<PAGE>
As filed with the Securities and Exchange Commission on December 22, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
GROUP MAINTENANCE AMERICA CORP.
(Exact name of registrant as specified in its charter)
TEXAS 76-0535259
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
---------------------
8 GREENWAY PLAZA, SUITE 1500
HOUSTON, TEXAS 77046
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
---------------------
GROUPMAC SAVINGS PLAN
(FULL TITLE OF THE PLAN)
---------------------
RANDOLPH W. BRYANT
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
8 GREENWAY PLAZA, SUITE 1500
HOUSTON, TEXAS 77046
(713) 860-0100
(Name, address and telephone
number, including area code, of agent for service)
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLES OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED PER SHARE (2) PRICE (2) FEE
<S> <C> <C> <C> <C>
Common Stock, 200,000 $11.875 $2,375,000 $660.25
$0.001 par value
===================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
solely for the purpose of calculating the registration fee and based on the
average of the high and low sale prices of the Common Stock as reported on
the New York Stock Exchange on December 18, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be
sent or given to participants as specified by Rule 428 under the Securities Act.
In accordance with Rule 428 and the requirements of Part I of Form S-8, those
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. The
registrant will maintain a file of such documents in accordance with the
provisions of Rule 428. On request, the registrant will furnish to the
Commission or its staff a copy or copies of all of the documents included in
that file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Group Maintenance America Corp., a Texas
corporation (the "Company"), with the Commission pursuant to the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference into this Registration Statement:
1. The Company's Transition Report on Form 10-K for the ten-month
period ended December 31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998;
3. The Company's Current Reports on Form 8-K dated January 29, 1998,
May 22, 1998, June 26, 1998, September 15, 1998, October 28, 1998, November
4, 1998 and November 25, 1998, as amended; and
4. The description of the Company's common stock, par value $.001 per
share ("Common Stock"), contained in the Company's Registration Statement
on Form 8-A, as originally filed with the Commission on November 4, 1997.
All documents filed by the Company or the GroupMac Savings Plan (the
"Plan") pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Registration Statement and prior to the filing of a post-
effective amendment hereto which indicates that all securities offered hereby
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing such documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in any document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in any subsequently filed amendment to this
Registration Statement or any document that is subsequently incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
<PAGE>
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock to which this Registration Statement
relates has been passed upon by Randolph W. Bryant, Senior Vice President,
General Counsel and Secretary of the Company. The Company has been advised by
Mr. Bryant that, as of December 1, 1998, he beneficially owned 20,991 shares of
Common Stock of the Company (including 19,991 shares of Common Stock that may be
purchased pursuant to options exercisable within 60 days).
Item 6. Indemnification of Directors and Officers.
Texas Business Corporation Act
Article 2.02-1.B of the Texas Business Corporation Act, as amended (the
"TBCA"), grants to a corporation the power to indemnify a person who was, is or
is threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director against judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses actually incurred
in connection therewith, only if it is determined that the person (1) conducted
himself in good faith; (2) reasonably believed that (a) in the case of conduct
in his official capacity as a director of the corporation, his conduct was in
the corporation's best interests, and (b) in all other cases, his conduct was at
least not opposed to the corporation's best interest; and (3) in the case of any
criminal proceeding, he had no reasonable cause to believe that his conduct was
unlawful.
Article 2.02-1.C of the TBCA limits the allowable indemnification by
providing that, except to the extent permitted by Article 2.02-1.E of the TBCA,
a director may not be indemnified in respect of a proceeding in which the person
was found liable (1) on the basis that he improperly received a personal
benefit, whether or not the benefit resulted from an action taken in his
official capacity, or (2) to the corporation.
Article 2.02-1.D of the TBCA provides that the termination of a proceeding
by judgment, order, settlement or conviction, or on a plea of nolo contendere or
its equivalent, shall not, of itself, be determinative that the person to be
indemnified did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and in respect of any
criminal action or proceeding, did not reasonably believe that his conduct was
unlawful.
Article 2.02-1.E of the TBCA provides that if a director is found liable to
the corporation or is found liable on the basis that he improperly received a
personal benefit, the permissible indemnification (1) is limited to reasonable
expenses actually incurred by the person in connection with the proceeding, and
(2) shall not be made in respect of any proceeding in which the person shall
have been found liable for willful or intentional misconduct in the performance
of his duty to the corporation.
Article 2.02-1.H of the TBCA provides that a corporation shall indemnify a
director against reasonable expenses incurred by him in connection with a
proceeding in which he is a named defendant or respondent because he is or was a
director if he has been wholly successful, on the merits or otherwise, in the
defense of the proceeding.
Article 2.02-1.K of the TBCA provides that reasonable expenses incurred by
a director who was, is, or is threatened to be made a defendant or respondent in
a proceeding may be paid by the Company in advance of the final disposition of
such proceeding as authorized by the Board of Directors in the specific case on
receipt of a written
-2-
<PAGE>
undertaking by or on behalf of the director or officer to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
by the Company and the corporation receives a written affirmation by the
director of his good faith belief that he has met the standard of conduct
necessary for indemnification under the TBCA.
Article 2.02-1.O of the TBCA provides that a corporation may indemnify and
advance expenses to an officer of the corporation to the same extent that it may
indemnify and advance expenses to directors under Article 2.02-1 of the TBCA.
Article 2.02-1.R of the TBCA provides that a corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer
against any liability asserted against him and incurred by him in such capacity,
whether or not the corporation would have the power to indemnify him against
that liability.
Articles of Incorporation
Article VIII of the Company's Articles of Incorporation, as amended,
provides that, to the greatest extent permitted by applicable law, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for an act or omission in the director's capacity as a director, except
for liability for (i) a breach of a director's duty of loyalty to the Company or
its shareholders; (ii) an act or omission not in good faith that constitutes a
breach of duty of the director to the Company or that involves intentional
misconduct or a knowing violation of the law; (iii) a transaction from which a
director received an improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office; (iv) an act or
omission for which the liability of a director is expressly provided for by
statute; or (v) an act related to an unlawful stock repurchase or unlawful
payment of a dividend.
Bylaws
Article 6 of the Bylaws of the Company, as amended, authorizes the Company
to indemnify each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil,criminal, administrative, arbitrative
or investigative, any appeal in such action, suit or proceeding, and any inquiry
or investigation that would lead to such action, suit or proceeding (hereinafter
a "proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the Company
or is or was serving at the request of the Company as a director or officer of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan, whether
the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, to the fullest extent permitted by Texas law.
Savings Plan
In addition, Section 12.8 of the Plan provides that the Company will
indemnify and save harmless any member of the Board of Directors of the Company,
any member of the committee administering the Plan and any employee of the
Company from and against any and all loss resulting from liability to which any
such person may be subjected by reason of any conduct (except willful or
reckless misconduct) in a fiduciary capacity under the Plan or the related
trust, or both, including all expenses reasonably incurred in such person's
defense, in case the Company fails to provide such defense.
-3-
<PAGE>
Insurance
The Company has obtained a policy of liability insurance to insure its
directors and officers against losses resulting from certain acts committed by
them in their capacities as directors and officers of the Company.
Indemnification Agreements
The Company has entered into an employment agreement with each of its
executive officers pursuant to which the Company has agreed to indemnify, to the
extent provided in the Company's Bylaws, such persons with respect to matters
relating to his services as a director or officer of the Company.
The above discussion of the Company's Articles of Incorporation, Bylaws,
the Plan, the Company's employment agreements and Section 2.02-1 of the TBCA is
intended to be only a summary and is qualified in its entirety by the full text
of each of the foregoing.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) The following documents are filed as a part of this Registration Statement
or incorporated by reference herein:
4.1* Specimen form of certificate for Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-34067), as amended).
4.2* Articles of Incorporation of the Company, as amended (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form S-
1 (Registration No. 333-34067), as amended).
4.3 Bylaws of the Company, as amended.
4.4 The GroupMac Savings Plan.
5 Opinion of Randolph W. Bryant.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Randolph W. Bryant (included in Exhibit 5).
24 Powers of Attorney.
_______________
* Incorporated herein by reference as indicated.
(b) The Company hereby undertakes (i) to submit (or cause to be submitted)
the Plan and any amendment thereto to the Internal Revenue Service (the "IRS")
in a timely manner and (ii) to make (or cause to be made) all changes required
by the IRS in order to qualify the Plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
-4-
<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(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 Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment should be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been 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
-5-
<PAGE>
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 22nd day of
December, 1998.
GROUP MAINTENANCE AMERICA CORP.
By: /s/ J. PATRICK MILLINOR, JR.
-------------------------------
J. Patrick Millinor, Jr.
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON DECEMBER 22, 1998.
Signature Title
--------- -----
JAMES P. NORRIS* Director and Chairman of the Board
- --------------------------------------
James P. Norris
/s/ J. PATRICK MILLINOR, JR. Director and Chief Executive Officer
- -------------------------------------- (principal executive officer)
J. Patrick Millinor, Jr.
/s/ DARREN B. MILLER Executive Vice President and Chief
- -------------------------------------- Financial Officer
Darren B. Miller (principal financial officer)
/s/ DANIEL W. KIPP Senior Vice President and Controller
- -------------------------------------- (principal accounting officer)
Daniel W. Kipp
DONALD L. LUKE* Director, President and Chief
- -------------------------------------- Operating Officer
Donald L. Luke
CHESTER J. JACHIMIEC* Director and Executive Vice
- -------------------------------------- President-Acquisitions
Chester J. Jachimiec
RONALD D. BRYANT* Director
- --------------------------------------
Ronald D. Bryant
DAVID L. HENNINGER* Director
- --------------------------------------
David L. Henninger
TIMOTHY JOHNSTON* Director
- --------------------------------------
Timothy Johnston
ANDREW J. KELLY* Director
- --------------------------------------
Andrew J. Kelly
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<PAGE>
THOMAS B. MCDADE*
- -------------------------------------- Director
Thomas B. McDade
LUCIAN L. MORRISON*
- -------------------------------------- Director
Lucian L. Morrison
ROBERT MUNSON III*
- -------------------------------------- Director
Robert Munson
FREDRIC J. SIGMUND*
- -------------------------------------- Director
Fredric J. Sigmund
JOHN M. SULLIVAN*
- -------------------------------------- Director
John M. Sullivan
JAMES D. WEAVER*
- -------------------------------------- Director
James D. Weaver
*By: /s/ RANDOLPH W. BRYANT
---------------------------------- Director
Randolph W. Bryant
(Attorney-in-fact for persons indicated)
-8-
<PAGE>
INDEX TO EXHIBITS
4.1* Specimen form of certificate for Common Stock (incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-34067), as amended).
4.2* Articles of Incorporation of the Company, as amended (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1 (Registration No. 333-34067), as amended).
4.3 Bylaws of the Company, as amended.
4.4 The GroupMac Savings Plan.
5 Opinion of Randolph W. Bryant.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Randolph W. Bryant (included in Exhibit 5).
24 Powers of Attorney.
- ---------------
* Incorporated herein by reference as indicated
<PAGE>
EXHIBIT 4.3
BYLAWS
OF
GROUP MAINTENANCE AMERICA CORP.
As amended November 19, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. Offices.................................................. 1
Section 1.1 Principal Office....................................... 1
Section 1.2 Registered Office...................................... 1
Section 1.3 Other Offices.......................................... 1
ARTICLE 2. Shareholders Meetings.................................... 1
Section 2.1 Annual Meeting......................................... 1
Section 2.2 Special Meetings....................................... 1
Section 2.3 Notices of Meetings and Adjourned Meetings............. 2
Section 2.4 Notice of Shareholder Business and Nominations......... 2
Section 2.5 Voting Lists........................................... 5
Section 2.6 Quorum................................................. 5
Section 2.7 Chairman of Shareholder Meetings....................... 5
Section 2.8 Voting................................................. 5
Section 2.9 Voting of Shares by Certain Holders.................... 6
Section 2.10 Closing of Transfer Records or Fixing of Record Date... 6
Section 2.11 Action by Written Consent.............................. 8
Section 2.12 Authorization of Proxies............................... 8
Section 2.13 Inspectors and Voting Procedures....................... 8
ARTICLE 3. Directors................................................ 9
Section 3.1 Management............................................. 9
Section 3.2 Number and Term........................................ 9
Section 3.3 Quorum and Manner of Action............................ 9
Section 3.4 Vacancies.............................................. 9
Section 3.5 Resignations........................................... 10
Section 3.6 Removals............................................... 10
Section 3.7 Annual Meetings........................................ 10
Section 3.8 Regular Meetings....................................... 10
Section 3.9 Special Meetings....................................... 10
Section 3.10 Organization of Meetings............................... 11
Section 3.11 Place of Meetings...................................... 11
Section 3.12 Compensation of Directors.............................. 11
Section 3.13 Action by Unanimous Written Consent.................... 11
Section 3.14 Participation in Meetings by Telephone................. 11
Section 3.15 Nominations for Director............................... 12
ARTICLE 4. Committees of the Board................................ 12
Section 4.1 Membership and Authorities............................. 12
Section 4.2 Minutes................................................ 12
Section 4.3 Vacancies.............................................. 12
Section 4.4 Telephone Meetings..................................... 13
<PAGE>
Section 4.5 Action Without Meeting................................. 13
ARTICLE 5. Officers................................................. 13
Section 5.1 Number and Title....................................... 13
Section 5.2 Term of Office; Vacancies.............................. 13
Section 5.3 Removal of Elected officers............................ 14
Section 5.4 Resignations........................................... 14
Section 5.5 The Chairman of the Board.............................. 14
Section 5.6 Chief Executive Officer................................ 14
Section 5.7 President.............................................. 14
Section 5.8 Vice Presidents........................................ 15
Section 5.9 Secretary.............................................. 15
Section 5.10 Assistant Secretaries.................................. 15
Section 5.11 Treasurer or Chief Financial Officer................... 15
Section 5.12 Assistant Treasurers................................... 16
Section 5.13 Subordinate Officers................................... 16
Section 5.14 Salaries and Compensation.............................. 16
ARTICLE 6. Indemnification.......................................... 16
ARTICLE 7. Capital Stock............................................ 17
Section 7.1 Certificates of Stock.................................. 17
Section 7.2 Lost Certificates...................................... 18
Section 7.3. Dividends.............................................. 18
Section 7.4. Registered Shareholders................................ 18
Section 7.5. Transfer of Stock...................................... 19
ARTICLE 8. Miscellaneous Provisions................................. 19
Section 8.1. Corporate Seal......................................... 19
Section 8.3. Checks, Drafts, Notes.................................. 19
Section 8.4. Notice and Waiver of Notice............................ 18
Section 8.5. Examination of Books and Records....................... 20
Section 8.6. Voting Upon Shares Held by the Corporation............. 20
ARTICLE 9. Amendments............................................... 20
<PAGE>
BYLAWS
OF
GROUP MAINTENANCE AMERICA CORP.
ARTICLE 1.
OFFICES
Section 1.1 Principal Office.
The principal office of the Corporation shall be in the City of Houston,
Texas.
Section 1.2 Registered Office.
The registered office of the Corporation required to be maintained in the
State of Texas by the Texas Business Corporation Act (the "TBCA") may be, but
need not be, identical with the Corporation's principal office, and the address
of the registered office may be changed from time to time by the Board of
Directors.
Section 1.3 Other Offices.
The Corporation may also have offices at such other places both within and
without the State of Texas as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2.
SHAREHOLDERS MEETINGS
Section 2.1 Annual Meeting.
The annual meeting of the holders of shares of each class or series of
stock as are entitled to notice thereof and to vote at such meeting pursuant to
applicable law and the Corporation's Articles of Incorporation for the purpose
of electing directors and transacting such other proper business as may come
before it shall be held in each year, at such time, on such day and at such
place, within or without the State of Texas, as may be designated by the Board
of Directors.
1
<PAGE>
Section 2.2 Special Meetings.
In addition to such special meetings as are provided by law or the
Corporation's Articles of Incorporation, special meetings of the holders of any
class or series or of all classes or series of the Corporation's stock for any
purpose or purposes, may be called at any time by (i) the Chairman of the Board,
the Chief Executive Officer, the President or the Board of Directors or (ii) the
holders of at least 50% of all the shares entitled to vote at such special
meeting and may be held on such day, at such time and at such place, within or
without the State of Texas, as shall be designated by the person or persons
calling such meeting.
Section 2.3 Notices of Meetings and Adjourned Meetings.
Except as otherwise provided by law or by the Corporation's Articles of
Incorporation, written or printed notice of any meeting of Shareholders (i)
shall be given either by personal delivery or by mail to each Shareholder of
record entitled to vote at such meeting, (ii) shall be in such form as approved
by the Board of Directors, and (iii) shall state the date, place and hour of the
meeting, and, in the case of a special meeting, the purpose for which the
meeting is called. Unless otherwise provided by law or by the Corporation's
Articles of Incorporation, such written notice shall be given not less than ten
nor more than 60 days before the date of the meeting. Except when a Shareholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened, presence in person or by proxy of a Shareholder
shall constitute a waiver of notice of such meeting. Further, a written waiver
of any notice required by law or by these Bylaws, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by law or by the
Corporation's Articles of Incorporation, the business that may be transacted at
any special meeting of the Shareholders shall be limited to and consist of the
purpose or purposes stated in such notice. If a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each Shareholder of record entitled
to vote at the meeting.
Section 2.4 Notice of Shareholder Business and Nominations.
(a) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the Shareholders may be made
at an annual meeting of Shareholders (A) pursuant to the Corporation's
notice of meeting, (B) by or at the direction of the Board of Directors,
(C) by any nominating committee or person appointed by the Board or (D) by
any Shareholder who was a Shareholder of record at the time of giving of
notice provided for in this Section, who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section.
(2) For nominations or other business to be properly brought before an
annual meeting by a Shareholder pursuant to Section 2.4(a)(1)(D), the
Shareholder must have given
2
<PAGE>
timely notice thereof in writing to the Secretary of the Corporation and
such other business must otherwise be a proper matter for Shareholder
action. To be timely, a Shareholder's notice shall be delivered to the
Secretary at the principal office of the Corporation not later than the
close of business on the 120th day nor earlier than the close of business
on the 150th day prior to the first anniversary of the mailing date of the
preceding year's proxy statement (the "Mailing Date"); provided, however,
that in the event that the Mailing Date is more than 30 days before or more
than 60 days after the anniversary of the prior year's Mailing Date, notice
by the Shareholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such Mailing Date and not later
than the close of business on the later of the 60th day prior to such
Mailing Date or the tenth day following the day on which public
announcement of the date of the Corporation's annual meeting is first made
by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a Shareholder's notice as described above. Such Shareholder's notice
shall set forth:
(A) as to each person whom the Shareholder proposes to nominate
for election or reelection as a Director all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of Directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
Rule 14a-11 thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a
Director if elected);
(B) as to any other business that the Shareholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of
such Shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; and
(C) whose behalf the nomination or proposal is made (i) the name
and address of such Shareholder, as they appear on the Corporation's
books, and of such beneficial owner, (ii) the class and number of
shares of the Corporation which are owned beneficially and of record
by such Shareholder and such beneficial owner, and (iii) whether the
proponent intends (or is part of a group which intends) to solicit
proxies from other Shareholders in support of such nomination or
proposal.
(3) Notwithstanding anything in the second sentence of Section
2.4(a)(2) to the contrary, in the event that the number of Directors to be
elected to the Board of Directors is increased and there is no public
announcement by the Corporation naming all of the nominees for Director or
specifying the size of the increased Board of Directors at least 70 days
prior to the first anniversary of the preceding year's annual meeting, a
Shareholder's notice required by this Section shall also be considered
timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of
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business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Shareholders.
Only such business shall be conducted at a special meeting of Shareholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of Shareholders at which Directors
are to be elected pursuant to such notice of meeting (a) by or at the direction
of the Board of Directors or (b) provided that the Board of Directors has
determined that Directors shall be elected at such meeting, by any Shareholder
who is a Shareholder of record at the time of giving of notice provided for in
this Bylaw, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this Bylaw. In the event the Corporation
calls a special meeting of Shareholders for the purpose of electing one or more
Directors to the Board of Directors, any such Shareholder may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation's notice of meeting, if the Shareholder's notice required by
Section 2(a)(2) shall be delivered to the Secretary at the principal office of
the Corporation not earlier than the close of business on the 90th day prior to
such special meeting and not later than the close of business on the later of
the 60th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a Shareholder's
notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.4 shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of
Shareholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 2.4. Except as otherwise
provided by applicable law, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section 2.4 and, if any
proposed nomination or business is not in compliance with this Section 2.4,
to declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.4, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.4, a
Shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.4. Nothing in this Section 2.4 shall
be deemed to affect any rights (i) of Shareholders to request inclusion
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of proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act; or (ii) of the holders of any series of preferred
stock to elect Directors under specified circumstances.
Section 2.5 Voting Lists.
The officer or agent having charge of the share transfer books for shares
of the Corporation shall make, at least ten days before each meeting of
Shareholders, a complete list of Shareholders entitled to vote at meetings or
any adjournments thereof, arranged in alphabetical order, with the address of
and the number of shares held by each, in accordance with applicable law and
shall make same available prior to and during each Shareholders' meeting for
inspection by the Corporation's Shareholders as required by law. The
Corporation's original share transfer books shall be prima facie evidence as to
who are the Shareholders entitled to examine such list or transfer books or to
vote at any meeting of Shareholders.
Section 2.6 Quorum.
Except as otherwise provided by law or by the Corporation's Articles of
Incorporation, the holders of a majority of the Corporation's shares entitled to
vote at a meeting, represented at the meeting in person or represented by proxy,
without regard to class or series, shall constitute a quorum at all meetings of
the Shareholders for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the Shareholders, the
holders of a majority of the shares represented in person or by proxy at that
meeting may adjourn any meeting from time to time without notice other than
announcement at the meeting, except as otherwise required by these Bylaws, until
such time and to such place as may be determined by a vote of the holders of a
majority of the shares represented in person or by proxy at that meeting. At
any such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the meeting
as originally called.
Section 2.7 Chairman of Shareholder Meetings.
Each annual and special meeting of Shareholders shall be presided over by a
Chairman, who shall have the exclusive authority to, among other things,
determine (a) whether business and nominations have been properly brought before
such meetings, (b) the order in which business and nominations properly brought
before such meeting shall be considered and (c) the adjournment of meetings,
whether or not a quorum is present. The Chairman of each annual and special
meeting shall be the Chairman of the Board of Directors or such person as shall
be appointed by the Board of Directors. The Secretary, or, in his absence, any
Assistant Secretary or any person appointed by the individual presiding over the
meeting, shall act as Secretary at meetings of the Shareholders.
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Section 2.8 Voting.
Each Shareholder of record, as determined pursuant to Section 2.10, who is
entitled to vote in accordance with the terms of the Corporation's Articles of
Incorporation and in accordance with the provisions of these Bylaws, shall be
entitled to one vote, in person or by proxy, for each share of stock registered
in his name on the books of the Corporation. Every Shareholder entitled to vote
at any Shareholders' meeting may authorize another person or persons to act for
him by proxy executed in writing pursuant to Section 2.12, provided that no
proxy shall be valid after 11 months from the date of its execution, unless the
proxy provides for a longer period. A duly executed proxy shall be revocable
unless the proxy form conspicuously states that the proxy is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A Shareholder's attendance at any meeting shall not have
the effect of revoking a previously granted proxy unless such Shareholder shall
in writing so notify the Secretary of the meeting prior to the voting of the
proxy. Unless otherwise provided by law, no vote on the election of directors
or any question brought before the meeting need be by ballot unless the chairman
of the meeting shall determine that it shall be by ballot or the holders of a
majority of the shares of stock present in person or by proxy and entitled to
participate in such vote shall so demand. In a vote by ballot, each ballot
shall state the number of shares voted and the name of the Shareholder or proxy
voting. Except as otherwise provided by law, by the Corporation's Articles of
Incorporation or these Bylaws, all elections of directors shall be elected by a
plurality of votes cast by the holders of shares entitled to vote in the
election of directors at a meeting of Shareholders at which a quorum is present.
Except as otherwise provided by law or the Corporation's Articles of
Incorporation, all other matters before the Shareholders shall be decided by the
vote of the holders of a majority of the shares entitled to vote on that matter
and represented in person or by proxy at a meeting of Shareholders at which a
quorum is present. In the election of directors, votes may not be cumulated.
Section 2.9 Voting of Shares by Certain Holders.
Shares standing in the name of another corporation may be voted by an
officer, agent or proxy as designated in the bylaws of such corporation, or in
the absence of such designation, as the board of directors of such corporation
may determine. Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him without transfer of such shares into his
name. Shares standing in the name of a receiver may be voted by such receiver
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer into his name if authority to do so be contained
in an appropriate order of the Court by which such receiver was appointed. A
Shareholder whose shares are pledged shall be entitled to vote such shares until
the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred. Shares
standing in the name of the Corporation or held by it in a fiduciary capacity
shall not be voted, directly or indirectly, at any meeting, and shall not be
counted in determining the total number of outstanding shares at any given time.
Section 2.10 Closing of Transfer Records or Fixing of Record Date.
(a) Fixing Record Dates for Matters Other than Consents to Action.
The Board of Directors of the Corporation may provide that the stock
transfer books be closed for a
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stated period not to exceed 60 days for the purpose of determining
Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or Shareholders entitled to
receive payment of any distribution or share dividend, or in order to make
a determination of Shareholders for any other proper purpose (other than a
distribution involving a purchase or redemption by the Corporation of any
of its own shares). If the share transfer records are closed as set forth
in this Section, the records shall be closed for at least ten days
immediately preceding the meeting. In lieu of closing the share transfer
records, the Board of Directors may fix in advance a date as the record
date for any such determination of Shareholders, the date to be not more
than 60 days, and in case of a meeting of Shareholders not less than ten
days, prior to the date on which the particular action requiring
determination of Shareholders is to be taken. If the share transfer records
are not closed and no record date is fixed for determination of
Shareholders entitled to notice of or to vote at a meeting of Shareholders,
or Shareholders entitled to receive payment of a distribution or share
dividend (other than a distribution involving a purchase or redemption by
the Corporation of any of its own shares), the date on which notice of the
meeting is mailed, or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be
the record date for determination of Shareholders. When a determination of
Shareholders entitled to vote at any meeting of Shareholders has been made
as provided in this Section, such determination shall apply to any
adjournment thereof except where the determination has been made by closing
the share transfer records and the stated period of closing has expired.
(b) Fixing Record Dates for Consents to Action. Unless a record date
has previously been determined by the Board of Directors, whenever action
by Shareholders is proposed to be taken by consent in writing without a
meeting of Shareholders, the Board of Directors may fix a record date for
the purpose of determining Shareholders entitled to consent to that action,
which record date shall not proceed, and shall not be more than ten days
after, the date on which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board
of Directors and the prior action of the Board of Directors is not
otherwise required by statute, the record date for determining Shareholders
entitled to consent to action in writing without a meeting shall be the
first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent
of the Corporation having custody of the books in which proceedings of
meetings of Shareholders are recorded. Delivery to the Corporation's
principal place of business shall be addressed to the President or the
principal executive officer of the Corporation. If no record date shall
have been fixed by the Board of Directors and prior action of the Board of
Directors is required by statute, the record date for determining
Shareholders entitled to consent to action in writing without a meeting
shall be at the close of business on the date on which the Board of
Directors adopts a resolution taking such prior action.
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Section 2.11 Action by Written Consent.
Unless otherwise provided by law or the Corporation's Articles of
Incorporation, any action required or permitted to be taken by the Shareholders
of the Corporation may be taken without a meeting, without prior notice and
without a vote, if a consent in writing setting forth the action so taken, shall
have been signed by all of the Shareholders entitled to vote with respect to the
action that is the subject of the consent. Except as provided above, no action
shall be taken by the Shareholders by written consent.
Section 2.12 Authorization of Proxies.
Any Shareholder may vote either in person or by proxy executed in writing
by the Shareholder. A telegram, telex, cablegram, or similar transmission by
the Shareholder, or a photographic, photostatic, facsimile, or similar
reproduction or a writing executed by the Shareholder, shall be treated as an
execution in writing. No proxy will be valid after eleven (11) months from the
date of its execution, unless otherwise provided in the proxy. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
Section 2.13 Inspectors and Voting Procedures.
(a) The Corporation may, in advance of any meeting of Shareholders,
appoint one or more inspectors to act at the meeting and make a written
report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of Shareholders, the
person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b) If any inspectors are elected, the inspectors shall (i) ascertain
the number of shares outstanding and the voting power of each share, the
number of shares represented at the meeting, the existence of a quorum, and
the authority, validity and effect of proxies, (ii) count and tabulate all
votes, assents and consents, and determine and announce results, and (iii)
do all other acts as may be proper to conduct elections or votes with
fairness to all Shareholders. The inspectors, if any are elected, may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
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ARTICLE 3.
DIRECTORS
Section 3.1 Management.
The property, affairs and business of the Corporation shall be managed by
or under the direction of the Board of Directors which may exercise all powers
of the Corporation and do all lawful acts and things as are not by law, by the
Corporation's Articles of Incorporation or by these Bylaws directed or required
to be exercised or done by the Shareholders.
Section 3.2 Number and Term.
The number of directors may be fixed from time to time by resolution of the
Board of Directors adopted by the affirmative vote of a majority of the entire
Board of Directors, but shall consist of not less than nine members nor more
than 18 members. Directors need not be Shareholders. No decrease in the number
of directors shall have the effect of shortening the term of office of any
incumbent director.
Section 3.3 Quorum and Manner of Action.
At all meetings of the Board of Directors a majority of the total number of
directors holding office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, by the Corporation's Articles of
Incorporation or these Bylaws. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given other than by announcement at such adjourned
meeting. Attendance by a director at a meeting shall constitute a waiver of
notice of such meeting except where a director attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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Section 3.4 Vacancies.
Except as otherwise provided by law or the Corporation's Articles of
Incorporation, in the case of any vacancy in the Board of Directors, however
created, the vacancy or vacancies may be filled by majority vote of the
directors remaining on the whole Board of Directors although less than a quorum,
or by a sole remaining director. In the event one or more directors shall
resign, effective at a future date, such vacancy or vacancies shall be filled by
election at an annual or special meeting of Shareholders called for that
purpose, or by a majority of the directors who will remain on the whole Board of
Directors, although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. Any directorship to be filled by reason of an
increase in the number of Directors shall be filled by the Board of Directors
for a term of office continuing only until the next election of one or more
directors by the Shareholders; provided that the Board of Directors may not fill
more than two such directorships during the period between any two successive
annual meetings of Shareholders.
Section 3.5 Resignations.
A director may resign at any time upon written notice of resignation to the
Corporation. Any resignation shall be effective immediately unless a certain
effective date is specified therein, in which event it will be effective upon
such date and acceptance of any resignation shall not be necessary to make it
effective.
Section 3.6 Removals.
Any director or the entire Board of Directors may be removed, only for
cause, and another person or persons may be elected to serve for the remainder
of his or their term, by the holders of a majority of the shares of the
Corporation entitled to vote in the election of directors. In case any vacancy
so created shall not be filled by the Shareholders at such meeting, such vacancy
may be filled by the directors as provided in Section 3.4.
Section 3.7 Annual Meetings.
The annual meeting of the Board of Directors shall be held, if a quorum be
present, immediately following each annual meeting of the Shareholders at the
place such meeting of Shareholders took place, for the purpose of organization
and transaction of any business that might be transacted at a regular meeting of
the Board of Directors, and no notice of such meeting shall be necessary. If a
quorum is not present, such annual meeting may be held at any other time or
place that may be specified in a notice given in the manner provided in Section
3.9 for special meetings of the Board of Directors or in a waiver of notice
thereof.
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Section 3.8 Regular Meetings.
Regular meetings of the Board of Directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the Board of Directors. Except as otherwise provided by law, any business may
be transacted at any regular meeting of the Board of Directors.
Section 3.9 Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman of
the Board, the Chief Executive Officer, the President, or by any director.
Notice of any special meeting, effective upon delivery in accordance herewith,
shall be given at least two days prior thereto by written notice delivered
personally, or by written notice mailed or sent by facsimile transmission to
each director at his business address. If mailed, the notice shall be deemed to
be delivered three days following its deposit in the United States mail so
addressed, with postage thereon prepaid. If given by facsimile transmission,
the notice shall be deemed to be delivered when sent and confirmed
electronically. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any special meetings need be specified in any
notice or written waiver of notice unless so required by the Corporation's
Articles of Incorporation or by these Bylaws. Any and all business may be
transacted at a special meeting, unless limited by law, the Corporation's
Articles of Incorporation or by these Bylaws.
Section 3.10 Organization of Meetings.
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as such Board of Directors may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present at any meeting at which there is a quorum, except as otherwise
provided by the Corporation's Articles of Incorporation, these Bylaws or by law.
Section 3.11 Place of Meetings.
The Board of Directors may hold its meetings and have one or more offices,
and keep the books of the Corporation, outside the State of Texas, at any office
or offices of the Corporation, or at any other place as it may from time to time
by resolution determine.
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Section 3.12 Compensation of Directors.
Directors shall not receive any stated salary for their services as
directors, but by resolution of the Board of Directors a fixed honorarium or
fees and expenses, if any, of attendance may be allowed for attendance at each
meeting. Nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending such committee meetings.
Section 3.13 Action by Unanimous Written Consent.
Unless otherwise restricted by law, the Corporation's Articles of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or of such committee,
as the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or the
committee.
Section 3.14 Participation in Meetings by Telephone.
Unless otherwise restricted by the Corporation's Articles of Incorporation
or these Bylaws, members of the Board of Directors or of any committee thereof
may participate in a meeting of such Board of Directors or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting in such manner shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the grounds that the meeting is not lawfully called or convened.
Section 3.15 Nominations for Director.
Nominations of persons for election to the Board of the corporation at the
Annual Meeting of Stockholders, other than by the Board or a nominating
committee designated by the Board, must be made in compliance with Section
2.4(a)(1)(C).
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ARTICLE 4.
COMMITTEES OF THE BOARD
Section 4.1 Membership and Authorities.
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board of Directors, designate one or more directors to
constitute such committees as the Board of Directors may determine, each of
which committees to the extent provided in such resolution or resolutions or in
these Bylaws, shall have and may exercise, subject to the provisions of Article
2.36 of the TBCA, all the powers of the Board of Directors in the management of
the business and affairs of the Corporation, except in those cases where the
authority of the Board of Directors is specifically denied to such committee or
committees by law, the Corporation's Articles of Incorporation or these Bylaws,
and may authorize the seal of the Corporation to be affixed to all papers that
may require such seal. The designation of any committee and the delegation
thereto of authority shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed upon it or him by law.
Section 4.2 Minutes.
Each committee designated by the Board of Directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
Section 4.3 Vacancies.
The Board of Directors may designate one or more of its members as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of such committee. If no alternate members have been
appointed, the committee member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
Section 4.4 Telephone Meetings.
Members of any committee designated by the Board of Directors may
participate in or hold a meeting by use of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
Section 4.4 shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
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Section 4.5 Action Without Meeting.
Any action required or permitted to be taken at a meeting of any committee
designated by the Board of Directors may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all the members of
the committee and filed with the minutes of the committee proceedings. Such
consent shall have the same force and effect as a unanimous vote at a meeting.
ARTICLE 5.
OFFICERS
Section 5.1 Number and Title.
The officers of the Corporation shall be a Chairman of the Board; a Chief
Executive Officer; a President; one or more Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents; a Secretary; a Treasurer; and such other
officers as the Board of Directors may deem to be necessary. Any two or more
offices may be held by the same person. If any two or more offices are held by
the same person, such person shall be entitled to exercise the rights and duties
of each office as set forth hereinafter. If the holder of two or more corporate
offices is required to sign any corporate documents, instruments, certificates,
agreements, or any other documents on the Corporation's behalf, then the
signature of such person in any one of his capacities shall be sufficient to
bind the Corporation.
Section 5.2 Term of Office; Vacancies.
So far as is practicable, all officers shall be elected by the Board of
Directors at the annual meeting of the Board of Directors each year and shall
hold office until the next such meeting of the Board of Directors in the
subsequent year and until their respective successors are elected and qualified
or until their earlier resignation or removal. If any vacancy shall occur in
any office, the Board of Directors may elect or appoint a successor to fill such
vacancy for the remainder of the term.
Section 5.3 Removal of Elected Officers.
Any officer may be removed at any time, with or without cause, by
affirmative vote of a majority of the whole Board of Directors, at any regular
meeting or at any special meeting called for such purpose.
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Section 5.4 Resignations.
Any officer may resign at any time upon written notice of resignation to
the President, Secretary or Board of Directors of the Corporation. Any
resignation shall be effective immediately unless a date certain is specified
for it to take effect, in which event it shall be effective upon such date, and
acceptance of any resignation shall not be necessary to make it effective,
irrespective of whether the resignation is tendered subject to such acceptance.
Section 5.5 The Chairman of the Board.
The Chairman of the Board, if one shall be elected, shall preside at all
meetings of the Shareholders and Board of Directors, unless otherwise determined
by the Board of Directors. In addition, the Chairman of the Board shall perform
whatever duties and shall exercise all powers that are given to him by the Board
of Directors.
Section 5.6 Chief Executive Officer.
The Chief Executive Officer shall be the most senior executive officer of
the Corporation; shall (in the absence of the Chairman of the Board, if one be
elected) preside at meetings of the Shareholders and Board of Directors; shall
have general and active management of business of the Corporation; shall
implement the general directives, plans and policies formulated by the Board of
Directors; and shall further have such duties, responsibilities and authorities
as may be assigned to him by the Board of Directors. He may sign, with any
other proper officer, certificates for shares of the Corporation and any deeds,
bonds, mortgages, contracts and other documents which the Board of Directors has
authorized to be executed, except where required by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors or these Bylaws, to some other
officer or agent of the corporation. In the absence of the Chief Executive
Officer, his duties shall be performed and his authority may be exercised by the
President of the Corporation.
Section 5.7 President.
The President shall, after the Chief Executive Officer, be the most senior
executive officer of the corporation and shall, subject to the authority of the
Chief Executive Officer, implement the general plans and directives of the Board
of Directors and perform such other duties as may be assigned to him by the
Board of Directors.
Section 5.8 Vice Presidents.
The several Vice Presidents, including Executive Vice Presidents and Senior
Vice Presidents, shall have such powers and duties as may be assigned to them by
these Bylaws and as may from time to time be assigned to them by the Board of
Directors and may sign, with any other proper officer, certificates for shares
of the Corporation.
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Section 5.9 Secretary.
The Secretary, if available, shall attend all meetings of the Board of
Directors and all meetings of the Shareholders and record the proceedings of the
meetings in a book to be kept for that purpose and shall perform like duties for
any committee of the Board of Directors as shall designate him to serve. He
shall give, or cause to be given, notice of all meetings of the Shareholders and
meetings of the Board of Directors and committees thereof and shall perform such
other duties incident to the office of secretary or as may be prescribed by the
Board of Directors or the President, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and he, or any
Assistant Secretary, or any other person whom the Board of Directors may
designate, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by his signature or by the signature
of any Assistant Secretary or by the signature of such other person so affixing
such seal.
Section 5.10 Assistant Secretaries.
Each Assistant Secretary shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as may be assigned to
him by the Board of Directors, the President or the Secretary. The Assistant
Secretary or such other person as may be designated by the President shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
Section 5.11 Treasurer or Chief Financial Officer.
The Treasurer or Chief Financial Officer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and separate
accounts of receipts and disbursements in the books belonging to the Corporation
and shall deposit all monies and other valuable effects in the name and the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer or Chief Financial Officer and of the financial
condition of the Corporation and he shall perform all other duties incident to
the position of Treasurer or Chief Financial Officer, or as may be prescribed by
the Board of Directors or the President. If required by the Board of Directors,
he shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 5.12 Assistant Treasurers.
Each Assistant Treasurer shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as may be assigned to
him by the Board of Directors, the President or the Treasurer. The Assistant
Treasurer or such other person designated by the President shall exercise the
power of the Treasurer during that officer's absence or inability to act.
16
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Section 5.13 Subordinate Officers.
The Board of Directors may (i) appoint such other subordinate officers and
agents as it shall deem necessary who shall hold their offices for such terms,
have such authority and perform such duties as the Board of Directors may from
time to time determine, or (ii) delegate to any committee or officer the power
to appoint any such subordinate officers or agents.
Section 5.14 Salaries and Compensation.
The salary or other compensation of officers shall be fixed from time to
time by the Board of Directors. The Board of Directors may delegate to any
committee or officer the power to fix from time to time the salary or other
compensation of officers.
ARTICLE 6.
INDEMNIFICATION
(a) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such action, suit or
proceeding, and any inquiry or investigation that would lead to such action,
suit or proceeding (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the TBCA, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted prior
thereto), against all judgments, fines, penalties (including excise tax and
similar taxes), settlements, and reasonable expenses actually incurred by such
indemnitee in connection therewith. The right to indemnification conferred in
this Section shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the TBCA
requires, an advancement of expenses incurred by an indemnitee shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
(b) Insurance. The Corporation may purchase and maintain insurance, at its
expense, on behalf of any indemnitee against any liability asserted against him
and incurred by him in such a capacity or arising out of his status as a
representative of the Corporation, whether or not the
17
<PAGE>
Corporation would have the power to indemnify such person against such expense,
liability or loss under the TBCA.
(c) Indemnity of Employees and Agents of the Corporation. The Corporation
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
or as otherwise permitted under the TBCA with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE 7.
CAPITAL STOCK
Section 7.1 Certificates of Stock.
Certificates of stock shall be issued to each Shareholder certifying the
number of shares owned by him in the Corporation and shall be in a form not
inconsistent with the Articles of Incorporation and as approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President and by the Secretary
or an Assistant Secretary, or the Treasurer, Chief Financial Officer or an
Assistant Treasurer and may be sealed with the seal of the Corporation or a
facsimile thereof. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate ceases to hold such
position, such certificate may nevertheless be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, each certificate representing shares
shall conspicuously set forth in full or summarize on the face or back of the
certificate either (i) the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof to the extent they have been filed and determined and the authority of
the Board of Directors to fix and determine the designations, preferences,
limitations and relative rights of subsequent series, or (ii) a summary thereof;
provided that, except as otherwise provided by statute, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock a
statement that such information is set forth in the Articles of Incorporation on
file in the office of the Secretary of State of the State of Texas, and the
Corporation will furnish without charge to each Shareholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
18
<PAGE>
Section 7.2 Lost Certificates.
The Board of Directors may direct a new certificate to be issued in place
of any certificate theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
owner of such certificate, or his legal representative. When authorizing the
issuance of a new certificate, the Board of Directors may in its discretion, as
a condition precedent to the issuance thereof, require the owner, or his legal
representative, to give a bond in such form and substance with such surety as it
may direct, to indemnify the Corporation against any claim that may be made on
account of the alleged loss, theft or destruction of such certificate or the
issuance of such new certificate.
Section 7.3. Dividends.
Subject to Article 2.38 of the TBCA and the provisions of the Corporation's
Articles of Incorporation, if any, and except as otherwise provided by law, the
directors may declare dividends upon the capital stock of the Corporation as and
when they deem it to be expedient. Such dividends may be paid in cash, in
property or in shares of the Corporation's capital stock. Before declaring any
dividend there may be set apart out of the funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion determine to be proper for working capital or as a reserve fund to
meet contingencies or for equalizing dividends, or for such other purposes as
the directors shall determine to be in the best interest of the Corporation and
the directors may modify or abolish any such reserve in the manner in which it
was created.
Section 7.4. Registered Shareholders.
Except as expressly provided by law, the Corporation's Articles of
Incorporation or these Bylaws, the Corporation shall be entitled to treat
registered Shareholders as the only holders and owners in fact of the shares
standing in their respective names and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, regardless of whether it shall have express or other notice
thereof.
Section 7.5. Transfer of Stock.
Transfers of shares of the capital stock of the Corporation shall be made
only on the books of the Corporation by the registered owners thereof, or by
their legal representatives or their duly authorized attorneys. Upon any such
transfers the old certificates shall be surrendered to the Corporation by the
delivery thereof to the person in charge of the stock transfer books and
ledgers, by whom they shall be canceled and new certificates shall thereupon be
issued.
19
<PAGE>
ARTICLE 8.
MISCELLANEOUS PROVISIONS
Section 8.1. Corporate Seal.
If one is adopted, the corporate seal shall have inscribed thereon the name
of the Corporation and shall be in such form as may be approved by the Board of
Directors. Such seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
Section 8.2. Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 8.3. Checks, Drafts, Notes.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner as shall from time to time be determined by resolution (whether general
or special) of the Board of Directors or may be prescribed by any officer or
officers, or any officer and agent jointly, thereunto duly authorized by the
Board of Directors.
Section 8.4. Notice and Waiver of Notice.
Whenever notice is required to be given to any director or Shareholder
under the provisions of applicable law, the Corporation's Articles of
Incorporation or these Bylaws, such notice shall be in writing and delivered
whether (i) personally, or (ii) by registered or certified mail, or (iii) by
telegram, telecopy, or similar facsimile means (delivered during the recipient's
regular business hours). Such notice shall be sent to such director or
Shareholder at the address or telecopy number as it appears on the records of
the Corporation, unless prior to the sending of such notice he has designated,
in a written request to the Secretary of the Corporation, another address or
telecopy number to which notices are to be sent. Notices shall be deemed given
when received, if sent by telegram, telex, telecopy or similar facsimile means
(confirmation of such receipt by confirmed facsimile transmission being deemed
receipt of communications sent by telex, telecopy or other facsimile means); and
when delivered and receipted for (or upon the date of attempted delivery where
delivery is refused), if hand delivered, sent by express courier or delivery
service, or sent by certified or registered mail. Whenever notice is required
to be given under any provision of law, the Corporation's Articles of
Incorporation or these Bylaws, a waiver thereof in writing, by telegraph, cable
or other form of recorded communication, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Shareholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the Corporation's Articles of Incorporation or
these Bylaws.
20
<PAGE>
Section 8.5. Examination of Books and Records.
The Board of Directors shall determine from time to time whether, and if
allowed, when and under what conditions and regulations the accounts and books
of the Corporation (except such as may by statute be specifically opened to
inspection) or any of them shall be open to inspection by the Shareholders, and
the Shareholders' rights in this respect are and shall be restricted and limited
accordingly.
Section 8.6. Voting Upon Shares Held by the Corporation.
Unless otherwise provided by law or by the Board of Directors, the Chairman
of the Board of Directors, the Chief Executive Officer, the President, or any
Vice President, acting on behalf of the Corporation, shall have full power and
authority to attend and to act and to vote at any meeting of shareholders of any
corporation, partnership, venture or limited liability company in which the
Corporation may hold stock or other equity interest and, at any such meeting,
shall possess and may exercise any and all of the rights and powers incident to
the ownership of such equity interest which, as the owner thereof, the
Corporation might have possessed and exercised, if present. The Board of
Directors by resolution from time to time may confer like powers upon any person
or persons.
ARTICLE 9.
AMENDMENTS
Except as expressly provided in the Corporation's Articles of
Incorporation, the directors, by the affirmative vote of a majority of the
entire Board of Directors and without the assent or vote of the Shareholders,
may at any meeting, provided the substance of the proposed amendment shall have
been stated in the notice of the meeting, make, repeal, alter, amend or rescind
any of these Bylaws or to adopt new Bylaws. The Shareholders shall not make,
repeal, alter, amend or rescind any of the provisions of these Bylaws except by
the holders of not less than a majority of the shares of stock of the
Corporation entitled to vote in the election of directors.
21
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EXHIBIT 4.4
GROUPMAC SAVINGS PLAN
Effective: January 1, 1999
<PAGE>
GroupMAC Savings Plan
TABLE OF CONTENTS
-----------------
PREAMBLE PAGE
ARTICLE I PURPOSE AND DEFINITIONS.................................. I-1
1.1 - Purpose............................................ I-1
1.2 - Definitions........................................ I-1
1.3 - Construction....................................... I-5
ARTICLE II SERVICE CREDIT........................................... II-1
2.1 - Hour of Service.................................... II-1
2.2 - Participation Service.............................. II-3
2.3 - Vesting Service.................................... II-3
2.4 - Break in Service................................... II-3
2.5 - Loss of Service.................................... II-4
ARTICLE III PARTICIPATION REQUIREMENTS............................... III-1
3.1 - Participation Originating Under
The Previous Plan................................. III-1
3.2 - Participation Originating Under
This Plan......................................... III-1
3.3 - Cessation Of Participation Service
and Reentry....................................... III-2
3.4 - Cessation of Right to Contributions................ III-3
3.5 - Special Rules for Military Leave................... III-3
ARTICLE IV CONTRIBUTIONS............................................ IV-1
4.1 - (Pre-Tax) Salary Deferral Contributions Elected
By Participants................................... IV-1
4.2 - No After-Tax Contributions Permitted............... IV-2
4.3 - Employer Contributions............................. IV.2
4.4 - Rollover Contribution.............................. IV.2
ARTICLE V MAINTENANCE OF INDIVIDUAL ACCOUNTS....................... V-1
5.1 - Establishment Of Individual Accounts............... V-1
5.2 - Investment Options................................. V-1
5.3 - Allocations of Gains and Losses.................... V-2
5.4 - Allocation of Forfeitures.......................... V-2
5.5 - Notification To Participants....................... V-2
ARTICLE VI IN-SERVICE WITHDRAWALS AND LOANS......................... VI-1
6.1 - Withdrawals........................................ VI-1
6.2 - Loans to Participants.............................. VI-3
ARTICLE VII VESTING, TERMINATION AND DEATH........................... VII-1
7.1 - Vesting............................................ VII-1
7.2 - Termination Benefit................................ VII-2
7.3 - Death Benefit...................................... VII-2
7.4 - Disability Benefit................................. VII-3
ARTICLE VIII TIME AND METHODS OF PAYMENT.............................. VIII-1
8.1 - Time of Payment.................................... VIII-1
<PAGE>
GroupMAC Savings Plan
TABLE OF CONTENTS (Cont'd)
PAGE
8.2 - Method of Payment................................... VIII-1
8.3 - Balance of $5,000 or Less........................... VIII-2
8.4 - Minority or Incompetency............................ VIII-2
ARTICLE IX CODE SECTIONS 401(a)(17), 402(g), 401(k) AND
401(m) LIMITATIONS........................................ IX-1
9.1 - Compensation Dollar Limitation...................... IX-1
9.2 - Salary Deferral Dollar Limitation................... IX-1
9.3 - Deferral And Contribution Percentage Tests.......... IX-2
ARTICLE X CODE SECTION 415 LIMITATIONS............................... X-1
10.1 - Limit on Annual Additions Under Code Section 415.... X-1
10.2 - Excess Allocation................................... X-3
ARTICLE XI TOP-HEAVY RESTRICTIONS..................................... XI-1
11.1 - Top-Heavy Determinations............................ XI-1
11.2 - Effects of Top-Heaviness............................ XI-3
ARTICLE XII ADMINISTRATION............................................. XII-1
12.1 - Appointment Of Committee............................ XII-1
12.2 - Committee Powers and Duties......................... XII-1
12.3 - Claims Procedure.................................... XII-4
12.4 - Committee Procedures................................ XII-5
12.5 - Authorization of Benefit Payments................... XII-5
12.6 - Payment of Expenses................................. XII-5
12.7 - Unclaimed Benefits.................................. XII-5
12.8 - Indemnity........................................... XII-6
ARTICLE XIII TRUST FUND................................................. XIII-1
13.1 - Establishment of Trust Fund......................... XIII-1
13.2 - Payment of Contributions to Trust Fund.............. XIII-1
ARTICLE XIV AMENDMENTS................................................. XIV-1
14.1 - Right To Amend...................................... XIV-1
ARTICLE XV WITHDRAWAL AND TERMINATION................................. XV-1
15.1 - Employer Withdrawal................................. XV-1
15.2 - Transfers of Plan Assets and Plan Mergers........... XV-1
15.3 - Plan Termination.................................... XV-2
15.4 - Suspension and Discontinuance of
Contributions and Plan Termination................. XV-2
15.5 - Liquidation of Trust Fund........................... XV-3
<PAGE>
GroupMAC Savings Plan
TABLE OF CONTENTS (Cont'd)
PAGE
ARTICLE XVI GENERAL PROVISIONS........................................ XVI-1
16.1 - Nonguarantee of Employment......................... XVI-1
16.2 - Manner of Payment.................................. XVI-1
16.3 - Nonalienation of Benefits.......................... XVI-1
16.4 - Amounts Returnable to an Employer.................. XVI-2
16.5 - Governing Law...................................... XVI-3
16.6 - Voting Corporation Common Stock.................... XVI-3
16.7 - Tender Offer of Corporation Common Stock........... XVI-4
<PAGE>
GROUPMAC SAVINGS PLAN
PREAMBLE
Group Maintenance America Corp. (the "Corporation") organized and existing
under the laws of the State of Texas, hereby establishes the GroupMAC Savings
Plan (the "Plan") for its Employees as hereinafter defined.
The Corporation is concurrently herewith entering into a Trust Agreement
creating a Trust Fund (hereinafter at times referred to as the "Fund"), to which
Plan contributions shall be made and from which benefits shall be paid in
accordance with the terms and conditions thereof.
The Plan is conditioned upon its qualification as a profit sharing plan
under Sections 401(a), 401(k) and 401(m) of the Internal Revenue Code of 1986,
as amended from time to time (the "Code"), with employer contributions being
deductible under Section 404 of the Code.
The terms and conditions of the Plan are as follows:
<PAGE>
ARTICLE I
Purpose and Definitions
1.1 Purpose: The purpose of this Plan is to encourage Employees to save
and invest, systematically, a portion of their current Compensation in order
that they may have a source of additional income upon their retirement or
disability, or for their family in the event of death. The benefits provided by
this Plan will be paid from the Trust Fund and will be in addition to the
benefits Employees are entitled to receive under any other programs of the
Employer.
This Plan and the separate related Trust forming a part hereof are
established and shall be maintained for the exclusive benefit of the eligible
Employees of the Employer and their Beneficiaries. No part of the Trust Fund
can ever revert to the Employer or be used for or diverted to any other purpose
other than for the exclusive benefit of the Employees of the Employer and their
Beneficiaries, except as provided in Section 16.4 hereof.
1.2 Definitions: Where the following words and phrases appear in this
Plan, they shall have the respective meanings set forth below, unless the
context clearly indicates otherwise:
(a) Affiliated Employer: Any business entity (including an Employer
hereunder) that, together with an Employer hereunder, constitutes a
controlled group of corporations, a group of trades or businesses under
common control, or an affiliated service group, all as defined in Code
Section 414 (subject, however, to the provisions of Code Section 415(h) when
applying the benefit limitations of Code Section 415). A business entity is
an Affiliated Employer only during the period of such required aggregation
with an Employer hereunder.
(b) Allocation Date: The date as of which contributions are allocated
hereunder, which shall be as soon as practicable after the end of each
payroll period as to Salary Deferral Contributions and the last day of each
calendar quarter as to Matching Employer Contributions. As to any other
contributions, the last day of the Plan Year or such other date or dates
during the Plan Year as determined by the Committee.
(c) Beneficiary: A person designated by a Participant to receive
benefits hereunder upon the death of such Participant.
I-1
<PAGE>
(d) Code: The Internal Revenue Code of 1986, as amended from time to
time.
(e) Committee: The persons appointed by the Corporation, pursuant to
Article XII to act as the Plan Administrator and to perform the duties in
Article XII.
(f) Compensation: For any Plan Year, the sum of total compensation paid
to an Employee during such year by the Employer for personal services as
reported on the employee's federal income tax withholding statement or
statements (Form W-2 or its subsequent equivalent), plus (ii) any salary
reduction elected by the Employee for such year under Code Section 125 or
401(k), but excluding (iii) special payments, such as moving expenses, and
benefits provided under any Employer-sponsored employee benefit program, and
excluding (iv) any amounts not allowed under Code Section 401(a)(17)
limitations, as provided in Section 9.1 hereof.
(g) Contributions: Amounts contributed hereunder for allocation to
Participants as follows:
(1) Matching Employer Contributions: The contributions made by the
Corporation, which are to be equal to a percentage of the Salary Deferral
Contributions of the Employees, as determined under Section 4.3 hereof.
(2) Salary Deferral Contributions: The pre-tax contributions made
under Section 4.1 hereof through salary deferral pursuant to Code Section
401(k) for any Plan Year.
(3) Special Contributions: The pre-tax contributions treated as
Salary Deferral Contributions and/or Matching Employer Contributions in
accordance with Section 4.3 hereof.
(4) Profit Sharing Contributions: The discretionary contributions
made by the Corporation, as determined under Section 4.3 hereof.
(5) Rollover Contributions: The contributions made by an Employee
under Section 4.4 hereof, which constitute the Employee's eligible
rollover distribution (as defined in Code Section 402(c)) from a qualified
plan of a prior employer or from a conduit Individual Retirement Account.
(h) Corporation: Group Maintenance America Corp., a corporation
organized and existing under the laws of the State of Texas, or its successor
or successors.
(i) Covered Employment: The employment category for which the Plan is
maintained, which includes all employment as an Employee of the Employer but
excluding employment (i) as a "leased employee" (as such term is defined
within the definition of Employee below), (ii) in a unit of employees covered
by a collective bargaining agreement between employee representatives and the
Employer or Affiliated Employer, unless the Employer and the bargaining unit
have agreed to participation in the Plan, (iii) of a non-resident alien who
received no earned income within the meaning of Code Section 911(d)(2) from
the Employer which constitutes income from sources within the United States.
In addition, Covered Employment shall not include the employment of any
person who is not on an Employer's salaried or hourly
I-2
<PAGE>
payroll, who has agreed in writing to be treated as other than an employee or
whose compensation is reported to the Internal Revenue Service on a form other
than Form W-2, in each case regardless of whether such person is treated as an
employee for federal or state income tax purposes.
(j) Disabled or Disability: A physical or mental condition which is
determined by the Committee upon advice of competent physicians selected by the
Committee or such medical or evidence as the Committee deems necessary or
desirable and in the sole discretion of the Committee, to prevent a Participant
from engaging in any substantial gainful activity and which can be expected to
result in death or to be of long continued and indefinite duration; provided,
however, that no Participant shall be deemed to have suffered a Disability if
his incapacity results from (i) chronic alcoholism, (ii) addiction to narcotics
or hallucinogenic drugs, (iii) an injury suffered while engaged in a felonious
or criminal act or enterprise, or (iv) service in the Armed Forces of the
United States which entitles the Participant to a veteran's disability pension.
(k) Effective Date: January 1, 1999.
(l) Employee: Any person who, on or after the Effective Date, is receiving
remuneration for personal services rendered as a common law employee of the
Employer or Affiliated Employer (or who would be receiving such remuneration
except for an authorized Leave of Absence). A "leased employee" will also be
deemed an Employee. A "leased employee" is any leased employee within the
meaning of Code Section 414(n)(2), except that if such leased employees
constitute less than twenty percent (20%) of the Employer's nonhighly
compensated workforce within the meaning of Code Section 415(n)(5)(C)(ii), then
the term "Employee" will not include those leased employees covered by a plan
described in Code Section 414(n)(5) unless otherwise provided by the terms of
such plan (or this Plan).
(m) Employer: The Corporation, and any other organization which adopts the
Plan with the consent of the Corporation
(n) ERISA: The Employee Retirement Income Security Act of 1974, as amended
from time to time.
(o) Individual Account: Each of the accounts maintained under the Plan
showing the individual interests in the Trust Fund of each Participant, former
Participant, and Beneficiary.
(p) Investment Fund: An investment fund selected by the Committee into
which contributions and accounts are invested. The Investment Funds available
under the Plan shall be listed on Exhibit A to the Plan, which Exhibit may be
modified from time to time by the Committee.
(q) Leave of Absence: Any absence from service authorized by an Employer
under such Employer's standard personnel practices, provided that all persons
under similar circumstances must be treated alike in the granting of such
Leaves of Absence, and provided further that the Employee returns or retires
within the period specified in the authorized Leave of Absence.
I-3
<PAGE>
(r) Limitation Year: The year used in applying Code Section 415, which
year is the calendar year.
(s) Normal Retirement Date: The Participant's sixty-fifth (65th)
birthday.
(t) Participant: An Employee who has met the eligibility requirements
for participation set forth in Article III hereof, or former Participant to
the extent an Individual Account continues to be maintained for such former
Participant hereunder. In addition, "Participant" shall include an Employee
who has an account balance under the Plan by virtue of his having made a
Rollover Contribution to the Plan; provided that an Employee or former
Employee who becomes a Participant by virtue of making a Rollover
Contribution, but who has not satisfied the requirements of Section 3.2 at
the time he makes such Rollover Contribution shall not be eligible (i) to
elect pursuant to Section 4.1 to defer any portion of his Compensation or
(ii) to receive an allocation of Matching Employer Contributions pursuant to
Section 4.3 until such individual satisfies the requirements of Section 3.2
and (iii) shall not be deemed a Participant for purposes of Section 9.3.
(u) Plan: GroupMAC Savings Plan, the Plan set forth herein as amended
from time to time.
(v) Plan Administrator: The Committee.
(w) Plan Year: Each annual period beginning on January 1 and ending on
December 31.
(x) Previous Plan: Any qualified defined contribution plan which was
maintained by an Employer immediately prior to the Effective Date; provided
that a plan from which assets were transferred to this Plan as a direct
rollover shall not be considered a Previous Plan.
(y) Service: A period or periods of employment of an Employee as
described in Article II hereof:
(z) Service Computation Year: The twelve (12) month period used in
determining Service credit in which twelve (12) month period shall be the
calendar year.
(aa) Trust Agreement: GroupMAC Savings Trust, as amended from time to
time, which constitutes a part of this Plan.
(bb) Trust or Trust Fund: The fund maintained in accordance with the
terms of the Trust Agreement.
(cc) Trustee: The corporation or individuals appointed by the
Corporation as trustee under the Trust Agreement.
(dd) Valuation Date: The date as of which any investment fund described
in Article V is valued and gains or losses allocated, which shall be each and
every day that the New York Stock Exchange is open, and such additional dates
as determined by the Committee.
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1.3 Construction: The masculine gender, where appearing in the Plan
shall be deemed to include the feminine gender, unless the context indicates
to the contrary.
I-5
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ARTICLE II
Service Credit
2.1 Hour Of Service:
a. Hours Of Service Credit Used For All Purposes: An Hour of Service is
any hour for which an Employee is directly or indirectly paid or entitled to
payment for the performance of duties (irrespective of whether the employment
relationship has terminated) or for certain reasons other than the performance
of duties, including any hour for which back pay (irrespective of mitigation of
damages) is due, by the Employer or Affiliated Employer.
Such payment for reasons other than the performance of duties must be due
to vacation, holiday, illness, incapacity (including disability), lay off, jury
duty, military duty or Leave of Absence; provided, however, that no Hour of
Service need be credited for payments received solely for the purpose of
complying with applicable workers' compensation or unemployment or disability
insurance laws or for payments received solely for reimbursing the Employee for
medical or medically related expenses. It is further provided that no more than
five hundred one (501) Hours of Service credit shall be given for each single
continuous period for which an Employee is paid for reasons other than the
performance of duties; provided that Hours of Service may be granted under this
Section 2.1a even if not required under Section 3.4 but in no event shall a
Participant receive Hours of Service credit under this Section 2.1a and 3.4 for
the same period of time. The determination of such Hours of Service for the
nonperformance of duties shall be in accordance with Section 2530.200b-2(b) of
the Minimum Standards Regulations prescribed by the Secretary of Labor.
Hours of Service credit at the rate of forty (40) hours per week shall also
be granted for any nonpaid period of absence authorized by the Employer in
accordance with its uniform Leave of Absence policy for granting such credit or
for military duty to the extent required under federal law.
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Each Hour of Service earned by an Employee shall be credited to him as of
the time when he actually earned such Hour except as otherwise permissible or
required under Section 2530.200b-2(c) of the Minimum Standards Regulations
prescribed by the Secretary of Labor. In no event will an Employee receive
credit for the same Hours of Service more than once.
b. Hours of Service Credit Used Only For Purposes Of Determining Breaks
In Service: Solely for purposes of determining whether an Employee has incurred
a one (1) year Break in Service, Hours of Service credit shall be given (if not
already given under a. above in this Section) for any absence, beginning after
December 31, 1984, by reason of pregnancy of the Employee, birth of the
Employee's child, placement of a child with the Employee in connection with the
adoption of such child by said Employee, and absence for purposes of caring for
such child for a period beginning immediately following such birth or placement.
No more than five hundred one (501) Hours of Service credit need be given
for such periods of absence, and the credit given shall be the Hours of Service
which otherwise would normally have been credited to such Employee but for such
absence. In any case in which hourly records are not maintained, Hours of
Service credit shall be given at the rate of eight (8) hours for each day of
such absence.
Said Hours of Service shall be credited in the Service Computation Year
during which said absence began only if the Employee would be prevented from
incurring a Break in Service in said year by treating said periods of absence as
hours of Service; however if said Employee would not otherwise incur a Break in
Service during said year, such Hours of Service shall be credited in the
immediately following year.
2.2 Participation Service: Participation Service is the period of
employment used in determining eligibility for participation in this Plan.
Subject to the loss of service rules below in this Article, a year of
Participation Service is the twelve (12) month period beginning with the date of
the Employee's first Hour of Service if he completes at least one thousand
(1,000) Hours of Service during such twelve (12) month period, and is any
Service Computation Year following such date during which he completes at least
one thousand (1,000) Hours of Service.
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2.3 Vesting Service: Vesting Service is the period of employment used in
determining eligibility for benefits. Subject to the loss of service rules
below in this Article, a year of Vesting Service shall be granted for each
Service Computation Year in which an Employee has completed one thousand (1,000)
or more Hours of Service.
A Participant shall receive Vesting Service credit for his last period of
continuous uninterrupted employment with the Employer immediately prior to the
Effective Date.
2.4 Break In Service:
a. For Participation Service: For purposes of determining Participation
Service, an Employee shall have a year of Break in Service for the twelve (12)
month period beginning with the date of his first Hour of Service and for any
Service Computation Year following such date if during such twelve (12) month
period or such Service Computation Year he completes five hundred (500) or fewer
Hours of Service.
b. For Vesting Service: For purposes of determining Vesting Service, an
Employee shall have a year of Break in Service for each Service Computation Year
in which he completes five hundred (500) or fewer Hours of Service.
2.5 Loss of Service:
a. Loss Of Participation Service: If an Employee who does not have any
vested benefit derived from Employer contributions hereunder has a termination
of employment that results in at least five (5) consecutive years of Breaks in
Service that are equal to or greater than the total years of Participation
Service, then he shall lose all such prior Participation Service previously
accrued hereunder.
b. Loss Of Vesting Service: If an Employee who does not have any vested
benefit derived from Employer contributions hereunder has a termination of
employment that results in at least five (5) consecutive years of Breaks in
Service that are equal to or greater than the years of Vesting Service prior to
his latest Break in Service, then he shall lose all his prior Vesting Service.
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ARTICLE III
Participation Requirements and Vesting Service Credit
3.1 Participation Originating Under the Previous Plan: Employees in
Covered Employment who were participants in the Previous Plan immediately prior
to the Effective Date, or would have become participants on the Effective Date,
shall automatically become Participants in this Plan as of the Effective Date.
3.2 Participation Originating Under This Plan: Each Employee who does not
become a Participant in this Plan in accordance with Section 3.1 shall become a
Participant in the Plan in accordance with a. or b. below, as applicable:
a. Each Employee who is regularly scheduled to work at least
thirty (30) hours or more per week shall become a Participant in this Plan
on the first day of the month coinciding with or next following the date
(i.e., "entry date") on which he:
(i). is in Covered Employment,
(ii). has attained age eighteen (18),
(iii). has reached the date that is ninety (90) days after the date
when he performed his first Hour of Service, and
(iv). has agreed to participation hereunder, in accordance with
procedures established by the Committee.
b. Any Employee who is not regularly scheduled to work thirty
(30) or more hours per week shall become a Participant in this Plan on the
first day of the month ("i.e., entry date"), coincident with or next
following the date on which he:
(i). is in Covered Employment;
(ii). has attained age eighteen (18);
(iii). has completed one (1) year at Participation Service credit;
and
(iv). has agreed to participation hereunder in accordance with
procedures established by the Committee.
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3.3 Cessation Of Participation Service and Reentry: If an Employee has a
year or more of Breaks in Service, or if he leaves Covered Employment, before he
has become a Participant hereunder, he will, following such Break in Service or
interruption of Covered Employment, become a Participant on the first entry date
specified in Section 3.2 hereof after he meets the requirements for
participation specified in Section 3.2 hereof. For purposes of determining
whether an Employee's prior Participation Service is to be counted toward such
requirements, the provisions of Section 2.5 hereof shall be applicable.
If, however, an Employee leaves Covered Employment after having met the
participation requirements of Section 3.2 hereof but before his entry date, he
will, if he reenters Covered Employment after such entry date but before having
a one (1) year Break in Service, become a Participant immediately upon such
reentry into Covered Employment.
If an Employee has a year or more of Breaks in Service, or if he leaves
Covered Employment, after he has become a Participant hereunder but before he
has any vested benefit hereunder, he will cease his participation in this Plan,
but will, immediately following such Break in Service or interruption of Covered
Employment, again become a Participant provided he then meets the requirements
for participation specified above in this Article. If the Employee does not
then meet such requirements, he shall become a Participant on the first entry
date specified in Section 3.2 hereof after he does meet such requirements. For
purposes of determining whether an Employee's prior Participation Service is to
be counted toward such requirements, the provisions of Section 2.5 hereof shall
be applicable.
If an Employee has a year or more of Breaks in Service, or if he leaves
Covered Employment, after he has a vested benefit hereunder, he will cease his
participation in this Plan, but will, immediately following such Break in
Service or interruption of Covered Employment, again become a Participant
hereunder, provided he is in Covered Employment.
3.4 Cessation Of Right to Contributions: If an Employee ceases to be in
Covered Employment, he shall not be entitled to have contributions made on his
behalf to the Plan.
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3.5 Special Rules for Military Leave: Notwithstanding any provisions of
this Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with
section 414(u) of the Internal Revenue Code. Loan repayments will be suspended
under this Plan during a Participant's military service as permitted under
section 414(u)(4) of the Internal Revenue Code.
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ARTICLE IV
Contributions
4.1 (Pre-Tax) Salary Deferral Contributions Elected By Participants: When
he becomes a Participant hereunder and at such other times as may be permitted
under procedures established by the Plan, a Participant shall enter into a
salary deferral agreement with his Employer which shall provide that the
Participant elects to defer (on a pre-tax basis) a portion of his Compensation,
which shall be Salary Deferral Contributions hereunder. Any such contributions
received for a Participant hereunder for any Allocation Date will be allocated
to such Participant's Salary Deferral Account as of such date. The following
rules will apply:
(1) Such contributions shall be made in whole percentages of his
Compensation not to exceed fifteen percent (15%) of his Compensation.
(2) Such deferral must meet the deferral percentage test in Section
9.3 hereof, and the Committee may require modifications in order to meet
such test.
(3) Such deferral cannot exceed the dollar limit in Section 9.2
hereof.
(4) The Committee may establish a maximum deferral for any year.
A salary deferral agreement shall be entered into in accordance with the
procedures that the Committee may prescribe, and shall be effective on a Plan
Year basis, provided that changes, suspensions or discontinuance of salary
deferrals may be made by the Participant in accordance with procedures
established under the Plan, but may be made by the Committee if called for under
Section 9.2 or 9.3 hereof or if the Employer's deduction limits under Code
Section 404(a) would otherwise be exceeded as to any Employee. If any
Participant fails to make a new election as to Salary Deferral Contributions for
any Plan Year, then his election for such Plan Year shall be deemed to be the
same as the election in effect on the last day of the prior Plan Year.
4.2 No After-Tax Contributions Permitted: No after-tax contributions are
permitted hereunder.
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4.3 Employer Contributions: The Corporation shall, during a Plan Year,
contribute the following to the Trust:
(1) Matching Employer Contributions, if and to the extent determined
by the Corporation, for each Participant who is an Employee of an Employer
during the Plan Year. The amount of Matching Employer Contribution that
each eligible Participant shall receive shall be a percentage of such
Participant's Salary Deferral Contributions for the Plan Year and such
percentage shall be determined by the Corporation as to the subsidiary or
division in which the eligible Participant was employed during the Plan
Year. The applicable percentage shall be the same for all such eligible
Participants of the division or subsidiary. The Matching Employer
Contributions may be made in cash or in shares of Corporation common stock.
(2) Special Contribution, for any Participant in the "nonhighly
compensated contribution percentage" under Section 9.3 hereof to the extent
deemed necessary by the Employer's Board of Directors to avoid a violation
of the 401(k) test and/or the 401(m) test described in Section 9.3 hereof.
Such a contribution shall be treated as a Salary Deferral Contribution
and/or Matching Employer Contribution hereunder, as designated by the
Employer.
(3) Profit Sharing Contributions, if and to the extent determined by
the Corporation for each Participant who is employed on the last day of the
Plan Year, or, during the Plan Year, retired on or after his Normal
Retirement Age, or became disabled or died while an Employee. The amount of
Profit Sharing Contribution, if any, shall be determined by the Corporation
as to the subsidiary or division in which the eligible Participant was
employed during the Plan year. The Profit Sharing Contribution may be made
in cash or Corporation common stock. The allocation of such Profit Sharing
Contribution applicable to the Participant's division or subsidiary shall
be made on the basis of Compensation received during the Plan Year while a
Participant. Such allocations shall be made to each eligible Participant in
the applicable division or subsidiary in the ratio of his Compensation
while a Participant during the Plan Year to the Compensation of all
eligible Participants while Participants during the plan years in that
division or subsidiary.
4.4 Rollover Contribution: When an individual becomes an Employee in
Covered Employment, he may, but only with Committee consent, contribute, or
cause to be contributed, to this Plan any eligible rollover distribution (as
described in Code Section 402(c)) he has received, or which is available to him,
under another qualified retirement plan. Such contribution must be a "rollover"
contribution in accordance with Code Section 402 (including a direct rollover)
and shall only be made in accordance with Committee guidelines. Such
contribution is for allocation to the Employee's Rollover Account as of the
Allocation Date for which the contribution is received hereunder.
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<PAGE>
ARTICLE V
Maintenance Of Individual Accounts
5.1 Establishment Of Individual Accounts: The Committee shall create and
maintain adequate records to reflect at all times the interest in the Trust Fund
of each Participant. Such records shall be in the form of separate Individual
Accounts for each Participant who has an interest in the Trust Fund, such
accounts to be referred to as follows:
a. Matching Employer Contribution Account: The account representing
Matching Employer Contributions and gains or losses allocable thereto.
b. Salary Deferral Account: The account representing Salary Deferral
Contributions and gains or losses allocable thereto.
c. Profit Sharing Account: The account representing Profit Sharing
Contributions and gains and losses allocable thereto.
d. Rollover Account: The account representing Rollover Contributions and
gains or losses allocable thereto.
Credits and charges shall be made to such accounts in the manner herein
described. The Individual Accounts are primarily for accounting purposes, and a
segregation of the assets of the Trust Fund to each account by the Trustee shall
not be required. Distributions and withdrawals made from an account shall be
charged to the account as of the Valuation Date which has been used to determine
the appropriate amount of the distribution.
Any account balance transferred to this Plan in a trust-to-trust transfer
from another plan (not including rollovers) will be deposited in the appropriate
account hereunder, determined according to the type of account balance being
transferred.
5.2 Investment Options: The Committee will establish four or more
Investment Funds hereunder into which contributions and accounts will be
invested, as follows:
a. Investment Direction As To Contributions: Any contribution allocated
to a Participant's account hereunder will be invested in the Investment
Fund (or Funds) designated by the Participants. All
V-1
<PAGE>
contributions for which no such designation is duly made shall be invested
in the Investment Fund (or Funds) designated by the Committee for this
purpose.
b. Change Of Investment Directions: Any direction by a Participant for
investment of contributions made to his Individual Accounts under this Plan
shall be deemed to be a continuing direction until changed. A Participant
may change his investment direction for future contributions, but such a
change may be made only in accordance with Committee guidelines as
communicated to the Participant.
c. Shifts In Investments: A Participant may direct that all or any part
of his Individual Account in any Investment Fund or Funds be shifted into
any other Investment Fund or Funds, but such a shift may be made only in
accordance with Committee guidelines as communicated to the Participant.
5.3 Allocation of Gains and Losses: Each Investment Fund's gains and
losses shall be allocated among its individual accounts at each Valuation Date
in accordance with such fund's valuation and allocation procedures.
5.4 Allocation of Forfeitures: Any forfeitures to be reallocated
hereunder shall be applied by the Corporation to pay reasonable expenses
incurred in connection with the administration of the Plan and to reduce
Matching Employer Contributions by an amount equal to the forfeitures.
5.5 Notification To Participants: At least once annually the Committee
shall advise each Participant for whom an Individual Account is held hereunder
the then value of such account.
V-2
<PAGE>
ARTICLE VI
In-Service Withdrawals and Loans
6.1 Withdrawals: Each Participant, by making a request in accordance with
Committee guidelines, may withdraw amounts, not pledged as collateral for a loan
under Section 6.2 hereof, from his Individual Accounts, while in the employment
of an Affiliated Employer, in accordance with the following paragraphs:
a. Withdrawal From Rollover Accounts: The amount to be withdrawn may
be all or any portion of the balance of his Rollover Account.
b. Withdrawal From Salary Deferral Accounts: The amount to be
withdrawn may be all or any portion of the balance of his Salary Deferral
Account; provided, however, no such withdrawal is permitted by a
Participant prior to age fifty-nine and one-half (59 1/2) unless (i) the
withdrawal is made on account of the immediate and heavy financial need of
the Participant as determined under (1) below and (ii) the withdrawal is
necessary to satisfy the immediate and heavy financial need as determined
under (2) below.
(1) Immediate and Heavy Financial Need: An immediate heavy
financial need shall be deemed to exist with respect to a Participant
if the withdrawal request is on account of:
(A) medical expenses described in Code Section 213(d) incurred
by the Participant, the Participant's spouse, or any dependents of
the Participant (as defined in Code Section 152), or necessary for
these persons to obtain medical care described in Code Section
213(d);
(B) purchase (excluding mortgage payments) of a principal
residence for the Participant;
(C) payment of tuition, related educational fees and room and
board expenses for the next twelve (12) months of post-secondary
education for the Participant, his spouse, children, or
dependents;
(D) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage on the
Participant's principal residence; or
(E) such other events as may be acceptable to the Internal
Revenue Service.
VI-1
<PAGE>
(2) Necessity of Withdrawal to Satisfy Immediate and Heavy
Financial Need: A hardship withdrawal request shall be deemed to be
necessary to satisfy an immediate and heavy financial need if all of
the following conditions are satisfied:
(A) the amount of the withdrawal request is not in excess of
the immediate and heavy financial need of the Participant,
including any amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from
the withdrawal.
(B) the Participant has obtained all distributions, other
than hardship distributions from his Salary Deferral Account, and
all nontaxable loans currently available from all plans
maintained by the Employer or an Affiliated Employer.
(C) To the extent the withdrawal is from his Salary Deferral
Account and is made prior to attainment of age fifty nine and
one-half (59 1/2), the Participant's right to elect contributions
to this Plan and all other plans maintained by the Employer or
Affiliated Employers is (and shall be) suspended for twelve (12)
months after receipt of the hardship distribution.
In the event more than one (1) distribution is made hereunder within a
twelve (12) month period, the suspension period shall not be tacked to the
remaining portion of the prior suspension period but rather shall start anew.
(D) To the extent the withdrawal is from his Salary Deferral
Account and is made prior to attainment of age fifty nine and
one-half (59 1/2), the Participant's right to make Salary
Deferral Contributions to this Plan and all other plans
maintained by the Employer or Affiliated Employers in the taxable
year following the taxable year of the hardship distribution is
(and shall be) limited to an amount equal to the applicable limit
under Code Section 402(g) reduced by the Participant's Salary
Deferral Contributions in the taxable year of the hardship
distribution. The term "taxable year" as used hereunder means
the Participant's taxable year.
(3) Source of Hardship Withdrawal: In the event of a hardship
withdrawal, such withdrawal shall be made first from the Participant's
Rollover Account. To the extent that the amount of the hardship
withdrawal exceeds the value of the Participant's Rollover Account,
such withdrawal shall be made from Salary Deferral Contributions and
earnings thereon credited as of December 31, 1988 under the Previous
Plan and contributions allocated thereto after that date under this
Plan or the Previous Plan but not from earnings credited to those
accounts after that date.
b. No Withdrawals from Other Accounts: No withdrawals are permitted
from other Individual Accounts.
6.2 Loans to Participants: Loans to Participants shall be permitted only
at the sole discretion of the Committee and shall only be granted in accordance
with the following provisions and the
VI-2
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provisions of the loan policy, applied in a uniform and nondiscriminatory
manner. The minimum loan amount is $500 and a Participant may have only one loan
outstanding at any time.
a. Loan Status: Each such Participant's loan shall be an investment
of such Participant's Individual Account and the interest and principal
paid on such loan shall be credited only to such Participant's Individual
Account. While such investment exists, the portion of the Participant's
Individual Account invested in such loan shall be disregarded when other
Trust gains or losses are allocated among Individual Accounts hereunder. If
the Participant's Individual Account is invested in more than one
Investment Fund, the Committee shall determine from which Investment Fund
(or Funds) the investment in such Participant's loan shall be made.
b. Loan Application: Any Participant's application for a loan shall
be made in accordance with procedures established by the Committee.
c. Loan Restrictions: The Committee may, in its sole discretion,
determine that no loans will be granted to any Participants or may at any
time cease granting any further loans. The Committee may, in its sole
discretion, determine that loans to Participants will be granted only for
certain designated reasons or only up to certain designated amounts. In no
event will any loan to a Participant hereunder, together with prior
outstanding loans to such Participant hereunder, exceed the lesser of:
(1) Fifty Thousand Dollars ($50,000), reduced by the excess (if
any) of (i) the highest outstanding balance of loan(s) from the Plan
to such Participant during the one (1) year period ending on the day
before the date on which such loan was made, over (ii) the outstanding
balance of loan(s) from the Plan to such Participant on the date on
which such loan was made, and
(2) One-half (1/2) of the Participant's vested interest hereunder.
d. Accounts As Collateral: Up to one-half ( 1/2) of the vested
Individual Accounts of any Participant receiving a loan hereunder shall
serve as collateral regardless of any other security pledged in conjunction
with such loan.
e. Rate of Interest: Interest on Participant loans shall be charged
at a reasonable and fair rate based on the then prevailing rates charged by
reputable financial institutions. Such interest rate will be determined by
the Committee.
f. Repayment - Collection: Any such loan or loans shall be repaid by
the Participant within such time and in such manner as the Committee shall
determine, but in any event within five (5) years (except as to loans used
to acquire any dwelling which is, or within a reasonable time will become,
the Participant's principal residence which shall be limited to fifteen
(15) years); provided, however, substantially level amortization of such
loan (with payments not less frequently than quarterly), shall be required
over the term of the loan. In the event that the Participant does not repay
such loan within the time prescribed, the loan shall be deemed to be in
default in accordance with the provisions of the loan policy.
g. Loan Application Fee: A Participant may be required to pay a loan
application fee in an amount and manner determined by the Committee.
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h. Amendment to Loan Policy: The Committee may amend the provisions
of the Loan Policy at any time.
VI-4
<PAGE>
ARTICLE VII
Vesting, Termination and Death
7.1 Vesting: A Participant shall be fully and immediately vested in his
Individual Accounts hereunder, except that vesting in his Matching Employer
Contribution Account and Profit Sharing Account shall be according to the
following vesting schedule:
Vested Percentage in Matching
Years of Vesting Service Employer Contribution Account
------------------------ -----------------------------
Less than one (1) year 0%
One (1) or more years 100%
Attainment of Normal Retirement
Date, regardless of service 100%
A Participant shall, immediately upon termination of his employment with
all Affiliated Employers, forfeit that portion of the amount in his Matching
Employer Contribution Account and Profit Sharing Account to which he is not
entitled and the amount thus forfeited shall no longer be part of his Individual
Accounts but shall remain in the Trust Fund. Matching Employer Contributions so
released shall be applied to reduce future Matching Employer Contributions,
restore forfeitures as described below, and shall be used to pay administrative
expenses of the Plan. Profit Sharing Contributions so released shall be applied
to reduce future Profit Sharing Contributions, restore forfeitures and shall be
used to pay administrative expenses of the Plan. If such former Participant
resumes Covered Employment, a special contribution, equal to the forfeited
amount, will be made to restore such forfeited amount to his Matching Employer
Contribution Account. Such special contribution shall, to the extent possible,
be made from any other Participants' forfeitures then available for allocation
hereunder and, to the extent such other forfeitures are not sufficient, such
special contribution shall be made by the Corporation.
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Any Participant who is zero vested at the time of his termination of
employment hereunder will be deemed to have received a distribution of his
entire interest in the Plan.
7.2 Termination Benefit: A Participant shall be entitled to a
distribution of the nonforfeitable interest in his Individual Accounts hereunder
upon his termination of employment with all Affiliated Employers, (including
retirement and termination on account of Disability). Payment shall be made at
the time and in the manner provided in Article VIII hereof and will include the
nonforfeitable portion of the balance then in his Individual Accounts.
7.3 Death Benefit: Upon the death of a Participant, his designated
Beneficiary, or Beneficiaries, (described below) shall be entitled to the
Participant's Individual Accounts. Payment shall be made at the time and in the
manner provided in Article VIII hereof and will include the balance then in the
Participant's Individual Account.
Each Participant and former Participant may, from time to time, designate
one (1) or more primary Beneficiaries and contingent Beneficiaries to receive
benefits payable hereunder in the event of the death of such Participant or
former Participant. If a married Employee wishes to designate someone other
than his spouse to be a primary Beneficiary, such designation will not become
effective unless his spouse (if his spouse can be located) consents in writing
to such designation, acknowledges the effect of such designation and has such
consent and acknowledgment witnessed by a Plan representative or a notary
public. Such designation shall be made in writing upon a form provided by the
Committee and shall be filed with the Committee. The last such designation
filed with the Committee shall control. If the spouse duly consents to the
designation of another beneficiary and to future changes in such designation,
then spousal consent is not needed for any such future changes.
If a Participant or former Participant dies without a spouse or designated
Beneficiary surviving him, then the amount remaining in such Participant's
Individual Account shall be paid to the Participant's estate. If a Beneficiary
dies before receiving the payment to which the Beneficiary is entitled, then the
amount remaining in such Beneficiary's Individual Account shall be paid to the
Beneficiary's estate.
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<PAGE>
A certified copy of a death certificate shall be sufficient evidence of
death and the Committee shall be fully protected in relying thereon. The
Committee may accept other evidence of death at its own discretion.
7.4 Disability Benefit: In the event of the Disability of a Participant, he
shall be entitled to the entire balance of his Individual Accounts. Payments
shall be made at the time and in the manner provided in Article VIII hereof.
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ARTICLE VIII
Time and Methods of Payment
8.1 Time of Payment: Payment of any Participant's Individual Account
shall be as soon as practicable after such account becomes distributable
hereunder, subject to the following:
a. In no event (subject to b. below) shall payment be later than
sixty (60) days after the close of the Plan Year in which the Participant's
employment with all Affiliated Employers terminates (for whatever reason) or,
if later, in which the Participant attains his Normal Retirement Date.
b. A former Employee who has not attained his Normal Retirement Date
may (unless cashed out under Section 8.3 below) elect to delay his distribution
until he attains his Normal Retirement Date.
c. Notwithstanding the above, if a Participant who is a five percent
(5%) owner as defined in Code Section 416 attains age seventy and one-half (70
1/2), then in no event shall distribution of his Individual Accounts be delayed
beyond April 1st of the calendar year following the calendar year in which such
Participant attains age seventy and one-half (70 1/2), regardless of whether he
has actually retired. Any additional amounts subsequently credited to such a
Participant's Individual Account will be distributed (or commence to be
distributed if applicable under this Article) in the calendar year following
the calendar year when credited.
8.2 Method of Payment: When benefits become payable, the distributee may
(subject to the following sections of this Article) elect that such benefits
shall be paid in one of the following ways, or a combination thereof:
a. Lump sum, in cash or in stock of the Corporation, if applicable.
b. Direct Rollovers: A payment may be made as a direct rollover, if
the payment is an eligible rollover distribution to an eligible retirement plan
specified by an eligible distributee. An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include:
any distribution to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities.) 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, but does not include a Roth IRA
under Section 408A of the Code. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan is only an
individual retirement account or individual retirement annuity. An eligible
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
VIII-1
<PAGE>
former spouse who is the alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are eligible distributees with
regard to the interest of the spouse or former spouse. A direct rollover is a
payment by the Plan to the eligible retirement plan specified by the
distributee.
In the event distribution is delayed, the allocation of gains or losses
described in Section 5.3 hereof shall continue to be applicable to the
Individual Accounts until fully distributed.
8.3 Balance of $5,000 or Less: If, when first distributable under this
Article, the total nonforfeitable balance in a Participant's Individual Accounts
is equal to or less than Five Thousand Dollars ($5,000), such balance will
automatically be distributed to him (or his Beneficiary, or Beneficiaries, in
the case of the Participant's death) in a lump sum, subject to the direct
rollover option in Section 8.2 hereof.
8.4 Minority or Incompetency: During the minority or incompetency of any
person entitled to receive benefits hereunder, the Committee may direct the
Trustee to make payments or distributions to the guardian of such person, or
other persons as may be directed by the Committee. Neither the Committee nor
the Trustee shall be required to see to the application of any payments so made,
and the receipt of the payee (including the endorsement of a check or checks)
shall be conclusive as to all interested parties.
VIII-2
<PAGE>
ARTICLE IX
Code Sections 401(a)(17), 402(g),
401(k) and 401(m) Limitations
9.1 Compensation Dollar Limitation: Notwithstanding anything to the
contrary in this Plan, Compensation for any Plan Year shall not include any
amounts in excess of One Hundred Sixty Thousand Dollars ($160,000) (or such
larger amount as may be permitted under Code Section 401(a)(17)).
9.2 Salary Deferral Dollar Limitation: If a Participant's Salary Deferral
Contributions hereunder should exceed Ten Thousand Dollars ($10,000), (subject
to the cost-of-living adjustment set forth in Code Section 402(g)(5)), in any
taxable year of the Participant, the excess (with applicable gains or losses
thereon for the year) shall be distributed to the Participant. If the
Participant also participates in another elective deferral program (within the
meaning of Code Section 402(g)(3)) and if, when aggregating his elective
deferrals under all such programs, an excess of deferral contributions arises
under the dollar limitation in Code Section 402(g) with respect to such
Participant, the Participant shall, no later than March 1st following the close
of the Participant's taxable year, notify the Committee as to the portion of
such excess deferrals to be allocated to this Plan and such excess so allocated
to this Plan (with allocable gains or losses thereon for the year) shall be
distributed to the Participant after reduction by any excess contribution
already distributed for such year under Section 9.3b. hereof. Any distribution
under this Section shall be made to the Participant no later than the April 15th
immediately following the close of the Participant's taxable year for which such
contributions were made.
9.3 Deferral And Contribution Percentage Tests:
a. Highly Compensated Employee:
(1) For purposes of this Section, the term Highly Compensated
Employee shall mean any Employee who,
(i) during the Plan Year of determination or the immediately
preceding Plan Year was at any time during such year(s) a five
percent (5%) owner (as defined in Code Section 416(i)(1)); or
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<PAGE>
(ii) who during the Plan Year immediately preceding the Plan
Year of determination received compensation (as defined below)
from the Affiliated Employers in excess of Eighty Thousand Dollars
($80,000) (subject to increase under Code Section 414(q)(1)) and,
was in the top twenty percent (20%) of the Employees of all
Affiliated Employers (when ranked on the basis of compensation
paid during such year); excluding, however, for purposes of
determining the top twenty percent (20%):
(A) Employees who have not completed at least six (6) months
of service;
(B) Employees who normally work less than seventeen and one-
half (17 1/2) hours per week;
(C) Employees who normally work during not more than six (6)
months during any Plan Year;
(D) Employees who have not attained age twenty-one (21);
(E) Employees covered under a collective bargaining
agreement (to the extent permitted in appropriate
regulations); and
(F) Employees who are nonresident aliens and who receive no
earned income (as defined in Code Section 911(d)(2))
which constitutes income from sources within the United
States (within the meaning of Code Section 861(a)(3));
or
(2) For purposes of determining Highly Compensated Employees, the term
"compensation" shall have the same meaning as in Code Section 415(c)(3),
without regard to: (A) Code Sections 125, 402(e)(3), and 402(h)(1)(B), and
(B) Code Section 403(b) in the case of contributions made by an Affiliated
Employer under a salary reduction agreement.
(3) For purposes of this Section, former Employees shall be treated as
Highly Compensated Employees, if:
(A) such an Employee was a highly compensated Employee upon
termination of employment with the Affiliated Employers;
or
(B) such an Employee was a Highly Compensated Employee at
any time after attaining age fifty-five (55).
However, former Employees are disregarded if determining the top twenty percent
(20%) described above.
IX-4
<PAGE>
b. Percentage Limits: For the Plan Year ending December 31, 1998, the
Committee shall, in accordance with this Section, apply (i) the actual deferral
percentage test ("401(k) test") as to any pre-tax salary reduction contributions
received hereunder for such year in accordance with Code Section 401(k), and
(ii) the actual contribution percentage test ("401(m) test") as to any after-tax
employee contributions and matching employer contributions received hereunder
for such year in accordance with Code Section 401(m). As to said 401(k)
contributions and separately as to said 401(m) contributions, the Committee
shall, each Plan Year, determine:
(1) The "contribution percentage" for each Employee who is then
eligible for such type of contributions, which shall be the ratio of the
amount of such contributions made for such Employee for such Plan Year to
the Employee's compensation while a Participant for such Plan Year, or for
the entire Plan Year, as determined by the Committee. However, to the
extent determined by the Committee, (i) pre-tax salary deferral
contributions for a year may be taken into account as though they were
matching employer contributions in performing the 401(m) test and if so
taken into account shall not be taken into account in performing the 401(k)
test or (ii) matching employer contributions for a year may be taken into
account or though they were pre-tax salary reduction contributions in
performing the 401(k) test and if so taken into account shall not be taken
into account in performing the 401(m) test, or (iii) special contributions
(qualified nonelective contributions) may be taken into account in
performing the 401(k) or 401(m) test. The compensation used for determining
contribution percentages for any year shall be defined uniformly for all
Employees and any such definition must be allowed for this purpose under
Code Sections 414(s) and 401(a)(17).
(2) The "highly compensated contribution percentage", which shall be
the average of the "contribution percentages" for all eligible Highly
Compensated Employees.
IX-5
<PAGE>
(3) The "nonhighly compensated contribution percentage", which shall
be the average of the "contribution percentages" for all Employees then
eligible who were not included in the "highly compensated contributions
percentage" in (2) above.
In no event shall the "highly compensated contribution percentage", as
to each type of contributions, exceed the greater of:
(A) a contribution percentage equal to one and one-fourth (1-1/4)
times the applicable "nonhighly compensated contribution percentage"
for the previous Plan Year; and
(B) a contribution percentage equal to two (2) times the
applicable "nonhighly compensated contribution percentage" for the
previous Plan Year but not more than two (2) percentage points greater
than the applicable "nonhighly compensated contribution percentage"
for the previous Plan Year.
If the above percentage test would otherwise be violated as of the end of
the Plan Year as to any of the types of contributions, then any Highly
Compensated Employee's excess contribution that is to be distributed, as
determined below, shall (with allocable gains or losses thereon for the Plan
Year) be distributed to such Participant, or forfeited to the extent such amount
is not vested hereunder, within two and one-half (2-1/2) months following the
close of the Plan Year for which such contribution was made.
The total excess contributions amount is determined as to each type of
contribution on the basis of the contribution percentages of the Highly
Compensated Employees with the highest contribution percentages, beginning with
the highest percentage and reducing downward to each next highest percentage but
not reducing below the percentage that results in a "highly compensated
contribution percentage" equal to the maximum allowed. All of the contributions
determined on this basis to be in excess of the maximum constitute the total
excess contributions amount required to be refunded (with gains or losses)
following the order of distribution described below.
To determine, as to each type of contributions, the Participants to whom
the total excess contributions are to be distributed, the applicable
contributions of Highly Compensated Employees are reduced in the order of the
dollar amount of their contributions beginning with the Highly Compensated
IX-6
<PAGE>
Employee with the highest contribution dollar amount. The contribution of the
Highly Compensated Employee with the highest contribution dollar amount is
reduced by the amount required to cause the Employee's contribution to equal the
dollar amount of contribution of the Highly Compensated Employee with the next
highest dollar amount of contribution. If a lesser reduction would satisfy the
contribution refund requirement, only this lesser reduction shall be made. This
process will be repeated, as to each type of contributions, until the Plan
satisfies the contribution refund requirement applicable to each type of
contributions. In no case may the excess amount of a particular type of
contributions with respect to any Highly Compensated Employee exceed the amount
of such contributions actually made on behalf of the Highly Compensated Employee
for the Plan Year.
If a Highly Compensated Employee participates in two (2) or more plans
maintained by the Employer or Affiliated Employer that are subject to the 401(k)
or 401(m) test being applied hereunder, then such Employee's contribution
percentage for purposes of such test shall be determined by aggregating his
participation in all such plans. In addition, if the Employer maintains two (2)
or more plans subject to the 401(k) or 401(m) test being applied hereunder, and
such plans are treated as a single plan for purposes of the coverage
requirements for qualified plans under Code Section 410(b), then such plans are
treated as a single plan for purposes of the applicable test.
The determination of excess after-tax contributions and matching employer
contributions as described above in this Section shall be made after first
determining excess elective deferrals of salary deferral contributions under
Section 8.2, then determining excess salary deferral contributions under this
Section, and then forfeiting any matching employer contribution that was
contingent on any such excess. Any matching employer contribution that was
contingent on any excess after-tax contribution will also be forfeited and not
taken into account in determining the contribution percentage as to matching
employer contributions.
c. Prohibition Against Multiple Use of Alternative Limitation: As to
Participants subject to the limits of both Code Sections 401(k) and 401(m), the
otherwise applicable limits on such a Participant's
IX-7
<PAGE>
pre-tax salary deferral contributions under Code Section 401(k) and/or his
after-tax employee and matching employer contributions under Code Section 401
(m) shall be further reduced to the extent necessary to avoid prohibited
multiple use of the alternative limitation referred to in Code Section
401(m)(9). Such further reductions will be accomplished completely in pre-tax
salary deferral contributions under Code Section 401(k) or completely in after-
tax employee and matching employer contributions under Code Section 401(m) or
partially in each of such contributions, as allowed in regulations under such
Code sections.
IX-8
<PAGE>
ARTICLE X
Code Section 415 Limitations
10.1 Limit on Annual Additions Under Code Section 415: Contributions
hereunder shall be subject to the limitations of Code Section 415, as provided
in this Section.
a. Definitions: For purposes of this Section the following definitions
shall apply:
(1) "Annual Addition" shall mean the sum of the following additions to
a Participant's Individual Account for the Limitation Year:
(a) Employer contributions (including salary reduction contributions);
(b) His own (after-tax) contributions, if any;
(c) Forfeitures, if any.
Annual Additions to other Employer defined contribution plans
(also taken into account when applying the limitations described
below) include any voluntary employee contributions to an account in a
qualified defined benefit plan and any employer contribution to an
individual retirement account or annuity under Code Section 408 or to
a medical account for a key employee under Code Section 401(h) or
419A(d), except that the 25%-of-pay limit below shall not apply to
employer contributions to a key employee's medical account after his
separation from service.
(2) "Earnings" for any Limitation Year shall be the alternative
definition of compensation, as reported on Form W-2 and described in
Treasury Regulation 1.415-2(d)(11)(i), including salary reductions under
Code Sections 125, 402(g)(3) and 457.
b. Defined Contribution Plan(s) Only: The Annual Addition to a
Participant's Individual Account hereunder (together with the Annual Additions
to the Participant's account(s) under any other defined contribution plan(s)
maintained by an Affiliated Employer) for any Limitation Year may not exceed the
lesser of:
(1) Thirty Thousand Dollars ($30,000.00), or, if greater, twenty-five
percent (25%) of the Participant's earnings.
(2) Twenty-five percent (25%) of the Participant's Earnings for the
Limitation Year.
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<PAGE>
c. Defined Contribution and Defined Benefit Plans: If, in any Limitation
Year, a Participant also participates in one (1) or more defined benefit plans
maintained by any Affiliated Employer (whether or not terminated), then for such
Limitation Year, the sum of the Defined Benefit Plan Fraction (as defined below)
for such Limitation Year and Defined Contribution Plan Fraction (as defined
below) for such Limitation Year shall not exceed one (1.0).
The Defined Benefit Fraction for any Limitation Year shall mean a fraction
(a) the numerator of which is the projected annual benefit of the participant
under the defined benefit plan(s) (determined as of the close of the Limitation
Year), and (b) the denominator of which is the lesser of One Hundred Twenty-
Five Percent (125%) of the dollar limitation under Code Section 415(b)(1)(A) or
One Hundred Forty Percent (140%) of the percentage limitation under Code Section
415(b)(1)(B) for the year of determination (taking into account the effect of
Section 235(g)(4) of the Tax Equity and Fiscal Responsibility Act of 1982).
The Defined Contribution Fraction for any Limitation Year shall mean a
fraction (a) the numerator of which is the sum of the Annual Additions (as
defined during each applicable Limitation Year) to the Participant's accounts
under all defined contribution plans maintained by an Affiliated Employer as of
the close of the Limitation Year (subject to reduction to the extent permitted
under the transition rule in Section 235(g)(3) of the Tax Equity and Fiscal
Responsibility Act of 1982), and (b) the denominator of which is the sum of the
lesser of One Hundred Twenty-Five Percent (125%) of the dollar limitation under
Code Section 415(c)(1)(A) or One Hundred Forty Percent (140%) of the percentage
limitation under Code Section 415(c)(1)(B), for such Limitation Year and for all
prior Limitation Years during which the Employee was employed by an Affiliated
Employer (provided, however, at the election of the Committee, the denominator
shall be increased by using for Limitation Years ending prior to January 1,
1983, an amount equal to the denominator in effect for the Limitation Year
ending in 1982, multiplied by the transition fraction provided in Code Section
415(e)(6)(B)).
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<PAGE>
If, in any Limitation Year, the sum of the Defined Benefit Plan Fraction
and Defined Contribution Plan Fraction for a Participant would exceed one (1.0)
without adjustment of the amount of Annual Additions that can be allocated to
such Participant under paragraph b. of this Section, then the amount of maximum
annual benefit that can be paid to such Participant under any defined benefit
plan(s) maintained by an Affiliated Employer, shall be reduced to the extent
necessary to reduce the sum of the Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction for such Participant to one (1.0), or the Committee
may take such other action as will cause the sum to equal one (1.0) or less.
10.2 Excess Allocation: If forfeitures available for allocation or if a
reasonable error in estimating a Participant's Earnings, or in determining the
amount of elective pre-tax contributions (under Code Section 402(g)(3)), or if
any other mistake acceptable to the Internal Revenue Service for this purpose,
would cause the limitation on Annual Additions described above to be exceeded,
then the amount of such excess shall be credited to and held unallocated in a
suspense account until the next succeeding Allocation Date when such amount can
be allocated without exceeding such limitation, except that any such excess
amount of elective pre-tax contribution (under Code Section 402(g)(3)) may be
refunded to the Participant (together with investment return thereon). In the
event of such a refund, each of the following of a Participant's contributions
will be deemed to include a proportionate part of the excess: (i) elective pre-
tax contributions, if any, and (iii) employer matching contributions, if any.
To the extent that the Committee determines that contributions not yet made to
the Plan on behalf of a Participant would cause an excess hereunder if actually
made to the Plan, the Committee may apply the above limitations prospectively to
limit the contribution amount actually receivable by the Plan for such
Participant.
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<PAGE>
ARTICLE XI
Top-Heavy Restrictions
11.1 Top-Heavy Determinations:
a. Top-Heavy Status of this Plan: Subject to b. of this Section, this
Plan will be considered to be top-heavy in any Plan Year if the aggregate value
of the account balances of key Employees hereunder is greater than sixty percent
(60%) of the aggregate value of all account balances hereunder. For purposes of
determining whether such top-heaviness exists in any such Plan Year the
following provisions shall be applicable:
(1) A key Employee is any individual (whether or not deceased) who,
at any time during the five (5) Plan Years immediately preceding the
current Plan Year, was:
(i) an officer of the Employer or Affiliated Employer having an
annual compensation (defined below) from the Employer and/or
Affiliated Employer greater than Fifty Percent (50%) of the
defined benefit plan dollar limitation in effect under Code
Section 415(b)(1)(A) for any such Plan Year (except that no more
than fifty (50) Employees or, if less, the greater of three (3)
and ten percent (10%) of the Employees, shall be treated as
officers), or
(ii) one of the ten (10) Employees having an annual compensation
(defined below) from the Employer and/or Affiliated Employer
greater than the defined contribution plan dollar limitation in
effect under Code Section 415(c)(1)(A) and owning (or considered
as owning under Code Section 416(i)(1)) both more than a one-
half percent ( 1/2%) interest and the largest interests in the
Employer, or
(iii) a five percent (5%) owner of the Employer (taking into account
ownership he would be considered to have under Code Section
416(i)(1)), or
(iv) a one percent (1%) owner of the Employer (taking into account
ownership he would be considered to have under Code Section
416(i)(1)) having annual compensation (defined below) from the
Employer and/or an Affiliated Employer during any calendar year
of more than One Hundred Fifty Thousand Dollars ($150,000).
The term "compensation" shall have the same meaning as in Code
Section 415(c)(3), without regard to: (A) Code Sections 125,
402(a)(8), and 402(h)(1)(B), and (B) Code Section 403(b) in the case
of contributions made by an Affiliated Employer under a salary
reduction agreement.
Any Employee who is not a key Employee is a nonkey Employee.
XI-1
<PAGE>
(2) For purposes of this Section, if a former Employee has not performed
any services for the Employer at any time during the five (5) Plan Years
immediately preceding the current Plan Year, any account balance remaining
hereunder for such former Employee shall not be taken into account. Also, any
account balance attributable to deductible employee contributions (under Code
Section 219) or attributable to a rollover initiated by an Employee from the
plan of an employer that is not an Affiliated Employer shall not be taken into
account under this Section.
(3) The value of any account balance shall be determined as of the most
recent Valuation Date within the preceding Plan Year, except that in the first
Plan Year hereunder such account balance shall be determined as of the most
recent Valuation Date within such first Plan Year. Such value shall include any
contributions allocable as of such date.
(4) The value of any account balance shall be increased to include any
payment thereof made hereunder prior to the Valuation Date as of which such
value is being determined, provided any such payment was made within the five
(5) Plan Years immediately preceding the current Plan Year. If an account
balance has been fully paid out prior to such Valuation Date, but within the
five (5) Plan Years immediately preceding the current Plan Year, the amount
thereof shall be taken into account, except that such amount shall not be taken
into account hereunder if the paid out amount was either (i) rolled over or
transferred to another plan of the Employer or Affiliated Employer or (ii)
rolled over or transferred to any other plan but not at the direction of the
Employee who had accrued such account.
(5) If an Employee or former Employee for whom an account balance was
maintained hereunder died prior to such Valuation Date, the value, if any,
taken into account hereunder with respect to such individual shall include the
sum of any payments made to him prior to such Valuation Date and within the
five (5) Plan Years immediately preceding the current Plan Year, together with
the amount, as of such Valuation Date, of any remaining account balance payable
hereunder to the Beneficiary of such individual plus the sum of any payments
made to such Beneficiary hereunder prior to such Valuation Date and within the
five (5) Plan Years immediately preceding the current Plan Year.
(6) If an Employee or former Employee (whether or not deceased) with
respect to whom an account balance would be taken into account, as described
above, was previously a key Employee, but as of the last day of the immediately
preceding Plan Year was no longer a key Employee, then no account balance or
payments thereof with respect to him or his Beneficiary shall be taken into
account in making the top-heavy determinations described in this Section.
(7) The top-heavy status of this Plan, including the identification of key
Employees, will be determined as of each Plan Year's determination date, which
shall be (i) as to the first Plan Year, the last day of such year and (ii) as
to each subsequent Plan Year, the last day of the immediately preceding Plan
Year.
b. Aggregation with Other Plans: The aggregation of this Plan with other
plans for purposes of determining top-heavy status shall be in accordance with
the following:
(1) Required Aggregation: If a key Employee under this Plan also
participates in another plan of the Employer or Affiliated Employer which is
qualified under Code Section
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<PAGE>
401(a) or which is a simplified employee pension plan under Code Section
408(k), or if this Plan and another plan must be aggregated so that either this
Plan or the other plan will meet the antidiscrimination and coverage
requirements of Code Section 401(a)(4) or 410, then this Plan and any such
other plan will be aggregated for purposes of determining top-heaviness. This
Plan will automatically be deemed top-heavy if such required aggregation of
plans is top-heavy as a group and will automatically be deemed not top-heavy if
such required aggregate of plans is not top-heavy as a group.
(2) Permissive Aggregation: Any other plan of the Employer or
Affiliated Employer which is qualified under Code Section 401(a) or which is a
simplified employee pension plan under Code Section 408(k), and which is not in
the required aggregation referenced in (1) above, may be aggregated with this
Plan (and with any other plan(s) in the required aggregation group in (1)
above) for purposes of determining top-heaviness if such aggregation would
continue to meet the antidiscrimination and coverage requirements of Code
Sections 401(a)(4) and 410. This Plan will automatically be deemed not top-
heavy if such permissive aggregation of plans is not top-heavy as a group.
(3) Determining Aggregate Top-Heavy Status: The top-heavy status of
the plans as a group is determined by aggregating the plans' respective top-
heavy determinations that are made as of determination dates that fall within
the same calendar year.
11.2 Effects of Top-Heaviness: If this Plan becomes top-heavy, the
following special provisions shall apply except (i) in the case of an Employee
hereunder who is also covered by another top-heavy qualified defined
contribution plan of an Affiliated Employer, the top-heavy minimum allocation
in (2) below shall not apply if the top-heavy minimum allocation under such
other plan is applied to such Employee thereunder, and (ii) in the case of an
Employee hereunder who is also covered by a top-heavy qualified defined benefit
plan of an Affiliated Employer, the top-heavy minimum allocation in (2) below
shall not apply if the top-heavy minimum benefit under such other plan is
applied to such Employee thereunder, but if such top-heavy minimum benefit is
not applied to such Employee, then the top-heavy minimum allocation in (2)
below shall be applied except that the percentage shall be five percent (5%).
(1) Minimum Vesting: If any Employee is covered under this Plan during
any Plan Year when the Plan is top-heavy, he shall have his vested percentage
determined to be the greater of (i) and (ii) below, but subject to (iii) below:
(i) The vested percentage applicable to the Employee under the regular
vesting provisions of this Plan, as hereinbefore set forth, and
XI-3
<PAGE>
(ii) The vested percentage applicable to the Employee under the following
schedule:
Employee's Years Employee's
of Vesting Service Vested Percentage
------------------ -----------------
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
(iii) In the event the Employee is a Participant when the Plan is no longer
top-heavy, his vested percentage shall be determined in accordance
with the regular vesting provisions of this Plan, as hereinbefore set
forth, except that in no event will his vested percentage be less
than his vested percentage determined as if his employment had
terminated as of the date when the Plan was last top-heavy, and the
application of the greater of (i) and (ii) as described above shall
be made if the Employee had at least three (3) years of Vesting
Service when the Plan was last top-heavy.
(2) Minimum Allocation: If any Employee is covered under this Plan during
any Plan Year when the Plan is top-heavy, he shall, during such Plan Year,
receive an allocated Employer contribution (subject to the vesting requirements
of this Plan and other than an elective contribution under Code Section 401(k))
at least equal to a percentage of his considered compensation (defined below)
for such Plan Year, which percentage shall be the lesser of:
(i) three percent (3%), and
(ii) the actual percentage that the allocation of Employer Contributions
and forfeitures, including elective contributions under Code Section
401(k), received for such Plan Year by the key Employee receiving the
largest such allocation, represented as a percentage of such key
Employee's considered compensation (defined below).
An Employee's considered compensation is the amount of compensation
he received from the Employer for such Plan Year, reportable on income tax
Form W-2 or its equivalent, but subject to the dollar limit described in
(3) below.
(3) Adjustments to Code Section 415 Limits: If this Plan is top-heavy
during any Plan Year, the combined plan limitations of Code Section 415, as
described in Section 10.1 hereof, shall be applied for such Plan Year by
substituting "One Hundred Percent (100%)" for
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"One Hundred Twenty-Five Percent (125%)" wherever the latter term appears in
said Section 11.1 hereof.
XI-5
<PAGE>
ARTICLE XII
Administration
12.1 Appointment of Committee: The Corporation shall appoint a Committee,
consisting of at least three (3) persons which shall be the Plan Administrator
and named fiduciary of the Plan under ERISA and to perform administrative duties
as set forth herein. Each member of the Committee shall serve for such term as
the Board of Directors of the Corporation may designate or until his death,
resignation or removal by the Board. The Corporation shall promptly appoint
successors to fill vacancies in the Committee; however, during interim periods
which occur after resignation or death of a Committee member and before the
appointment of a new member, the Committee may operate with fewer than three (3)
members. All usual and reasonable expenses of the Committee may be paid in
whole or in part by the Corporation, and any expenses not paid by the
Corporation shall be paid by the Trustee out of the principal or income of the
Trust. The members of the Committee shall not receive compensation with respect
to their services for the Committee. The members of the Committee shall serve
without bond or security for the performance of their duties hereunder unless
the applicable law makes the furnishing of such bond or security mandatory or
unless required by the Plan Administrator. The Corporation may pay the premiums
on any bond secured under this Section including the purchase of fiduciary
liability insurance for any person who becomes a fiduciary under this Plan.
12.2 Committee Powers and Duties: The Committee shall have such powers as
may be necessary to discharge its duties hereunder, including, but not by way of
limitation, the following powers and duties:
a. to interpret and construe all terms, provisions, conditions and
limitations of the Plan and to reconcile any inconsistency or supply any omitted
detail that may appear in this Plan in such manner and to such extent,
consistent with the general terms of the Plan, as the Committee shall deem is
necessary and proper to effectuate the Plan for the greatest benefit of all
Participants;
b. to determine all questions relating to eligibility of Employees to
become Participant's, all periods of Vesting Service credit of Participants and
Compensation of Participants;
XII-1
<PAGE>
c. to prescribe rules for the operation of the Plan as are not
inconsistent with the terms of the Plan;
d. To determine the amount, manner and time of payment of any benefits
hereunder and to authorize all disbursements by the Trustee from the Trust Fund,
except disbursements for ordinary expenses incurred in the administration of the
Trust;
e. To prescribe forms or procedures to be followed by Participants or
Beneficiaries filing applications for benefits, and for other occurrences in the
administration of the Plan; and
f. to receive from the Employer and from Employees such information as
shall be necessary for the proper administration of the Plan;
g. to employ an independent qualified public accountant to examine the
books, records, and any financial statements and schedules which are required to
be included in the annual report;
h. to file with the appropriate government agency (or agencies) the
annual report, plan description, summary plan description, and other pertinent
documents which may be duly requested;
i. to file such terminal and supplementary reports as may be necessary in
the event of the termination of the Plan;
j. to furnish each Employee and each Beneficiary receiving benefits
hereunder a summary plan description explaining the Plan;
k. to furnish any Employee or Beneficiary, who requests in writing,
statements indicating such Employee's or Beneficiary's total account balances
and nonforfeitable benefits, if any;
l. to furnish to an Employee a statement containing information
contained in a registration statement required by Section 6057(a)(2) of the
Internal Revenue Code of 1986 prior to the time prescribed by law to file such
registration if such statement contains information regarding the Employee;
m. to maintain all records necessary for verification of information
required to be filed with the appropriate government agency (or agencies);
n. to report to the Trustee all available information regarding the
amount of benefits payable to each Employee, the computations with respect to
the allocation of assets, and any other information which the Trustee may
require in order to terminate the Plan;
o. to delegate to one or more of the members of the Committee the right
to act in its behalf in all matters connected with the administration of the
Plan and Trust;
p. to delegate to any individual(s) such of the above powers and duties
as the Committee deems appropriate;
q. to appoint or employ for the Plan any agents it deems advisable,
including, but not limited to, legal counsel; and
XII-2
<PAGE>
r. in addition to all other powers herein granted, and in general
consistent with provisions hereof, the Committee shall have all other rights and
powers reasonably necessary to supervise and control the administration of this
Plan, including the right to administer the Plan in a manner reasonably
calculated to comply with any changes in or modifications to all relevant laws,
as such changes may be made from time to time.
The Committee shall have no power to add to, subtract from or modify any of
the terms of the Plan, nor to change or add to any benefits provided by the
Plan, nor to waive or fail to apply any requirements of eligibility for benefits
under the Plan. All rules and decisions of the Committee shall be uniformly and
consistently applied to all Employees in similar circumstances.
A majority of the members of the Committee shall constitute a quorum for
the transaction of business. No action shall be taken except upon a majority
vote of the Committee members or by unanimous written consent. An individual
shall not vote or decide upon any matter relating solely to himself or vote in
any case in which his individual right or claim to any benefit under the Plan is
particularly involved. If, in any case in which a Committee member is so
disqualified to act, and the remaining members cannot agree, the Board of
Directors of the Corporation will appoint a temporary substitute member to
exercise all the powers of the disqualified member concerning the matter in
which he is disqualified.
In addition to all other powers herein granted, and in general consistent
with the provisions hereof, the Committee shall have the discretionary authority
to exercise all other rights and powers reasonably necessary to supervise and
control the administration of this Plan. The determination of any fact by the
Committee and the construction placed by the Committee upon the provisions of
this Plan shall be binding upon all of the Participants under this Plan, their
Beneficiaries and the Employers.
12.3 Claims Procedure: The Committee may prescribe procedures for
obtaining benefits and is required to provide a notice in writing to any person
whose claim for benefits under this Plan has been denied, setting forth (1) the
specific reasons for such denial, (2) the specific reference to pertinent Plan
provisions on which the denial is based, (3) a description of any additional
material or information
XII-3
<PAGE>
necessary to the claimant to perfect the claim and an explanation of why such
material or information is necessary, and (4) an explanation of the Plan's claim
review procedure as described below, including the name and address of the party
to whom an appeal should be sent.
A claimant has the right to appeal a denial of claim by written application
to the Committee within sixty (60) days of notice of denial or, if no such
notice has been given, at the end of the expiration of a reasonable period of
time after the claim was filed. The claimant, or a duly authorized
representative, may review pertinent documents and may submit issues and
comments in writing to the Committee.
After the Committee reviews the claims appeal, a final decision shall be
made and communicated to the claimant within sixty (60) days of receipt of the
appeal by the Committee, unless special circumstances require an extension.
Such extension cannot extend beyond one hundred twenty (120) days after receipt
of the appeal by the Committee. The communication shall be set forth in writing
in a manner calculated to be understood by the claimant and shall identify the
reasons for the denial and shall reference any pertinent Plan provisions upon
which the denial is based.
12.4 Committee Procedures: The Committee shall adopt such bylaws as it
deems desirable. The Committee shall elect one of its members as chairman and
shall elect a secretary who may, but need not, be a member of the Committee.
The Committee shall advise the Trustee of such elections in writing. The
Secretary of the Committee shall keep a record of all meetings and forward all
necessary communications to the Trustee.
12.5 Authorization of Benefit Payments: The Committee shall issue
directions to the Trustee concerning all benefits which are to be paid from the
Trust Fund pursuant to the provisions of the Plan. The Committee shall keep on
file, in such manner, as it may deem convenient or proper, all reports from the
Trustee.
12.6 Payment of Expenses: All expenses incident to the administration,
termination or protection of the Plan and Trust, including but not limited to,
actuarial, legal, accounting, and Trustee's
XII-4
<PAGE>
fees, shall be paid by the Trustee from the Trust Fund and shall constitute a
first and prior claim and lien against the Trust Fund until paid, unless
voluntarily paid by the Corporation.
12.7 Unclaimed Benefits: During the time when a benefit hereunder is
payable to any distributee, the Committee, upon request by the Trustee, or at
its own instance, shall mail by registered or certified mail to such
distributee, at his last known address, a written demand for his then address,
or for satisfactory evidence of his continued life, or both. If such
information is not furnished to the Committee within three (3) months from the
mailing of such demand, then the Committee may, in its sole discretion,
determine that such distributee is deceased and may declare such benefit, or any
unpaid portion thereof, suspended as if the death of the distributee (with no
surviving beneficiary) had occurred on the date of the last payment made thereon
or the date such distributee first became entitled to receive benefit payments,
whichever is later. Failure to furnish such information shall not result in the
forfeiture of any nonforfeitable benefits and any such declaration by the
Committee shall later be revoked upon a receipt of the requested information by
the Committee. All such unclaimed benefits shall be and remain assets of the
Trust and in no event shall they escheat to any governmental unit under any
escheat law.
12.8 Indemnity: The Corporation indemnifies and saves harmless any
member of the Board of Directors of the Employer or of the Corporation, any
member of the Committee and any Employee of the Employer or of the Corporation
from and against any and all loss resulting from liability to which any such
person may be subjected by reason of any conduct (except willful or reckless
misconduct) in a fiduciary capacity under this Plan or Trust, or both, including
all expenses reasonably incurred in such person's defense, in case the
Corporation fails to provide such defense. The indemnification provisions of
this Section shall not relieve any such person of any liability he may have
under ERISA for breach of a fiduciary duty.
XII-5
<PAGE>
ARTICLE XIII
Trust Fund
13.1 Establishment of Trust Fund: A Trust Fund shall be established for
the purpose of receiving contributions, and paying benefits, under this Plan. A
Trustee (or Trustees) shall be appointed under the terms of a trust agreement to
administer the Trust Fund in accordance with the terms of such trust agreement.
13.2 Payment of Contributions to Trust Fund: All contributions under this
Plan shall be paid to the Trustee and shall be held, invested and reinvested by
the Trustee in accordance with the terms of the trust agreement. All property
and funds of the Trust Fund, including income from investments and from all
other sources, shall be retained for the exclusive benefit of Employees, as
provided in the Plan, and shall be used to pay benefits to Employees or their
beneficiaries, or to pay expenses of administration of the Plan and Trust Fund,
except as provided in Section 16.4 hereof.
XIII-1
<PAGE>
ARTICLE XIV
Amendments
14.1 Right to Amend: The Board of Directors of the Corporation (or other
body duly authorized by such Board) reserves the right to make from time to time
any amendment or amendments to this Plan which do not permit reversion of any
part of the Trust Fund to the Employers except as provided in Section 16.4 and
which do not cause any part of the Trust Fund to be used for, or diverted to,
any purpose other than the exclusive benefit of Employees included in this Plan
and which do not, directly or indirectly, reduce any Member's account balance
unless such amendment is required in order to maintain the Plan's qualified
status under Code Section 401(a).
XIV-1
<PAGE>
ARTICLE XV
Withdrawal and Termination
15.1 Employer Withdrawal: An Employer may at any time, by adoption of a
resolution, withdraw from the Plan with respect to any or all of the Employees
employed by said Employer; provided that such withdrawal may only occur with the
express consent of the Corporation.
Upon an Employer's sale, consolidation, or merger to or with another
organization which is not an Employer hereunder, such Employer (or its
successor) will automatically be withdrawn from this Plan with respect to all of
its Employees, unless the Corporation and such Employer (or its successor) agree
to its continued participation hereunder.
Any such withdrawal of an Employer from this Plan will be carried out in a
manner intended to meet the requirements of Section 401(a) of the Internal
Revenue Code. The Corporation may require that an advance determination letter
be obtained from the Internal Revenue Service approving the terms of any such
withdrawal.
Upon the consolidation or merger of two (2) or more of the Employers under
this Plan with each other, no such withdrawal will occur, but the surviving
Employer or organization shall succeed to all the rights and duties under the
plan and trust of the Employers involved. In addition, no withdrawal shall
occur by reason of Corporate reorganization or other Corporate transactions of
the Employer.
15.2 Transfers of Plan Assets and Plan Mergers: The Plan and Trust shall
not be merged or consolidated with, nor shall any Plan assets or liabilities be
transferred to, any other plan, unless either (i) each Participant in the Plan
(if the Plan then terminated) receives a benefit immediately after such merger,
consolidation, or transfer, which is equal to or greater than the benefit he
would have been entitled to
XV-1
<PAGE>
receive immediately before such merger, consolidation, or transfer (if the Plan
had then terminated) or (ii) the conditions in (i) are deemed to be met due to
compliance with the procedures set forth in Treasury Regulation 1.414(1)-1
regarding plan mergers and transfers.
15.3 Plan Termination: The Corporation may at any time terminate this Plan
with respect to itself and all other Employers hereunder. This Plan shall
automatically terminate if all Employers cease to exist and no successor
continues the Plan.
15.4 Suspension and Discontinuance of Contributions and Plan Termination:
If the Employer decides it is impossible or inadvisable to continue to make its
contributions hereunder, it shall have the power to:
(a) suspend contributions to the Plan;
(b) discontinue contributions to the Plan; or
(c) terminate the Plan as to its Employees.
Suspension shall be temporary cessation of contributions and such a
suspension which has not ripened into a complete and permanent discontinuance
shall not require any vesting of Individual Accounts.
A discontinuance of contributions, unless considered complete and
permanent, shall also not require any vesting of Individual Accounts. In such
event, Employees who become eligible to enter the Plan subsequent to the
discontinuance shall receive no benefit, and no additional benefits attributable
to Employer contributions shall accrue to any of the Participants unless
contributions are resumed. After the date of discontinuance of contributions,
the Trust shall remain in existence as provided in this Section, and the
provisions of the Plan and Trust shall remain in force as may be necessary in
the sole opinion of the Committee.
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<PAGE>
Notwithstanding the foregoing, the actions described in this Section 15.4
shall occur only with the express consent of the Corporation.
15.5 Liquidation of Trust Fund: Upon termination of the Plan, the
proportionate interests of the affected Participants and their Beneficiaries
shall be liquidated after provision is made for the expenses of administration,
termination and liquidation. Thereafter, the Trustee shall distribute as soon
as administratively feasible the amount to the credit of each such Participant
and Beneficiary as the Committee shall direct.
XV-3
<PAGE>
ARTICLE XVI
General Provisions
16.1 Nonguarantee of Employment: Nothing contained in this Plan shall be
construed as a contract of employment between an Employer and Employee, or as a
right of any Employee to be continued in the employment of an Employer, or as a
limitation of the right of an Employer to discharge any of its Employees, with
or without cause.
16.2 Manner of Payment: Wherever and whenever it is herein provided for
payments or distributions to be made, whether in money or otherwise, said
payments or distributions shall be made directly into the hands of the
Participant, his Beneficiary, his administrator, executor or guardian, as the
case may be. Deposit to the credit of a Participant in any bank or trust
company selected by a Participant or Beneficiary hereunder shall be deemed
payment into his hands, and provided further, that in the event any person
otherwise entitled to receive any payment or distribution shall be a minor or an
incompetent, such payment or distribution may be made to his guardian or other
person as may be determined by the Committee.
16.3 Nonalienation of Benefits: Benefits payable under this Plan shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary of involuntary, prior to being received by the person
entitled to the benefit under the terms of the Plan. Any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose
of any right to benefits payable hereunder shall be void. The Trust Fund shall
not in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any person entitled to benefits hereunder.
None of the unpaid Plan benefits or Trust assets shall be considered an asset of
the Participant in the event of his insolvency or bankruptcy.
XVI-1
<PAGE>
Notwithstanding the foregoing,
(i) the Committee may approve an assignment of benefits and payment
(including immediate payment) to an alternate payee based upon any "qualified
domestic relations order" as defined in Code Section 414(p), and a Participant
may pledge his Individual Account, to the extent vested, as security for a loan
made to such Participant in accordance with Section 6.2 hereof and such payment
or pledge shall not be deemed a prohibited alienation of benefits; and
(ii) the Committee may offset a Participant's benefit to pay a
judgment or settlement against the Participant for a crime involving the Plan or
for a breach of the Participant's fiduciary duty to the Plan, provided such
offset is in accordance with the requirements of Code Section 401(a)(13) and
ERISA Section 206(d).
16.4 Amounts Returnable to an Employer: In no event shall an Employer
receive any amounts from the Trust, except such amounts, if any, as set forth
below:
a. In the event of a contribution made by an Employer by a mistake of
fact, such contribution shall be returned to such Employer within one year
after payment thereof.
b. If the Internal Revenue Service refuses to issue, with respect to
the initial establishment of the Plan, a determination letter to the effect
that the Plan and Trust as set forth herein or as amended prior to such
time do not meet the requirements of Sections 401(a) and 501(a) of the
Code, all contributions made to the Plan shall be distributed to the
Employer at its request within one year of the date of such refusal, in
which event the Plan and Trust shall then terminate.
c. Each contribution hereunder is conditioned upon the deductibility
of such contribution under Section 404 of the Code and shall be returned to
the appropriate Employer upon its request within one year of the date such
deduction is disallowed, but only to the extent of the disallowance, and
without any earnings, but reduced by losses attributable to such
contribution.
16.5 Governing Law: This Plan and each of its provisions shall be
construed and their validity determined by the application of the laws of the
State of Texas, except to the extent such law is preempted by Federal statute.
XVI-2
<PAGE>
16.6 Voting Corporation Stock: The Trustee shall exercise all voting
rights with respect to shares of the Corporation stock held by the Trust in
accordance with the following provisions of this Section 16.6:
a. As soon as practicable after receipt by the Trustee of proxy
solicitation material sent generally to shareholders, the Trustee shall
furnish to each Participant a copy of such material, together with a form
requesting confidential instructions on how the shares allocated to such
Participant's Individual Account are to be voted by Participants as named
fiduciaries. The Committee and the Trustee may also provide Participants
with such other material concerning the matters to be voted as the Trustee
or the Committee in its discretion determine to be appropriate, provided,
however, that prior to any distribution of materials by the Committee, the
Trustee shall be furnished with complete copies of all such materials. The
Employer and the Committee shall cooperate with the Trustee to ensure that
Participants receive the requisite information in a timely manner. The
materials furnished to the Participants shall include a notice from the
Trustee explaining that
(1) all shares of Corporation stock will be voted or not voted by
the Trustee only in accordance with instructions provided by
Participants acting in their capacity as named fiduciaries to both;
(2) the implications under the fiduciary responsibility provisions
of ERISA of the Participant agreeing to become a named fiduciary;
(3) by returning the proxy solicitation and pursuant thereto
specifically directing the Trustee how the shares are to be voted,
such Participant is consenting to his appointment as named fiduciary
hereunder with respect to shares for which he is entitled to provide
the Trustee with voting directions (including a proportionate number
of shares allocated to the accounts of Participants who fail to
consent to their appointment as named fiduciaries); and
XVI-3
<PAGE>
(4) that a Participant's consent to appointment as a named
fiduciary or failure to consent to such appointment shall be binding
only with respect to the specific proxy solicitation.
b. Upon timely receipt of such instructions, the Trustee (after
combining votes of fractional shares to give effect to the greatest extent
to Participants' instructions) shall vote the shares as instructed. With
respect to shares of Corporation stock allocated to the Individual Account
of a deceased Participant, such Participant's Beneficiary, as named
fiduciary, shall be entitled to direct the voting with respect to such
allocated shares as if such Beneficiary were the Participant. If voting
instructions for shares of Corporation stock are not timely received from a
Participant by the Trustee for a particular shareholders' meeting, the
Trustee will treat the non-receipt as a refusal by the Participant to be
appointed as named fiduciary with respect to that proxy solicitation. The
Trustee shall vote each share as instructed by Participants who have
consented to appointment as named fiduciaries.
c. The instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict confidence and shall
not be divulged or released to any person including directors, officers or
employees of the Company, or of any other company, except as otherwise
required by law.
d. Notwithstanding anything herein to the contrary, in the event a
person or entity other than the Employer solicits proxies from shareholders
of the Employer, prior to distributing materials under this Section, the
Trustee may require that the proxy solicitor advance sufficient funds as
are necessary to cover the cost of distributing the materials to, and
soliciting instructions from, Participants.
XVI-4
<PAGE>
16.7 Tender Offer for Corporation Stock: The Trustee shall make all tender
or exchange decisions with respect to Corporation stock held by the Trust in
accordance with the following provisions of this Section 16.7:
a. In the event an offer shall be received by the Trustee (including
a tender offer for shares of Corporation stock subject to Section 14(d)(1)
of the Securities Exchange Act of 1934 or subject to Rule l3e-4 promulgated
under that Act, as those provisions may from time to time be amended) to
purchase or exchange any shares of Corporation stock held by the Trust, the
Trustee will advise each Participant who has shares of Corporation stock
credited to such Participant's Individual Account in writing of the terms
of the offer as soon as practicable after its commencement and will furnish
each Participant with a form by which he may instruct the Trustee
confidentially whether or not to tender or exchange shares allocated to
such Participant's Individual Account. The materials furnished to the
Participants shall include a notice from the Trustee explaining that:
(1) all shares of Corporation stock subject to the offer will be
tendered or exchanged or will not be tendered or exchanged by the
Trustee only in accordance with decisions made by Participants acting
in their capacity as named fiduciaries with respect to both allocated
and unallocated shares;
(2) the implications under the fiduciary responsibility provisions
of ERISA of the Participant agreeing to become a named fiduciary;
(3) by timely returning the form and pursuant thereto specifically
directing that the shares subject to the decision of the Participant
either be tendered or exchanged or not tendered or exchanged, such
Participant is consenting to his appointment as named fiduciary
hereunder with respect to shares for which he is entitled to provide
the Trustee with directions (including a proportionate number of
shares allocated to the accounts of Participants who fail to consent
to their appointment as named fiduciaries); and
(4) a Participant's consent to appointment as a named fiduciary or
failure to consent to such appointment shall be binding only with
respect to the specific tender or exchange offer described in the
materials sent to the Participant by the Trustee. The Committee and
the Trustee may also provide Participants with such other material
concerning the tender or exchange offer as the Trustee or the
Committee in its discretion determine to be appropriate, provided,
however, that prior to any distribution of materials by the Committee,
the Trustee shall be furnished with complete copies of all such
materials. The Employer and the Committee will cooperate with the
Trustee to ensure that Participants receive the requisite information
in a timely manner.
XVI-5
<PAGE>
b. The Trustee shall tender or not tender shares or exchange shares
of Corporation stock allocated to the Individual Account of any Participant
(including fractional shares of 1/1000th of a share) for which instructions are
received only as and to the extent instructed by the Participant as a named
fiduciary. With respect to shares of stock allocated to the Individual Account
of a deceased Participant, such Participant's Beneficiary, as a named
fiduciary, shall be entitled to direct the Trustee whether or not to tender or
exchange such shares as if such Beneficiary were the Participant. If proper
tender or exchange instructions for shares of Corporation stock allocated to
the Individual Account of any Participant are not timely received by the
Trustee, the Trustee will treat the non-receipt as a refusal by the Participant
or Beneficiary to be appointed as named fiduciary with respect to that tender
or exchange offer and in its discretion shall determine whether to tender such
shares. The instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict confidence and shall not
be divulged or released to any person, including directors, officers or
employees of the Employer, or of any other company, except as otherwise
required by law.
c. In the event, under the terms of a tender offer or otherwise, any
shares of Corporation stock tendered for sale, exchange or transfer pursuant to
such offer may be withdrawn from such offer, the Trustee shall follow such
instructions respecting the withdrawal of such securities from such offer in
the same manner and the same proportion as shall be timely received by the
Trustee from the Participants, as named fiduciaries, entitled under this
Section to give instructions as to the sale, exchange or transfer of securities
pursuant to such offer.
d. In the event that an offer for fewer than all of the shares of
Corporation stock held by the Trustee shall be received by the Trustee, each
Participant who has been allocated any Corporation stock subject to such offer
shall be entitled to direct the Trustee as to the acceptance or rejection of
such offer (as provided by subsections (a)-(c) of this Section 16.7) with
respect to the largest portion of such Corporation stock as may be possible
given the total number or amount of shares of Corporation stock the Plan may
sell, exchange or transfer pursuant to the offer based upon the instructions
received by the Trustee from all other Participants who shall timely instruct
the Trustee pursuant to this Section to sell, exchange or transfer such shares
pursuant to such offer, each on a pro-rata basis in accordance with the number
or amount of such shares allocated to his Individual Accounts.
e. In the event an offer shall be received by the Trustee and
instructions shall be solicited from Participants pursuant to subsections (a)-
(c) of this Section 16.7 regarding such offer, and prior to the termination of
such offer, another offer is received by the Trustee for the securities subject
to the first offer, the Trustee shall treat the offer as a new offer for
purposes of apprising Participants of their rights to direct the Trustee and
for purposes of providing Participants with the opportunity to accept or to
reject their appointment as named fiduciaries and shall use its best efforts
under the circumstances to solicit instructions from the Participants to the
Trustee (i) with respect to securities tendered for sale, exchange or transfer
pursuant to the first offer, whether to withdraw such tender, if possible, and,
if withdrawn, whether to tender any securities so withdrawn for sale, exchange
or transfer pursuant to the second
XVI-6
<PAGE>
offer and (ii) with respect to securities not tendered for sale, exchange or
transfer pursuant to the first offer, whether to tender or not to tender such
securities for sale, exchange or transfer pursuant to the second offer. The
Trustee shall follow all such instructions received in a timely manner from
Participants in the same manner and in the same proportion as provided in
subsections (a)-(c) of this Section . In the event a Participant who failed to
consent to his appointment as a named fiduciary so consents in response to a
subsequent offer, the Trustee will be subject to that consenting Participant's
direction with respect to the instructions given pursuant to e.(i) and (ii)
above. In the event a Participant who directed the Trustee with respect to an
earlier offer fails to direct the Trustee in response to a subsequent offer,
the Participant and the shares for which he would have been entitled to provide
the Trustee with directions will thereafter be subject to the directions of
Participants who have consented to their appointment as named fiduciaries with
respect to the latest tender or exchange offer. With respect to any further
offer for any Corporation stock received by the Trustee and subject to any
earlier offer (including successive offers from one or more existing offers),
the Trustee shall act in the same manner as described above.
f. A Participant's instructions to the Trustee to tender or exchange
shares of Corporation stock will not be deemed a withdrawal or suspension from
the Plan or a forfeiture of any portion of the Participant's interest in the
Plan. Funds received in exchange for tendered shares will be credited to the
Individual Account of the Participant whose shares were tendered.
g. The Trustee shall take all steps necessary, including appointment of a
corporate trustee and/or an outside independent administrator to the extent
such action, after consultation with the Employer and the Committee, is found
necessary to maintain confidentiality of Participant responses and/or to
adequately discharge its obligations as Trustee.
h. In the event the Company initiates a tender or exchange offer, the
Trustee may, in its sole discretion, enter into an agreement with the Company
not to tender or exchange any shares of Corporation stock in such offer, in
which event, the foregoing provisions of this Section shall have no effect with
respect to such offer and the Trustee shall not tender or exchange any shares
of Corporation stock (allocated or unallocated) in such offer.
i. Notwithstanding anything herein to the contrary, in the event a tender
or exchange offer is initiated by a person or entity other than the Company,
prior to distributing materials under this Section, the Trustee may require
that such person or entity advance sufficient funds as are necessary to cover
the cost of distributing the materials to, and soliciting instructions from,
Participants.
XVI-7
<PAGE>
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing instrument comprising the GroupMac Savings Plan, the Corporation has
caused its corporate seal to be affixed hereto and these presents to be duly
executed in its name and behalf by its proper officers thereunto authorized this
____ day of ____________________, 1998.
GROUP MAINTENANCE AMERICA CORP.
By:
-------------------------------------
Name:
----------------------------------
Title:
-----------------------------------
ATTEST:
________________________________
(CORPORATE SEAL)
XVI-8
<PAGE>
EXHIBIT 5
December 22, 1998
Group Maintenance America Corp.
8 Greenway Plaza, Suite 1500
Houston, Texas 77046
Re: GroupMAC Savings Plan (the "Plan")
Ladies and Gentlemen:
As Senior Vice President and General Counsel of Group Maintenance America
Corp. (the "Company"), I have acted as counsel to the Company in connection with
the Registration Statement on Form S-8 (the "Registration Statement") being
filed under the Securities Act of 1933, as amended (the "Act"), on or about the
date of this letter to register shares of common stock, par value $0.001 per
share (the "Shares"), of the Company which may from time to time be offered and
sold by the Company in connection with the implementation and maintenance of the
Plan. I am familiar with the Registration Statement and the Exhibits thereto.
I have also examined originals or copies, certified or otherwise, of such other
documents, evidence of corporate action and instruments as I have deemed
necessary or advisable for the purpose of rendering this opinion. As to
questions of fact relevant to this opinion, I have relied upon certificates or
written statements from officers and other appropriate representatives of the
Company and its subsidiaries or public officials. In all such examinations I
have assumed the genuineness of all signatures, the authority to sign and the
authenticity of all documents submitted as originals. I have also assumed the
conformity of originals of all documents submitted as copies.
Based upon and subject to the foregoing, I am of the opinion that the
Shares that will be issued under the Plan have been duly authorized and, when
issued pursuant to and in accordance with the Plan, will be legally issued,
fully paid and non-assessable.
I hereby consent to the use of my name in the Registration Statement and to
the filing, as an exhibit to the Registration Statement, of this opinion. In
giving this consent, I do not hereby admit that I am in the category of persons
whose consent is required under Section 7 of the Act, or the rules and
regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Randolph W. Bryant
<PAGE>
EXHIBIT 23.1
The Board of Directors
Group Maintenance America Corp.:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Houston, Texas
December 22, 1998
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-effective
amendments to said Registration Statement, and all instruments necessary or
incidental in connection therewith, and to file the same with the Securities and
Exchange Commission, granting to each of said attorneys the full power and
authority to do and perform, with or without the other of said attorneys, in the
name and on behalf of the undersigned, in any and all capacities, every lawful
act whatsoever requisite or necessary to be done in the premises, as fully and
to all intents and purposes as the undersigned might or could do in person, the
undersigned hereby ratifying and approving the lawful acts of said attorneys and
each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Ronald D. Bryant
____________________________________
Ronald D. Bryant
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ David L. Henninger
__________________________________
David L. Henninger
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Chester J. Jachimiec
_________________________________
Chester J. Jachimiec
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Timothy Johnston
_____________________________________
Timothy Johnston
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Andrew J. Kelly
_______________________________________
Andrew J. Kelly
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Donald L. Luke
________________________________________
Donald L. Luke
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Thomas B. McDade
___________________________________
Thomas B. McDade
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Lucian L. Morrison
________________________________
Lucian L. Morrison
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Robert Munson III
____________________________________
Robert Munson III
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ James P. Norris
__________________________________________
James P. Norris
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ Fredric J. Sigmund
____________________________________
Fredric J. Sigmund
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ John M. Sullivan
______________________________________
John M. Sullivan
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
POWER OF ATTORNEY
The undersigned, in his capacity as a Director of Group Maintenance America
Corp., a Texas corporation (the "Company"), does hereby appoint Randolph W.
Bryant and Darren B. Miller, and each of them, severally, his true and lawful
attorneys, or attorney, to execute in his name, place and stead, in his capacity
as a Director of the Company, a Registration Statement on Form S-8 for the
registration of (i) shares of the Company's common stock, par value $.001 per
share, which may be offered by the Company pursuant to the GroupMAC Savings Plan
and (ii) interests in such Plan, and any and all amendments and post-
effective amendments to said Registration Statement, and all instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission, granting to each of said attorneys the full
power and authority to do and perform, with or without the other of said
attorneys, in the name and on behalf of the undersigned, in any and all
capacities, every lawful act whatsoever requisite or necessary to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the lawful
acts of said attorneys and each of them.
IN TESTIMONY WHEREOF, the undersigned has executed this instrument this
21st day of December, 1998.
/s/ James D. Weaver
______________________________________
James D. Weaver
