account balances of Key
Employees on the last Valuation Date in the twelve (12) month period ending on
the respective determination date under all "defined contribution plans" (as
defined in Section 414(i) of the Code) included in such group exceeds sixty
percent (60%) of the total of such similar sum determined for all employees and
beneficiaries covered by all such plans (where such present values and account
balances are those present values applicable to those determination dates of
each plan which fall in the same calendar year). The Committee will calculate
the present value of the cumulative annual benefits under a defined benefit plan
in accordance with the rules set forth in the defined benefit plan. All
determinations will be made in accordance with applicable relegations under
Section 416 of the Code.
5.11 SECURITIES LAW REQUIREMENTS.
The Plan is intended to comply with the requirements for exemption from
liability under Section 16(b) of the Securities Exchange Act of 1934 ("1934
Act") in the case of any transaction that is reportable under Section 16(a) of
the 1934 Act. Accordingly, the Plan shall be interpreted and administered so as
to preserve such exemption under Rule 16b-3 or any other applicable rules and
regulations promulgated pursuant to Section 16 of the 1934 Act with respect to
any Plan transaction
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<PAGE> 33
that is reportable by a Participant, Beneficiary, or other person, including, if
applicable, the Trust, who is a Company officer, director, or ten percent
beneficial owner subject to Section 16 of the 1934 Act (hereinafter, a "Section
16 Insider").
The Plan is a written pension or retirement plan with broad-based
Employee participation and objective, nondiscriminatory rules that are subject
to the Code's qualification requirements and the requirements of the Employee
Retirement Income Security Act of 1974 ("ERISA"), including ERISA reporting
rules that make the Plan subject to an annual audit by independent accountants
and ERISA fiduciary rules that protect the interests of all Plan Participants
and Beneficiaries, including Section 16 Insiders.
The Plan is intended to satisfy the revised Section 16 rules that apply
to transactions occurring on or after August 15, 1996. Under these newly-issued
rules, the Plan is designed to be a "Tax-Conditioned" plan and is designed to
comply with the exemption for "Discretionary Transactions." Under these new
rules, any acquisition or disposition of Employer Stock held in the Plan, except
for Discretionary Transactions, are exempt, provided that the Plan satisfies the
definition of a "qualified plan." Because the Plan satisfies the coverage and
participation requirements set forth in Section 410 and 401(a)(26) of the Code
(as the new Section 16 rules require), the Plan will be deemed to be a qualified
plan under the new Section 16 rules. Even though transactions under the Plan
involving Employer Stock are generally exempt under Section 16, Discretionary
Transactions must nevertheless satisfy certain timing requirements. A
Discretionary Transaction is any transaction under the Plan that (i) is at the
volition of a Plan Participant, (ii) is not made in connection with the
Participant's death, disability, retirement, or termination of employment, (iii)
is not required to be made available to a Plan Participant pursuant to any
provision of the Code, and (iv) results in either an intra-plan transfer
involving Employer Stock, or a cash distribution funded by a volitional
disposition of Employer Stock. A Discretionary Transaction will be exempt under
the new Section 16 rules only if it is effected pursuant to an election made at
least six months following the date of the most recent election that effected a
Discretionary Transaction that was an acquisition, if the transaction to be
exempted would be a disposition, or a disposition, if the transaction to be
exempted would be an acquisition. The Committee has the authority to implement
such timing restrictions for Discretionary Transactions with respect to Section
16 Insiders.
ARTICLE VI. - BENEFITS
6.1 ENTITLEMENT TO BENEFITS.
If a Participant's employment with the Employer is terminated for any
reason, he or she shall be vested in the entire amount in each of his or her
Accounts. Except as provided in Section 6.3(C) hereof, payment of benefits shall
commence promptly after such Termination of Employment.
6.2 DEATH.
(A) In the event that the Termination of Employment of a Participant is
caused by his or her death, his or her Beneficiary shall be vested in, and paid
the entire amount of, each of the deceased Participant's Accounts. Payment shall
commence promptly after the Participant's death, but the Beneficiary shall not
be entitled to receive such payment until the Committee is reasonably satisfied
that such Beneficiary is otherwise entitled to receive such payment.
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(B) Payment of benefits due under this Section shall be made in
accordance with Section 6.3.
6.3 PAYMENT OF BENEFITS.
(A) Upon a Participant's or Beneficiary's entitlement to payment of
benefits under Section 6.1 or 6.2 he or she shall file with the Committee his or
her written application therefor on such form or forms, and subject to such
reasonable conditions, as the Committee shall provide.
(B) The Committee shall follow a Participant's Beneficiary designation
made pursuant to Section 6.4. The Committee shall make payment of benefits in
one lump sum only. Payment to a Participant's Beneficiary shall be made or
commence as soon as practicable after a Participant's death and upon such proofs
of death and entitlement to benefits as the Committee may require.
(C) Except as otherwise provided below, every Participant who has a
separation from service for any reason, including retirement, death or
Disability, shall have his or her vested Account, valued as of the effective
date of the distribution, distributed as soon as practicable following the
separation from service. If the vested balance in a Participant Account exceeds
Three Thousand Five Hundred Dollars ($3,500), then no distribution shall be made
to the Participant before the date specified in Section 6.7, unless the
Participant consents in writing to an earlier distribution. Thus, if under the
age specified in Section 6.7, a Participant whose vested Account balance exceeds
Three Thousand Five Hundred Dollars ($3,500) may elect to defer receipt of such
balance until that date by withholding written consent to the distribution. A
Beneficiary does not have a similar right to defer a distribution of the
Participant's vested Account balance following the Participant's death.
(D) The amount which a Participant or Beneficiary is entitled to
receive at any time and from time to time may be paid, in the discretion of the
Participant or Beneficiary, in cash or in Employer Stock, or in any combination
thereof, provided, however, payment in Employer Stock may be limited to the
extent a Participant's Account balances are invested in whole shares of such
Employer Stock under Section 7.2, and the Committee may require that all such
Employer Stock be transferred to such Participant or Beneficiary. To the extent
that a Participant's Account is invested in stock of Viad or The FINOVA Group
Inc., the foregoing rules for Employer Stock shall be applied as if such other
stock was "Employer Stock."
(E) To the extent required by the regulations issued under Code Section
411(a)(11), at least 30 days but not more than 90 days before a Participant's
scheduled benefit commencement date, the Committee shall provide to the
Participant a written explanation of his right to defer receipt of the
distribution. Such distributions may commence less than 30 days after the notice
required under Section 1.411(a)-11(c) of the income tax regulations is given,
provided that:
(1) the Committee clearly informs the Participant that
the Participant has a right to a period of at least
30 days after receiving the notice to consider the
decision of whether or not to elect a distribution
(and, if applicable, a particular distribution
option); and
(2) the Participant, after receiving the notice,
affirmatively elects a distribution.
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6.4 DESIGNATION OF BENEFICIARY.
(A) Each Participant from time to time may designate any person or
persons (who may be designated contingently or successively and who may be an
entity other than a natural person) as his or her Beneficiary or Beneficiaries
to whom his Plan benefits are paid if he or she dies before receipt of all such
benefits. Each Beneficiary designation shall be in the form prescribed by the
Committee, will be effective only when filed with the Committee during the
Participant's lifetime, and, if the Committee allows, may specify the method of
payment of his or her benefits to the Beneficiary. Each Beneficiary designation
filed with the Committee will cancel all Beneficiary designations previously
filed with the Committee. The revocation of a Beneficiary designation by a
Participant no matter how effected, shall not require the consent of any
designated Beneficiary unless the Beneficiary affected is the Participant's
spouse, in which case such spouse's consent shall be required to effect any such
revocation in accordance with Section 6.4(C). By designating a Beneficiary or
Beneficiaries as hereunder provided, a Participant grants the Committee the
discretion, in good faith, to make benefit payment(s) to any Beneficiary or
Beneficiaries named by such Participant despite any dispute by any person or
persons claiming such benefits, and holds the Plan, the Employer and the
Committee harmless from any claims arising out of any such good faith payment(s)
of benefits. Each Participant by designating a Beneficiary or Beneficiaries,
authorizes the Committee to retain any benefits otherwise payable in the Trust
Fund or, in its sole discretion, pay-over such benefits to a court or other
tribunal of competent jurisdiction pending the final and binding disposition of
any dispute as to the proper Beneficiary or Beneficiaries by agreement of the
parties or by a judgement of such court or other tribunal of competent
jurisdiction, as the case may be.
(B) If any Participant fails to designate a Beneficiary in the manner
provided above, or if the Beneficiary or Beneficiaries designated by a deceased
Participant die(s) before him or her or before complete distribution of the
Participant's benefits, the Committee, in its sole discretion, may direct the
Trustee to distribute such Participant's benefits (or the balance thereof) in
the following order to:
(1) The surviving spouse of such Participant or, if not
living,
(2) The estate of such Participant.
(C) Notwithstanding anything contained herein to the contrary, a
Participant may not name as a Beneficiary someone other than his or her spouse,
and such designation shall have no effect, unless his or her spouse consents
thereto, in a signed writing which is notarized or witnessed by a Plan
representative, or if the Committee determines in its sole discretion that such
consent is not obtainable for good cause shown, consistent with applicable law.
6.5 WITHDRAWALS.
(A) Subject to 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, Salary Reduction Contribution Account and Vested Rollover
Contribution Account, provided, however, that withdrawals must be made of all
amounts in each classification below (listed in descending order) before amounts
in the next lower classification may be withdrawn.
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<PAGE> 36
(1) Employee Contribution Account.
(2) Salary Reduction Contribution Account.
(3) Vested Rollover Contribution Account.
(B) A Participant must have attained age fifty-nine and one-half
(59-1/2) or have been determined by the Committee to have a "hardship" in
accordance with Section 6.5(D) in order to qualify for a withdrawal under
Section 6.5(A) with respect to his or her Salary Reduction Contribution Account
and/or Vested Rollover Contribution Account balances. Except for a Participant
who is age fifty-nine and one-half (59-1/2) or older and who withdraws his
entire Account balances, a Participant may not withdraw any amounts from his or
her Employer Contribution Account.
(C) Application for withdrawals shall be made on such forms as the
Committee prescribes and as permitted herein, and may be made once each calendar
month. Except as provided in Section 6.5(E), distribution of withdrawals shall
be made in a lump sum within forty-five (45) days following receipt by the
Committee of a properly completed application. Withdrawal distributions shall be
based on the value of the Participant's Account(s) as of the effective date of
the withdrawal, and subject to the provisions of Section 6.6, may be made in the
discretion of the Participant in the form of cash, or in Employer Stock or in
any combination thereof, provided, however, payment in Employer Stock shall be
limited to the extent a Participant's Account balances are invested in whole
shares of such Employer Stock under Section 7.2 and the Committee may require
that all such Employer Stock be transferred to such Participant or Beneficiary.
To the extent that a Participant's Account is invested in stock of Viad or The
FINOVA Group Inc., the foregoing rules for Employer Stock shall be applied as if
such other stock was "Employer Stock."
(D) Distribution of Elective Deferrals (and earnings thereon accrued as
of December 31, 1988) may be made to a Participant in the event of hardship. For
the purposes of this Section, hardship is defined as an immediate and heavy
financial need of the Employee where such Employee lacks other available
resources. The following are the only financial needs considered immediate and
heavy: deductible medical expenses (within the meaning of Section 213(d) of the
Code) of the Employee, the Employee's spouse, children, or dependents; the
purchase (excluding mortgage payments) of a principal residence for the
Employee; payment of tuition or room and board for the next quarter or semester
of post-secondary education for the Employee, the Employee's spouse, children or
dependents; or the need to prevent the eviction of the Employee from, or a
foreclosure on the mortgage of, the Employee's principal residence. A
distribution will be considered as necessary to satisfy an immediate and heavy
financial need of the Employee only if:
(1) The Employee has obtained all distributions other
than hardship distributions, and all nontaxable loans
under all plans maintained by the Employer;
(2) 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;
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<PAGE> 37
(3) The distribution is not in excess of the amount of an
immediate and heavy financial need; and
(4) All plans maintained by the Employer provide that the
Employee may not make Elective Deferrals for the
Employee's taxable year immediately following the
taxable year of the hardship distribution in excess
of the applicable limit under Section 402(g) of the
Code for such taxable year less the amount of such
Employee's Elective Deferrals for the taxable year of
the hardship distribution.
A distribution based upon financial hardship cannot exceed the amount
required to meet the immediate financial need created by the hardship and not
reasonably available from other resources of the Participant. Entitlement to a
distribution based on financial hardship shall be determined by the Committee in
its sole and exclusive discretion. The Committee may require such reasonable
proof of immediate financial need as it deems necessary to uniformly and fairly
administer this Section 6.5, as a condition precedent to any distribution by
reason of financial hardship.
(E) Notwithstanding anything contained in Section 6.5(B) regarding the
age of a Participant or financial hardship to the contrary, a Participant may
withdraw all or a portion of his or her Employee Contribution Account once each
calendar month regardless of his or her age or the existence of any financial
hardship if such Participant satisfies all of the other terms and conditions
contained in this Section 6.5.
6.6 DEBITING OF INVESTMENT FUNDS.
If a Participant making less than a total withdrawal of his or her
Accounts under Section 6.5 has his or her Accounts invested in more than one
Investment Fund, the amount withdrawn from his or her Accounts shall be debited,
on a pro rata basis, against each Investment Fund in which such Accounts are
invested.
6.7 REQUIRED DISTRIBUTIONS.
In accordance with Code Section 401(a)(9) and the regulations issued
thereunder, distribution of the Account balances of a Participant will be made
by April 1 of the year following the calendar year in which such Participant
attains age seventy and one-half (70-1/2), and any balances that arise
thereafter will be distributed by each December 31 thereafter. If the
Participant has not yet terminated employment and has balances invested in
Employer Stock, the distribution of such balances shall, to the maximum extent
possible, be made in whole shares of Employer Stock. To the extent that a
Participant's Account is invested in stock of Viad or The FINOVA Group Inc., the
foregoing rules for Employer Stock shall be applied as if such other stock was
"Employer Stock."
6.8 DISTRIBUTION REQUIREMENTS.
(A) Elective Deferrals, Qualified Non-elective Contributions, and
Qualified Matching Contributions and income allocable to each, must comply with
the distribution requirements under Section 401(k)(2)(B) of the Code.
(B) Elective Deferrals, Qualified Non-elective Contributions, and
Qualified Matching Contributions, and income allocable to each are not
distributable to a Participant or his or her Beneficiary or Beneficiaries in
accordance with such Participant's or Beneficiary or Beneficiaries' election,
earlier than upon separation from service, death or disability.
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(C) Such amounts may also be distributed upon:
(1) Termination of the Plan without the establishment of
another defined contribution plan.
(2) The disposition by a corporation to an unrelated
corporation of substantially all of the assets
(within the meaning of Section 409(d)(2) of the Code)
used in a trade or business of such corporation if
such corporation continues to maintain this Plan
after the disposition, but only with respect to
Employees who continue employment with the
corporation acquiring such assets.
(3) 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.
(4) The attainment of age fifty-nine and one-half
(59-1/2) in the case of a profit-sharing plan.
(5) The hardship of the Participant subject to the
provisions of Section 6.5(D) of the Plan.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and Participant
consent requirements (if applicable) contained in Sections 401(a)(11) and 417 of
the Code.
6.9 LOANS TO PARTICIPANTS.
(A) The Committee may, in its sole discretion, and upon such terms and
conditions as it may require, direct the Trustee to loan a Participant an amount
which, when added to all loans outstanding under the Plan and made by the
Participant does not exceed the allowable portion, as determined under the
following table, of the Participant's total Account balances:
<TABLE>
<CAPTION>
Maximum Loan
(Allowable Portion of Total
Total Vested Balance Account Balances)
-------------------- -----------------
<S> <C> <C>
$0 - $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 plan or
plans less any Matching Contributions made under the Plan.
(C) For purposes of this Section, "Total Account Balance" means the
total dollar value, as of the effective date of the loan, of the Participant's
Accounts.
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(D) Although used in determining the Total Account Balances, the
Employer Contribution Account balance, and the employer contribution subaccounts
of the Viad Stock Account and FINOVA Stock Account, are not available for loan.
(E) All loans shall be subject to the approval of the Committee which
shall investigate each application for a loan.
(F) In addition to such rules and regulations as the Committee may
adopt, all loans shall comply the following terms and conditions:
(1) An application for a loan by a Participant shall be
made in writing to the Committee whose action
thereon shall be final.
(2) The period of repayment for any loan shall be
arrived at by mutual agreement between the Committee
and the borrower, but such period in no event shall
exceed five (5) years, except that such five (5)
year repayment rule shall not apply to any loan used
for the purpose of acquiring or constructing a home
which is the Participant's principal residence.
(3) Each loan shall be made against collateral being the
assignment of not more than fifty percent (50%) of
the borrower's entire right, title and interest in
and to the Trust Fund, supported by the borrower's
collateral promissory note for the amount of the
loan, including interest, payable to the order of
the Trustee.
(4) Each loan shall bear interest at a rate to be fixed
by the Committee and, in determining the interest
rate, the Committee shall take into consideration
interest rates currently being charged. The
Committee shall not discriminate among Participants
in the matter of interest rates; but loans granted
at different times may bear different interest rates
if, in the opinion of the Committee, the difference
in rates is justified by a change in general
economic conditions. Each loan shall bear interest
at an effective annual percentage rate which is not
less than the prime rate currently being charged to
the Trustee in its banking business, provided that
such rate does not violate any applicable usury
laws.
(5) No distribution, other than a hardship withdrawal
which is approved by the Committee pursuant to
Section 6.5 shall be made to any Participant or to a
Beneficiary of any such Participant unless and until
all unpaid loans, including accrued interest
thereon, have been repaid.
(6) Notwithstanding anything contained herein to the
contrary, a Participant may not obtain a loan unless
it is consented to by his or her spouse in a signed
writing which is notarized or witnessed by a Plan
representative or if the Committee determines in its
sole discretion that such consent is not obtainable
for good cause shown, consistent with applicable
law.
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<PAGE> 40
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS.
(A) This Section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a distributee may
elect, at the time and in the manner prescribed by the Committee, to have any
portion of an "eligible rollover distribution" paid directly to an "eligible
retirement plan" specified by the "distributee" in the "direct rollover."
(B) For purposes of this Section, the following definitions shall
apply:
(1) "Eligible rollover distribution" - An eligible
rollover distribution is any distribution of all or
any portion of the balance to the credit of the
distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee
or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated
Beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of
the Code; and the portion of any distribution that
is not includible in gross income (determined
without regard to the exclusion of net unrealized
appreciation with respect to Employer securities).
(2) "Eligible retirement plan" - An eligible retirement
plan is an individual retirement account described
in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described
in Section 401(a) of the Code, that accepts that
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
(3) "Distributee" - A distributee includes an Employee
or former Employee. In addition, the Employee's or
former Employee's surviving spouse and the
Employee's or former Employee's spouse or former
spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section
414(p) of the Code, are distributees with regard to
the interest of the spouse or former spouse.
(4) "Direct rollover" - A direct rollover is a payment
by the Plan to the eligible retirement plan
specified by the distributee.
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND
7.1 PARTICIPANT DIRECTED INDIVIDUAL ACCOUNT PLAN.
This Plan is intended to constitute a participant directed individual
account plan under Section 404(c) of ERISA. As such, Participants shall be
provided the opportunity to exercise control over the investment of a portion of
their Accounts under the Plan and to choose from a broad range of investment
alternatives.
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<PAGE> 41
7.2 EMPLOYEE SELECTED INVESTMENT OPTIONS, INVESTMENT FUNDS.
(A) Each Participant shall designate, on a form supplied by the
Committee, signed by the Participant and delivered to the Committee, the
Investment Fund(s) established pursuant to paragraph (B) below to which
contributions made pursuant to Sections 4.1(A), 4.3, 4.5, and 4.6 hereof, are to
be invested. A Participant's Employer Contribution Account balance shall be
invested only in Employer Stock, and the Participant shall have no choice of
Investment Funds with respect to such balance.
(B) The Committee shall direct the Trustee to establish three (3) or
more Investment Funds. The Committee also may direct the Trustee to change the
number and type of Investment Funds made available under the Plan from time to
time, without the necessity of Board action or Plan amendment.
7.3 INVESTMENT ELECTIONS.
(A) Each Participant may, except as hereinafter provided, elect with
respect to future contributions to his Employee Contribution Account, Salary
Reduction Contribution Account and Vested Rollover Contribution Account to have
the aggregate contributions to such Account(s) be invested in a single Fund, or
he may direct that ten percent (10%) increments (or multiples of ten percent
(10%) increments), of such Accounts be invested in such Funds as he shall
desire.
(B) Each Participant may change his investment directions in accordance
with the provisions of Section 7.3(A) to provide for the investment of future
contributions among the various Funds in ten percent (10%) increments (or
multiples of ten percent (10%) increments), as he shall desire. Any such change
may be made in accordance with procedures established by the Committee.
7.4 INVESTMENT TRANSFERS.
Generally, a Participant may transfer amounts between the Investment
Funds in accordance with procedures established by the Committee. The transfers
shall be made in accordance with Section 7.3 in ten percent (10%) increments (or
multiples of ten percent (10%) increments).
7.5 TENDER OFFERS.
As soon as practicable after the commencement of a tender offer or
exchange offer ("Offer") for shares of Employer Stock, shares of Viad common
stock ("Viad Stock"), or shares of The FINOVA Group Inc. common stock ("FINOVA
Stock"), the Committee shall use its reasonable best efforts to cause each
Participant (who has an Account allocated in whole or in part to Employer Stock,
Viad Stock, or FINOVA Stock) to be advised in writing of the terms of the Offer,
together with forms by which the Participant may instruct the Committee to
instruct the Trustee, or revoke such instruction, to tender shares credited to
his or her Account, to the extent permitted under the terms of any such Offer.
The Trustee shall follow the directions of the Committee but the Trustee shall
not tender shares for which no instructions are received. In advising
Participants of the terms of the Offer, the Committee may include statements
from the management of Viad setting forth its position with respect to the
Offer. The giving of instructions to the Trustee to tender shares of Employer
Stock, Viad Stock, or FINOVA Stock and the tender thereof shall not be deemed a
withdrawal or suspension from the Plan or a forfeiture of any portion of the
Participant's interest in the Plan. The number of shares of Employer Stock, Viad
Stock, or FINOVA Stock, as the case may be, to which a Participant may provide
instructions shall be the total number of shares credited to his or her
Account(s), whether or not the shares are vested, as of the close of business on
the day preceding the date on which the tender offer commences or such earlier
date which shall be
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<PAGE> 42
designated by the Committee, which the Committee, in its sole discretion, deems
appropriate for reasons of administrative convenience. Any securities received
by the Trustee as a result of a tender of shares hereunder shall be held, and
any cash so received shall be invested in short-term investments, for the
account of each Participant with respect to whom shares of Employer Stock, Viad
Stock, or FINOVA Stock were tendered pending any reinvestment by the Trustee, as
it may deem appropriate, consistent with the purposes of the Plan.
7.6 VOTING OF STOCK.
(A) Each Participant (whose Account has allocated to it any shares of
Employer Stock, Viad Stock, or FINOVA Stock) shall be entitled to instruct the
Committee to instruct the Trustee in writing how to vote, at each meeting of
shareholders, such shares of Employer Stock, Viad Stock, or FINOVA Stock, and to
revoke any such instruction, to the extent permitted under the terms of such
vote. Such instruction or revocation thereof shall apply to the total number of
shares of Employer Stock, Viad Stock, or FINOVA Stock credited to the
Participant's Accounts, whether or not vested, as of the date coinciding with or
immediately preceding the record date for the shareholders' meeting or such
earlier date which shall be designated by the Committee which the Committee, in
its sole discretion, deems appropriate for reasons of administrative
convenience. All the shares of Employer Stock, Viad Stock, or FINOVA Stock for
which no instructions are received shall be voted by the Trustee in a uniform
manner as a single block in accordance with the instructions received with
respect to a majority of such shares for which instruction is received, unless
the Trustee, in exercising its discretion as a fiduciary with respect to the
voting of such shares, determines that the interest of Participants and
Beneficiaries requires it to vote in a different way. The Committee shall use
its reasonable best efforts to cause each Participant (whose Account has
allocated to it any shares of Employer Stock, Viad Stock, or FINOVA Stock) to
receive such notices and informational statements as are furnished to the
shareholders in respect of the exercise of voting rights, together with forms by
which the Participant may instruct the Committee to instruct the Trustee, or
revoke such instruction, with respect to the vote of shares of Employer Stock,
Viad Stock, or FINOVA Stock credited to his or her Account.
(B) Subsequent to a Participant's investment in any Investment Fund
other than one comprised of Employer Stock, Viad Stock, or FINOVA Stock, all
proxies relating to the exercise of voting rights incidental to the ownership of
any asset which is held in such Investment Fund shall be passed through, either
directly or indirectly, to the Participant. Each Participant who so receives any
proxies shall be entitled to instruct the Committee to instruct the Trustee in
writing how to vote such proxies and to revoke any such instruction, to the
extent permitted under the terms of the proxy. Neither the Committee nor the
Trustee shall have authority to vote proxies for which no instructions have been
received.
7.7 SPECIAL RULES FOR FINOVA STOCK FUND.
A Participant who has a balance invested in common stock of The FINOVA
Group Inc. that is transferred to this Plan from the TRIM may retain such stock
in this Plan, but may not add to it by means of new investments of any sort.
This rule shall not limit a Participant's ability to transfer all or part of his
FINOVA Stock Account out of the FINOVA Stock Fund at such times as investment
changes are permitted pursuant to Section 7.4 and to have the amount so
transferred invested in other Investment Funds in accordance with the Plan rules
for Participant investment elections. As a result of this rule, a Participant
may not redirect any existing balance from other Investment Funds to the FINOVA
Stock Fund, or any dividends or other amounts that may be received (in a form
other than common stock of The FINOVA Group Inc.) for the Account of a
Participant with respect to an
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existing balance in the FINOVA Stock Fund, but such amounts shall instead be
promptly reinvested in other Investment Funds in accordance with the
Participant's current investment election for new contributions and funds
received by the Plan for the Participant's Account. If a Participant elects to
transfer all or any portion of his employer contribution subaccount in his
FINOVA Stock Account out of the FINOVA Stock Fund, such amount shall be
reinvested in Employer Stock and will be transferred and allocated to the
Participant's Employer Contribution Account.
7.8 SPECIAL RULES FOR VIAD STOCK FUND.
A Participant who has a balance invested in common stock of Viad that
is transferred to this Plan from the TRIM or the ESOP may retain such stock in
this Plan, but may not add to it by means of new investments of any sort. This
rule shall not limit a Participant's ability to transfer all or part of his Viad
Stock Account out of the Viad Stock Fund at such times as investment changes are
permitted pursuant to Section 7.4 and to have the amount so transferred invested
in other Investment Funds in accordance with the Plan rules for Participant
investment elections. As a result of this rule, a Participant may not redirect
any existing balance from other Investment Funds to the Viad Stock Fund, or any
dividends or other amounts that may be received (in a form other than common
stock of Viad) for the Account of a Participant with respect to an existing
balance in the Viad Stock Account, but such amounts shall instead be promptly
reinvested in other Investment Funds in accordance with the Participant's
current investment election for new contributions and funds received by the Plan
for the Participant's Account. If a Participant elects to transfer all or any
portion of his employer contribution subaccount in his Viad Stock Account out of
the Viad Stock Fund, such amount shall be reinvested in Employer Stock and will
be transferred and allocated to the Participant's Employer Contribution Account.
7.9 EXERCISE OF CONTROL.
(A) The Committee shall provide each Participant with the opportunity
to obtain sufficient information to make informed decisions with regard to
investment alternatives available under the Plan, and incidents of ownership
appurtenant to such investments. The Committee shall promulgate and distribute
to Participants an explanation that the Plan is intended to comply with Section
404(c) of ERISA and any relief from fiduciary liability resulting therefrom, a
description of investment alternatives available under the Plan, an explanation
of the circumstances under which Participants may give investment instructions
and any limitations thereon, along with all other information and explanations
required under Department of Labor Regulation Section 2550.404c-1(b)(2)(B)(1).
In addition, the Committee shall provide information to Participants upon
request as required by Department of Labor Regulation Section
2550.404c-1(b)(2)(B)(2). Neither the Employer, Committee, Trustee, nor any other
individual associated with the Plan or the Employer shall give investment advice
to Participants with respect to Plan investments. The providing of information
pursuant to this Article VII shall not in any way be deemed to be the providing
of investment advice, and shall in no way obligate the Employer, Committee,
Trustee or any other individual associated with the Plan or the Employer to
provide any investment advice.
(B) The Committee, pursuant to uniform and nondiscriminatory rules, may
charge each Participant's Accounts for the reasonable expenses of carrying out
investment instructions directly related to such Account, provided that each
Participant is periodically (not less than quarterly) informed of such actual
expenses incurred with respect to his or her respective Accounts.
(C) The Committee shall decline to implement any Participant
instructions if the instruction is inconsistent with any provisions of the Plan
or Trust Agreement or any investment
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direction policies adopted by the Committee from time to time. The Committee
also may decline to implement any Participant instructions to the extent
permitted by Department of Labor regulations issued under Section 404(c) of
ERISA. The Committee, pursuant to uniform and nondiscriminatory rules, may
promulgate additional limitations on investment instruction consistent with
Section 404(c) of ERISA from time to time.
(D) A Participant shall be given the opportunity to make independent
investment directions. No Plan fiduciary shall subject any Participant to
improper influence with respect to any investment decisions, nor shall any Plan
fiduciary conceal any non-public facts regarding a Participant's Plan investment
unless disclosure is prohibited by law. Plan fiduciaries shall remain completely
neutral in all regards with respect to Participant investment direction. A Plan
fiduciary may not accept investment instructions from a Participant known to be
legally incompetent, and any transactions with a fiduciary, otherwise permitted
under this Article VII and the uniform and nondiscriminatory rules regarding
investment direction promulgated by the Committee, shall be fair and reasonable
to the Participant in accordance with Department of Labor Regulation Section
2550.404c-1(c)(3).
7.10 ADJUSTMENT OF ACCOUNTS.
Adjustments pursuant to Section 5.2 shall be made on a separate fund
basis. Gains and Income or losses attributable to each Investment Fund shall be
allocable strictly to the Investment Fund and Accounts invested therein. Each
Investment Fund shall be invested in accordance with the provisions of the Plan
and the Trust Agreement.
7.11 LIMITATION OF LIABILITY AND RESPONSIBILITY.
The Trustee, the Committee and the Employer shall not be liable for
acting in accordance with the directions of a Participant pursuant to this
Article VII or for failing to act in the absence of any such direction. The
Trustee, the Committee and the Employer shall not be responsible for any loss
resulting from any direction made by a Participant and shall have no duty to
review any direction made by a Participant. The Trustee shall have no obligation
to consult with any Participant regarding the propriety or advisability of any
selection made by the Participant.
7.12 FORMER PARTICIPANTS AND BENEFICIARIES.
For purposes of this Article VII, the term "Participant" shall be
deemed to include former Participants and the Beneficiaries of any deceased
Participants.
ARTICLE VIII. - ADMINISTRATION OF THE PLAN
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.
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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 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.
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(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.
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.
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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. Benefits will begin upon receipt of a written claim in the
form and manner prescribed by the Committee. If an Employee, Participant,
Beneficiary, or any other person is dissatisfied with the determination of his
benefits, eligibility, participation, or any other right or interest under this
Plan, such person may file a written statement setting forth the basis of the
claim with the Committee in a manner prescribed by the Committee. In connection
with the determination of a claim, or in connection with review of a denied
claim, the claimant may examine this Plan and any other pertinent documents
generally available to Participants relating to the claim and may submit
comments in writing.
A written notice of the disposition of any such claim shall be
furnished to the claimant within thirty (30) days after the claim is filed with
the Committee, provided that the Committee or its designee may have an
additional period to decide the claim if it advises the claimant in writing of
the need for an extension and the date on which it expects to decide the claim.
The notice of the disposition of a claim shall refer, if appropriate, to
pertinent provisions of this Plan, shall set forth in writing the reasons for
denial of the claim if the claim is denied (including references to any
pertinent provisions of this Plan), and where appropriate shall explain how the
claimant can perfect the claim.
If the claim is denied, in whole or in part, the claimant shall also be
notified in writing that a review procedure is available. Thereafter, within
ninety (90) days after receiving the written notice of the Committee's or its
designee's disposition of the claim, the claimant may request in writing, and
shall be entitled to, a review meeting with the Committee or its designee to
present reasons why the claim should be allowed. The claimant shall be entitled
to be represented by counsel at the review meeting. The claimant also may submit
a written statement of his claim and the reasons for granting the claim. Such
statement may be submitted in addition to, or in lieu of, the review meeting
with the Committee or its designee. The Committee or its designee shall have the
right to request of, and receive from, a claimant such additional information,
documents, or other evidence as the Committee or its designee may reasonable
require. If the claimant does not request a review meeting within ninety (90)
days after receiving written notice of the Committee's or its designee's
disposition of the claim, the claimant shall be deemed to have accepted the
Committee's or its designee's written disposition, unless the claimant shall
have been physically or mentally incapacitated so as to be unable to request
review within the ninety (90) day period.
A decision on review shall be rendered in writing by the Committee or
its designee ordinarily not later than sixty (60) days after review, and a
written copy of such decision shall be delivered to the claimant. If special
circumstances require an extension of the ordinary period, the Committee or its
designee shall so notify the claimant. In any event, if a claim is not
determined within one hundred twenty (120) days after submission for review, it
shall be deemed to be denied.
To the extent permitted by law, a decision on review by the Committee
or its designee shall be binding and conclusive upon all persons whomsoever. To
the extent permitted by law,
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completion of the claims procedures described in this Section shall be a
mandatory precondition that must be complied with prior to commencing of a legal
or equitable action in connection with the Plan by a person claiming rights
under the Plan or by another person claiming rights through such a person. The
Committee or its designee, in its sole discretion, may waive those procedures as
a mandatory precondition to such an action.
8.9 APPLICATION AND FORMS FOR BENEFITS.
The Committee may require a Participant or Beneficiary to complete and
file with the Committee an application for a benefit on the forms approved by
the Committee, as a condition precedent to payment of benefits. The Committee
may rely upon all such information so furnished it, including the Participant's
or Beneficiary's current mailing address.
8.10 FACILITY OF PAYMENT.
Whenever, in the Committee's opinion, a person entitled to receive any
payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage his or
her financial affairs, the Committee may direct the Trustee to make payments to
such person or to his or her legal representative or to a relative or friend of
such person for his or her benefit, or the Committee may direct the Trustee to
apply the payment for the benefit of such person in such manner as the Committee
may direct the Trustee to apply the payment for the benefit of such person in
such manner as the Committee considers advisable. Any payment of a benefit or
installment thereof in accordance with the provisions of this Section shall be a
complete discharge of any liability for the making of such payment under the
provisions of the Plan.
8.11 INDEMNIFICATION OF THE COMMITTEE.
The Committee and the individual members thereof shall be indemnified
by the Employer and not from the Trust Fund against any and all liability
arising by reason of any act or failure to act made in good faith pursuant to
the provisions of the Plan, including expenses reasonably incurred in the
defense of any claim relating thereto.
ARTICLE IX. - MISCELLANEOUS
9.1 NONGUARANTEE OF EMPLOYMENT.
Nothing contained in the Plan shall be construed as a contract of
employment between the Employer and any Employee, or as a right of any Employee
to be continued in the Employment of the Employer, or as a limitation of the
right of the Employer to discharge any of its Employees, with or without cause.
9.2 RIGHTS TO TRUST ASSETS.
No Employee, Participant, or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund at any time, including upon
termination of his or her employment or otherwise, except as provided from time
to time under the Plan, and then only to the extent of the benefits properly
payable under the Plan to a Participant or Beneficiary out of the assets of the
Trust Fund. All payment of benefits as provided for the in Plan shall be made
solely out of the assets of the Trust Fund to the extent sufficient, and none of
the Fiduciaries or Employers shall be liable therefore in any manner.
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9.3 NON-ALIENATION.
(A) Except as permitted by the Plan in accordance with Code section
401(a)(13) and ERISA Section 206(d), no benefit payable at any time under the
Plan shall be subject to the debts or liabilities of a Participant or his or her
Beneficiary, and any attempt to alienate, sell, transfer, assign, pledge, or
otherwise encumber any such benefit, whether presently or thereafter payable,
shall be void. Subject to the foregoing exception, no benefit under the Plan
shall be subject in any manner to attachment, garnishment, or encumbrance of any
kind.
(B) In accordance with procedures consistent with Code Section 414(p)
that are established by the Committee (including procedures requiring prompt
notification of the affected Participant and each potential alternate payee of
the Plan's receipt of a domestic relations order and its procedures for
determining the qualified status of such order), judicial orders for purposes of
enforcing family support obligations or pertaining to domestic relations (which
orders do not alter the amount, timing or form of benefit other than to have it
commence at the earliest permissible date) shall be honored by the Plan if the
Committee determines that they constitute qualified domestic relations orders
within the meaning of Code Section 414(p) and ERISA Section 206(d).
9.4 NONFORFEITABILITY OF BENEFITS.
Subject only to the specific provisions of the Plan, nothing shall be
deemed to divest a Participant of his or her right to the nonforfeitable benefit
to which he or she becomes entitled in accordance with the provisions of the
Plan.
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER
10.1 AMENDMENTS.
The Company reserves the right to make from time to time any amendment
or amendments to the Plan which do not cause (i) any adverse consequences to any
Participant's rights in his or her Account balances and Funds in which such
balances are invested, or (ii) any part of the Trust Fund to be used for, or
diverted to, any purpose other than the exclusive benefit of Participants or
their Beneficiaries, provided, however, that the Company may make any amendment
it determines necessary or desirable, with or without retroactive effect, to
comply with the Code and other applicable law.
10.2 ACTION BY THE COMPANY.
Any action by the Company under the Plan may be by resolution of its
Board of Directors, or by any person or persons duly authorized by resolution of
said Board to take such action.
ARTICLE XI. - SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS
11.1 SUCCESSOR EMPLOYER.
In the event of the dissolution, merger, consolidation or
reorganization of an Employer, provision may be made in the sole discretion of
the Company by which the Plan and Trust will be continued by the successor; and,
in that event, such successor shall be substituted for Employer under the Plan.
The substitution of the successor shall constitute an assumption of Plan
liability by the successor and the successor shall have all of the powers,
duties and responsibilities of the Employer under the Plan.
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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:
(A) Each Participant would (if either this Plan or the other plan then
terminated) receive a benefit immediately after the merger, consolidation or
transfer which is equal or greater than the benefit he would have been entitled
to receive immediately before the merger, consolidation or transfer (if this
Plan had then been terminated); and the determination of such benefits shall be
made in the manner and at the time prescribed in regulations issued under ERISA;
(B) Resolutions of the Boards of Directors of the Employer under the
Plan, or of any new or successor Employer of the affected Participants, shall
authorize such transfer of assets; and, in the case of the new or successor
Employer of the affected Participants, its resolutions shall include an
assumption; of liabilities with respect to such Participants' inclusion in the
new Employer's plan; and
(C) Such other plan and trust are qualified under Sections 401(a) and
501(a) of the Code.
In addition to the foregoing, any merger, consolidation, or transfer of
assets described in this Section shall comply with applicable requirements of
Code Section 411(d)(6) to preserve optional forms of benefits and other valuable
rights that are legally protected.
ARTICLE XII. - PLAN TERMINATION
12.1 RIGHT TO TERMINATE.
In accordance with the procedures set forth in this Article, the
Company may terminate the Plan at any time in its entirety or with respect to
any Employer or group of Employees or Participants. The Board of Directors of an
Employer may terminate the Plan at any time with respect to its Employees or any
group of its Employees or Participants, provided such Employer has made all
contributions due to the Plan to the date of such termination.
12.2 PARTIAL TERMINATION.
Upon termination of the Plan by the Company or by the Employer with
respect to such Employer or a group of Employees or Participants of such
Employer, the Trustee shall, in accordance with the directions of the Committee,
allocate and segregate for the benefit of the Participants with respect to which
the Plan is being terminated the proportionate interest of such Participants in
the Trust Fund. The funds so allocated and segregated shall be used by the
Trustee to pay benefits to or on behalf of Participants in accordance with
Section 12.3.
12.3 LIQUIDATION OF THE TRUST FUND.
(A) Upon termination or partial termination of the Plan, the accounts
of all Participants affected thereby shall become fully vested, and the
Committee may direct the Trustee: (a) to continue to administer the Trust fund
and pay Account balances in accordance with Article VI to Participants affected
by the termination upon their Termination of Employment or to their
Beneficiaries upon such a Participant's death, until the Trust Fund has been
liquidated; or (b) to distribute the assets remaining in the Trust Fund, after
payment of any expenses properly chargeable
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thereto, to Participants and Beneficiaries in proportion to their respective
Account balances or rights thereto.
(B) In case the Committee directs liquidation of the Trust Fund
pursuant to (a) above, the expenses of administering the Plan and Trust, if not
paid by the Employer, shall be paid from the Trust Fund.
(C) The Trustee may delay distribution of assets under Section 12.3
pending receipt of written determination by the Internal Revenue Service that
the Plan is qualified upon termination.
ARTICLE XIII. - ADOPTION OF PLAN
13.1 ADOPTION AGREEMENT.
(A) Subject to the approval of the Company and consistent with the
provisions of ERISA and other applicable law, an Affiliate may adopt the Plan
for its Eligible Employees by entering into an Adoption Agreement in the form
and substance prescribed by the Committee. To the extent approved by the
Committee, each Affiliate may:
(1) Modify the definition of Eligible Employee set forth in
Section 2.1(V) hereof, with respect to its Employees; and
(2) Modify the definition of Compensation set forth in Section
2.1(O) hereof, with respect of its Employees.
Any such modification shall be reflected in the Adoption Agreement and
may be amended from time to time by a written supplement to the Adoption
Agreement with the approval of the Committee. Each Affiliate may determine the
level of Employer contributions to be made by the Affiliate to the Employer
Contribution Accounts of its Eligible Employees in each Plan Year.
(B) The Committee may prospectively require that all provisions of the
Plan be uniformly applied to all Affiliates, as set forth in the Plan,
notwithstanding any modification provisions in an Adoption Agreement. The
Company may prospectively revoke or modify any Affiliate's participation in the
Plan at any time and for any or no reason, without regard to the terms of any
Adoption Agreement, or terminate the Plan with respect to such Affiliate's
Employee Participants.
(C) By Execution of an Adoption Agreement (each of which by this
reference shall become a part of the Plan), the Affiliate agrees to be bound by
all the terms and conditions of the Plan, and delegates all authority to amend
or terminate the Plan, and to appoint and remove the Committee and Trustee, to
the Company.
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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
------------------------------------
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AMENDMENT TO
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
WHEREAS, Section 10.1 of The Dial Corporation Capital Accumulation Plan
(the "Plan") provides that the Board of Directors of The Dial Corporation may
amend the Plan at any time; and
WHEREAS, by resolution dated June 4, 1998, the Board of Directors
resolved to amend the Plan effective as of that date to define the Limitation
Year as the calendar year and to change the fiscal year-end for the Plan from
November 30 to December 31;
NOW, THEREFORE, in accordance with the resolution of the Board of
Directors dated June 4, 1998, the Plan is amended as follows, effective as of
such date:
1. Item (ddd) of Article II, Section 2.1 will be deleted and
replaced in its entirety with the following text:
(ddd) YEAR: The twelve (12) month period commencing on
December 1 and ending on November 30.
2. Item (eee) will be placed at the end of Article II, Section
2.1 with the following text:
(eee) LIMITATION YEAR: The 12-month period commencing on
January 1 and ending on December 31.
IN WITNESS WHEREOF, the foregoing was effective as of June 4, 1998.
THE DIAL CORPORATION
/s/ Malcolm Jozoff
---------------------------------
By: Malcolm Jozoff
Its: Chairman, President &
Chief Executive Officer
<PAGE> 54
AMENDMENT TO
THE DIAL CORPORATION CAPITAL ACCUMULATION PLAN
WHEREAS, Section 10.1 of The Dial Corporation Capital Accumulation Plan
(the "Plan") provides that the Board of Directors of The Dial Corporation may
amend the Plan at any time; and
WHEREAS, by resolution dated October 30, 1997, the Board of Directors
resolved to amend the Plan effective as of that date to establish a Retirement
Committee, to cause the Retirement Committee to be the "named fiduciary"
(within the meaning of Section 402(a) of the Employee Retirement Income
Security Act of 1974) of the Plan, and to vest in the Retirement Committee all
powers and duties in respect of the management and administration of the Plan;
NOW, THEREFORE, in accordance with the resolution of the Board of Directors
dated October 30, 1997, the Plan is amended as follows, effective as of such
date:
1. Paragraph (m) of Section 2.1 of the Plan is amended by deleting the
text thereof and substituting the following therefor:
"(m) Committee: The Retirement Committee appointed
to administer the Plan pursuant to Article VIII."
2. Paragraph (ak) of Section 2.1 of the Plan is amended by deleting the
phrase "all as described in Section 8.1" therein and substituting the phrase
"all as described herein" therefor.
3. Section 8.3 and 8.9 through 8.11 of Article VIII are renumbered as
Sections 8.8 through 8.11, and the remaining Sections of Article VIII are
deleted and replaced in their entirety with the following text:
Article VIII - Administration of the Plan
8.1 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
<PAGE> 55
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 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.
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<PAGE> 56
(e) To furnish the Company upon request, such reports with respect to the
administration of the Plan as are reasonable and appropriate.
(f) To employ such experts, counsel and agents, and to secure such accounting,
actuarial and other services as it may deem advisable in carrying out its
powers and duties under the Plan.
(g) To authorize the payment of Plan benefits due to Participants and
Beneficiaries.
(h) To appoint a subcommittee consisting of at least three persons, to serve
at the pleasure of and subject to the rules of the Retirement Committee, to
consider requests for hardship withdrawals and loans under the applicable
provisions of the Plan.
The Retirement Committee shall also have the powers and duties conferred upon
it elsewhere in the Plan. Except as may be otherwise provided in the Plan, the
decision of the Retirement Committee as to any dispute or question arising
hereunder, including questions of construction, interpretation and
administration, shall be final and conclusive.
8.3 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.
-3-
<PAGE> 57
(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 The Retirement Committee shall appoint a chairman and a secretary from
its members. Action by the Retirement Committee shall be taken by a vote of the
majority of its members present at a meeting at which a quorum is present or
signed by a majority of its members in writing without a meeting. A majority of
the members of the Retirement Committee present at a meeting duly called shall
constitute a quorum. The Retirement Committee shall make and maintain minutes of
each meeting and shall maintain other appropriate books and records. The
Retirement Committee may establish such rules as it deems necessary or desirable
for its own operations.
8.5 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 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
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<PAGE> 58
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 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.
IN WITNESS WHEREOF, the foregoing was executed this 31st day of July, 1998,
effective as of October 30, 1997.
THE DIAL CORPORATION
/S/ Malcolm Jozoff
--------------------------------
By: Malcolm Jozoff
Its: Chairman of the Board, President
and Chief Executive Officer
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