<PAGE>
As filed with the Securities and Exchange Commission on December ___, 1996
REGISTRATION NO. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------------
TMP WORLDWIDE INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3906555
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1633 BROADWAY, 33RD FLOOR, NEW YORK, NEW YORK 10019
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES (ZIP CODE))
-------------------------------------
TMP WORLDWIDE INC. 401(K) SAVINGS PLAN
(FULL TITLE OF THE PLAN)
ANDREW J. McKELVEY
CHAIRMAN OF THE BOARD AND PRESIDENT
TMP WORLDWIDE INC.
1633 BROADWAY, 33RD FLOOR, NEW YORK, NEW YORK 10019
(NAME AND ADDRESS OF AGENT FOR SERVICE)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE: (212) 977-4200
-------------------------------------
CALCULATION OF REGISTRATION FEE
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(2) PRICE FEE
- -------------------- ------------ ------------- -------- -------------
Common Stock, par
value of $.001
per share. . . . . . 300,000 shares $15.50 $4,650,000 $930.00
(1) This registration statement shall also cover any additional indeterminable
number of shares as may be required pursuant to the TMP Worldwide Inc.
401(k) Savings Plan in the event of a stock dividend, stock split,
recapitalization or other similar change in the Common Stock.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as amended
(the "Act") solely for the purpose of calculating the registration fee.
In addition, pursuant to Rule 416(c) under the Act, this registration
statement also covers an indeterminate amount of interests in the TMP 401(k)
Savings Plan to be offered or sold pursuant to the Plan, such interests
constituting separate securities required to be registered under the Act and not
requiring a registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified in Rule
428(b)(1) of the Act. Such documents and the documents incorporated by
reference herein pursuant to Item 3 of Part II hereof, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by TMP Worldwide Inc.
("Registrant") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) the description of Registrant's Common Stock contained in its
Registration Statement on Form 8-A as filed with the Commission on October
16, 1996 and all amendments thereto; and
(b) Registrant's Form S-1 Registration Statement, No. 333-12471,
filed September 23, 1996, as amended (the "Registration Statement").
In addition, all documents filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act") subsequent to the date of this filing and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part thereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant maintains: (i) a form of Underwriting Agreement entered
into in connection with the filing of the Registration Statement which provides
for, under certain circumstances, the Underwriters' indemnification of officers,
directors and controlling persons of the Registrant against certain liabilities,
which is incorporated herein by reference to Exhibit 1.1 of the Registration
Statement; (ii)
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Bylaws which limit personal liability of Registrant's directors, officers and
controlling persons, to the fullest extent permitted by the General Corporation
Law of the State of Delaware, which are incorporated herein by reference to
Exhibit 3.2 of the Registration Statement; and (iii) indemnification agreements
with its current directors and executive officers, which are incorporated herein
by reference to Exhibit 10.2 of the Registration Statement.
The Registrant maintains directors and officers liability insurance
for its directors and executive officers providing for $10 million of coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
(a) See Index to Exhibits.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth herein;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed herein or
any material change to such information in this registration
statement; provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated herein by reference;
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(2) that for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, New York on the 12 day of December, 1996.
TMP WORLDWIDE INC.
By: /s/Thomas G. Collison
------------------------------------
Thomas G. Collison
Principal Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Andrew J. McKelvey and Roxane Previty, or
either of them, his true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed by the following persons in the capacities and on the date(s)
indicated.
SIGNATURE TITLE DATE
- -------------------- ------------------------------- -------------------
/s/Andrew J. McKelvey
- ---------------------- Chairman of the Board, December 11, 1996
Andrew J. McKelvey President and Director
(principal executive officer)
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/s/Thomas G. Collison
- ---------------------- Vice Chairman
Thomas G. Collison (principal financial officer) December 11, 1996
/s/Roxane Previty
- ---------------------- Chief Financial Officer
Roxane Previty (principal accounting officer) December 11, 1996
/s/George R. Eisele
- ---------------------- Director December 11, 1996
George R. Eisele
/s/John R. Gaulding
- ---------------------- Director December 11, 1996
John R. Gaulding
/s/Graeme K. Howard
- ---------------------- Director December 11, 1996
Graeme K. Howard, Jr.
/s/Jean-Louis Pallu
- ---------------------- Director December 11, 1996
Jean-Louis Pallu
/s/John Swann
- ---------------------- Director December 11, 1996
John Swann
Pursuant to the requirements of the Act, the undersigned, the duly
authorized Administrative Committee of the TMP Worldwide Inc. 401(k) Savings
Plan, has duly caused this registration statement to be signed on behalf of said
plan, in the City of New York, New York, as of the ____ day of December, 1996.
TMP Worldwide Inc. 401(k) Savings Plan
By: /s/John R. Gaulding
--------------------------------
John R. Gaulding
(Member, Administrative Committee)
By: /s/John Swann
--------------------------------
John Swann
(Member, Administrative Committee)
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO.
4(a) The TMP Worldwide 401(k) Savings Plan
5 Opinion of Fulbright & Jaworski L.L.P.
23 Consent of Independent Certified Public Accountants
23.1 Consent of Independent Auditors
24 Power of attorney authorizing representatives to sign this
Registration Statement and any and all amendments (including
post-effective amendments) to this Registration Statement on
behalf of TMP Worldwide Inc. and certain directors and
officers thereof (included on signature page).
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TMP WORLDWIDE INC.
401(K) SAVINGS PLAN
----------------------------------------
(RESTATED AS OF OCTOBER 1, 1996)
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS................................................... 1
1.1. "Account"..................................................... 1
1.2. "Administrative Committee..................................... 1
1.3. "Affiliate"................................................... 1
1.4. "Beneficiary"................................................. 2
1.5. "Board"....................................................... 2
1.6. "Code"........................................................ 2
1.7. "Company"..................................................... 2
1.8. "Compensation................................................. 2
1.9. "Employee..................................................... 2
1.10. "Employer..................................................... 3
1.11. "Employer Matching Contributions.............................. 3
1.12. "ERISA"....................................................... 3
1.13. "Highly Compensated Employee"................................. 3
1.14. "Investment Fund"............................................. 3
1.15. "Non-Highly Compensated Employee"............................. 3
1.16. "Normal Retirement Date"...................................... 3
1.17. "Participant"................................................. 3
1.18. "Plan"........................................................ 4
1.19. "Plan Year"................................................... 4
1.20. "Service"..................................................... 4
1.21. "Trust"....................................................... 6
1.22. "Trustee"..................................................... 6
1.23. "Trust Fund".................................................. 6
1.24. "Valuation Date".............................................. 6
ARTICLE 2 PARTICIPATION................................................. 6
2.1. General Participation Requirement............................. 6
2.2. Re-employment Rules........................................... 7
ARTICLE 3 CONTRIBUTIONS................................................. 7
3.1. Participants' Elective Contributions.......................... 7
3.2. Nonelective Employer Contribution............................. 8
3.3. Employer Matching Contributions............................... 8
3.4. Rollover Contributions........................................ 9
3.5. Transfers from Other Plans.................................... 10
3.6. Distribution of Excess Deferrals.............................. 11
3.7. Return of Contributions....................................... 11
ARTICLE 4 LIMITATIONS ON CONTRIBUTIONS.................................. 12
4.1. Statutory Nondiscrimination Requirements...................... 12
4.2. Modification of Contribution Elections........................ 13
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4.3. Excess Elective Contributions................................. 14
4.4. Excess Employer Matching Contributions........................ 14
4.5. Other Limitations on Contributions and Benefits............... 15
ARTICLE 5 ACCOUNTS AND INVESTMENT FUNDS................................. 16
5.1. Maintenance of Accounts....................................... 16
5.2. Adjustment of Accounts........................................ 16
5.3. Establishment of Investment Funds............................. 17
5.4. Investment Directions......................................... 17
5.5. Voting or Tendering Company Stock............................. 18
ARTICLE 6 ELIGIBILITY FOR AND DISTRIBUTION OF BENEFITS.................. 20
6.1. Normal Retirement or Total Disability......................... 20
6.2. Other Termination of Employment............................... 20
6.3. Forfeitures................................................... 21
6.4. Special Vesting Rule.......................................... 22
6.5. Method of Payment............................................. 22
6.6. Required Commencement of Distributions........................ 23
6.7. Cashout of Small Benefits..................................... 24
6.8. Death......................................................... 24
6.9. Direct Rollover Requirments................................... 25
ARTICLE 7 IN-SERVICE WITHDRAWALS AND LOANS.............................. 27
7.1. Withdrawals After Age 591/2................................... 27
7.2. Hardship Withdrawals.......................................... 27
7.3. Withdrawal Requests........................................... 29
7.4. Loans......................................................... 29
7.5. Failure to Repay Loans........................................ 31
ARTICLE 8 TOP HEAVY PROVISIONS.......................................... 31
8.1. Effect of Top Heavy Status.................................... 31
8.2. Definitions and Special Rules................................. 32
ARTICLE 9 ADMINISTRATION OF PLAN........................................ 33
9.1. Organization of Administrative Committee and Procedural ters.. 33
9.2. Powers of Administrative Committee............................ 34
9.3. Operation of Administrative Committee......................... 34
9.4. Investment Powers of the Administrative Committee............. 35
9.5. Resignation or Removal........................................ 36
9.6. Records and Reports........................................... 36
9.7. Expenses...................................................... 36
9.8. Indemnification............................................... 36
9.9. Claim for Benefits............................................ 37
9.10. Review of Denied Claims....................................... 37
9.11. Standard of Judicial Review of Committee Actions.............. 38
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ARTICLE 10 TRUST FUND.................................................... 39
10.1. General....................................................... 39
10.2. No Diversion.................................................. 39
10.3. Benefits Provided Solely by Trust Fund........................ 39
10.4. Employer Securities........................................... 40
10.5. Appointment of Investment Manager............................. 40
ARTICLE 11 AMENDMENTS AND TERMINATION.................................... 41
11.1. Company May Amend Plan........................................ 41
11.2. Withdrawal of Participating Employer.......................... 42
11.3. Termination................................................... 42
11.4. Distributions Upon Termination................................ 42
11.5. Statutory Merger/Consolidation Rule........................... 43
ARTICLE 12 MISCELLANEOUS................................................. 43
12.1. No Rights Conferred........................................... 43
12.2. Benefits Limited to Trust Fund................................ 43
12.3. Spendthrift Provision......................................... 44
12.4. Prior Plans................................................... 44
12.5. Payments to Minors or Incompetents............................ 45
12.6. Headings...................................................... 45
12.7. Severability.................................................. 45
12.8. Construction.................................................. 46
APPENDIX A................................................................ 47
APPENDIX B................................................................ 48
APPENDIX C................................................................ 50
APPENDIX D................................................................ 51
APPENDIX E................................................................ 52
APPENDIX F................................................................ 54
APPENDIX G................................................................ 56
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TMP WORLDWIDE INC.
401(K) SAVINGS PLAN
INTRODUCTION
The TMP Worldwide Inc. 401(k) Savings Plan was originally adopted
as of January 1, 1992. The Plan was previously amended through December 20,
1994 in order to comply with provisions of applicable law. The Plan is hereby
amended and restated in order to permit the investment of Plan assets in common
stock of the Company and to incorporate other changes relating to Plan
administration.
ARTICLE 1
DEFINITIONS
Wherever used herein, the masculine includes the feminine, the
singular includes the plural, and the following terms have the following
meanings unless a different meaning is clearly required by the context.
1.1. "ACCOUNT" means any one or more of the bookkeeping accounts
established and maintained hereunder, representing a Participant's interest in
the Trust Fund.
1.2. "ADMINISTRATIVE COMMITTEE" means the administrative
committee appointed hereunder to administer the Plan or, if no such committee is
appointed or serving, the Company.
1.3. "AFFILIATE" means any entity (whether or not incorporated)
which, by reason of its relationship with the Company, is required to be
aggregated with the Company under Section 414(b), 414(c), 414(m) or 414(o) of
the Code.
<PAGE>
1.4. "BENEFICIARY" means any person entitled to receive benefits
under the Plan by reason of the death of a Participant, former Participant or
Beneficiary.
1.5. "BOARD" means the Board of Directors of the Company.
1.6. "CODE" means the Internal Revenue Code of 1986, as it now
exists and as it is hereafter amended.
1.7. "COMPANY" means TMP Worldwide Inc., and any predecessor or
successor thereto.
1.8. "COMPENSATION" means all cash compensation paid by an
Employer to an Employee during a Plan Year which is required to be reported as
wages on the Participant's Form W-2 and such additional amounts which are not
includable in the Participant's gross income by reason of the application of
Sections 125, 402(a)(8), or 402(h)(1)(B) of the Code, exclusive of bonuses,
overtime or other irregular compensation. Compensation in excess of $150,000 or
such greater amount as may be permitted by Section 401(a)(17) of the Code will
be disregarded for all purposes under the Plan.
1.9. "EMPLOYEE" means an individual who regularly performs
services for an Employer in an employer-employee relationship, OTHER THAN (a) an
individual who is a member of a group of employees covered by a collective
bargaining agreement unless such agreement specifically provides for
participation herein, (b) an individual who is a free-lance employee or who is a
leased employee within the meaning of Section 414(n)(2) of the Code and (c) an
individual who is a nonresident alien of and who receives no compensation from
sources within the United States.
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1.10. "EMPLOYER" means the Company and any Affiliate which adopts
the Plan with the consent of the Board.
1.11. "EMPLOYER MATCHING CONTRIBUTIONS" means matching
contributions made by an Employer with respect to Participants' Elective
Contributions in accordance with the provisions of the Plan.
1.12. "ERISA" means the Employee Retirement Income Security Act of
1974, as it now exists and as it is hereafter amended.
1.13. "HIGHLY COMPENSATED EMPLOYEE" means an Employee described in
Section 414(q) of the Code who is eligible to participate in the Plan.
1.14. "INVESTMENT FUND" means any one or more of the separate
investment funds designated by the Administrative Committee for investment of
the assets of the Trust Fund (including, without limitation, each separate fund
maintained by a registered investment company, if any, selected by the
Administrative Committee).
1.15. "NON-HIGHLY COMPENSATED EMPLOYEE" means an Employee who is
eligible to participate in the Plan and who is not a Highly Compensated Employee
(and for plan years beginning prior to 1997, who is not a family member of a
Highly Compensated Employee within the meaning of Section 414(q)(6)(B) of the
Code).
1.16. "NORMAL RETIREMENT DATE" means the later of the date on
which an Employee attains age 65, or the fifth anniversary of the date he or she
first became a Participant.
1.17. "PARTICIPANT" means an Employee participating in the Plan in
accordance with the provisions hereof.
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1.18. "PLAN" means the profit sharing plan as set forth herein and
any amendments thereto.
1.19. "PLAN YEAR" means each twelve-month period beginning January
1 and ending December 31.
1.20. "SERVICE" means active employment with the Company or an
Affiliate, subject to the following special rules:
(a) an individual will be deemed to be actively employed for the
first twelve months of an absence from work due to disability, sickness,
layoff, leave of absence or any other reason except voluntary termination
of employment, retirement, discharge or death;
(b) an individual will be deemed to be actively employed during
an absence from work due to voluntary termination of employment, retirement
or discharge if the individual returns to active employment and performs an
hour of service within twelve months from the date of the voluntary
termination, retirement or discharge (or, if the voluntary termination,
retirement or discharge occurs during a period of absence described in (a)
above, before the first anniversary of the date the earlier period of
absence began);
(c) an individual will be deemed to be actively employed during
a period of active duty with the armed forces of the United States (not
included in (a) or (b) above) if he or she returns to active employment and
performs an hour of service within the period provided by law for the
protection of his or her re-employment rights;
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(d) if an individual is absent from work for more than one year
because of the individual's pregnancy, the birth of the individual's child,
the adoption of a child by the individual, or the care of the individual's
newborn or newly adopted child, then, subject to an intervening voluntary
termination of employment or discharge, the individual will neither be
treated as absent from work nor credited with Service during the second
twelve months of that absence;
(e) if an individual is separated from Service before having any
vested interest in his or her Account attributable to Employer
contributions which are subject to a vesting condition and the period of
the separation is more than five years, then the period of his or her
pre-separation Service will be disregarded for all purposes hereof;
(f) if, before being fully vested in his or her Account, an
individual is separated from Service for more than five consecutive years,
then Service (if any) after such separation from Service will be
disregarded in determining the individual's vested interest in his or her
Account attributable to contributions made before the separation from
Service; and
(g) an individual's years of Service under the Plan will be the
sum of (a) the number of years of Service credited to an individual as of
September 30, 1996 under the terms of the Plan in effect on that date, plus
(b) the number of whole years (based upon 365 days in a year) of an
individual's Service after September 30, 1996, provided, however, that an
individual who has less than 365 days of Service in 1996 will be credited
with one year of Service with respect to
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that year if the individual completed at least 6 months of Service or 1,000
hours of service in 1996.
The period of an individual's Service will be measured in days; and one year of
Service will be the equivalent of 365 days of Service. An "hour of service" is
each hour for which an individual is directly or indirectly paid or entitled to
payment by the Company or an Affiliate for the performance of services.
1.21. "TRUST" means the trust established and maintained as part
of the Plan.
1.22. "TRUSTEE" means the person or persons (including a
corporation) appointed and acting as trustee of the Trust.
1.23. "TRUST FUND" means the assets of the Plan consisting of the
amounts held in the Investment Funds.
1.24. "VALUATION DATE" means the last day of each Plan Year and
such other date or dates as the Administrative Committee (acting in its absolute
discretion and in a nondiscriminatory manner) may determine for valuing any one
or more of the Investment Funds or the Trust Fund or a Participant's Account.
ARTICLE 2
PARTICIPATION
2.1. GENERAL PARTICIPATION REQUIREMENT. An Employee shall
automatically be a participant on October 1, 1996 if he or she was a Participant
on September 30, 1996. An Employee who is not automatically a Participant on
October 1, 1996 will become eligible to participate in the Plan on the first day
of the calendar
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quarter coincident with or next following the date he or she completes one year
of Service.
2.2. RE-EMPLOYMENT RULES. A former Employee who was a
Participant and who again becomes an Employee will again become a Participant on
the date on which he or she again completes an hour of Service as an Employee
provided, however, that a nonvested former Participant whose prior Service is
permanently disregarded (under the definition of Service) in determining the
individual's vested interest under the Plan will be treated as a new employee
when he or she returns to Service.
ARTICLE 3
CONTRIBUTIONS
3.1. PARTICIPANTS' ELECTIVE CONTRIBUTIONS.
(a) SALARY REDUCTION ELECTION. Each Employee who is eligible to
be a Participant may elect the percentage of his or her Compensation to be
withheld by the Employer on a before-tax basis and contributed to the Trust as
an Elective Contribution. The designated percentage must be a whole percentage
of Compensation and may not be more than 15%. The total amount of a
Participant's Elective Contributions for a calendar year may not be more than
$7,000 (adjusted as provided by Section 402(g)(1) of the Code).
(b) CONTRIBUTION TO TRUST. Subject to the requirements of
applicable law, the Employer will pay Elective Contributions to the Trustee as
soon as practicable after they are withheld from pay but no less frequently than
monthly. Each
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Participant's Elective Contributions will be credited to his or her Account in
accordance with the provisions hereof.
(c) PROCEDURAL RULES. Salary reduction elections must be made
on such forms and at such times, and may be prospectively modified, revoked or
suspended at such times and in accordance with such procedures as may be
prescribed or permitted by the Administrative Committee acting in a uniform and
nondiscriminatory manner. A Participant's election will terminate when the
Participant ceases to be an Employee, and a new withholding election must be
filed if he or she wishes to resume Elective Contributions after again becoming
an Employee.
3.2. NONELECTIVE EMPLOYER CONTRIBUTION. For any Plan Year, the
Company, acting in its discretion, may require any Employer to contribute to the
Trust for allocation to the Accounts of one or more of such Employer's
Non-Highly Compensated Employees an amount necessary to enable the Plan to
satisfy Section 401(k)(3) of the Code for such Plan Year. Any such
contributions will be treated as Elective Contributions for all purposes hereof
except for the purpose of determining eligibility for and the amount of any
Employer Matching Contributions.
3.3. EMPLOYER MATCHING CONTRIBUTIONS. For each Plan Year, the
Employer will make a matching contribution with respect to the Elective
Contributions made by each Participant who is employed by an Employer on the
last day of such Plan Year in an amount equal to the lesser of (i) the amount of
the Participant's Elective Contributions for the Plan Year or (ii) an amount
equal to 2% of the Participant's Compensation for the Plan Year. Amounts that
are forfeited during the Plan Year (to the extent not used to restore a prior
forfeiture for a re-employed Participant in
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accordance with the provisions hereof) shall be placed in a suspense account and
applied to satisfy expenses incurred in connection with the administration of
the Plan with any remaining amounts being applied to reduce the amount of
Employer Matching Contributions otherwise required to be made hereunder. For
Plan Years beginning after December 31, 1995, Employer Matching Contributions
will be paid to the Trustee in the form of Company common stock, and will be
credited to the Participants' Accounts in accordance with the provisions hereof
as of the last day of the Plan Year of reference. The number of shares
comprising the Employer Matching Contributions for a Plan Year will be
determined on the basis of the fair market value of the shares as of the close
of the last business day of the Plan Year.
3.4. ROLLOVER CONTRIBUTIONS. Subject to such rules as may be
established by the Administrative Committee, an Employee who is eligible to
participate in the Plan may make a rollover contribution to the Trust of (a)
part or all of a distribution received from another employee benefit trust
described in Section 401(a) of the Code and exempt from tax under Section 501(a)
of the Code, (b) part or all of a distribution received from a qualified
employee annuity plan described in Section 403(a)(1) of the Code which meets the
requirements of Section 404(a)(2) of the Code, or (c) the entire amount received
(including money and any other property) from an individual retirement account.
Any rollover contribution must meet the income deferral requirements of the Code
(including the requirement that the rollover contribution be made no later than
60 days after the day on which the Participant received the payment or
distribution from the other plan or account in the case of a rollover which is
not a direct rollover from a transferor plan). The Administrative Committee
and/or
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the Trustee may require an eligible Employee to furnish any relevant information
or documentation and to make any reasonable representations concerning the
distribution from the prior plan or account before deciding whether to accept a
rollover contribution. The amount of a rollover contribution shall be credited
to the eligible Employee's Account and shall equal the sum of the cash plus the
fair market value of the property transferred (subject to the right of the
Administrative Committee or the Trustee to refuse to accept property),
determined as of the date the property is received by the Trustee. For purposes
of this section, rollover contributions shall also include direct rollovers as
described in Section 401(a)(31) of the Code.
3.5. TRANSFERS FROM OTHER PLANS. Subject to the provisions of
applicable law, the Administrative Committee may permit assets of other
qualified plans to be transferred to the Trust in a plan-to-plan transfer other
than a direct rollover. The plan administrator and/or plan trustee of a
transferor plan will furnish a breakdown of the assets being transferred so that
those assets can be properly allocated to corresponding Accounts established
hereunder. The Administrative Committee shall take such action as may be
necessary or appropriate in order to separately account for the assets of a
transferror plan. The accrued benefits of a transferror plan's participants and
the optional forms of benefit available to those participants with respect to
the transferred assets will be preserved hereunder to the extent required by the
provisions of applicable law. Any specific requirements applicable to balances
transferred from another plan will be set forth in the appendices annexed
hereto. If assets are transferred to the Trust from the trustee of a trust
maintained under another plan and if a determination is subsequently made that
the transferor plan is
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not qualified under Section 401(a) of the Code or that the asset transfer is
otherwise not permissible, then the assets so transferred, together with
earnings (or reduced by losses), will be returned and will be deemed to have
been held by the Trustee in separate trust and not as part of the Trust Fund.
3.6. DISTRIBUTION OF EXCESS DEFERRALS. If, on or before March 1
of any year, a Participant notifies the Administrative Committee that all or
part of the Elective Contributions made for his or her benefit during the
preceding taxable year represents an excess deferral within the meaning of
Section 402(g) of the Code, then the Administrative Committee will cause the
amount of such excess deferral to be distributed to the Participant by the April
15 following such notification.
3.7. RETURN OF CONTRIBUTIONS. If a contribution by an Employer
to the Trust is (a) made by reason of a good faith mistake of fact, or (b)
believed by the Employer in good faith to be deductible under Section 404 of the
Code but the deduction is disallowed, then the Trustee shall return to the
contributing Employer the amount of the mistaken or nondeductible contribution.
In no event may the return of an Employer contribution cause the value of a
Participant's interest in the Trust to be reduced to an amount which is less
than the amount it would have been had the mistaken or nondeductible
contribution not been made. The return of a contribution hereunder must be made
within one year after the mistaken contribution is made or the deduction is
disallowed, as the case may be.
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ARTICLE 4
LIMITATIONS ON CONTRIBUTIONS
4.1. STATUTORY NONDISCRIMINATION REQUIREMENTS.
(a) ELECTIVE CONTRIBUTIONS. Elective Contributions for a Plan
Year must satisfy either of the following tests:
(1) the average of the individual ratios (expressed as
percentages) of Elective Contributions to Compensation (the "deferral
percentages") for the Plan Year for all Highly Compensated Employees is not
more than 125% of the average of the deferral percentages for all
Non-Highly Compensated Employees; or
(2) the average of the deferral percentages for all Highly
Compensated Employees is not more than twice the average of the deferral
percentages for all Non-Highly Compensated Employees, AND the average of
the deferral percentages for all Highly Compensated Employees does not
exceed the average of the deferral percentages for all Non-Highly
Compensated Employees by more than 2%.
Subject to the provisions of applicable law, the Administrative Committee may
treat Employer Matching Contributions for a Plan Year as Elective Contributions
if and to the extent such treatment would enable the Plan to satisfy the
provisions of this Section for the Plan Year and solely for that purpose.
(b) EMPLOYER MATCHING CONTRIBUTIONS. Employer Matching
Contributions for a Plan Year must satisfy either of the following tests:
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(1) the average of the individual ratios (expressed as
percentages) of the Employer Matching Contributions to Total Compensation
(the "contribution percentages") for the Plan Year for all Highly
Compensated Employees is not more than 125% of the average of the
contribution percentages for all Non-Highly Compensated Employees; or
(2) the average of the contribution percentages for all Highly
Compensated Employees is not more than twice the average of the
contribution percentages for all Non-Highly Compensated Employees, AND the
average of the contribution percentages for all Highly Compensated
Employees does not exceed the average of the contribution percentages for
all Non-Highly Compensated Employees by more than 2% (provided, however,
that this clause 2 will not apply to the extent required by law in order to
prevent prohibited multiple use of the 200%/2% deferral percentage and
contribution percentage nondiscrimination tests).
Subject to the provisions of applicable law, the Administrative Committee may
treat Elective Contributions for a Plan Year as Employer Matching Contributions
if and to the extent such treatment would enable the Plan to satisfy the
provisions of this Section and solely for that purpose.
4.2. MODIFICATION OF CONTRIBUTION ELECTIONS. The Administrative
Committee may modify a Participant's salary reduction election in order to
enable the Plan to satisfy the limitations of applicable law with respect to
Elective Contributions and Employer Matching Contributions, including the
limitations prescribed by Sections 401(k)(3), 401(m), 402(g)(1) and 415 of the
Code. The modification of a Participant's
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election may not result in increased Elective Contributions for the Participant
without his or her consent.
4.3. EXCESS ELECTIVE CONTRIBUTIONS. If the average of the
deferral percentages for Highly Compensated Employees for a Plan Year exceeds
the amount permitted for that Plan Year, then the excess will be eliminated in
the manner provided in this Section. First, in accordance with the provisions
of applicable law, the deferral percentages of some or all of the Highly
Compensated Employees will be reduced until the average of the deferral
percentages for the Highly Compensated Employees satisfies one of the
nondiscrimination tests. Second, the amount of each Highly Compensated
Employee's excess Elective Contributions will be determined based upon the
reduction of his or her deferral percentage in accordance with the preceding
sentence. Third, the amount of each Highly Compensated Employee's Elective
Contributions, as so determined, together with income or loss thereon, will be
distributed to him or her as soon as practicable, but in no event later than the
last day of the Plan Year following the Plan Year for which the excess amount
was contributed.
4.4. EXCESS EMPLOYER MATCHING CONTRIBUTIONS. If the average of
the contribution percentages for Highly Compensated Employees for a Plan Year
exceeds the amount permitted for that Plan Year, then the excess will be
eliminated in the manner provided in this Section. First, in accordance with
the provisions of applicable law, the contribution percentages of some or all of
the Highly Compensated Employees will be reduced until the average of the
contribution percentages for the Highly Compensated Employees satisfies the
applicable nondiscrimination test. Second, the amount of each Highly
Compensated Employee's excess Employer Matching
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Contributions will be determined based upon the reduction of his or her
contribution percentage in accordance with the preceding sentence. Third, the
amount of the Employer Matching Contributions made for each Highly Compensated
Employee as so determined, together with income or loss thereon, will be
distributed to him or her and the nonvested portion shall be forfeited and
placed in a suspense account and applied in accordance with Section 3.3 of the
Plan. The amounts determined under this Section will be paid as soon as
practicable, but in no event later than the last day of the Plan Year following
the Plan Year for which the excess amount was contributed.
4.5. OTHER LIMITATIONS ON CONTRIBUTIONS AND BENEFITS. The annual
addition to a Participant's Accounts for any limitation year, when added to the
annual additions to his or her accounts under all other defined contribution
plans (if any) maintained by the Company or an Affiliate for such year, may not
exceed the lesser of (a) $30,000 (or, if greater, one-fourth of the limitation
in effect for the Plan Year under Section 415(b)(1)(A) of the Code), and (b) 25
percent of the Participant's compensation for the year (all as determined in
accordance with Section 415 of the Code). If an Employer or an Affiliate
maintains a defined benefit pension plan, a Participant's benefits under that
plan will be reduced in lieu of a reduction of annual additions under this Plan
if and to the extent necessary to comply with the requirements of Section 415(e)
of the Code. For the purposes of applying Section 415 of the Code, the
limitation year will be the calendar year.
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ARTICLE 5
ACCOUNTS AND INVESTMENT FUNDS
5.1. MAINTENANCE OF ACCOUNTS. The Administrative Committee will
establish and maintain a separate Account for each Participant to reflect the
Participant's interest in the Trust attributable to Employer contributions. The
Administrative Committee will also maintain or cause to be maintained such other
Accounts or sub-accounts as the Administrative Committee deems necessary or
desirable in order to carry out the intent and purposes of the Plan or to comply
with applicable law. Each Participant's Accounts will be credited, charged and
adjusted in accordance with the provisions hereof.
5.2. ADJUSTMENT OF ACCOUNTS. As of each Valuation Date with
respect to an Investment Fund or a Trust Fund, as the case may be, each
Participant's Accounts will be adjusted to reflect changes in the value of the
Participant's interest in the Investment Fund or Trust Fund since the last
Valuation Date. Unless the Administrative Committee, acting in a uniform and
equitable manner, determines otherwise, such adjustment shall be made as
follows:
(a) first, the value of each Account will be adjusted as of the
preceding Valuation Date to reflect distributions, transfers made
thereto and withdrawals made therefrom since that Valuation Date;
(b) second, each Account will be adjusted to reflect its
proportionate share (based upon the adjusted Account values as of
the
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preceding Valuation Date) of the net increase or decrease in the
fair market value of the Investment Fund or the Trust Fund since
the last Valuation Date; and
(c) third, as of each Valuation Date, each Participants' Account
will be credited with the contributions (and transfers) made for or
on behalf of the Participant as of, or for the period ending on,
such Valuation Date.
The fair market value of the Trust Fund or any Investment Fund will be
determined with regard to expenses incurred by or equitably charged to such
Fund.
5.3. ESTABLISHMENT OF INVESTMENT FUNDS. The Trust Fund will be
segregated into one or more separate Investment Funds as shall be established at
the direction of the Administrative Committee, including, without limitation,
one or more fixed income funds, one or more equity investment funds, and a fund
invested entirely in common stock of the Company. Except as otherwise provided
herein with respect to the Company stock portion of the Participants' Employer
Matching Contribution Accounts, amounts contributed or accepted pursuant to the
Plan will be invested and re-invested in the separate Investment Funds in
accordance with the Participants' and Beneficiaries' elections.
5.4. INVESTMENT DIRECTIONS. Each Participant and Beneficiary
will direct the investment and reinvestment of the amounts in and/or
subsequently contributed to his or her Accounts among the available Investment
Funds. Investment directions may be given in such manner, at such times and
subject to such conditions as may be prescribed by the Administrative Committee
(or its designee). In the absence of a
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properly-transmitted investment direction, the amounts in and/or subsequently
contributed to a Participant's (or Beneficiary's) Accounts will be invested in a
money market or other short term fixed income Investment Fund designated for
this purpose by the Administrative Committee. Notwithstanding anything to the
contrary contained herein, unless otherwise determined by the Board, common
stock of the Company contributed to the Plan as an Employer Matching
Contribution will be credited to a separate subaccount, will remain invested in
Company common stock and will not be subject to the investment direction and
investment transfer provisions hereof.
5.5. VOTING OR TENDERING COMPANY STOCK.
(a) GENERAL MATTERS. Each Participant (or, in the event of his or
her death, his or her Beneficiary) shall have the right to instruct the Trustee
in writing as to the manner in which to vote the shares of Company common stock
held in his or her Accounts on each matter brought before an annual or special
shareholders' meeting of the Company. The Trustee shall vote any Company common
stock as to which timely instructions have not been received in the same
proportion as directed shares are voted. The Company shall use its best efforts
to timely distribute or cause to be distributed to each Participant (or
Beneficiary) the information distributed to shareholders of the Company in
connection with any shareholders' meeting, together with a form requesting
confidential instructions to the Trustee on how such shares of Company common
stock shall be voted on each such matter. Upon timely receipt of such
instructions, the Trustee shall, on each such matter, vote as directed the
appropriate number of shares (including fractional shares) of Company common
stock.
(b) TENDER OF SHARES. Each Participant (or, in the event of his
or her death,
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his or her Beneficiary) shall have the right to instruct the Trustee in writing
as to the manner in which to respond to a tender or exchange offer with respect
to shares of Company common stock held in his or her Accounts. The Company
shall use its best efforts to timely distribute or cause to be distributed to
each present or former Participant (or Beneficiary) the information distributed
to shareholders of the Company in connection with any tender or exchange offer.
Upon timely receipt of such instructions, the Trustee shall respond as
instructed with respect to such shares of such Company common stock. If, and to
the extent that, the Trustee shall not have received timely instructions from
any individual given a right to instruct the Trustee with respect to his or her
shares, such individual shall be deemed to have timely instructed the Trustee
not to tender or exchange such shares.
(c) CONFIDENTIALITY. The voting and tender instructions received by the
Trustee from individual Participants (or Beneficiaries) shall be held by the
Trustee in strict confidence and shall not be divulged or released to any
person, including employees, officers and directors of the Company or any
Affiliate; provided, however, that, to the extent necessary for the operation of
the Plan, such instructions may be relayed to or by the Trustee to or from a
recordkeeper, auditor or other person providing services to the Plan if such
person (1) is not the Company, an Affiliate or any employee, officer or director
thereof, and (2) agrees not to divulge such instructions to any other person,
including employees, officers and directors of the Company and its affiliates.
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ARTICLE 6
ELIGIBILITY FOR AND DISTRIBUTION OF BENEFITS
6.1. NORMAL RETIREMENT OR TOTAL DISABILITY. A Participant who
retires at or after his or her Normal Retirement Date or whose employment
terminates by reason of total disability will be entitled to receive 100% of his
or her Accounts determined as of the Valuation Date coincident with or next
preceding the date of distribution (and adjusted for contributions and
withdrawals since that Valuation Date). For this purpose, total disability
means the inability of a participant to perform the duties of any occupation for
which he or she is reasonably suited by reason of a physical or mental illness
or disease which is expected to result in death or to last indefinitely.
Subject to the provisions hereof and of applicable law, distribution of the
retired or disabled Participant's Accounts will be made as soon as practicable
after his or her retirement or termination of employment. A retired or disabled
Participant's Accounts will continue to be invested as part of the Trust Fund
and will continue to be adjusted in accordance with the provisions hereof until
the distribution thereof is completed.
6.2. OTHER TERMINATION OF EMPLOYMENT. A Participant whose
employment is terminated for any reason (other than death or total disability)
prior to his or her Normal Retirement Date will be entitled to receive the sum
of (a) 100% of his or her Accounts attributable to Elective Contributions,
rollovers and transfers from another qualified plan, plus (b) the vested portion
of his or her Accounts attributable to Employer Matching Contribution determined
under the following vesting schedule
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as of the Valuation Date coincident with or immediately preceding the
distribution date (adjusted for contributions and withdrawals since that
Valuation Date), based upon the number of the Participant's years of Service:
Years of Service Percentage Vested
less than 2 0%
2 40%
3 60%
4 80%
5 or more 100%
Subject to the provisions hereof and of applicable law, the distribution of a
terminated Participant's vested Accounts will be made at such time as the
Participant elects. A terminated Participant's vested Accounts will continue to
be invested as part of the Trust Fund and will continue to be adjusted in
accordance with the provisions hereof until the distribution of the Accounts is
completed.
6.3. FORFEITURES. If a Participant's Service is severed before
the completion of five years of Service, then the nonvested portion of the
Participant's Account will be forfeited when the vested portion of the
Participant's Account is distributed or, if earlier, on the fifth anniversary of
the date the Participant was last credited with Service. If (a) a forfeiture
arises with respect to a former Participant who receives a distribution of the
vested portion of his or her Account because of a termination of employment, (b)
the former Participant returns to Service within five years from the date of his
or her separation from Service, and (c) the former Participant repays the amount
of the prior distribution to the Plan within the earliest time permitted by
Section 411(a)(7)(C) of the Code, then the Employer will restore the amount of
the forfeiture attributable to such termination of employment to the
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Participant's Account. For purposes of the preceding sentence, if the former
Participant's vested percentage determined under the Plan's vesting schedule is
zero, then the Participant will be deemed to have received a distribution of the
vested portion of his or her Account at the time of his or her termination of
employment; and the former Participant will be deemed to have repaid the deemed
distribution to the Plan at the expiration of the repayment period permitted in
Section 411(a)(7)(C) of the Code. The source of the restoration will be other
forfeitures and, to the extent necessary, additional Employer contributions.
Restoration of a prior forfeiture will be credited to the Participant's Account
as soon as practicable after it is paid or otherwise made available to the Plan.
6.4. SPECIAL VESTING RULE. If a distribution or withdrawal is
made to or by a Participant from an Account which is less than 100% vested
(including, without limitation, an Account that has been restored pursuant to
the preceding Section), then unless and until the Account becomes 100% vested,
the vested portion of the Account will be determined in accordance with the
following formula: P(AB+D) D, where P is the applicable percentage determined
under the Plan's vesting schedule; AB is the Account balance and D is the amount
of the prior distribution or withdrawal.
6.5. METHOD OF PAYMENT. Except as otherwise required by
applicable law, distribution of a Participant's Accounts will be made in the
form of a single sum payment. Payments may be made in cash or in kind or partly
in each, as determined by the Administrative Committee acting in its discretion
in a uniform and nondiscriminatory manner. To the extent required by applicable
law, in the case of a Participant's Account attributable to a transfer from
another qualified plan, the
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Administrative Committee will make available such optional payment methods and
shall comply with such election and other administrative procedures as may be
necessary in order to comply with the provisions of applicable law, including,
without limitation, Sections 401(a)(11), 401(a)(17) and 411(d)(6) of the Code
and regulations thereunder. Special payment requirements applicable to
transferred balances will be set forth in the appendices annexed hereto.
6.6. REQUIRED COMMENCEMENT OF DISTRIBUTIONS. Unless a
Participant elects an earlier distribution, payment of a Participant's vested
Accounts will be made at or as soon as practicable after the Participant's
Normal Retirement Date, or, if later, the date of the Participant's termination
of employment with the Company and its Affiliates (but in no event later than
the 60th day of the year following the year in which such date occurs) or death.
Payment of an active Participant's Accounts (other than the Accounts of a
Five-percent Owner as defined in Code Section 416) must begin no later than the
April 1 of the calendar year following the later of (1) the calendar year in
which the Participant attains age 701/2 or (2) the calendar year in which the
Participant retires. Payment of Accounts belonging to an active Participant who
is a Five-percent Owner (and for Plan Years beginning prior to 1997, Accounts
belonging to any active Participant) must begin no later than the April 1
following the close of the calendar year in which the Participant attains age
701/2. Prior to the Participant's termination of employment, required payments
from an active Participant's Accounts will be made at such times and in such
amounts as are necessary to satisfy the minimum distribution requirements of
Section 401(a)(9) of the Code and regulations thereunder.
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6.7. CASHOUT OF SMALL BENEFITS. Notwithstanding anything to the
contrary contained herein, if the value of a Participant's (or deceased
Participant's) Accounts is less than $3,500, then the total amount of those
Accounts will be distributed to the Participant (or Beneficiary) in a single sum
payment as soon as practicable after the Participant's termination of employment
or death.
6.8. DEATH.
(a) DISTRIBUTION OF ACCOUNT. If a Participant dies before the
complete distribution of his or her Accounts, then the deceased Participant's
Beneficiary will be entitled to receive a single sum payment of the balance in
those Accounts determined as of the Valuation Date coincident with or next
preceding the date of distribution (and adjusted for contributions and
withdrawals since that Valuation Date). Subject to the provisions hereof and of
applicable law, the distribution of a deceased Participant's Accounts will be
made as soon as practicable after the deceased Participant's death (but in no
event later than one year thereafter). A deceased Participant's Account will
continue to be invested as part of the Trust Fund and will continue to be
adjusted in accordance with the provisions hereof until the distribution of
those Accounts is completed.
(b) DESIGNATION OF BENEFICIARY. Except as provided in
subsection (c) of this Section, an individual may designate a Beneficiary by
written notice filed with the Administrative Committee and may change his or her
Beneficiary at any time by designating a new Beneficiary in the same manner, and
no notice need be given to any prior designated Beneficiary. If no designated
Beneficiary shall survive a deceased
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Participant or Beneficiary, then payment of the deceased Participant's Account
will be made to the deceased Participant's estate.
(c) SPOUSE MUST BE BENEFICIARY OF DECEASED MARRIED PARTICIPANT.
The surviving spouse of a deceased married Participant will be the Participant's
Beneficiary UNLESS the surviving spouse consents to the designation of another
Beneficiary. The spouse's consent must be in writing and must acknowledge the
effect of the Participant's designation, and the spouse's signature must be
witnessed by a notary public or an appropriate Plan official. Spousal consent
to a different Beneficiary designation will not be required if (1) the
Participant's spouse cannot be located, (2) the spouse's consent cannot be
obtained because of any other circumstances permitted by applicable law, or (3)
the Participant's spouse has not been married to the Participant throughout the
one-year period ending on the earlier of the date of the Participant's death or
the date on which distribution of the Participant's Account begins.
6.9. DIRECT ROLLOVER REQUIREMENTS. 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 Administrative Committee in accordance with applicable law, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover. For
the purposes of this Section, the following terms shall have the following
meanings:
(a) 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
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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 includable in gross income (determined
without regard to the exclusion for net unrealized appreciation
with respect to employer securities).
(b) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan is an
individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Section 408(b)
of the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of the Code,
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) 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.
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(d) DIRECT ROLLOVER. A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
If a distribution is one to which Sections 401(a)(11) and 417 of the Code do not
apply, the distribution may commence less than 30 days after the required direct
rollover notice is given, provided that (a) the Participant is notified that he
or she has at least 30 days to consider the decision of whether to elect a
distribution and, if applicable, a particular distribution option, and (b) the
Participant, after receiving the notice, affirmatively elects a distribution
and, if applicable, a particular distribution option.
ARTICLE 7
IN-SERVICE WITHDRAWALS AND LOANS
7.1. WITHDRAWALS AFTER AGE 591/2. Subject to provisions hereof
and applicable law, in accordance with rules established by the Administrative
Committee, a Participant may withdraw all or any portion of his or her Account
attributable to Elective Contributions after reaching age 591/2, determined as
of the Valuation Date coincident with or next preceding the date of distribution
(as adjusted for contributions and withdrawals since that Valuation Date).
7.2. HARDSHIP WITHDRAWALS.
(a) GENERAL. Subject to the provisions hereof and of applicable
law, the Administrative Committee, acting in a uniform and nondiscriminatory
manner, may permit Participants to make hardship withdrawals of that portion of
their vested Account balances attributable to Elective
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Contributions and pre-1996 Employer Matching Contributions, other than any
earnings credited to the Participant's Elective Contributions. Except as
otherwise provided in this Section, a Participant may make a hardship withdrawal
only if the withdrawal (1) is made on account of an immediate and heavy
financial need (as described in subsection (b) below) and (2) is necessary to
satisfy such financial need (as determined under subsection (c) below). If the
amount in a Participant's Account is invested in more than one Investment Fund,
then withdrawals from the Account will be allocated pro-rata among the
applicable Investment Funds (except Company common stock attributable to
post-1995 Employer Matching Contributions).
(b) IMMEDIATE AND HEAVY FINANCIAL NEED. For purposes of
subsection (a) of this Section, a proposed withdrawal will be deemed to be on
account of an immediate and heavy financial need if the proceeds will be used to
pay (1) medical expenses of the Participant or of the Participant's spouse or
dependents; (2) costs (exclusive of mortgage payments) directly related to the
purchase of the Participant's principal residence; (3) tuition and related
education fees for the next twelve months of post-secondary education for the
Participant or for the spouse, children or other dependents of the Participant;
(4) amounts required to prevent the eviction of the Participant from, or the
foreclosure of a mortgage on, the Participant's principal residence; or (5) such
additional expenses as may be specified by the Internal Revenue Service as a
deemed immediate and heavy financial need for this purpose.
(c) AMOUNTS NECESSARY TO MEET THE FINANCIAL NEED. A withdrawal
will be deemed to be necessary to satisfy an immediate and heavy financial need
of a Participant if (1) the amount of the withdrawal is not more than the amount
of the immediate and heavy financial need; and (2) the Participant has obtained
all loans,
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distributions and withdrawals (other than hardship withdrawals) available under
the Plan and any other plan maintained by the Company or an Affiliate.
(d) SUSPENSION OF FUTURE ELECTIVE CONTRIBUTIONS. If pursuant to
this Section, a Participant makes a withdrawal on account of an immediate and
heavy financial need, then, notwithstanding any other provision to the contrary
contained in the Plan or in any other plan maintained by the Employer or an
Affiliate, (1) the Participant's Elective Contributions (pre-tax and after-tax)
under the Plan and under any such other plan will be suspended until the first
day of the calendar quarter next following the date which is twelve months after
the date of the withdrawal, and (2) the Participant's elective pre-tax deferral
limitation under Section 402(g)(1) of the Code for the taxable year following
the year of the withdrawal will be reduced by the amount, if any, of the
Participant's Elective Contributions under the Plan (and elective pre-tax
deferrals under any other plan maintained by the Employer or an Affiliate)
during the year in which the withdrawal is made.
7.3. WITHDRAWAL REQUESTS. Requests for in-service withdrawals
must be filed with the Administrative Committee on forms prescribed or approved
for that purpose. Withdrawal amounts will be paid to a Participant as soon as
practicable after a properly completed withdrawal request is received and
approved by the Administrative Committee.
7.4. LOANS.
(a) GENERAL. Upon the application of a Participant, the
Administrative Committee, in accordance with a uniform and nondiscriminatory
policy, may direct the Trustee to make a loan to the Participant from the
Participant's vested Accounts. The
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amount of any such loan shall not be less than $1,000 and shall not exceed the
lesser of (1) $50,000 reduced by the excess of the highest outstanding loan
balance of the Participant during the one-year period ending on the day before
the loan is made over the Participant's outstanding loan balance immediately
prior to the loan or (2) an amount equal to 50% of the value of the
Participant's vested Accounts as of the date of such loan. For this purpose,
the value of a Participant's Account shall be determined as of the Valuation
Date preceding the date of the loan, adjusted to reflect any contributions,
distributions or withdrawals since the Valuation Date.
(b) TERMS. Any loan to a Participant hereunder shall be
evidenced by the Participant's recourse promissory note in form and substance
satisfactory to the Administrative Committee, shall bear a reasonable rate of
interest, shall be adequately secured, and shall be payable in the manner
provided by the Administrative Committee within 5 years after the date thereof,
but no later than the termination of the Participant's employment for any
reason. Each loan shall be repayable in equal installments not less frequent
than quarterly. The Administrative Committee shall require a Participant who
receives a loan to authorize the Employer to withhold from Compensation and to
pay directly to the Trustee the amounts required to be paid under the promissory
note evidencing the Participant's loan obligation. If, at the time benefits are
to be distributed to a Participant or his Beneficiary, there remains any unpaid
balance of a loan made hereunder, then such unpaid balance (together with
accrued interest) shall become immediately due and payable in full and, unless
paid, such unpaid balance shall be deducted from the Participant's Accounts
before any distribution therefrom is made.
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(c) NO DISCRIMINATION. Loans hereunder shall be made available
to Participants on a reasonably equivalent basis.
(d) ADMINISTRATIVE PROCEDURES. The Administrative Committee
shall establish such rules and procedures with respect to Plan loans as it deems
necessary or advisable in order to comply with the provisions hereof and of
applicable law.
7.5. FAILURE TO REPAY LOANS. If a loan is made to a Participant
with a vested interest in his Accounts and the Participant does not make a
payment required under the promissory note within the specified time, the
Administrative Committee may cause the amount due to be deducted from any
interest in, or payment or distribution from, the Trust Fund to which such
Participant or his Beneficiaries may be entitled.
ARTICLE 8
TOP HEAVY PROVISIONS
8.1. EFFECT OF TOP HEAVY STATUS. Notwithstanding anything
contained herein to the contrary, if the Plan is a top heavy plan for any Plan
Year, and if any Participant who is a non-key Employee does not accrue the
minimum benefit or contribution described in Section 416(c)(1) or (c)(2) of the
Code for that Plan Year under this Plan and any other defined benefit and
defined contribution plan which is required or permitted to be aggregated with
the Plan for purpose of applying Section 416 of the Code, then the Company shall
make such additional contributions, if any, on behalf of such Participant
(regardless of whether such Participant completes 1,000 hours of service for
such Year and regardless of his or her level of compensation) as shall be
necessary in order to satisfy the minimum contribution requirements of Section
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416(c)(2) of the Code (determined with regard to Section 416(f) of the Code)
with respect to such Participant for such Plan Year. The minimum contribution
will not be required (or the minimum contribution will be reduced, as the case
may be) for a Participant if and to the extent that the minimum top heavy
contribution or benefit requirement is satisfied by another qualified plan of
the Employer or an Affiliate.
8.2. DEFINITIONS AND SPECIAL RULES.
(a) TOP HEAVY STATUS. The Plan is a top heavy plan if, as of
the determination date, the aggregate Account values of all key Employees under
the Plan (required to be taken into account for this purpose) plus the aggregate
account values and the aggregate present values of accrued benefits for all key
Employees under all other plans which are aggregated with this Plan (required to
be taken into account for this purpose) exceed sixty percent of all such
aggregate values for all Employees or former Employees (other than former key
Employees) under the Plan and such other plans. The determination of the top
heavy status of the Plan will be made in accordance with the provisions of
Section 416 of the Code and the regulations promulgated thereunder which are
specifically incorporated herein by reference.
(b) AGGREGATION OF PLANS. Each plan of the Employer or an
Affiliate in which a key Employee participates and each other plan which enables
such plan to meet the requirements of Section 401(a)(4) or Section 410(b) of the
Code will be aggregated with this Plan, and all additional plans which the
Company designates will be aggregated with this Plan if and to the extent that
the resulting group of plans satisfies the coverage and nondiscrimination tests
of Sections 401(a)(4) and 410 of the Code.
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(c) DETERMINATION DATE. For purposes of determining whether the
Plan is a top heavy plan for a Plan Year, the determination date is the last day
of the preceding Plan Year.
(d) KEY EMPLOYEE. The term "key Employee" means a key employee
described in Section 416(i)(1) of the Code, and the term "non-key Employee"
means any Employee who is not a key Employee.
ARTICLE 9
ADMINISTRATION OF PLAN
9.1. ORGANIZATION OF ADMINISTRATIVE COMMITTEE AND PROCEDURAL
MATTERS. The Plan will be administered by an Administrative Committee composed
of at least two individuals appointed by the Board (or, if no members are
serving or have been appointed, the Company shall act as the Administrative
Committee). Each member of the Administrative Committee will serve at the
pleasure of the Board and without compensation. Action by the Administrative
Committee may be taken by a vote of a majority of its members then serving or in
a writing without a meeting signed by all of its members. Unless the Board
appoints officers, the Administrative Committee may designate one of its members
as the Chairman and shall elect a Secretary who may but need not be a member of
the Administrative Committee. No member of the Administrative Committee shall
participate in the determination of any of his or her rights or benefits under
the Plan. The Administrative Committee (and each member thereof) is a "named
fiduciary" of the Plan.
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9.2. POWERS OF ADMINISTRATIVE COMMITTEE. The Administrative
Committee will administer the Plan and will have complete control in the
administration thereof. In exercising any of its discretionary powers with
respect to the administration of the Plan, the Administrative Committee will act
in a uniform and non-discriminatory manner. The Administrative Committee will
have all powers which are reasonably necessary to carry out its responsibilities
under the Plan including, without limitation, the power to construe the Plan and
to determine all questions which may arise thereunder. The decision of the
Administrative Committee as to any disputed question arising hereunder,
including questions of construction, interpretation and administration, shall be
final and conclusive on all persons. All disbursements by the Trustee, except
for reasonable expenses of administering the Trust assets, shall be made upon
and in accordance with the instructions of the Administrative Committee.
9.3. OPERATION OF ADMINISTRATIVE COMMITTEE. The Administrative
Committee may adopt such rules and regulations as it deems necessary or
appropriate for the conduct of its affairs. The Administrative Committee may
appoint from among its members such subcommittees with such powers as it shall
determine and may employ such accountants, actuaries, counsel, administrators
and other agents (clerical and otherwise) and services as it deems necessary or
desirable in connection with the performance of its functions hereunder and in
order to carry out the provisions of the Plan. The Administrative Committee
shall be entitled to rely conclusively upon, and shall be full protected in any
action taken by it in good faith in relying upon, any opinions or reports that
shall be furnished to it by any such accountant, actuary, counsel, administrator
or other specialist. Decisions and directions of the
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Administrative Committee may be communicated to the Trustee, a Participant, a
Beneficiary, the Company or any other person who is to receive such decision or
direction by a document signed by any one or more members of the Administrative
Committee (or persons other than members) so authorized, and such decision or
direction of the Administrative Committee may be relied upon by its recipient as
being the decision or direction of the Administrative Committee.
9.4. INVESTMENT POWERS OF THE ADMINISTRATIVE COMMITTEE. The
Administrative Committee shall establish a funding policy and method consistent
with the objectives of the Plan and requirements of ERISA, and shall communicate
such policy to the Trustee and any investment manager. The Administrative
Committee shall have the following powers, duties and authority with respect to
the investment of Plan assets:
(a) to select Investment Fund alternatives to be made available
to Participants and Beneficiaries and, if deemed appropriate, to select and
appoint one or more investment managers to manage, acquire or dispose of
any or all of the assets of the Plan, provided, however, that any such
investment manager is described in Section 3(38)(B) of ERISA and has
acknowledged in writing that he is a fiduciary with respect to the Plan;
(b) to monitor and evaluate the performance of any Investment
Fund and/or investment manager;
(c) to direct the Trustee in connection with the exercise of
investment or asset management responsibilities under the Trust Agreement;
and
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(d) to approve accounts rendered from time to time by the
Trustee, and to release, relieve and discharge the Trustee with respect to
all matters set forth in any such account, or to object to any such
account.
9.5. RESIGNATION OR REMOVAL. Any member of the Administrative
Committee may resign by giving written notice to the Board not less than 30 days
before the effective date of his or her resignation. Any member of the
Administrative Committee may be removed, with or without cause, at any time by
the Board. The Board shall fill vacancies as soon as is reasonably practicable
after a vacancy occurs and, until a new appointment is made, the remaining
members shall have the full authority to act.
9.6. RECORDS AND REPORTS. The Administrative Committee shall
keep records of their proceedings and acts and shall keep or cause to be kept
all such books of account, records and other data as may be necessary in
connection with the performance of their functions hereunder.
9.7. EXPENSES. All expenses incurred in connection with the
administration of the Plan and the Trust Fund, including, without limitation,
fees of accountants, actuaries, counsel, investment managers and other agents,
and other costs of administering the Plan and the Trust Fund, shall be paid by
the Trustee out of the Trust Fund, unless paid by the Company.
9.8. INDEMNIFICATION. The Company shall indemnify each member of
the Administrative Committee, each member of the Board, and any of its (or an
Affiliate's) employees to whom a fiduciary responsibility with respect to the
Plan is allocated or delegated from and against all liabilities, costs and
expenses, including counsel fees,
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amounts paid in settlement and amounts of judgments, fines or penalties,
incurred or imposed upon such person in connection with any claim, action, suit
or proceeding, whether civil, criminal, administrative or investigative, arising
by reason of or in connection with acts or omissions in his or her capacity as a
fiduciary hereunder, unless it is established by the order of a court of
competent jurisdiction that such act or omission is the result of willful
misconduct or fraud.
9.9. CLAIM FOR BENEFITS. When a benefit is due, the Participant
or Beneficiary should submit his claim to the person or office designated by the
Administrative Committee to receive claims. Under normal circumstances, a final
decision shall be made as to a claim within 90 days after receipt of the claim.
If the Administrative Committee notifies the claimant in writing during the
initial 90 day period, it may extend the period up to 180 days after the initial
receipt of the claim. The written notice must contain the circumstances
necessitating the extension and the anticipated date for the final decision. If
a claim is denied during the claims period, the Administrative Committee must
notify the claimant in writing. The denial must include the specific reasons
for it, the Plan provisions upon which the denial is based, and the claims
review procedure. If no action is taken during the claims period, the claim is
treated as if it were denied on the last day of the claims period.
9.10. REVIEW OF DENIED CLAIMS. If a Participant's or
Beneficiary's claim is denied and the claimant wants a review, he or she must
apply to the Administrative Committee in writing. That application may include
any comment or argument the claimant wants to make. The claimant may either
represent himself or appoint a representative, either of whom has the right to
inspect all documents pertaining to the
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claim and its denial. The Administrative Committee may schedule any meeting
with the claimant or his representative that it finds necessary or appropriate
to complete its review. The request for review must be filed within 60 days
after the denial. If it is not, the denial becomes final. If a timely request
is made, the Administrative Committee must make its decision, under normal
circumstances, within 60 days of the receipt of the request for review.
However, if the Administrative Committee notifies the claimant prior to the
expiration of the initial review period, it may extend the period of review up
to 120 days following the initial receipt of the request for a review. All
decisions of the Administrative Committee must be in writing and must include
the specific reasons for their action and the Plan provisions on which their
decision is based. If a decision is not given to the claimant within the review
period, the claim is treated as if it were denied on the last day of the review
period.
9.11. STANDARD OF JUDICIAL REVIEW OF COMMITTEE ACTIONS. The
Administrative Committee has full and absolute discretion in the exercise of
each and every aspect of its authority under the Plan, including without
limitation, the authority to determine any person's right to benefits under the
Plan, the correct amount and form of any benefits, the authority to decide any
appeal, the authority to review and correct the actions of any prior
administrative committee, and all of the rights, powers, and authorities
specified in the Plan. Notwithstanding any provision of law or any explicit or
implicit provision of this document or, any action taken, or ruling or decision
made, by the Administrative Committee in the exercise of any of its powers and
authorities under the Plan shall be final and conclusive as to all parties
(other than the Company, an Employer other than the Company or the Trustee),
including without
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limitation all Participants and Beneficiaries, regardless of whether the
Administrative Committee or one or more of its members may have an actual or
potential conflict of interest with respect to the subject matter of the action,
ruling, or decision. No final action, ruling, or decision of the Administrative
Committee shall be subject to de novo review in any judicial proceeding; and no
final action, ruling, or decision of the Administrative Committee may be set
aside unless it is held to have been arbitrary and capricious by a final
judgment of a court having jurisdiction with respect to the issue.
ARTICLE 10
TRUST FUND
10.1. GENERAL. The Trust corpus will consist of all payments to
the Trustee as provided herein, together with the net income or loss (including
capital items) produced by the investments of the Trust or the sale of any such
investments, which will be added to or deducted from the Trust. The Trust
assets will be held, administered and invested in the manner provided in the
agreement pursuant to which the Trust is governed.
10.2. NO DIVERSION. All assets of the Trust will be owned by the
Trustee. Except as otherwise provided herein, no part of the Trust assets may
be used for or diverted to purposes other than for the exclusive benefit of
Participants and their Beneficiaries.
10.3. BENEFITS PROVIDED SOLELY BY TRUST FUND. All benefits
payable under the Plan will be paid or provided solely from the Trust assets,
and neither the Company
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nor any participating Employer nor any Affiliate assumes or shall have liability
or responsibility therefor.
10.4. EMPLOYER SECURITIES. Notwithstanding anything herein to the
contrary, no part of the Trust assets may be invested in securities of the
Company or an Affiliate unless such securities constitute qualifying employer
securities within the meaning of Section 407(d)(5) of ERISA. The Trustee or
investment manager, as the case may be, may invest up to 100% of the Plan's
assets in qualifying employer securities, provided that any such investment is
deemed advisable and proper in carrying out the purposes of the Plan and the
Trust, and provided further that such investment would not constitute a
prohibited transaction or be otherwise impermissible under applicable law.
10.5. APPOINTMENT OF INVESTMENT MANAGER. The Administrative
Committee may appoint one or more investment managers to manage any assets of
the Plan, including all or part of the assets of any Investment Fund. As used
herein, the term "investment manager" means any person or entity who: (a) has
power to manage, acquire or dispose of any assets of the Plan; (b) is (1)
registered as an investment adviser under the Investment Advisers Act of 1940
(2) a bank, as defined in that Act, or (3) an insurance company qualified under
the laws of more than one state to perform services described in (a) above; and
(c) has acknowledged in a writing delivered to the Investment Committee and the
Trustee that he is a fiduciary with respect to the Plan. The investment
manager(s) will have such powers and responsibilities as may be conferred under
the Trust Agreement and the investment management agreement.
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ARTICLE 11
AMENDMENTS AND TERMINATION
11.1. COMPANY MAY AMEND PLAN. The Company reserves the right, by
action of the Board at any time or from time to time, to modify or amend this
Plan in whole or in part. No amendment will:
(a) vest in an Employer an interest in the Trust Fund;
(b) cause or permit the Trust Fund to be diverted to any purpose
other than the exclusive benefit of Participants and Beneficiaries;
(c) decrease the Account of any Participant or eliminate an
optional form of payment;
(d) increase substantially the duties or liabilities of the
Trustee or the members of the Investment Committee or the Administrative
Committee without its or their written consent; or
(e) change the vesting schedule to one which would result in the
nonforfeitable percentage of a Participant's Account (determined as of the later
of the date of adoption of the amendment or the effective date of the amendment)
being less than the nonforfeitable percentage computed under the Plan without
regard to the amendment. If the Plan's vesting schedule is amended, each
Participant with at least three years of Service may elect to have his or her
nonforfeitable percentage computed without regard to the amendment. The
election must be made by the latest of the following dates: (1) 60 days after
the amendment is adopted, (2) 60 days after the amendment becomes effective, or
(3) 60 days after the Participant is issued written notice of the amendment.
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11.2. WITHDRAWAL OF PARTICIPATING EMPLOYER. An Employer may
withdraw from the Plan and the Trust Fund by giving written notice to the
Administrative Committee of its intent to withdraw. The Administrative
Committee will then determine the portion of the Trust Fund attributable to the
Participants employed by the withdrawing Employer and will notify the Trustee to
segregate those assets and transfer them to the successor trustee or trustees
when it receives a designation of the successor from the withdrawing Employer.
A withdrawal will not terminate the Plan with respect to the withdrawing
Employer if the Employer appoints a successor trustee or trustees and
establishes another plan and trust intended to qualify under Section 401(a) of
the Code.
11.3. TERMINATION. The Board may terminate the Plan with respect
to any or all Employers. Any Employer (by action of its board of directors) may
terminate the Plan with respect to itself. If there is a partial or total
termination of the Plan or there is a complete discontinuance of an Employer's
Contributions, all affected Participants will immediately become 100% vested in
their Accounts.
11.4. DISTRIBUTIONS UPON TERMINATION. Subject to the provisions
of applicable law (or the provisions of a Plan amendment adopted in connection
with a Plan termination), distribution of a Participant's Accounts as a result
of the termination of the Plan is permitted only if: (a) the balance of the
Accounts is not more than $3,500, or (b) the balance exceeds $3,500 and either
(1) the Participant consents to the distribution or (2) neither the Employer nor
any Affiliate maintains another defined contribution plan. However if the
Employer or an Affiliate maintains another defined contribution plan, then, even
though the Participant's Accounts cannot be
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distributed without his or her consent, the Accounts may be transferred to the
other defined contribution plan to be held for the Participant's benefit.
Except to the extent required by applicable law, all distributions in respect of
the termination of the Plan will be in the form of single sum payments.
11.5. STATUTORY MERGER/CONSOLIDATION RULE. In the case of any
merger or consolidation of the Plan with, or any transfer of assets or
liabilities of the Plan to, any other plan, the benefit which each Participant
would be entitled to receive immediately after the merger, consolidation or
transfer (if the Plan then terminates) shall be equal to or greater than the
benefit he or she would have been entitled to receive immediately before the
merger, consolidation or transfer (as if the Plan had then terminated).
ARTICLE 12
MISCELLANEOUS
12.1. NO RIGHTS CONFERRED. Nothing herein will be deemed to give
any individual any right to be retained in the employ of the Company or an
Affiliate or any other rights in the future other than as herein specifically
set forth. Except as otherwise specifically required herein or by law, no
Participant, Beneficiary or other person will be entitled to inspect the books,
records, reports, financial statements or tax returns of the Company.
12.2. BENEFITS LIMITED TO TRUST FUND. No person will have any
right or interest in the Trust other than as provided herein. Any final payment
or distribution to a Participant or Beneficiary will be in full satisfaction of
all claims against the Trust, the Trustee, the Administrative Committee, the
Company, an Affiliate, the Board and
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any fiduciary of the Plan or Trust. The Trustee or the Administrative Committee
may require a Participant or Beneficiary to execute a receipt and a general
release of any and all such claims upon a final payment or distribution, or a
receipt and/or release to the extent of any partial payment or distribution.
12.3. SPENDTHRIFT PROVISION. Except to the extent required by
law, no benefit under the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any
attempt to anticipate, alienate, sell, transfer, assign, encumber or charge the
same shall be void. No such benefit shall be in any way liable for or subject
to the debts, contracts, liabilities, engagements or torts of any person
entitled to those benefits. The Administrative Committee will establish such
procedures as may be necessary or appropriate in order to comply with the
provisions of ERISA and the Code in connection with domestic relations orders
issued with respect to a Participant's Accounts. If an order so provides,
payment of the interest of an alternate payee (as defined in Section 414(p) of
the Code) may be made in a single sum as soon as practicable after the
Administrative Committee determines that the order constitutes a qualified
domestic relations order.
12.4. PRIOR PLANS. Effective with the initial creation of this
Plan as of January 1, 1992, certain plans (identified below and referred to in
this Plan as "Prior Plans") maintained by predecessors to TMP Worldwide Inc.
were merged into this Plan and continued in the form set forth above, effective
on and after January 1, 1992. The Appendices to the Plan are intended to
preserve the vested rights and protected benefits, rights and features
applicable to those who participated in each Prior Plan subsequently identified
in an Appendix hereto. In no event, however, shall any such
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benefits, rights and features be eliminated if not specifically listed and are
hereby incorporated herein.
12.5. PAYMENT TO MINORS OR INCOMPETENTS. If any person to whom a
benefit is payable hereunder is an infant or if the Administrative Committee
determines that any person to whom such benefit is payable is incompetent by
reason of a physical or mental disability, the Administrative Committee may
cause the payments becoming due to such person to be made to another for his or
her benefit without responsibility of the Administrative Committee or the
Trustee to see to the application of such payments.
12.6. HEADINGS. The headings in this Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
12.7. SEVERABILITY. If any provision of the Plan or the
application of such provision to any person or circumstance is held invalid, the
remainder of the Plan (and the application of such provision to any person or
circumstance other than the person or circumstance to which it is held invalid)
will not be affected thereby.
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12.8. CONSTRUCTION. The provisions of the Plan will be construed,
regulated and administered according to the provisions of ERISA, the Code and to
the extent not inconsistent therewith or preempted thereby, in accordance with
the laws of the State of New York.
TMP WORLDWIDE INC.
Dated:_________________ By: _____________________
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APPENDIX A
BTD DIRECTORY MANAGEMENT, INC.
401(K) PROFIT SHARING PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the BTD Directory Management, Inc.
401(k) Profit Sharing Plan (the "BTD Directory Management Plan"). All of the
terms used in this Appendix shall have the same meaning given them in the Plan,
unless the context clearly indicates otherwise.
FORM OF DISTRIBUTION. A Participant may elect to receive that
portion of his vested account balance attributable to contributions under the
BTD Directory Management Plan in substantially equivalent monthly, quarterly,
semi-annual or annual installments over a period not to exceed the joint life
expectancy of the Participant and his Beneficiary, in lieu of receiving such
portion of his vested account balance in a lump sum. In the event the
Participant elects to receive installments, the Participant or, in the event of
the Participant's death, the Participant's Beneficiary may elect to accelerate
the remaining installments.
<PAGE>
APPENDIX B
TMP WEST, INC. 401(K) PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the TMP West, Inc. 401(k) Plan (the
"TMP West Plan"). All of the terms used in this Appendix shall have the same
meaning given them in the Plan, unless the context clearly indicates otherwise.
FORM OF DISTRIBUTION. (a) Available Forms. A Participant whose
vested account balance exceeds three thousand five hundred dollars ($3,500) upon
termination of employment or exceeded three thousand five hundred dollars
($3,500) as of the date of any previous distribution from such account, whether
under this Plan or the TMP West Plan, may elect to receive that portion of his
vested account balance attributable to contributions under the TMP West Plan in
one of the following forms, in lieu of receiving such portion of his vested
account balance in a lump sum:
(a) substantially equivalent monthly, quarterly,
semi-annual or annual installments over a
period not to exceed the joint life expectancy
of the Participant and his Beneficiary;
(b) a single life annuity payable over the
Participant's lifetime;
(c) a joint and survivor annuity providing for
payment over the Participant's lifetime and,
upon the Participant's death, payments
continuing to the Participant's spouse, if any,
for the remainder of such spouse's lifetime in
an amount equal to fifty percent (50%) or one
hundred percent (100%) of the amount being paid
to the Participant prior to his death.
(b) Election of Form. A Participant may elect to have that
portion of his vested account balance attributable to contributions under the
TMP West Plan distributed in one of the forms specified in subsection (a) at any
time during the ninety (90) day period ending on the date as of which benefit
payments are to commence. Such election may be revoked and remade at any time
up to the date as of which benefit payments are to commence. Any such election
or revocation thereof shall be in writing on a form supplied by the
Administrator and shall be effective upon its receipt by the Administrator;
provided, however, that in the event a Participant elects to receive that
portion of his vested account balance attributable to contributions under the
TMP West Plan in the form of a single life annuity, such portion of his vested
account balance shall be distributed in the form of a joint and fifty percent
(50%)
<PAGE>
survivor annuity, unless the Participant's spouse has, within the ninety (90)
day period ending on the date on which the first benefit payment is due,
consented to the election in writing and acknowledged its effect, with such
consent being witnessed by a notary public or a designated Plan representative
appointed by the Administrator. Prior to his benefit commencement date, the
Administrator shall furnish to each Participant with a spouse a written
explanation of the terms and conditions of the joint and survivor annuity
available under this Section, the effect of making an election to receive a
single life annuity and the election and revocation rights of the Participant
and his spouse under this Section.
WITHDRAWAL OF AFTER-TAX CONTRIBUTIONS. A Participant may elect
to withdraw all or any portion of his account balance attributable to after-tax
employee contributions under the TMP West Plan.
<PAGE>
APPENDIX C
TELEPHONE MARKETING PROGRAMS OF BOSTON, INC.
EMPLOYEE SAVINGS AND PROFIT SHARING PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the Telephone Marketing Programs,
Inc. of Boston Employee Savings and Profit Sharing Plan (the "Telephone
Marketing Programs Plan"). All of the terms used in this Appendix shall have
the same meaning given them in the Plan, unless the context clearly indicates
otherwise.
FORM OF DISTRIBUTION. A Participant whose vested account balance
exceeds three thousand five hundred dollars ($3,500) upon termination of
employment or exceeded three thousand five hundred dollars ($3,500) as of the
date of any previous distribution from such account, whether under this Plan or
the Telephone Marketing Programs Plan, may elect to receive that portion of his
vested account balance attributable to contributions under the Telephone
Marketing Programs Plan in substantially equivalent monthly, quarterly,
semi-annual or annual installments over a period not to exceed the joint life
expectancy of the Participant and his Beneficiary, in lieu of receiving such
portion of his vested account balance in a lump sum.
<PAGE>
APPENDIX D
YELLOW PAGES MARKETING SERVICES SAVINGS PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the Yellow Pages Marketing Services
Savings Plan (the "Yellow Pages Marketing Plan"). All of the terms used in this
Appendix shall have the same meaning given them in the Plan, unless the context
clearly indicates otherwise.
FORM OF DISTRIBUTION. A Participant whose vested account balance
exceeds three thousand five hundred dollars ($3,500) upon termination of
employment or exceeded three thousand five hundred dollars ($3,500) as of the
date of any previous distribution from such account, whether under this Plan or
the Yellow Pages Marketing Plan, may elect to receive that portion of his
vested account balance attributable to contributions under the Yellow Pages
Marketing Plan in substantially equivalent monthly, quarterly, semi-annual or
annual installments over a period not to exceed the joint life expectancy of the
Participant and his Beneficiary, in lieu of receiving such portion of his vested
account balance in a lump sum.
WITHDRAWAL OF ROLLOVER CONTRIBUTIONS. A Participant may withdraw
all or any portion of his vested account balance attributable to rollover or
transfer contributions under the Yellow Pages Marketing Plan at any time.
<PAGE>
APPENDIX E
ADS AGENCY, INC. 401(K) PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the ADS Agency, Inc. 401(k) Plan (the
"ADS Agency Plan"). All of the terms used in this Appendix shall have the same
meaning given them in the Plan, unless the context clearly indicates otherwise.
FORM OF DISTRIBUTION. (a) Available Forms. A Participant whose
vested account balance exceeds three thousand five hundred dollars ($3,500) upon
termination of employment or exceeded three thousand five hundred dollars
($3,500) as of the date of any previous distribution from such account, whether
under this Plan or the ADS Agency Plan, may elect to receive that portion of his
vested account balance attributable to contributions under the ADS Agency Plan
in one of the following forms, in lieu of receiving such portion of his vested
account balance in a lump sum:
(a) substantially equivalent monthly,
quarterly, semi-annual or annual
installments over a period not to exceed
the joint life expectancy of the
Participant and his Beneficiary;
(b) a single life annuity payable over the
Participant's lifetime;
(c) a joint and survivor annuity providing for
payment over the Participant's lifetime
and, upon the Participant's death,
payments continuing to the Participant's
Beneficiary, if any, for the remainder of
such spouse's lifetime in an amount equal
to fifty percent (50%) or one hundred
percent (100%) of the amount being paid to
the Participant prior to his death.
(b) Election of Form. A Participant may elect to have that
portion of his vested account balance attributable to contributions under the
ADS Agency Plan distributed in one of the forms specified in subsection (a) at
any time during the ninety (90) day period ending on the date as of which
benefit payments are to commence. Such election may be revoked and remade at
any time up to the date as of which benefit payments are to commence. Any such
election or revocation thereof shall be in writing on a form supplied by the
Administrator and shall be effective upon its receipt by the Administrator;
provided, however, that in the event a Participant elects to receive that
portion of his vested account balance attributable to contributions under
<PAGE>
the ADS Agency Plan in the form of a single life annuity, such portion of his
vested account balance shall be distributed in the form of a joint and fifty
percent (50%) survivor annuity with the Participant's spouse as the contingent
annuitant, unless the Participant's spouse has, within the ninety (90) day
period ending on the date on which the first benefit payment is due consented to
the election in writing and acknowledged its effect, with such consent being
witnessed by a notary public or a designated plan representative appointed by
the Administrator. Prior to his benefit commencement date, the Administrator
shall furnish to each Participant with a spouse a written explanation of the
terms and conditions of the joint and survivor annuity available under this
Section, the effect of making an election to receive a single life annuity and
the election and revocation rights of the Participant and his spouse under this
Section.
WITHDRAWALS UPON ATTAINMENT OF AGE 59 1/2. Upon attaining age
fifty-nine and one-half (59 1/2), a Participant may withdraw all or any portion
of his account balance attributable to elective deferrals and qualified
non-elective contributions under the ADS Agency Plan.
<PAGE>
APPENDIX F
TELEPHONE DIRECTORY ADVERTISING, INC.
EMPLOYEES SAVINGS AND INCENTIVE PLAN
APPLICABILITY. This Appendix shall apply only to those
Participants who were also participants in the Telephone Directory Advertising,
Inc. Employees Savings and Incentive Plan (the "Telephone Directory Advertising
Plan"). All of the terms used in this Appendix shall have the same meaning
given them in the Plan, unless the context clearly indicates otherwise.
FORM OF DISTRIBUTION. (a) Available Forms. A Participant whose
vested account balance exceeds three thousand five hundred dollars ($3,500)
upon termination of employment or exceeded three thousand five hundred
dollars ($3,500) as of the date of any previous distribution from such
account, whether under this Plan or the Telephone Directory Advertising Plan,
may elect to receive that portion of his vested account balance attributable
to contributions under the Telephone Directory Advertising Plan in one of the
following forms, in lieu of receiving such portion of his vested account
balance in a lump sum:
(i) substantially equivalent monthly, quarterly,
semi-annual or annual installments over a period not to
exceed the joint life expectancy of the Participant and
his Beneficiary;
(ii) a single life annuity payable over the Participant's
lifetime;
(iii) a joint and survivor annuity providing for payment over
the Participant's lifetime and, upon the Participant's
death, payments continuing to the Participant's spouse,
if any, for the remainder of such spouse's lifetime in
an amount equal to fifty percent (50%) or one hundred
percent (100%) of the amount being paid to the
Participant prior to his death.
(b) Election of Form. A participant may elect to have that
portion of his vested account balance attributable to contributions under the
Telephone Directory Advertising Plan distributed in one of the forms specified
in subsection (a) at any time during the ninety (90) day period ending on the
date as of which benefit payments are to commence. Such election may be revoked
and remade at any time up to the date as of which benefit payments are to
commence. Any such election or revocation thereof shall be in writing on a form
supplied by the Administrator and shall be effective upon its receipt by the
Administrator; provided, however, that in the event a Participant elects to
receive that portion of his vested account balance attributable to contributions
under the Telephone Directory Advertising Plan in the form of a single life
annuity, such portion of his vested account balance shall be distributed in the
form of a joint and
<PAGE>
fifty percent (50%) survivor annuity, unless the Participant's spouse has,
within the ninety (90) day period ending on the date on which the first benefit
payment is due, consented to the election in writing and acknowledged its
effect, with such consent being witnessed by a notary public or a designated
Plan representative appointed by the Administrator. Prior to his benefit
commencement date, the Administrator shall furnish to each Participant with a
spouse a written explanation of the terms and conditions of the joint and
survivor annuity available under this Section, the effect of making an election
to receive a single life annuity and the election and revocation rights of the
Participant and his spouse under this Section.
<PAGE>
APPENDIX G
FRITCHMAN ASSOCIATES, INC.
PROFIT SHARING PLAN
APPLICABILITY. The Appendix shall apply only to those Participants
who were also participants in the Fritchman Associates, Inc. Profit Sharing Plan
(the "Fritchman Associates Plan"). All of the terms used in this Appendix shall
have the same meaning given them in the Plan, unless the context clearly
indicates otherwise.
FORM OF DISTRIBUTION. A Participant whose vested account balance
exceeds three thousand five hundred dollars ($3,500) upon termination of
employment or exceeded three thousand five hundred dollars ($3,500) as of the
date of any previous distribution from such account, whether under this Plan or
the Fritchman Associates Plan, may elect to receive that portion of his vested
account balance attributable to contributions under the Fritchman Associates
Plan in substantially equivalent monthly, quarterly, semi-annual or annual
installments over a period not to exceed the joint life expectancy of the
Participant and his Beneficiary, in lieu of receiving such portion of his vested
account balance in a lump sum.
<PAGE>
APPENDIX H
DIRECTORY DATA MANAGEMENT, INC.
RETIREMENT SAVINGS PLAN
APPLICABILITY. The Appendix shall apply only to those Participants
who were also participants in the Directory Data Management, Inc. Retirement
Savings Plan (the "Directory Data Management Plan"). All of the terms used in
this Appendix shall have the same meaning given them in the Plan, unless the
context clearly indicates otherwise.
WITHDRAWALS (a) ROLLOVER CONTRIBUTIONS. A Participant may
withdraw all or any portion of his vested account balance attributable to
rollover or transfer contributions under the Directory Data Management Plan at
any time.
(b) ATTAINMENT OF AGE 59 1/2. Upon attaining age fifty-nine
and one-half (59 1/2), a Participant may withdraw all or any portion of his
account balance attributable to contributions under the Directory Data
Management Plan; provided, however, that amounts attributable to employer
matching contributions or discretionary contributions under the Directory Data
Management Plan may be withdrawn only after the Participant is one hundred
percent (100%) vested in such amounts and only after such contributions have
been in the Plan or Directory Data Management Plan for at least two (2) years.
(c) HARDSHIP. Upon a showing of hardship (as defined in Plan
Section 7.2), and approval of the Administrative Committee, a Participant may
withdraw all or any portion of his vested account balance attributable to
elective deferrals (other than net earnings credited thereon after December 31,
1988), employer matching contributions and employer discretionary contributions
made under the Directory Data Management Plan. Any such withdrawal shall be
governed by the provisions of Section 7.2 of the Plan and shall be made first
from amounts attributable to employer discretionary contributions, then from
amounts attributable to employer matching contributions and finally from amounts
attributable to elective deferrals.
<PAGE>
December 9, 1996
TMP Worldwide Inc.
1633 Broadway
New York, New York 10019
Dear Sirs:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of TMP Worldwide Inc.,
a Delaware corporation (the "Company"), relating to 240,000 shares of the
Company's Common Stock, $.001 par value (the "Common Stock"), to be issued
pursuant to the TMP Worldwide Inc. 401(K) Savings Plan (the "Plan").
As counsel to the Company, we have examined such corporate records,
other documents and such questions of law as we have deemed necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examinations, advise you that in our opinion all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Common
Stock pursuant to the Plan and the shares of Common Stock being registered
pursuant to the Registration Statement, when issued and paid for in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
<PAGE>
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
TMP Worldwide Inc.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our reports dated March
15, 1996, except for Note 7 which is as of August 29, 1996 and Notes 1 and 2
which are as of December 9, 1996, relating to the consolidated financial
statements and schedule of TMP Worldwide Inc. and Subsidiaries and of our
report dated July 25, 1996 relating to the financial statements of Rogers &
Associates Advertising, Inc., appearing in the Company's Registration
Statement on Form S-1 as amended on December 10, 1996.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO SEIDMAN, LLP
New York, New York
December 10, 1996
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
TMP Worldwide Inc.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated
November 8, 1996, relating to the consolidated financial statements of
Neville Jeffress Australia Pty Limited and Subsidiaries, appearing in the
Company's Registration Statement on Form S-1 as amended on December 10, 1996.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO Nelson Parkhill
Sydney, Australia
December 10, 1996
