<PAGE>
As filed with the Securities and Exchange Commission on January 21, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
MIDAS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-4180556
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
225 NORTH MICHIGAN AVENUE 60601
CHICAGO, ILLINOIS (Zip Code)
(Address of principal executive offices)
MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
MIDAS RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES
(Full title of the plans)
ROBERT H. SORENSEN
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
MIDAS, INC.
225 NORTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60601
(312) 565-7500
(Name, address, and telephone number,
including area code, of agent for service)
____________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be to be Offering Aggregate Registration Fee
Registered(1) Registered Price Per Offering
Share Price
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 60,000 shares $16(2) $960,000(2) $283.20
$.001 par value
Preferred Stock 60,000 rights (3) (3) (3)
Purchase Rights
===========================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered pursuant to the employee benefit plans described
herein.
(2) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
average of the high and low sale prices of the Common Stock reported on the
New York Stock Exchange on January 20, 1998.
(3) Rights to purchase Series A Junior Participating Preferred Stock (the
"Rights") initially are attached to and trade with the shares of Common
Stock being registered hereby. Value attributable to such Rights, if any,
is reflected in the market price of the Common Stock.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Midas, Inc. (the "Company"), the Midas
Retirement Savings Plan for Hourly Employees (the "Hourly Plan") or the Midas
Retirement Savings Plan for Salaried Employees (together with the Hourly Plan,
the "Plans"), are incorporated herein by reference:
(a) The Company's effective Registration Statement on Form 10, as amended
(Commission File No. 1-13409);
(b) All of the Company's or the Plans' other reports filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1996; and
(c) The descriptions of the Company's Common Stock, par value $.001 per
share, and the Rights associated therewith, which are contained in the
Section entitled "Description of Capital Stock of the Companies" in
Exhibit 99 to the Company's Registration Statement on Form 10/A No. 3
(Post-Effective Amendment No. 1).
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, and all documents filed by
either of the Plans pursuant to Section 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the respective dates of filing of such
documents (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 102(b)(7) of the Delaware General Corporation
Law (the "Delaware Law"), the Company's Certificate of Incorporation, as amended
(the "Charter"), provides that directors shall not be personally liable to the
Company or its shareholders for monetary damages for breaches of their fiduciary
duty as directors except for (i) breaches of their duty of loyalty to the
Company or its shareholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or knowing violations of law, (iii) certain
transactions under Section 174 of the Delaware Law, which concerns unlawful
payments of dividends, stock purchases or redemptions or (iv) transactions from
which a director derives an improper personal benefit.
The Charter provides that each person who is or was or had agreed to become
a director or officer of the Company, or each person who is or was serving or
who had agreed to serve at the request of the board of directors of the Company
or an officer of the Company as a director, officer or employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including the heirs, executors, administrators or estate of such person), will
be indemnified by the Company, in accordance with and pursuant to the By-Laws of
the Company (the "By-Laws"). In addition, the Company may provide
indemnification to its
<PAGE>
employees and agents to the extent provided by action of its board of directors
pursuant to the By-Laws. The Company may also enter into one or more agreements
with any person providing for indemnification greater or different than that
provided in the Charter.
The By-Laws provide that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative (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, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such Proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while servicing as a director, officer, employee or agent, will be indemnified
and held harmless by the Company to the fullest extent authorized by the
Delaware Law as the same exists or may in the future be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than Delaware Law permitted
the Company to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974 or penalties and amounts paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification will continue as to a person who has ceased
to be a director, officer, employee or agent and will inure to the benefit if
his or her heirs, executors and administrators; provided, however, that except
as described in the following paragraph with respect to Proceedings to enforce
rights to indemnification, the Company will indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
board of directors or the Company. The Company's board of directors may provide
indemnification to employees and agents of the Company to the same extent as
provided to directors and officers of the Company.
Pursuant to the By-Laws, if a claim described in the preceding paragraph is
not paid in full by the Company within thirty days after a written claim has
been received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant will also be entitled to be paid the expense
of prosecuting such claim. The By-Laws provide that it will be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standards of conduct which make it permissible
under the Delaware Law for the Company to indemnify the claimant for the amount
claimed, but the burden of providing such defense will be on the Company.
Neither the failure of the Company (including the board of directors of the
Company, independent legal counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware Law, nor an actual determination by the
Company (including the board of directors of the Company, independent legal
counsel or shareholders) that the claimant has not met such applicable standard
of conduct, will be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
The By-Laws provide that the right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in the By-Laws will not be exclusive of any other right which any
person may have or may in the future acquire under any statute, provision of the
Charter, the By-Laws, agreement, vote of stockholders or disinterested directors
or otherwise. The By-Laws permit the Company to maintain insurance, at its
expense to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the Company
would have the power to indemnify such person against such expense, liability or
loss under the Delaware Law. The Company has obtained liability insurance
providing coverage to its directors and officers.
The By-Laws provide that the right to indemnification conferred therein is
a contract right and includes the right to be paid by the Company the expenses
incurred in defending any such Proceeding in advance of its final disposition,
except that if the Delaware Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a Proceeding, will
be made only upon delivery to the Company of an undertaking by or on behalf of
such director or officer, to repay all amounts so advanced if it is ultimately
determined that such director or officer is not entitled to be indemnified under
the By-Laws or otherwise.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the accompanying Exhibit Index for a list of Exhibits to this
Registration Statement.
The Company will submit or has submitted each Plan and any amendment to
either of them to the Internal Revenue Service (the "IRS") in a timely manner
and has made or will make all changes required by the IRS in order to qualify
each respective Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
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 the 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 the 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) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent 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 the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remained unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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
II-3
<PAGE>
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
The Registrant. 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 Chicago, State of Illinois on this 21st day of
January, 1998.
MIDAS, INC.
By: R. Lee Barclay
____________________
R. Lee Barclay
Executive Vice President and Chief Financial
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints R. Lee Barclay and Robert H.
Sorensen, and each or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated, on this 21st day of January, 1998.
SIGNATURE TITLE
--------- -----
Wendel H. Province Chairman and Chief Executive Officer
________________________
Wendel H. Province (principal executive officer)
R. Lee Barclay Executive Vice President and Chief
________________________ Financial Officer
R. Lee Barclay (principal financial officer)
Edwin A. Grell Vice President-Controller
________________________
Edwin A. Grell (principal accounting officer)
Thomas L. Bindley Director
________________________
Thomas L. Bindley
William B. Moore Director
________________________
William B. Moore
Frank T. Westover Director
________________________
Frank T. Westover
II-5
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act of 1933, as
amended, the trustees (or other persons who administer the employee benefit
plans) have duly caused this registration statement to be signed on their
respective behalf by the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on January 21, 1998.
MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
MIDAS RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES
Gerard M. Klaisle
By:__________________________________
Gerard M. Klaisle
Senior Vice President of Human Resources and
Administrator of Midas Defined Contribution
Master Trust
II-6
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT
NO. DESCRIPTION
- ----- -----------
4.1 Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3(i).1 to the Company's
Registration Statement on Form 10 (Commission File No.
1-13409)).
4.2 Certificate of Amendment of the Certificate of
Incorporation of the Company, dated December 30, 1997
(incorporated by reference to Exhibit 3(i).2 to the
Company's Registration Statement on Form 10/A No. 3
(Post-Effective Amendment No. 1)).
4.3* Certificate of Designation of Series A Junior
Participating Preferred Stock of the Company.
4.4* By-Laws of the Company (as amended December 31, 1997).
4.5* Rights Agreement, dated as of December 31, 1997, between
the Company and First Chicago Trust Company of New York,
as Rights Agent.
4.6* Form of Midas Retirement Savings Plan for Hourly
Employees.
4.7* Form of Midas Retirement Savings Plan for Salaried
Employees.
23* Consent of KPMG Peat Marwick LLP.
24* Powers of Attorney (contained on the signature page to
this Registration Statement).
________________________
*Filed herewith
II-7
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
MIDAS, INC.
________________________________________________________________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
________________________________________________________________________________
The undersigned do hereby certify that the following resolution was duly
adopted by the Board of Directors of Midas, Inc., a Delaware corporation (the
"Corporation"), on December 31, 1997:
RESOLVED, that pursuant to the authority vested in the board of directors
of the Corporation by the Certificate of Incorporation, the Board of Directors
does hereby create, authorize and provide for the issue of a series of Preferred
Stock, par value $.001 per share, of the Corporation, to be designated "Series A
Junior Participating Preferred Stock" (hereinafter referred to as the "Series A
Preferred Stock"), initially consisting of 1,000,000 shares, and to the extent
that the designations, powers, preferences and relative and other special rights
and the qualifications, limitations or restrictions of the Series A Preferred
Stock are not stated and expressed in the Certificate of Incorporation, does
hereby fix and herein state and express such designations, powers, preferences
and relative and other special rights and the qualifications, limitations and
restrictions thereof, as follows (all terms used herein which are defined in the
Certificate of Incorporation shall be deemed to have the meanings provided
therein):
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 1,000,000.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by
<PAGE>
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first business day of January, April, July and
October in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $.01 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $.001 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time after December
31, 1997 (the "Rights Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a small number of
shares, then in each case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided, however, that, in the event no
-------- -------
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior to and
superior to the shares of Series A Preferred Stock with respect to dividends, a
dividend of $.01 per share on the Series A Preferred Stock shall nevertheless by
payable on such subsequent Quarterly Dividend Payment Date.
2
<PAGE>
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights.
-------------
The holders of shares of Series A Preferred Stock shall have the following
voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
3
<PAGE>
(B) Except as otherwise provided herein or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of Common Stock shall vote
collectively as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six (6) quarterly dividends thereon,
the occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During
each default period, all holders of Preferred Stock (including holders of the
Series A Preferred Stock) with dividends in arrears in an amount equal to six
(6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders,
provided that such voting right shall not be exercised unless the holders of
ten percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting rights. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two
(2) Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of Directors as shall
be necessary to permit the election by them of the required number. After the
holders of the Preferred Stock shall have exercised their right to elect
Directors in any default period and during the continuance of such period, the
number of Directors shall not be
4
<PAGE>
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Preferred Stock.
---- -----
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request,
the calling of special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the Chairman, the President, a Vice
President or the Secretary of the Corporation. Notice of such meeting and
of any annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder of
record of Preferred Stock by mailing a copy of such notice to him or her at
his or her last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 10
days and not later than 50 days after such order or request, or in default
of the calling of such meeting within 50 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall be
called during the period within 50 days immediately preceding the date
fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and, if
applicable, other classes of capital stock of the Corporation, shall
continue to be entitled to elect the whole number of Directors until the
holders of Preferred Stock shall have exercised their right to elect two
(2) Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such holders or
until the expiration of the default period, and (y) any vacancy in the
Board of Directors may (except as provided in paragraph (C)(ii) of this
Section 3) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of capital stock which
elected the Director whose office shall have become vacant. References in
this paragraph (C) to Directors elected by the holders of
5
<PAGE>
a particular class of stock shall include Directors appointed by such
Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in the certificate of incorporation or
by-laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the certificate of
incorporation or by-laws). Any vacancies in the Board of Directors effected
by the provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of
capital stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A
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Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any capital stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of
any capital stock of the Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of capital stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares.
-----------------
Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
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Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of capital stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an amount per
share (the "Common Adjustment") equal to the quotient obtained by dividing (i)
the Series A Liquidation Preference by (ii) 100 (as appropriately adjusted as
set forth in subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment of the full
amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Preferred Stock and Common Stock,
respectively, and the payment of liquidation preferences of all other shares of
capital stock which rank prior to or on a parity with Series A Preferred Stock,
holders of Series A Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event, however,
that there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding
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Common Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
--------------------------
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of capital stock, securities, cash and/or any other
property (payable in kind), as the case may be, for which or into which each
share of Common Stock is exchanged or changed. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption.
-------------
The shares of Series A Preferred Stock shall not be redeemable.
Section 9. Ranking.
-------
The Series A Preferred Stock shall rank junior to all other series of
the Corporation's Preferred Stock as to the payment of dividends and the
distribution of assets, whether or not upon the dissolution, liquidation or
winding up of the Corporation, unless the terms of any such series shall provide
otherwise.
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Section 10. Amendment.
---------
The Certificate of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares.
-----------------
Series A Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
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IN WITNESS WHEREOF, Midas, Inc. has caused its corporate seal to be
hereunto affixed and this certificate to be signed by William B. Moore its Vice
President, and the same to be Olga Iszczuk attested to by its Assistant
Secretary this 19 th day of January, 1998.
MIDAS, INC.
By: /s/ William B. Moore
---------------------------
Name: William B. Moore
Title: Vice President
(Corporate Seal)
Attest:
/s/ Olga Iszczuk
- ----------------
Olga Iszczuk
Assistant Secretary
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EXHIBIT 4.4
BY-LAWS
OF
MIDAS, INC.
(as amended December 31, 1997)
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
Section 1.1 Delaware Office
The principal office of Midas, Inc. (the "Corporation") in the State of
Delaware shall be located in the City of Wilmington, County of New Castle, and
the name and address of its registered agent is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware.
Section 1.2 Other Offices
The Corporation may have such other offices, either within or without the
State of Delaware, as the Board of Directors may from time to time designate or
as the business of the Corporation may from time to time require.
Section 1.3 Books and Records
The books and records of the Corporation may be kept outside the State of
Delaware at such place or places as may from time to time be designated by the
Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1 Annual Meeting
The annual meeting of stockholders of the Corporation shall be held at such
place, either within or without the State of Delaware, and at such time and date
as the Board of Directors, by resolution, shall determine for the purpose of
electing directors and for the transaction of such other business as may be
properly brought before the meeting. If the Board fails so to determine the
time, date and place of meeting, the annual meeting of stockholders shall be
held at the principal office of the Corporation on the first Thursday in May
commencing in 1999. If the date of the annual meeting shall fall upon a legal
holiday, the meeting shall be held on the next succeeding business day.
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Section 2.2 Special Meeting
Subject to the rights of the holders of any Preferred Stock (as defined in
the Certificate of Incorporation of the Corporation) to elect additional
directors under specific circumstances, special meetings of the stockholders may
be called only by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation would have if
there were no vacancies (the "Whole Board").
Section 2.3 Place of Meeting
The Board of Directors may designate the place of meeting for any meeting
of the stockholders. If no designation is made by the Board, the place of
meeting shall be the principal office of the Corporation.
Section 2.4 Notice of Meeting
Written or printed notice, stating the place, day and hour of a meeting and
the purpose or purposes for which the meeting is called, shall be prepared and
delivered by the Corporation not less than ten days nor more than sixty days
before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the stockholder at such stockholder's
address as it appears on the stock transfer books of the Corporation. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation's notice of meeting.
Any previously scheduled meeting of the stockholders may be postponed by
resolution of the Board of Directors upon public notice given prior to the time
previously scheduled for such meeting of stockholders.
Section 2.5 Quorum and Adjournment
Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the voting power of the outstanding shares of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), represented in person or by proxy, shall constitute a quorum at a
meeting of stockholders, except that when specified business is to be voted on
by a class or series voting as a class, the holders of a majority of the voting
power of the shares of such class or series shall constitute a quorum for the
transaction of such business. The chairman of the meeting or a majority of the
shares of Voting Stock so represented may adjourn the meeting from time to time,
whether or not there is such a quorum (or, in the case of specified business to
be voted on by a class or series, the chairman or a majority of the shares of
such class or series so represented may adjourn the meeting with respect to such
specified business). Notice need not be given of any such adjourned meeting if
the date, time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for
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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
stockholder of record entitled to vote at the adjourned meeting in accordance
with Section 2.4 of these By-Laws. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Section 2.6 Voting and Proxies
(A) Voting Rights of other Corporations. Voting Stock standing in the name
of another corporation and entitled to vote may be voted by such officer, agent
or proxy as the By-Laws or other internal regulations of such other corporation
may prescribe or, in the absence of such provision, as the Board of Directors or
comparable body of such other corporation may determine.
(B) Voting Rights of Fiduciaries. Voting Stock standing in the name of a
deceased person, a minor, an incompetent or a debtor in a case under Title 11,
United States Code, and entitled to vote may be voted by an administrator,
executor, guardian, conservator, debtor-in-possession or trustee, as the case
may be, either in person or by proxy, without transfer of such shares into the
name of the official or other person so voting.
(C) Voting Rights of Pledgors. A stockholder whose Voting Stock is pledged
shall be entitled to vote such stock unless on the transfer records of the
Corporation the pledgor has expressly empowered the pledgee to vote such shares,
in which case only the pledgee, or such pledgee's proxy, may represent such
shares and vote thereon.
(D) Voting Rights of Joint Owners. If Voting Stock is held of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect: (i) if only one votes, such act binds all; (ii) if
more than one vote, the act of the majority so voting binds all; and (iii) if
more than one votes, but the vote is evenly split on any particular matter, each
faction may vote such Voting Stock proportionally, or any person voting the
shares, or a beneficiary, if any, may apply to the Court of Chancery of the
State of Delaware or such other court as may have jurisdiction to appoint an
additional person to act with the persons so voting such Voting Stock, which
shall then be voted as determined by a majority of such persons and the person
appointed by the Court. If the instrument so filed shows that any such tenancy
is held in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
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(E) The Corporation's Rights Respecting the Voting Stock. Voting Stock
belonging to the Corporation, or to another corporation a majority of the shares
entitled to vote in the election of directors of such other corporation of which
are held by the Corporation, shall not be voted at any meeting of stockholders
and shall not be counted in the total number of outstanding shares for the
purpose of determining whether a quorum is present. Nothing in this Section 2.6
shall limit the right of the Corporation to vote shares of Voting Stock held by
it in a fiduciary capacity.
(F) Proxies. At all meetings of stockholders, a stockholder may vote by
proxy executed in writing by the stockholder or as may be permitted by law, or
by such stockholder's duly authorized attorney-in-fact. Such proxy must be filed
with the Secretary of the Corporation or such stockholder's representative at or
before the time of the meeting. No such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing with the
Secretary an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date.
Section 2.7 Notice of Stockholder Business and Nominations
(A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 2.4 of these By-Laws, (b) by or at the direction of the
Board of Directors or (c) by any stockholder of the Corporation who is entitled
to vote at the meeting, who complied with the notice procedures set forth in
clauses (2) and (3) of this paragraph (A) of this By-Law and who was a
stockholder of record at the time such notice was delivered to the Secretary of
the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this By-Law, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal office of the Corporation not
earlier than the close of business on the 90th calendar day nor later than the
close of business on the 70th calendar day prior to the date of the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of an annual meeting is more than 30 calendar days
before or more than 70 calendar days after the date of the first anniversary of
the preceding year's annual meeting, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the 90th calendar day
prior to such annual meeting and not later than the close of business on the
later of (i) the 70th calendar day prior to such annual meeting and (ii) the
10th calendar day after the day on which public announcement of the date of such
annual meeting is first made by the Corporation. For the purpose of determining
whether a stockholder's notice
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shall have been delivered in a timely manner for the 1999 annual meeting, the
date of the first anniversary of the preceding year's meeting shall be deemed to
be May 7, 1999. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder 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, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the regulations promulgated
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 stockholder 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 stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's stock transfer books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this By-Law to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation 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 made by the
Corporation at least 80 calendar days prior to the date of the first anniversary
of the preceding year's annual meeting, a stockholder's notice required by this
By-Law 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 office of the Corporation not later than the close of
business on the 10th calendar day after the day on which such public
announcement is first made by the Corporation. For the purpose of determining
whether a stockholder's notice shall have been delivered in a timely manner for
the 1999 annual meeting, the first anniversary of the preceding year's meeting
shall be deemed to be May 7, 1999.
(B) Special Meetings of Stockholders. Subject to the rights of the holders
of any Preferred Stock, only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting pursuant to Section 2.4 of these By-Laws.
Subject to the rights of the holders of any Preferred Stock, nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board or (2)
by any stockholder of the Corporation who is entitled to vote at the meeting,
who complies with the notice procedures set forth in this By-Law and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation. Nominations by stockholders of persons for election to the
Board may be made at such a special meeting of stockholders if the stockholder's
notice as required by paragraph (A)(2) of this By-Law shall be delivered to the
Secretary at the principal executive offices of the
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Corporation not earlier than the close of business on the 90th calendar day
prior to such special meeting and not later than the close of business on the
later of (i) the 70th calendar day prior to such special meeting and (ii) the
10th calendar day after the day on which public announcement is first made of
the date of such special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(C) General. (1) Subject to the rights of the holders of any Preferred
Stock, only persons who are nominated in accordance with the procedures set
forth in this By-Law shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, 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 in accordance with the procedures set forth in this
By-Law and, if any proposed nomination or business is not in compliance with
this By-Law, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this By-Law, "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 By-Law, a stockholder
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
By-Law. Nothing in this By-Law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.8 Stockholder Vote Required
Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by written ballot. Subject to the rights
of the holders of any series of Preferred Stock to elect additional directors
under specific circumstances, directors shall be elected by a plurality of the
votes of the shares of Voting Stock present in person or represented by proxy at
the meeting and entitled to vote on the election of directors. Except as
otherwise provided by law, the Certificate of Incorporation or these By-Laws, in
all matters other than the election of directors, the affirmative vote of the
majority of the shares of Voting Stock present in person or represented by proxy
at the meeting and entitled to vote on the subject matter shall be the act of
the stockholders.
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Section 2.9 Inspectors of Elections; Opening and Closing the Polls
(A) Inspectors of Election. The Board of Directors by resolution shall
appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives of the
Corporation, to act at a meeting of stockholders and make a written report
thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act, or if all inspectors or alternates who have been appointed are
unable to act at a meeting of stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his or her ability.
(B) Duties. The inspectors shall (i) ascertain the number of shares of
Voting Stock outstanding and the voting power of each, (ii) determine the number
of shares of Voting Stock present in person or by proxy at such meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors and (v) certify their
determination of the number of such shares present in person or by proxy at such
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist them in the performance of their
duties.
(C) Opening and Closing the Polls. The chairman or secretary of the meeting
shall announce at the meeting the date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting.
No ballots, proxies or votes, nor any revocations thereof or changes thereto,
shall be accepted by the inspectors after the closing of the polls unless the
Court of Chancery of the State of Delaware upon application by any stockholder
shall determine otherwise.
Section 2.10 Fixing Date of Determination of Stockholders of Record
(A) Fixing the Record Date. In order that the Corporation may determine the
stockholders entitled (i) to notice of or to vote at any meeting of stockholders
or any adjournment thereof, (ii) to receive payment of any dividend or other
distribution or allotment of any rights, (iii) to exercise any rights in respect
of any change, conversion or exchange of stock or (iv) to take, receive or
participate in any other action, the Board of Directors may fix a record date,
which shall not be earlier than the date upon which the resolution fixing the
record date is adopted by the Board and which (1) in the case of a determination
of stockholders entitled to notice of or to vote at any meeting of stockholders
or adjournment thereof, shall, unless otherwise required by law, be not more
than 60 nor less than ten days before the date of such meeting; and (2) in the
case of any other action, shall be not more than 60 days before such action.
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(B) If Record Date is Not Fixed. If no record date is fixed, (i) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, and (ii) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
(C) Adjourned Meetings. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, but the Board of Directors may fix a new record date
for the adjourned meeting.
Section 2.11 List of Stockholders Entitled to Vote
The Secretary shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers
The business and affairs of the Corporation shall be managed by or under
the direction of its Board of Directors. In addition to the powers and
authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation or by these By-
Laws required to be exercised or done by the stockholders.
Section 3.2 Number, Tenure and Qualifications
Subject to the rights of the holders of any series of Preferred Stock to
elect directors under specific circumstances, the number of directors shall be
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board but shall consist of not less
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than three directors. The directors, other than those who may be elected by the
holders of any series of Preferred Stock, or any other series or class of stock,
shall be divided, with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as possible, with the term of
office of the first class to expire at the 1999 annual meeting of stockholders,
the term of office of the second class to expire at the 2000 annual meeting of
stockholders and the term of office of the third class to expire at the 2001
annual meeting of stockholders. Each director shall hold office until his or her
successor shall have been duly elected and qualified. At each annual meeting of
stockholders, commencing with the 1999 annual meeting, (i) directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified or until his or her earlier death,
resignation or removal from office, and (ii) if authorized by a resolution of
the Board of Directors, a director may be elected to fill any vacancy on the
Board, regardless of how such vacancy shall have been created.
Section 3.3 Regular Meetings
A regular meeting of the Board of Directors may be held without other
notice than this By-Law immediately after, and at the same place as, each annual
meeting of stockholders. The Board may, by resolution, provide the time and
place for the holding of additional regular meetings without other notice than
such resolution.
Section 3.4 Special Meetings
Special meetings of the Board of Directors may be called by the Chairman,
the Secretary or two or more directors. The person or persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings.
Section 3.5 Notice
Notice of each special meeting of the Board shall be given by the
Secretary. Notice of each such meeting shall state the date, time and place of
the meeting, and shall be delivered to each director either personally or by
telephone, telegraph, cable, or similar means, at least twenty-four hours before
the time at which such meeting is to be held or mailed by first-class mail,
postage prepaid, addressed to the director at his residence or usual place of
business, at least five days before the day on which such meeting is to be held.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board need be specified in the notice of such meeting,
except for amendments to these By-Laws as provided under Article IX hereof. A
meeting may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in writing, either before or
after such meeting.
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Section 3.6 Quorum
A whole number of directors equal to at least one-third of the Whole Board
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board there shall be less than a quorum present, a majority of the
directors present may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
Section 3.7 Vacancies
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specific circumstances, and unless the Board of
Directors otherwise determines, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board, and each director
so chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he or she has
been elected expires and until his or her successor has been duly elected and
qualified or until his or her earlier death, resignation or removal from office.
No decrease in the number of authorized directors constituting the Whole Board
shall shorten the term of any incumbent director.
Section 3.8 Executive and Other Committees
The Board of Directors may, by resolution adopted by a majority of the
Whole Board, designate an Executive Committee to exercise, subject to applicable
provisions of law, all the powers of the Board in the management of the business
and affairs of the Corporation when the Board is not in session, including
without limitation the power to declare dividends, to authorize the issuance of
the Corporation's capital stock and to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of the State of
Delaware, and may, by resolution similarly adopted, designate one or more other
committees. The Executive Committee and each such other committee shall consist
of two or more directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee may to
the extent permitted by law exercise such powers and shall have such
responsibilities as shall be specified in the designating resolution. In the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board when required.
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A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Notice of such
meetings shall be given to each member of the committee in the manner provided
for in Section 3.5 of these By-Laws. The Board shall have power at any time to
fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are not
directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board of Directors.
Section 3.9 Removal
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specific circumstances, any director, or the
entire Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least 80 percent of
the voting power of the then outstanding Voting Stock, voting together as a
single class.
Section 3.10 Telephonic Meetings
Directors, or any committee of directors designated by the Board, may
participate in a meeting of the Board or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 3.10 shall constitute presence in person at such
meeting.
Section 3.11 Informal Action by Directors
Unless otherwise provided in the Certificate of Incorporation or these By-
Laws, 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 or such committee, as the case may be, consent thereto in
writing (which may be in counterparts), and the written consent or consents are
filed with the minutes of proceedings of the Board or such committee.
Section 3.12 Reliance upon Records
Every director, and every member of any committee of the Board of
Directors, shall, in the performance of his or her duties, be fully protected in
relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of its officers or employees, or committees of the Board, or by any other person
as to matters the director or member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, including, but not limited
to, such records, information, opinions,
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reports or statements as to the value and amount of the assets, liabilities
and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid, or with which the Corporation's capital stock
might properly be purchased or redeemed.
Section 3.13 Interested Directors
A director who is directly or indirectly a party to a contract or
transaction with the Corporation, or is a director or officer of or has a
financial interest in any other corporation, partnership, association or other
organization which is a party to a contract or transaction with the Corporation,
may be counted in determining whether a quorum is present at any meeting of the
Board or a committee thereof at which such contract or transaction is considered
or authorized, and such director may participate in such meeting and vote on
such authorization if the material facts as to such director's relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors are less than a
quorum.
Section 3.14 Compensation
The Board of Directors shall have the authority to fix the compensation,
including fees and reimbursement of expenses, of directors for services to the
Corporation in any capacity, provided that no such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 3.15 Presumption of Assent
Unless otherwise provided by the laws of the State of Delaware, a director
who is present at a meeting of the Board of Directors or a committee thereof at
which action is taken on any matter shall be presumed to have assented to the
action taken unless his or her dissent shall be entered in the minutes of such
meeting or unless he or she shall file his or her written dissent to such action
with the person acting as secretary of such meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary
immediately after the adjournment of such meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
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ARTICLE IV
OFFICERS
Section 4.1 Elected Officers
Unless otherwise determined by the Board of Directors, the officers of the
Corporation shall consist of the Chairman, the President, one or more Vice
Presidents, the Secretary, the Treasurer and the Controller. Any two or more
offices may be held by the same person. The Board may designate the Chairman or
the President as the Chief Executive Officer of the Corporation. Such officers
shall be elected from time to time by the Board to hold office until their
respective successors shall have been duly elected and shall have qualified, or
until death, resignation or removal, as hereafter provided in these By-Laws.
Section 4.2 Other Officers
The Board may from time to time elect, or the Chairman may appoint, such
other officers (including one or more Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers, and Assistant Controllers) and such agents,
as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as shall be provided in these By-Laws or as
may be prescribed by the Board or by the Chairman.
Section 4.3 Resignation and Removal
Any officer or agent of the Corporation may resign at any time by giving a
written notice of resignation to the Board of Directors, the Chairman, the
President or the Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any officer or agent of the Corporation may be removed, either with
or without cause, at any time, by a vote of the majority of the Whole Board, or,
except in the case of an officer or agent elected by the Board, by the Chairman.
Such removal shall be without prejudice to the contractual rights, if any, of
the person so removed.
Section 4.4 Vacancies
A vacancy in any office, whether arising from death, resignation, removal
or any other cause, may be filled for the unexpired portion of the term of the
office which shall be vacant in the manner prescribed in these By-Laws for the
regular election or appointment of such office.
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Section 4.5 Chairman
The Chairman shall have the general control and management of the business
and affairs of the Corporation, under the direction of the Board of Directors.
He shall have power to select and appoint all necessary officers and employees
of the Corporation except such officers as under these By-Laws are to be elected
by the Board; to remove all appointed officers or employees whenever he shall
deem it necessary, and to make new appointments to fill the vacancies; and to
suspend from office for cause any elected officer, which shall be forthwith
declared in writing to the Board. The Chairman shall have such other authority
and shall perform such other duties as may be determined by the Board.
Section 4.6 President
The President shall have such authority and perform such duties relative to
the business and affairs of the Corporation as may be determined by the Board of
Directors or the Chairman. In the absence of the Chairman, the President shall
preside at meetings of the stockholders and of the directors. If the Board
shall not have elected a Chairman, the President shall have such authority and
shall perform such additional duties as in these By-Laws is provided for the
office of Chairman.
Section 4.7 Vice Presidents and Assistant Vice Presidents
Each Vice President and each Assistant Vice President shall have such
powers and perform all such duties as from time to time may be determined by the
Board of Directors, the Chairman, the President or the senior officer to whom
such officer reports.
Section 4.8 Secretary
The Secretary shall record the proceedings of all meetings of the Board of
Directors, the committees of the Board and the stockholders; shall see that all
notices are duly given in accordance with the provisions of these By-Laws and as
required by law; shall be custodian of the records and the seal of the
Corporation and, if necessary or appropriate, affix and attest the seal to all
documents to be executed on behalf of the Corporation under its seal; shall see
that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and in
general, shall perform all the duties incident to the office of Secretary and
such other duties as from time to time may be determined by the Board, the
Chairman or the President.
Section 4.9 Treasurer
The Treasurer shall exercise general supervision over the receipt, custody
and disbursement of corporate funds. The Treasurer shall have such further
powers and duties as may be determined from time to time by the Board of
Directors, the Chairman or the President.
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Section 4.10 Controller
The Controller shall be the chief accounting officer of the Corporation and
shall maintain adequate records of all assets, liabilities and transactions of
the Corporation; shall establish and maintain internal accounting controls; and,
in cooperation with the independent public accountants selected by the Board of
Directors, shall supervise internal auditing. The Controller shall have such
further powers and duties as may be determined from time to time by the Board,
the Chairman or the President.
Section 4.11 Assistant Officers
Any Assistant Secretary, Assistant Treasurer, or Assistant Controller
elected or appointed as heretofore provided, shall perform the duties and
exercise the powers of the Secretary, Treasurer and Controller, respectively, in
their absence or inability to act, and shall perform such other duties and have
such other powers as the Board of Directors, the Chairman, the President, the
Secretary, the Treasurer, or the Controller (as the case may be), may from time
to time prescribe.
Section 4.12 Compensation
The compensation of the officers of the Corporation for their services as
such officers shall be fixed from time to time by the Board of Directors;
provided, however, that the Board may by resolution delegate to the Chairman the
power to fix compensation of non-elected officers and agents appointed by the
Chairman. An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that such officer is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of such officer's compensation.
ARTICLE V
CONTRACTS AND PROXIES
Section 5.1 Contracts
Except as otherwise required by law, the Certificate of Incorporation or
these By-Laws, any contracts or other instruments may be executed and delivered
in the name and on behalf of the Corporation by such officer or officers
(including any assistant officer) of the Corporation as the Board of Directors
may from time to time direct. Such authority may be general or confined to
specific instances as the Board of Directors may determine. The Chairman, the
President or any Vice President may execute bonds, contracts, deeds, leases and
other instruments to be made or executed for or on behalf of the Corporation.
Subject to any restrictions imposed by the Board, the Chairman, the President or
any Vice President of the Corporation may delegate contractual
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power to others under his jurisdiction, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
Section 5.2 Proxies
Unless otherwise provided by resolution adopted by the Board of Directors,
the Chairman, the President or any Vice President may from time to time appoint
an attorney or attorneys or agent or agents of the Corporation, in the name and
on behalf of the Corporation, to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities or interests in any
other corporation or entity, any of whose stock or other securities or interests
may be held by the Corporation, at meetings of the holders of the stock or other
securities or interests, of such other corporation or entity, or to consent in
writing, in the name of the Corporation as such holder, to any action by such
other corporation or entity, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
(A) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative
(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, officer, employee or agent of any other corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware 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 said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in paragraph (B) of
this Article VI with respect to proceedings seeking to enforce rights
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to indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) initiated by such person
was authorized by the Board of Directors of the Corporation. The Corporation
may, by action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the
indemnification of directors and officers provided for in this paragraph (A).
(B) Recovery of Unpaid Indemnification. If a claim under paragraph (A) of
this By-Law is not paid in full by the Corporation within 30 days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant also shall be
entitled to be paid the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including the Board of Directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(C) Change in Control. Following any "change in control" of the Corporation
of the type required to be reported under Item 1 of Form 8-K promulgated under
the Exchange Act, any determination as to entitlement to indemnification shall
be made by independent legal counsel selected by the claimant which independent
legal counsel shall be retained by the Board of Directors on behalf of the
Corporation.
(D) Non-Exclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this By-Law shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
(E) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
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(F) Contractual Right. The right to indemnification conferred in this By-
Law shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the General Corporation Law of
the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this By-Law or otherwise.
(G) Amendment or Repeal. Any amendment or repeal of this Article VI shall
not adversely affect any right or protection existing hereunder in respect of
any act or omission occurring prior to such amendment or repeal.
ARTICLE VII
STOCK CERTIFICATES AND TRANSFERS
(A) Certificated Shares and Transfers. The interest of each stockholder of
the Corporation shall be evidenced by certificates for shares of stock in such
form as the appropriate officers of the Corporation may from time to time
prescribe, unless it shall be determined by, or pursuant to, a resolution
adopted by the Board of Directors that the shares representing such interest be
uncertificated. The shares of the stock of the Corporation shall be transferred
on the books of the Corporation by the holder thereof in person or by such
person's attorney, upon surrender for cancellation of certificates for the same
number of shares, with an assignment and power of transfer endorsed thereon or
attached thereto, duly executed, with such proof of the authenticity of the
signature as the Corporation or its agents may reasonably require.
(B) Accepted Signatures. The certificates of stock shall be signed,
countersigned and registered in such manner as the Board of Directors may by
resolution prescribe, which resolution may permit all or any of the signatures
on such certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year
The fiscal year of the Corporation shall end upon the close of
business on the Saturday nearest to December 31 of each consecutive calendar
year, unless otherwise determined by resolution of the Board of Directors.
Section 8.2 Dividends
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its Certificate of Incorporation.
Section 8.3 Seal
The corporate seal shall have inscribed thereon the name of the
Corporation and the words "Corporate Seal, Delaware". The seal may be used by
causing it, or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
ARTICLE IX
AMENDMENTS
These By-Laws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, provided notice of the
proposed change was given in the notice of the meeting and, in the case of a
meeting of the Board of Directors, in a notice given no less than twenty-four
hours prior to the meeting; provided, however, that, in the case of amendments
by stockholders, notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the stock required by law, the Certificate of Incorporation or these
By-Laws, the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to alter, amend or repeal any provision of these By-
Laws.
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- --------------------------------------------------------------------------------
MIDAS, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
___________________
Rights Agreement
Dated as of December 31, 1997
- --------------------------------------------------------------------------------
<PAGE>
Table of Contents
-----------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
Section 1. Certain Definitions........................ 1
Section 2. Appointment of Rights Agent................ 5
Section 3. Issue of Rights Certificates............... 6
Section 4. Form of Rights Certificates................ 8
Section 5. Countersignature and Registration.......... 9
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates....................... 10
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights................. 11
Section 8. Cancellation and Destruction of Rights
Certificates.............................. 13
Section 9. Reservation and Availability of Capital
Stock..................................... 14
Section 10. Preferred Stock Record Date................ 16
Section 11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of Rights.... 16
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares................. 27
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power....... 28
Section 14. Fractional Rights and Fractional Shares.... 31
Section 15. Rights of Action........................... 32
Section 16. Agreement of Rights Holders................ 33
Section 17. Rights Certificate Holder Not Deemed a
Stockholder............................... 34
Section 18. Concerning the Rights Agent................ 34
Section 19. Merger or Consolidation or Change of
Name of Rights Agent...................... 34
Section 20. Duties of Rights Agent..................... 35
Section 21. Change of Rights Agent..................... 38
Section 22. Issuance of New Rights Certificates........ 39
Section 23. Redemption and Termination................. 40
Section 24. Exchange................................... 41
Section 25. Notice of Certain Events................... 42
Section 26. Notices.................................... 43
Section 27. Supplements and Amendments................. 44
Section 28. Successors................................. 45
Section 29. Determination and Actions by the
Board of Directors, etc................... 45
Section 30. Benefits of this Agreement................. 45
Section 31. Severability............................... 45
</TABLE>
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<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
Section 32. Governing Law.............................. 46
Section 33. Counterparts............................... 46
Section 34. Descriptive Headings....................... 46
Section 35. Book-Entry Account Statements.............. 46
</TABLE>
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RIGHTS AGREEMENT
----------------
RIGHTS AGREEMENT, dated as of December 31, 1997 (the "Agreement"),
between Midas, Inc., a Delaware corporation (the "Company"), and First Chicago
Trust Company of New York, a New York corporation (the "Rights Agent").
W I T N E S E T H:
- - - - - - - - -
WHEREAS, on December 31, 1997 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company authorized and declared a dividend
distribution of one Right (as hereinafter defined) for each share of Common
Stock (as hereinafter defined) of the Company outstanding at the close of
business on January 30, 1998, after giving effect to the distribution of shares
of Common Stock (the "Spin-off") by Whitman Corporation to its stockholders (the
"Record Date"), each Right initially representing the right to purchase one one-
hundredth of a share of Series A Junior Participating Preferred Stock of the
Company having the rights, powers and preferences set forth in the form of
Certificate of Designation attached hereto as Exhibit A, upon the terms and
subject to the conditions hereinafter set forth (the "Rights"), and has further
authorized the issuance of one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for each share of Common
Stock of the Company issued between the Record Date and the Distribution Date
(as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
-------------------
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding, but
shall not include the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
Person organized, appointed or established by the Company for or pursuant
to the terms of any such plan. Notwithstanding the foregoing, no Person
shall become
<PAGE>
an "Acquiring Person" as the result of an acquisition of shares of Common
Stock by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 15% or more of the shares of Common Stock then outstanding;
provided, however, that if a Person shall become the Beneficial Owner of
-------- -------
15% or more of the shares of Common Stock then outstanding by reason of
share purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional shares of Common
Stock, then such Person shall be deemed to be an "Acquiring Person".
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an "Acquiring
Person" (as defined pursuant to the foregoing provisions of this paragraph
(a)) has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so that such
Person would no longer be an "Acquiring Person" (as defined pursuant to the
foregoing provisions of this paragraph (a)), then such Person shall not be
deemed to be an "Acquiring Person" for any purposes of this Agreement.
(b) "Act" shall mean the Securities Act of 1933, as amended.
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended and in effect on the
date of this Agreement (the "Exchange Act").
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
-------- -------
"Beneficial Owner"
-2-
<PAGE>
of, or to "beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange, or (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a Triggering Event, or
(C) securities issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were acquired by such
Person or any such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section 11(i) hereof in
connection with an adjustment made with respect to any Original
Rights;
(ii) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however, that a
-------- -------
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this subparagraph (ii) as a
result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding: (A) arises
solely from a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under the
Exchange Act, and (B) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii) of
this paragraph
-3-
<PAGE>
(d)) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (d) shall cause a Person
-------- -------
engaged in business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own," any securities acquired through such
Person's participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such acquisition.
(e) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the State of Illinois are
authorized or obligated by law or executive order to close.
(f) "close of business" on any given date shall mean 5:00 P.M.,
Chicago time, on such date, provided, however, that if such date is not a
-------- -------
Business Day it shall mean 5:00 P.M., Chicago time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the common stock, par value $.001 per
share, of the Company, except that "Common Stock" when used with reference
to any Person other than the Company shall mean the capital stock of such
Person with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of such
Person.
(h) "Person" shall mean any individual, firm, limited liability
company, corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares of Series A Junior
Participating Preferred Stock, par value $.001 per share, of the Company,
and, to the extent that there is not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized to permit the full
exercise of the Rights, any other series of preferred stock, par value
$.001 per share, of the Company designated for such purpose containing
terms substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(j) "Section 11(a)(ii) Event" shall mean the event described in
Section 11(a)(ii) hereof.
-4-
<PAGE>
(k) "Section 13 Event" shall mean any event described in clauses (x),
(y) or (z) of Section 13(a) hereof.
(l) "Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) under the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
(m) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of voting securities sufficient to elect at
least a majority of the directors of such corporation is beneficially
owned, directly or indirectly, by such Person, or otherwise controlled by
such Person.
(n) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
In addition, for purposes of this Agreement, the following terms have
the meanings indicated in specified sections of this Agreement: (i) "Adjustment
Shares" shall have the meaning set forth in Section 11(a)(ii) hereof; (ii)
"common stock equivalents" shall have the meaning set forth in Section
11(a)(iii) hereof; (iii) "current market price" shall have the meaning set forth
in Section 11(d) hereof; (iv) "Current Value" shall have the meaning set forth
in Section 11(a)(iii) hereof; (v) "Distribution Date" shall have the meaning set
forth in Section 3(a) hereof; (vi) "equivalent preferred stock" shall have the
meaning set forth in Section 11(b) hereof; (vii) "Exchange Ratio" shall have the
meaning set forth in Section 24(a) hereof; (viii) "Expiration Date" shall have
the meaning set forth in Section 7(a) hereof; (ix) "Final Expiration Date" shall
have the meaning set forth in Section 7(a) hereof; (x) "NASDAQ" shall have the
meaning set forth in Section 11(d)(i) hereof; (xi) "Principal Party" shall have
the meaning set forth in Section 13(b) hereof; (xii) "Purchase Price" shall have
the meaning set forth in Section 4(a) hereof; (xiii) "Record Date" shall have
the meaning set forth in the recitals hereof; (xiv) "Redemption Price" shall
have the meaning set forth in Section 23(a) hereof; (xv) "Rights" shall have the
meaning set forth in the recitals hereof; (xvi) "Rights Certificates" shall have
the meaning set forth in Section 3(a) hereof; (xvii) "Section 11(a)(ii) Trigger
Date" shall have the meaning set forth in Section 11(a)(iii) hereof; (xviii)
"Spread" shall have the meaning set forth in Section 11(a)(iii) hereof; (xix)
"Substitution Period" shall have the meaning set forth in Section 11(a)(iii)
hereof; (xx) "Summary
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<PAGE>
of Rights" shall have the meaning set forth in Section 3(b) hereof; and (xxi)
"Trading Day" shall have the meaning set forth in Section 11(d)(i) hereof.
Section 2. Appointment of Rights Agent. The Company hereby appoints
---------------------------
the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall, prior to the Distribution
Date, also be the holders of the Common Stock) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Rights Certificates.
----------------------------
(a) Until the earlier of (i) the close of business on the tenth day
after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the close of business on the
Record Date), or (ii) the close of business on the tenth Business Day (or such
later date as may be determined by action of the Board of Directors of the
Company prior to such time as any Person becomes an Acquiring Person) after the
date that a tender or exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person organized, appointed or established by
the Company for or pursuant to the terms of any such plan) is first published or
sent or given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof, such Person
would be the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding (the earlier of (i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates and (y) the Rights will be transferable
only in connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more Rights certificates, in substantially the
form of Exhibit B hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock so held, subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per share of
-6-
<PAGE>
Common Stock has been made pursuant to Section 11(p) hereof, at the time of
distribution of the Rights Certificates, the Company shall make the necessary
and appropriate rounding adjustments (in accordance with Section 14(a) hereof)
so that Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) As promptly as practicable following the Record Date, the Company
will send a copy of a Summary of Rights to Purchase Preferred Stock, in
substantially the form attached hereto as Exhibit C (the "Summary of Rights"),
by first-class, postage prepaid mail, to each record holder of the Common Stock
as of the close of business on the Record Date, at the address of such holder
shown on the records of the Company. With respect to certificates for the
Common Stock outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the names of the
holders thereof together with a copy of the Summary of Rights attached thereto.
Until the earlier of the Distribution Date or the Expiration Date (as such term
is defined in Section 7(a) hereof), the surrender for transfer of any
certificate representing shares of Common Stock in respect of which Rights have
been issued, with or without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with such shares of
Common Stock.
(c) Rights shall be issued in respect of all shares of Common Stock
which are issued (whether originally issued or from the Company's treasury)
after the Record Date but prior to the earlier of the Distribution Date or the
Expiration Date or, in certain circumstances provided in Section 22 hereof,
after the Distribution Date. Certificates representing such shares of Common
Stock shall also be deemed to be certificates for Rights, and shall bear a
legend substantially in the following form:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in the Rights Agreement
between Midas, Inc. (the "Company") and First Chicago Trust
Company of New York (the "Rights Agent") dated as of December 31,
1997 (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the
holder of
-7-
<PAGE>
this certificate a copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly after receipt of a
written request therefor. Under certain circumstances set forth
in the Rights Agreement, Rights issued to, or held by, any Person
who is, was or becomes an Acquiring Person or any Affiliate or
Associate thereof (as such terms are defined in the Rights
Agreement), may become null and void.
With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the surrender
for transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
---------------------------
(a) The Rights Certificates (and the forms of election to purchase
and of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Rights Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the holders thereof
to purchase such number of one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price set forth therein (such exercise price
per one one-hundredth of a share, the "Purchase Price"), but the amount and type
of securities purchasable upon the exercise of each Right and the Purchase Price
thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section
22 hereof that represents Rights beneficially owned by any Person known to be:
(i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person becomes such,
-8-
<PAGE>
or (iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect avoidance of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain (to the extent feasible) the
following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Rights Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Section
7(e) of such Agreement.
Section 5. Countersignature and Registration.
---------------------------------
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman, its President or any Vice President, either manually or
by facsimile signature, and shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned manually or by facsimile signature by the
Rights Agent and shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Rights Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the person who signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights
Certificate,
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<PAGE>
although at the date of the execution of this Rights Agreement any such person
was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face
by each of the Rights Certificates and the certificate number and the date of
each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
------------------------------------------------------
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. (a)
- ----------------------------------------------------------------------
Subject to the provisions of Section 4(b), Section 7(e) and Section 14 hereof,
at any time after the close of business on the Distribution Date, and at or
prior to the close of business on the Expiration Date, any Rights Certificate or
Certificates (other than Rights Certificates representing Rights that have been
exchanged pursuant to Section 24 hereof) may be transferred, split up, combined
or exchanged for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of one one-hundredths of a share of
Preferred Stock (or, following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as the Rights Certificate
or Certificates surrendered then entitled such holder (or former holder in the
case of a transfer) to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate or Certificates shall make
such request in writing delivered to the Rights Agent, and shall surrender the
Rights Certificate or Certificates to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights Agent designated for
such purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder shall have completed and signed
the certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e), Section 14 and Section 24
hereof, countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax
-10-
<PAGE>
or governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificates if
mutilated, the Company will execute and deliver a new Rights Certificate of like
tenor to the Rights Agent for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
------------------------------------------------------
Rights. (a) Subject to Section 7(e) hereof, the registered holder of any
- ------
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with respect to
the total number of one one-hundredths of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earliest of (i) the
close of business on December 31, 2007 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof or (iii)
the time at which such Rights are exchanged pursuant to Section 24 hereof (the
earliest of (i), (ii) and (iii) being herein referred to as the "Expiration
Date").
(b) The Purchase Price for each one one-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $150, and
shall be subject to adjustment from time to time as provided in Sections 11 and
13(a) hereof and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per one one-
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<PAGE>
hundredth of a share of Preferred Stock (or other shares, securities, cash or
other assets, as the case may be) to be purchased as set forth below and an
amount equal to any applicable transfer tax, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Preferred Stock (or make available, if the Rights Agent
is the transfer agent for such shares) certificates for the total number of one
one-hundredths of a share of Preferred Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit the total number
of shares of Preferred Stock issuable upon exercise of the Rights hereunder with
a depositary agent, requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a share of Preferred Stock as
are to be purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate. The payment of
the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified bank check or bank draft payable
to the order of the Company. In the event that the Company is obligated to issue
other securities (including Common Stock) of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof, the Company will
make all arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate. The Company reserves the right to require prior to the occurrence
of a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock would be issued.
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent and delivered to, or upon the order of, the registered
holder of such Rights Certificate, registered in such name or
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<PAGE>
names as may be designated by such holder, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11(a) (ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to
holders of equity interests in such Acquiring Person or to any Person with whom
the Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to ensure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no liability to any holder
of Rights Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or any of its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
---------------------------------------------------
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled
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<PAGE>
by it, and no Rights Certificates shall be issued in lieu thereof, except as
expressly permitted by any of the provisions of this Agreement. The Company
shall deliver to the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Rights Certificates purchased
or acquired by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of Capital Stock. (a) The
---------------------------------------------
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement, including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other securities) issuable
and deliverable upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance with Section 11(a)(iii)
hereof, a registration statement under the Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the earlier
of (A) the date as of which the Rights are no longer exercisable for such
securities, and (B) the date of the expiration of the Rights. The Company will
also take such action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in connection
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<PAGE>
with the exercisability of the Rights. The Company may temporarily suspend, for
a period of time not to exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. In addition, if the Company shall determine that a
registration statement is required following the Distribution Date, and a
Section 11(a)(ii) Event has not occurred, the Company may temporarily suspend
the exercisability of Rights until such time as a registration statement has
been declared effective. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained, the
exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such
actions as may be necessary to ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that it will pay, when
due and payable, any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Rights Certificates
and of any certificates for a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities, as the case may be)
upon the exercise of Rights. The Company shall not, however, be required to pay
any transfer tax which may be payable in respect of any transfer or delivery of
Rights Certificates to a Person other than, or the issuance or delivery of a
number of one one-hundredths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) in respect of a name other than
that of, the registered holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates for a number of
one one-hundredths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in a name other than that of the registered
holder upon the exercise of any Rights until such tax shall have been paid (any
such tax being payable by the
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<PAGE>
holder of such Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in whose name
---------------------------
any certificate for a number of one one-hundredths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of
record of such fractional shares of Preferred Stock (or Common Stock and/or
other securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided, however, that if the
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date of such surrender and payment is a date upon which the Preferred Stock (or
Common Stock and/or other securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares (fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Stock (or Common
Stock and/or other securities, as the case may be) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the holder of
a Rights Certificate shall not be entitled to any rights of a stockholder of the
Company with respect to shares or other securities for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
-------------------------------------------------------
or Number of Rights. The Purchase Price, the number and kind of shares covered
- -------------------
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares, or
(D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and
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<PAGE>
Section 7(e) hereof, the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number
and kind of shares of Preferred Stock or capital stock, as the
case may be, issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such
time shall be entitled to receive, upon payment of the Purchase
Price then in effect, the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case may be, which, if
such Right had been exercised immediately prior to such date and
at a time when the Preferred Stock transfer books of the Company
were open, such holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In the event any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or
pursuant to the terms of any such plan), alone or together with
its Affiliates and Associates, shall, at any time after the
Rights Dividend Declaration Date, become an Acquiring Person,
then each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a number
of one one-hundredths of a share of Preferred Stock, such number
of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii) Event and
(y) dividing that product (which, following such first occurrence
shall thereafter be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by 50% of the
current market price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the
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<PAGE>
date of such first occurrence (such number of shares, the
"Adjustment Shares").
(iii) In the event that the number of shares of Common
Stock which are authorized by the Company's certificate of
incorporation, but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights, is not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section
11(a), the Company shall: (A) determine the value of the
Adjustment Shares issuable upon the exercise of a Right (the
"Current Value"), and (B) with respect to each Right, make
adequate provision to substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1) cash, (2) a
reduction in the Purchase Price, (3) Common Stock or other equity
securities of the Company (including, without limitation, shares,
or units of shares, of preferred stock, such as the Preferred
Stock, which the Board of Directors of the Company has deemed to
have the same value or economic rights as shares of Common Stock
(such shares of preferred stock, "common stock equivalents")),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to
the Current Value (less the amount of any reduction in the
Purchase Price), where such aggregate value has been determined
by the Board of Directors of the Company based upon the advice of
a nationally recognized investment banking firm selected by the
Board of Directors of the Company; provided, however, if the
-------- -------
Company shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days following
the later of (x) the first occurrence of a Section 11(a)(ii)
Event and (y) the date on which the Company's right of redemption
pursuant to Section 23(a) expires (the later of (x) and (y) being
referred to herein as the "Section 11(a)(ii) Trigger Date"), then
the Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available) and then,
if necessary, cash, which shares and/or cash have an aggregate
value equal to the Spread. For purposes of the preceding
sentence, the term "Spread" shall mean the excess of (i) the
Current Value over (ii) the Purchase Price. If the Board of
Directors of the Company shall determine in good faith that it is
likely that sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights, the
thirty (30) day period set forth above may be extended to the
extent necessary, but not more than ninety (90) days
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<PAGE>
after the Section 11(a)(ii) Trigger Date, in order that the
Company may seek stockholder approval for the authorization of
such additional shares (such thirty (30) day period, as it may be
extended, the "Substitution Period"). To the extent that action
is to be taken pursuant to the first and/or third sentences of
this Section 11(a)(iii), the Company (x) shall provide, subject
to Section 7(e) hereof, that such action shall apply uniformly to
all outstanding Rights, and (y) may suspend the exercisability of
the Rights until the expiration of the Substitution Period in
order to seek such stockholder approval for such authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to
determine the value thereof. In the event of any such suspension,
the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is
no longer in effect. For purposes of this Section 11(a)(iii), the
value of each Adjustment Share shall be the current market price
(as determined pursuant to Section 11(d) hereof) per share of the
Common Stock on the Section 11(a)(ii) Trigger Date and the value
of any "common stock equivalent" shall be deemed to equal the
current market price (as determined pursuant to Section 11(d)
hereof) per share of the Common Stock on such date.
(b) In case the Company shall fix a record date for the
issuance of rights (other than the Rights), options or warrants
to all holders of Preferred Stock entitling them to subscribe for
or purchase (for a period expiring within forty-five (45)
calendar days after such record date) Preferred Stock (or shares
having the same rights, privileges and preferences as the shares
of Preferred Stock ("equivalent preferred stock")) or securities
convertible into Preferred Stock or equivalent preferred stock at
a price per share of Preferred stock or per share of equivalent
preferred stock (or having a conversion price per share, if a
security convertible into Preferred Stock or equivalent preferred
stock) less than the current market price (as determined pursuant
to Section 11(d) hereof) per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares
of Preferred Stock which the
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<PAGE>
aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock so to be
offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
current market price, and the denominator of which shall be the
number of shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred Stock
and/ or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid by delivery of consideration part or all of
which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board
of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the Rights. Shares
of Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidences of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock, but including any dividend payable in stock other than
Preferred Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the current market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, less
the fair market value (as determined in good faith by the Board
of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent
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<PAGE>
and shall be binding on the Rights Agent and the holders of the Rights) of
the portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which shall be such current
market price (as determined pursuant to Section 11(d) hereof) per share of
Preferred Stock. Such adjustments shall be made successively whenever such
a record date is fixed, and in the event that such distribution is not so
made, the Purchase Price shall be adjusted to be the Purchase Price which
would have been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "current
market price" per share of Common Stock on any date shall be deemed to be
the average of the daily closing prices per share of such Common Stock for
the thirty (30) consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, and for purposes of computations
made pursuant to Section 11(a)(iii) hereof, the "current market price" per
share of Common Stock on any date shall be deemed to be the average of the
daily closing prices per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date; provided,
--------
however, that in the event that the current market price per share of the
-------
Common Stock is determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or distribution on such
Common Stock payable in shares of such Common Stock or securities
convertible into shares of such Common Stock (other than the Rights), or
(B) any subdivision, combination or reclassification of such Common Stock,
and the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification shall not have
occurred prior to the commencement of the requisite thirty (30) Trading Day
or ten (10) Trading Day period, as set forth above, then, and in each such
case, the "current market price" shall be properly adjusted to take into
account any trading during the period prior to such ex-dividend date or
record date. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated
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<PAGE>
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the shares of Common Stock
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the shares of Common Stock are listed or admitted to trading or,
if the shares of Common Stock are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other system then in use, or,
if on any such date the shares of Common Stock are not quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Common Stock selected
by the Board of Directors of the Company. If on any such date no market
maker is making a market in the Common Stock, the fair value of such shares
on such date as determined in good faith by the Board of Directors of the
Company shall be used. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a Business Day. If the Common
Stock is not publicly held or not so listed or traded, "current market
price" per share shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "current market
price" per share of Preferred Stock shall be determined in the same manner
as set forth above for the Common Stock in clause (i) of this Section 11(d)
(other than the last sentence thereof). If the current market price per
share of Preferred Stock cannot be determined in the manner provided above,
or if the Preferred Stock is not publicly held or listed or traded in a
manner described in clause (i) of this Section 11(d), the "current market
price" per share of Preferred Stock shall be conclusively deemed
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<PAGE>
to be an amount equal to 100 (as such number may be appropriately adjusted
for such events as stock splits, stock dividends and recapitalizations with
respect to the Common Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the Common Stock. If
neither the Common Stock nor the Preferred Stock is publicly held or so
listed or traded, "current market price" per share of the Preferred Stock
shall mean the fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights. For all purposes of this
Agreement, the "current market price" of one one-hundredth of a share of
Preferred Stock shall be equal to the "current market price" of one share
of Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least one percent (1%) in the Purchase Price;
provided, however, that any adjustments which by reason of this Section
-------- -------
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest one ten-thousandth
of a share of Common Stock or other share or one one-millionth of a share
of Preferred Stock, as the case may be. Notwithstanding the first sentence
of this Section 11(e), any adjustment required by this Section 11 shall be
made no later than the earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii)
or Section 13(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock other than Preferred
Stock, thereafter the number of such other shares so receivable upon
exercise of any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Preferred Stock
contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and
(m), and the provisions of Sections 7, 9, 10, 13
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<PAGE>
and 14 hereof with respect to the Preferred Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths
of a share of Preferred Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number
of one-hundredths of a share of Preferred Stock (calculated to the nearest
one-millionth) obtained by (i) multiplying (x) the number of one one-
hundredths of a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of one one-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest one-ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This
record date may be
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<PAGE>
the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at least ten
(10) days later than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof, if required by the Company,
new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-hundredths of a share of Preferred Stock issuable
upon the exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to express the Purchase Price per one one-
hundredth of a share and the number of one one-hundredths of a share which
were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then stated value, if any, of the number of
one one-hundredths of a share of Preferred Stock issuable upon exercise of
the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of Preferred Stock at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be
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<PAGE>
made effective as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event the issuance to the
holder of any Right exercised after such record date the number of one one-
hundredths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and
above the number of one one-hundredths of a share of Preferred Stock and
other capital stock or securities of the Company, if any, issuable upon
such exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to such
-------- -------
holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares (fractional or otherwise) or
securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and
to the extent that the Board of Directors of the Company, in its good faith
judgment, shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly
for cash of any shares of Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or exchangeable for
shares of Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), (ii) merge with or into any other Person (other than
a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries
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<PAGE>
(taken as a whole) to any other Person or Persons (other than the Company
and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), if (x) at the time of or immediately
after such consolidation, merger, sale or transfer there are any rights,
warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger, sale
or transfer, the stockholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23 or Section 27 hereof,
take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded
by the Rights.
(p) In the event that the Company shall at any time after the Rights
Dividend Declaration Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into a smaller number
of shares, the number of Rights associated with each share of Common Stock
then outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock following any
such event shall equal the result obtained by multiplying the number of
Rights associated with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to the occurrence of
the event and the denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the occurrence of such
event.
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<PAGE>
Section 12. Certificate of Adjusted Purchase Price or Number of
---------------------------------------------------
Shares. Whenever an adjustment is made as provided in Section 11 and Section 13
- ------
hereof, the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights Certificate (or, if prior to
the Distribution Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 26 hereof. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power.
- -------------
(a) In the event that, following the Stock Acquisition Date, directly
or indirectly, (x) the Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger, (y) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof) shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such consolidation or merger,
all or part of the outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to any Person or Persons (other than the Company or any Subsidiary of
the Company in one or more transactions each of which complies with Section
11(o) hereof), then, and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that: (i) each holder
of a Right, except as provided in Section 7(e) hereof, shall thereafter have the
right to receive upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of validly authorized
and issued, fully paid, nonassessable and freely tradeable shares of Common
Stock of the Principal Party (as such
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term is hereinafter defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall be equal to the result obtained
by (l) multiplying the then current Purchase Price by the number of one one-
hundredths of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event (or, if a
Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section
13 Event, multiplying the number of such one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect
immediately prior to such first occurrence), and dividing that product (which,
following the first occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes of this Agreement) by
(2) 50% of the current market price (determined pursuant to Section 11(d)(i)
hereof) per share of the Common Stock of such Principal Party on the date of
consummation of such Section 13 Event; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this Agreement; (iii)
the term "Company" shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 hereof shall
apply only to such Principal Party following the first occurrence of a Section
13 Event; (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (v) the provisions
of Section 11(a)(ii) hereof shall be of no effect following the first occurrence
of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or (y)
of the first sentence of Section 13(a), the Person that is the issuer of
any securities into which shares of Common Stock of the Company are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or consolidation;
and
(ii) in the case of any transaction described in clause (z) of the
first sentence of Section 13(a), the Person that is the party receiving the
greatest portion
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of the assets or earning power transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the Common Stock of such Person
- -------- -------
is not at such time and has not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange Act, and such Person is
a direct or indirect Subsidiary of another Person the Common Stock of which is
and has been so registered, "Principal Party" shall refer to such other Person;
and (2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that, as soon as practicable after the date of any
consolidation, merger, sale or transfer of assets mentioned in paragraph (a) of
this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the Act, with
respect to the Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all times
meeting the requirements of the Act) until the Expiration Date; and
(ii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13 Event
shall occur at any time after the occurrence of a Section 11(a)(ii) Event, the
Rights
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<PAGE>
which have not theretofore been exercised shall thereafter become exercisable in
the manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of Rights or
to distribute Rights Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights for the Trading
Day immediately prior to the date on which such fractional Rights would have
been otherwise issuable. The closing price of the Rights for any day shall be
the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported to the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which the Rights are listed or admitted to trading, or if the Rights
are not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). Fractions of shares of Preferred Stock in integral
multiples of one one-hundredth of a share may, at the election of the Company,
be evidenced by
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<PAGE>
depositary receipts pursuant to an appropriate agreement between the Company and
a depositary selected by it; provided, however, that such agreement shall
-------- -------
provide that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
the shares represented by such depositary receipts. In lieu of fractional
shares of Preferred Stock that are not integral multiples of one one-hundredth
of a share of Preferred Stock, the Company shall pay to the registered holders
of Rights Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of one
one-hundredth of a share of Preferred Stock. For purposes of this Section
14(b), the current market value of one one-hundredth of a share of Preferred
Stock shall be one one-hundredth of the closing price of a share of Preferred
Stock (as determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall
not be required to issue fractions of shares of Common Stock upon exercise of
the Rights or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the Company shall
pay to the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one share of Common Stock. For purposes of this Section
14(c), the current market value of one share of Common Stock shall be the
closing price of one share of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such
exercise.
(d) The holder of a Right by the acceptance of the Rights expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of
----------------
this Agreement, other than rights of action vested in the Rights Agent pursuant
to Section 18 hereof, are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date, the registered holders
of the Common Stock); and any registered holder of any Rights Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise
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<PAGE>
act in respect of, his or her right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
---------------------------
accepting the same consents and agrees with the Company and the Rights Agent and
with every holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company and
the Rights Agent may deem and treat the person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Stock
certificates made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be required to
be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other
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<PAGE>
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use reasonable efforts
-------- -------
to have any such order, decree or ruling lifted or otherwise overturned as
soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
--------------------------------------------------
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose to be the holder of the number of one
one-hundredths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons.
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<PAGE>
Section 19. Merger or Consolidation or Change of Name of Rights
---------------------------------------------------
Agent.
- -----
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto; provided, however, that such corporation
-------- -------
would be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at the time any
of the Rights Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the name of the
predecessor or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed, and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and in
case, at that time, any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
----------------------
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to
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<PAGE>
any action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter (including, without limitation, the identity of any Acquiring Person
and the determination of "current market price") be proved or established
by the Company prior to taking or suffering any action hereunder, such fact
or matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by the Chairman, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recital contained in this Agreement or in the
Rights Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11, Section 13 or Section 24
hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require
any such
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<PAGE>
adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such adjustment); nor shall
it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken
or suffered to be taken by it in good faith in accordance with instructions
of any such officer.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act,
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<PAGE>
default, neglect or misconduct; provided, however, that reasonable care was
-------- -------
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has
either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting
with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
----------------------
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon thirty (30) days' notice in writing mailed to the Company, and to
each transfer agent of the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Rights Certificate (who shall, with such notice, submit his or
her Rights Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of the State of Illinois
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<PAGE>
(or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of Illinois), in
good standing, having an office or agency in the State of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further reasonable assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment, the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and the Preferred Stock, and mail a notice
thereof in writing to the registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21 or any defect therein shall
not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
-----------------------------------
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Purchase Price and the number or kind or class of shares or
other securities or property purchasable under the Rights Certificates made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution
Date and prior to the redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement, granted or
awarded prior to the Distribution Date, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of Directors of the
Company, issue Rights Certificates representing an appropriate number of Rights
in connection with such issuance or sale; provided, however, that (i) no such
-------- -------
Rights Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would
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<PAGE>
be issued, and (ii) no such Rights Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 23. Redemption and Termination.
--------------------------
(a) The Board of Directors of the Company may, at its option, at any
time prior to the earlier of (i) the close of business on the tenth day
following the Stock Acquisition Date (or, if the Stock Acquisition Date shall
have occurred prior to the Record Date, the close of business on the tenth day
following the Record Date), or (ii) the Final Expiration Date, redeem all but
not less than all of the then outstanding Rights at a redemption price of $.01
per Right, as such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the "Redemption Price").
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event
until such time as the Company's right of redemption hereunder has expired. The
Company may, at its option, pay the Redemption Price in cash, shares of Common
Stock (based on the "current market price", as defined in Section 11(d)(i)
hereof, of the Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors. The redemption of
the Rights by the Board of Directors may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its sole discretion
may establish.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, evidence of which shall have been
filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price for
each Right so held. Promptly after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then outstanding Rights by
mailing such notice to all such holders at each holder's last address as it
appears upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common
Stock. Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made.
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Section 24. Exchange.
--------
(a) The Board of Directors of the Company may, at its option, at any
time after any Person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7(e) hereof) for shares
of Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing,
the Board of Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company, or
any Person organized, appointed or established by the Company for or pursuant to
the terms of any such plan), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of fifty percent (50%) or more of the
Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to subsection (a) of this
Section 24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of Common Stock equal
to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any exchange; provided,
--------
however, that the failure to give, or any defect in, such notice shall not
- -------
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange will be effected pro rata based
on the number of Rights (other than Rights which have become void pursuant to
the provisions of Section 7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute shares of Preferred Stock (or equivalent preferred stock,
as such term is defined in paragraph (b) of Section 11 hereof) for shares of
Common Stock exchangeable for Rights, at the initial rate of one one-hundredth
-41-
<PAGE>
of a share of Preferred Stock (or equivalent preferred stock) for each share of
Common Stock, as appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Stock pursuant to the terms thereof, so that the
fraction of a share of Preferred Stock delivered in lieu of each share of Common
Stock shall have the same voting rights as one share of Common Stock.
(d) In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such actions as may be necessary to authorize additional
shares of Common Stock for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, there shall be
paid to the registered holders of the Rights Certificates with regard to which
such fractional shares of Common Stock would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value of a whole share of
Common Stock. For the purposes of this subsection (e), the current market value
of a whole share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to the second sentence of Section 11(d)(i) hereof)
for the Trading Day immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. Notice of Certain Events.
------------------------
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to the
holders of Preferred Stock or to make any other distribution to the holders of
Preferred Stock (other than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof), or to effect any sale
or other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one transaction or a series of related transactions,
of more than 50% of the assets or earning power of
-42-
<PAGE>
the Company and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), or (v) to effect
the liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Rights Certificate, to the
extent feasible and in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the shares of Preferred Stock, if any such date is to
be fixed, and such notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least twenty (20) days prior to the record date for
determining holders of the shares of Preferred Stock for purposes of such
action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock, whichever
shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall
occur, then, in any such case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the extent feasible
and in accordance with Section 26 hereof, a notice of the occurrence of such
event, which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the
preceding paragraph to Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this Agreement
-------
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Midas, Inc.
225 N. Michigan Avenue
Chicago, IL 60601
Attention: General Counsel
-43-
<PAGE>
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
First Chicago Trust Company of New York
P.O. Box 2507
Suite 4660
Jersey City, New Jersey 07303-2507
Attention: Tenders & Exchanges Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. The Company may from time to
--------------------------
time supplement or amend this Agreement without the approval of any holders of
Rights Certificates in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to the Rights
which the Company may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Company and the Rights
Agent; provided, however, that from and after such time as any Person becomes an
-------- -------
Acquiring Person, this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights. Prior to the
Distribution Date, the interest of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock. Without limiting
the foregoing, the Company may at any time prior to such time as any Person
becomes an Acquiring Person amend this Agreement (a) to lower the thresholds set
forth in Sections 1(a) and 3(a) to a percentage that (subject to exceptions for
specified Persons or Groups excepted from the definition of "Acquiring Person")
is not less than the greater of (i) the sum of .001% and the largest percentage
of the outstanding shares of Common Stock then known by the Company to be
beneficially owned by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the
Company, any Person organized, appointed or established by the Company for or
pursuant to the terms of any such plan or, to the extent excepted from the
definition of "Acquiring Person", other specified
-44-
<PAGE>
Persons or Groups) and (ii) 10.0% or (b) to raise the thresholds set forth in
Sections 1(a) and 3(a) to a percentage that is not greater than 20.0%.
Section 28. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Determination and Actions by the Board of Directors, etc.
--------------------------------------------------------
For all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(l)(i) of the General Rules and Regulations
under the Exchange Act. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of the Company
or to the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including, but not limited to, a determination to redeem or not redeem the
Rights or to amend this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
of Directors of the Company in good faith shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board of Directors of the Company to any
liability to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of
-45-
<PAGE>
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that notwithstanding anything in
-------- -------
this Agreement to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company determines in its good
faith judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day following the date of such
determination by the Board of Directors of the Company.
Section 32. Governing Law. This Agreement, each Right and each
-------------
Rights Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in any
------------
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
--------------------
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 35. Book-Entry Account Statements. Except where the context
-----------------------------
otherwise indicates (a) if at any time or from time to time the Company
determines that shares of Common Stock shall be evidenced by book-entry account
statements or similar instruments or documents ("Book-Entry Account
Statements"), then all references in this Agreement to certificates for Common
Stock or certificates for shares of Common Stock shall be deemed to include such
Book-Entry Account Statements which evidence such shares of Common Stock, (b) if
at any time or from time to time the Company determines that after the
Distribution Date the Rights shall be evidenced by Book-Entry Account
Statements, then all references in this Agreement to certificates for Rights or
Rights Certificates shall be deemed to include such Book-Entry Account
Statements which evidence such Rights and (c) if at any time or from time to
time the Company determines that shares of Preferred Stock issued upon the
exercise of Rights shall be
-46-
<PAGE>
evidenced by Book-Entry Account Statements, then all references in this
Agreement to certificates for such shares of Preferred Stock shall be deemed to
include such Book-Entry Account Statements which evidence such shares of
Preferred Stock.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: MIDAS, INC.
/s/ Robert H. Sorensen /s/ R. Lee Barclay
By: ______________________________ By: ______________________
Name: Robert H. Sorensen Name: R. Lee Barclay
Title: Vice President, General Title: Executive Vice
Counsel & Secretary President and Chief
Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
/s/ David Cohn /s/ Joanne Gorostiola
By: _________________________ By: _______________________
Name: David Cohn Name: Joanne Gorostiola
Title: Operations Officer Title: Assistant Vice President
-47-
<PAGE>
Exhibit A
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
MIDAS, INC.
- --------------------------------------------------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
- --------------------------------------------------------------------------------
The undersigned do hereby certify that the following resolution was
duly adopted by the Board of Directors of Midas, Inc., a Delaware corporation
(the "Corporation"), on December 31, 1997:
RESOLVED, that pursuant to the authority vested in the board of
directors of the Corporation by the Certificate of Incorporation, the Board of
Directors does hereby create, authorize and provide for the issue of a series of
Preferred Stock, par value $.001 per share, of the Corporation, to be designated
"Series A Junior Participating Preferred Stock" (hereinafter referred to as the
"Series A Preferred Stock"), initially consisting of _________ shares, and to
the extent that the designations, powers, preferences and relative and other
special rights and the qualifications, limitations or restrictions of the Series
A Preferred Stock are not stated and expressed in the Certificate of
Incorporation, does hereby fix and herein state and express such designations,
powers, preferences and relative and other special rights and the
qualifications, limitations and restrictions thereof, as follows (all terms used
herein which are defined in the Certificate of Incorporation shall be deemed to
have the meanings provided therein):
Section 1. Designation and Amount. The shares of such series shall
----------------------
be designated as "Series A Junior Participating Preferred Stock" and the number
of shares constituting such series shall be _________.
<PAGE>
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first business day of January, April,
July and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $.01 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $.001 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time after December 31, 1997 (the "Rights Declaration Date") (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a small number of shares, then in each case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided, however, that, in the event no
-------- -------
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, subject to the prior and superior rights of the
holders of
A-2
<PAGE>
any shares of any series of Preferred Stock ranking prior to and superior to the
shares of Series A Preferred Stock with respect to dividends, a dividend of $.01
per share on the Series A Preferred Stock shall nevertheless by payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights.
-------------
The holders of shares of Series A Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the
A-3
<PAGE>
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote collectively as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all
shares of Series A Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period,
all holders of Preferred Stock (including holders of the Series A Preferred
Stock) with dividends in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of series, shall have
the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders,
provided that such voting right shall not be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting rights. At any meeting at which the holders
of Preferred Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of Directors
as may then exist up to two (2) Directors or, if such right is exercised at
an annual meeting, to elect two (2) Directors. If the number which may be
so elected at any special meeting does not amount to the required number,
the holders of the Preferred Stock shall have the right to make such
increase in the number of Directors as shall be necessary to permit the
election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect
S-4
<PAGE>
Directors in any default period and during the continuance of such period,
the number of Directors shall not be increased or decreased except by vote
of the holders of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari passu with the
---- -----
Series A Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request,
the calling of special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the Chairman, the President, a Vice
President or the Secretary of the Corporation. Notice of such meeting and
of any annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder of
record of Preferred Stock by mailing a copy of such notice to him or her at
his or her last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 10
days and not later than 50 days after such order or request, or in default
of the calling of such meeting within 50 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall be
called during the period within 50 days immediately preceding the date
fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and, if
applicable, other classes of capital stock of the Corporation, shall
continue to be entitled to elect the whole number of Directors until the
holders of Preferred Stock shall have exercised their right to elect two
(2) Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such holders or
until the expiration of the default period, and (y) any vacancy in the
Board of Directors may (except as provided in paragraph (C)(ii) of this
Section 3) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of capital stock which
elected the
A-5
<PAGE>
Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of
stock shall include Directors appointed by such Directors to fill vacancies
as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in the certificate of incorporation or
by-laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the certificate of
incorporation or by-laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of capital stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
A-6
<PAGE>
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any capital stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any capital stock of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of capital stock ranking on
a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares.
-----------------
Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
A-7
<PAGE>
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of capital stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an amount per
share (the "Common Adjustment") equal to the quotient obtained by dividing (i)
the Series A Liquidation Preference by (ii) 100 (as appropriately adjusted as
set forth in subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment of the full
amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Preferred Stock and Common Stock,
respectively, and the payment of liquidation preferences of all other shares of
capital stock which rank prior to or on a parity with Series A Preferred Stock,
holders of Series A Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event, however,
that there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding
A-8
<PAGE>
Common Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
--------------------------
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of capital stock, securities, cash and/or any other
property (payable in kind), as the case may be, for which or into which each
share of Common Stock is exchanged or changed. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption.
-------------
The shares of Series A Preferred Stock shall not be redeemable.
Section 9. Ranking.
-------
The Series A Preferred Stock shall rank junior to all other series of
the Corporation's Preferred Stock as to the payment of dividends and the
distribution of assets, whether or not upon the dissolution, liquidation or
winding up of the Corporation, unless the terms of any such series shall provide
otherwise.
A-9
<PAGE>
Section 10. Amendment.
---------
The Certificate of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares.
-----------------
Series A Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
A-10
<PAGE>
IN WITNESS WHEREOF, Midas, Inc. has caused its corporate seal to be
hereunto affixed and this certificate to be signed by__________________________,
its _________, and the same to be attested to by _________________, its
_______________, this ____ day of January, 1998.
MIDAS, INC.
By: _________________________
Name:
Title:
(Corporate Seal)
Attest:
__________________________
A-11
<PAGE>
Exhibit B
---------
[Form of Rights Certificate]
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER DECEMBER 31, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]/*/
_____________________
/*/ The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
<PAGE>
Rights Certificate
MIDAS, INC.
This certifies that _______________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of December 31, 1997 (the "Rights Agreement"), between
Midas, Inc., a Delaware corporation (the "Company"), and First Chicago Trust
Company of New York , a New York corporation (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (Chicago time) on December 31,
2007 at the office or offices of the Rights Agent designated for such purpose,
or its successors as Rights Agent, one one-hundredth of a fully paid,
nonassessable share of Series A Junior Participating Preferred Stock, par value
$.001 per share (the "Preferred Stock"), of the Company, at a purchase price of
$150 per one one-hundredth of a share (the "Purchase Price"), upon presentation
and surrender of this Rights Certificate with the Form of Election to Purchase
and related Certificate duly executed. The number of Rights evidenced by this
Rights Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per share set forth
above, are the number and Purchase Price as of December 31, 1997, based on the
Preferred Stock as constituted at such date. The Company reserves the right to
require prior to the occurrence of a Triggering Event (as such term is defined
in the Rights Agreement) that, upon any exercise of Rights, a number of Rights
be exercised so that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the Rights
Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person or an Affiliate or Associate of such Person, such Rights shall
become null and void and no holder hereof shall have any right with respect to
such Rights from and after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other
B-2
<PAGE>
securities which may be purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and adjustment upon the
happening of certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices of the Rights Agent designated
for such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of one one-hundredths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificates surrendered shall have
entitled such holder to purchase. If this Rights Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may, in each case at the option of the Company, be
(i) redeemed by the Company at its option at a redemption price of $.01 per
Right or (ii) exchanged in whole or in part for shares of Common Stock or other
securities of the Company. Immediately upon the action of the Board of
Directors of the Company authorizing redemption, the Rights will terminate and
the only right of the holders of Rights will be to receive the redemption price.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
B-3
<PAGE>
No holder of this Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Preferred
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned manually or by facsimile
signature by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of _______ __, ____
ATTEST: MIDAS, INC.
_________________________ By: _______________________
Secretary Name:
Title:
Countersigned:
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: ____________________
Authorized Signature
B-4
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED _____________________________________________________________
hereby sells, assigns and transfers unto _______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint __________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ___________________, ____
_____________________________
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _______, ____ ____________________________
Signature
Signature Guaranteed:
B-5
<PAGE>
NOTICE
------
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
TO: MIDAS, INC.
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Rights Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares (or other securities) be
issued in the name of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
B-6
<PAGE>
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: _____________, ____
_______________________________________________________
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: _________, ___ _____________________________________________
Signature
Signature Guaranteed:
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change whatsoever.
B-7
<PAGE>
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
---------------------------------------------
On December 31, 1997, the Board of Directors of Midas, Inc. (the
"Company") declared a dividend distribution of one Right for each outstanding
share of the Company's common stock, par value $.001 per share ("Common Stock"),
to stockholders of record at the close of business on January 30, 1998. Each
Right entitles the registered holder to purchase from the Company a unit
consisting of one one-hundredth of a share (a "Unit") of Series A Junior
Participating Preferred Stock, par value $.001 per share (the "Preferred
Stock"), at a Purchase Price of $150 per Unit, subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") dated as of December 31, 1997 between the Company and First
Chicago Trust Company of New York, as Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
certificates will be distributed. The Rights will separate from the Common
Stock and the Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such
later date as may be determined by action of the Board of Directors prior to
such time as any person or group becomes an Acquiring Person) following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of the outstanding shares of Common
Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued on or after
January 30, 1998 will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
Pursuant to the Rights Agreement, the Company reserves the right to
require prior to the occurrence of a Triggering Event (as defined below) that,
upon any exercise of Rights, a
<PAGE>
number of Rights be exercised so that only whole shares of Preferred Stock will
be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 31, 2007, unless earlier redeemed by
the Company as described below.
As soon as practicable after the Distribution Date, Rights
certificates will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and, thereafter, the separate Rights
certificates alone will represent the Rights. Except as otherwise provided in
the Rights Agreement, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that, at any time following the Distribution Date, a
person or group becomes an Acquiring Person, each holder of a Right will
thereafter have the right to receive, upon exercise, Common Stock having a value
equal to two times the exercise price of the Right. If an insufficient number
of shares of Common Stock is authorized for issuance, then the Board would be
required to substitute cash, property or other securities of the Company for the
Common Stock. Notwithstanding any of the foregoing, following the occurrence of
the event set forth in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights are not exercisable
following the occurrence of the event set forth in this paragraph until such
time as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $150 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase $300
worth of Common Stock (or other consideration, as noted above) for $150.
Assuming that the Common Stock had a per share value of $15 at such time, the
holder of each valid Right would be entitled to purchase 20 shares of Common
Stock for $150.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation, or (ii) 50%
or more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, common stock
of the acquiring company
C-2
<PAGE>
having a value equal to two times the exercise price of the Right. The events
set forth in this paragraph and in the second preceding paragraph are referred
to as the "Triggering Events." In addition, the Rights may be exchanged, in
whole or in part, for shares of the Common Stock, or shares of Preferred Stock
having essentially the same value or economic rights as such shares.
The purchase price payable, and the number of Units of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group of 50% or more of the
outstanding shares of Common Stock, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio of one share of
Common Stock, or one one-hundredth of a share of Preferred Stock (or of a share
of a class or series of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
In general, the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors) at any time until
ten days following the Stock Acquisition Date. Immediately upon the action of
the Board of Directors authorizing any redemption, the Rights will terminate and
the only right of the holders of Rights will be to receive the redemption price.
C-3
<PAGE>
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
result in the recognition of taxable income by stockholders or the Company,
stockholders may, depending upon the circumstances, recognize taxable income in
the event that the Rights become exercisable for Common Stock (or other
consideration of the Company) or for common stock of the acquiring company as
set forth above.
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights, including an
amendment to lower certain thresholds described above to not less than the
greater of (i) the sum of .001% and the largest percentage of the outstanding
shares of Common Stock then known to the Company to be beneficially owned by any
person or group of affiliated or associated persons and (ii) 10%, and (b) to
raise such thresholds to not more than 20%, except that from and after such time
as any person or group of affiliated or associated persons becomes an Acquiring
Person no such amendment may adversely affect the interests of the holders of
the Rights.
A copy of the Rights Agreement is available free of charge from the
Rights Agent. This description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
C-4
<PAGE>
EXHIBIT 4.6
- --------------------------------------------------------------------------------
MIDAS, INC.
________________
MIDAS RETIREMENT SAVINGS
PLAN FOR HOURLY EMPLOYEES
________________
ESTABLISHED JANUARY 1, 1998
- --------------------------------------------------------------------------------
<PAGE>
MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
- --------------------------------------------------------------------------------
MIDAS, INC. establishes the MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
for the benefit of eligible employees of the Company, Midas International
Corporation, and their participating affiliates. The Plan is intended to
constitute a qualified profit sharing plan, as described in Code Section 401(a),
which includes a qualified cash or deferred arrangement, as described in Code
Section 401(k). Such Plan is set forth herein, amended and restated effective
as of January 1, 1998 (except as otherwise specified herein or required by law)
to add an employee stock ownership plan ("ESOP") consisting solely of an ESOP
Matching Account for each Participant.
As of the date this Plan receives a transfer of assets and liabilities from the
Whitman Corporation Master Retirement Savings Plan, such assets and liabilities
shall be allocated to the respective account of each Participant and Beneficiary
hereunder. References herein to dates prior to January 1, 1998 shall be deemed
to refer to this Plan as it existed under the Whitman Corporation Master
Retirement Savings Plan.
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS............................................................... 1
1.1 "Accounting Period"............................................ 1
1.2 "Accounts"..................................................... 1
1.3 "Accrued Benefit".............................................. 2
1.4 "Administrative Services Agreement"............................ 2
1.5 "Administrator"................................................ 2
1.6 "Appendix"..................................................... 3
1.7 "Applicable Election Period"................................... 3
1.8 "Authorized Leave of Absence".................................. 3
1.9 "Beneficiary".................................................. 3
1.10 "Board of Directors"........................................... 3
1.11 "Break in Service"............................................. 3
1.12 "Business Day"................................................. 3
1.13 "CEO".......................................................... 3
1.14 "Change Date".................................................. 4
1.15 "Commonly Controlled Entity"................................... 4
1.16 "Company"...................................................... 4
1.17 "Company Stock"................................................ 4
1.18 "Company Stock Fund"........................................... 4
1.19 "Compensation"................................................. 4
1.20 "Computation Period"........................................... 5
1.21 "Contract Administrator"....................................... 5
1.22 "Contributions"................................................ 6
1.23 "Contribution Dollar Limit".................................... 6
1.24 "Contribution Election" or "Election".......................... 6
1.25 "Contribution Percentage"...................................... 6
1.26 "Conversion Election".......................................... 6
1.27 "Custodial Agreement".......................................... 7
1.28 "Custodian".................................................... 7
1.29 "Direct Rollover".............................................. 7
1.30 "Disability or Disabled"....................................... 7
1.31 "Distributee".................................................. 7
1.32 "Early Retirement Date"........................................ 7
1.33 "Effective Date"............................................... 7
1.34 "Elective Deferral"............................................ 7
1.35 "Eligible Employee"............................................ 7
1.36 "Eligibility Service".......................................... 8
</TABLE>
-i-
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TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
1.37 "Eligible Retirement Plan"..................................... 8
1.38 "Eligible Rollover Distribution"............................... 8
1.39 "Employee"..................................................... 8
1.40 "Employee Benefits Committee".................................. 8
1.41 "Employer"..................................................... 9
1.42 "Employer Securities".......................................... 9
1.43 "Employment Date".............................................. 9
1.44 "ERISA"........................................................ 9
1.45 "ESOP"......................................................... 9
1.46 "Fiduciary".................................................... 9
1.47 "Forfeiture"................................................... 9
1.48 "Forfeiture Account"........................................... 9
1.49 "Highly Compensated Eligible Employee" or "HCE"................ 9
1.50 "Hour of Service".............................................. 11
1.51 "Insurance Contract Arrangement"............................... 12
1.52 "Internal Revenue Code" or "Code".............................. 13
1.53 "Investment Election".......................................... 13
1.54 "Investment Fund" or "Fund".................................... 13
1.55 "Limited Deferrals"............................................ 13
1.56 "Maternity/Paternity Absence".................................. 13
1.57 "Named Fiduciary".............................................. 13
1.58 "Non-Highly Compensated Employee" or "NHCE".................... 14
1.59 "Normal Retirement Date"....................................... 14
1.60 "Notice Date".................................................. 14
1.61 "Participant".................................................. 14
1.62 "Payment Date"................................................. 14
1.63 "Plan"......................................................... 15
1.64 "Plan Year".................................................... 15
1.65 "QDRO"......................................................... 15
1.66 "Qualified Election Period".................................... 15
1.67 "Qualified Joint and Survivor Annuity"......................... 15
1.68 "Qualified Matching Contribution".............................. 15
1.69 "Qualified Participant"........................................ 15
1.70 "Related Plan"................................................. 15
1.71 "Rollover Contribution"........................................ 15
1.72 "Senior Vice-President"........................................ 16
1.73 "Settlement Date".............................................. 16
1.74 "Spousal Consent".............................................. 16
1.75 "Spouse"....................................................... 16
1.76 "Sweep Date"................................................... 16
</TABLE>
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TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
1.77 "Termination of Employment".................................... 16
1.78 "Total Distribution"........................................... 17
1.79 "Trade Date"................................................... 17
1.80 "Trust"........................................................ 17
1.81 "Trust Agreement".............................................. 17
1.82 "Trust Fund"................................................... 17
1.83 "Trustee"...................................................... 17
1.84 "Trustee Transfer"............................................. 17
1.85 "Unit Value"................................................... 17
1.86 "Valuation Date"............................................... 18
1.87 "Vesting Service".............................................. 18
1.88 "Whitman Plan"................................................. 18
1.89 "Year of Service".............................................. 18
ARTICLE II
PARTICIPATION............................................................. 20
2.1 Eligibility.................................................... 20
2.2 Reemployment................................................... 20
2.3 Participation Upon Change of Job Status........................ 20
ARTICLE III
PARTICIPANT CONTRIBUTIONS................................................. 21
3.1 Pre-Tax Contribution Elections................................. 21
3.2 Post-Tax Contribution Elections................................ 21
3.3 Election Procedures............................................ 22
3.4 Limitation of Elective Deferrals for all Participants.......... 23
ARTICLE IV
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS.................................... 25
4.1 Participant Contributions...................................... 25
4.2 Matching Contributions......................................... 25
4.3 ESOP Matching Contributions.................................... 26
4.4 Formula Based Contributions.................................... 26
4.5 Special Contributions.......................................... 27
4.6 Miscellaneous.................................................. 28
ARTICLE V
</TABLE>
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ROLLOVERS................................................................. 29
5.1 Rollovers...................................................... 29
ARTICLE VI
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS......................................... 30
6.1 Individual Participant Accounting.............................. 30
6.2 Accounting for Investment Funds................................ 31
6.3 Accounts for QDRO Beneficiaries................................ 32
6.4 Special Accounting During Conversion Period.................... 32
ARTICLE VII
INVESTMENT FUNDS AND ELECTIONS............................................ 34
7.1 Investment Funds............................................... 34
7.2 Investment of Contributions.................................... 34
7.3 Investment of Accounts......................................... 35
7.4 Establishment of Investment Funds.............................. 36
7.5 Transition Rules............................................... 36
7.6 Assets Transferred from the Whitman Plan....................... 37
ARTICLE VIII
VESTING AND FORFEITURES................................................... 38
8.1 Fully Vested Contribution Accounts............................. 38
8.2 Vesting; Payment of Accrued Benefit On or After
Retirement or Disability....................................... 38
8.3 Vesting Schedule and Forfeitures............................... 38
8.4 Forfeitures.................................................... 39
8.5 Forfeiture Account............................................. 40
ARTICLE IX
PARTICIPANT LOANS......................................................... 41
9.1 Participant Loans Permitted.................................... 41
9.2 Loan Funding Limits............................................ 41
9.3 Maximum Number of Loans........................................ 42
9.4 Source of Loan Funding......................................... 42
9.5 Interest Rate.................................................. 42
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9.6 Repayment..................................................... 42
9.7 Repayment Hierarchy........................................... 42
9.8 Loan Application, Note and Security........................... 42
9.9 Default, Suspension and Acceleration Feature.................. 43
9.10 Military Service.............................................. 43
9.11 Loans from Whitman Plan....................................... 43
ARTICLE X
IN-SERVICE WITHDRAWALS.................................................... 44
10.1 Withdrawals for General Hardship.............................. 44
10.2 Withdrawals for 401(k) Hardship............................... 44
10.3 Withdrawals for Participants over age 59 1/2 or who are
Disabled...................................................... 46
10.4 Unrestricted Withdrawals...................................... 46
10.5 Withdrawal Processing......................................... 47
ARTICLE XI
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT................................................. 49
11.1 Request for Distribution of Benefits.......................... 49
11.2 Deadline for Distribution..................................... 49
11.3 ESOP Matching Account......................................... 50
11.4 Payment Form and Medium....................................... 50
11.5 Small Amounts Paid Immediately................................ 51
11.6 Payment Within Life Expectancy................................ 51
11.7 Incidental Benefit Rule....................................... 52
11.8 QJSA and QPSA Information and Elections....................... 52
11.9 Continued Payment of Amounts in Payment Status on
January 1, 1998............................................... 54
11.10 TEFRA Transitional Rule....................................... 54
11.11 Direct Rollover............................................... 54
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH................................. 55
12.1 Payment to Beneficiary........................................ 55
12.2 Beneficiary Designation....................................... 55
12.3 Benefit Election.............................................. 55
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12.4 Payment Form.................................................. 56
12.5 Time Limit for Payment to Beneficiary......................... 56
12.6 QPSA Information and Election................................. 56
12.7 Direct Rollover............................................... 57
ARTICLE XIII
MAXIMUM CONTRIBUTIONS..................................................... 58
13.1 Definitions................................................... 58
13.2 Avoiding an Annual Excess..................................... 59
13.3 Correcting an Annual Excess................................... 59
13.4 Correcting a Multiple Plan Excess............................. 60
13.5 Two-Plan Limit................................................ 60
13.6 Short Plan Year............................................... 61
13.7 Grandfathering of Applicable Limitations...................... 61
ARTICLE XIV
ADP AND ACP TESTS......................................................... 62
14.1 Contribution Limitation Definitions........................... 62
14.2 ADP and ACP Tests............................................. 63
14.3 Correction of ADP and ACP Tests............................... 64
14.4 Method of Calculation......................................... 64
14.5 Multiple Use Test............................................. 65
14.6 Adjustment for Investment Gain or Loss........................ 65
14.7 Required Records.............................................. 66
14.8 Incorporation by Reference.................................... 66
14.9 Collectively Bargained Employees.............................. 66
14.10 QSLOB......................................................... 66
ARTICLE XV
CUSTODIAL ARRANGEMENTS.................................................... 67
15.1 Custodial Agreement........................................... 67
15.2 Selection of Custodian........................................ 67
15.3 Custodian's Duties............................................ 67
15.4 Separate Entity............................................... 67
15.5 Plan Asset Valuation.......................................... 68
15.6 Right of Employers to Plan Assets............................. 68
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ARTICLE XVI
ADMINISTRATION AND INVESTMENT MANAGEMENT.................................. 69
16.1 General....................................................... 69
16.2 Administrator Acting as Employer.............................. 69
16.3 Employee Benefits Committee Acting as Employer................ 70
16.4 Administrator as Named Fiduciary.............................. 71
16.5 Employee Benefits Committee as Named Fiduciary................ 71
16.6 Employee Benefits Committee Membership........................ 71
16.7 Employee Benefits Committee Structure......................... 72
16.8 Actions....................................................... 72
16.9 Procedures for Designation of a Named Fiduciary............... 73
16.10 Compensation.................................................. 73
16.11 Discretionary Authority of each Named Fiduciary............... 73
16.12 Responsibility and Powers of the Administrator Regarding
Administration of the Plan........................... ........ 74
16.13 Allocations and Delegations of Responsibility................. 75
16.14 Bonding....................................................... 76
16.15 Information to be Supplied by Employer........................ 76
16.16 Information to be Supplied by Named Fiduciary................. 76
16.17 Misrepresentations............................................ 76
16.18 Records....................................................... 77
16.19 Plan Expenses................................................. 77
16.20 Fiduciary Capacity............................................ 77
16.21 Employer's Agent.............................................. 77
16.22 Plan Administrator............................................ 77
16.23 Plan Administrator Duties and Power........................... 77
16.24 Named Fiduciary Decisions Final............................... 78
16.25 No Agency..................................................... 79
ARTICLE XVII
CLAIMS PROCEDURE.......................................................... 80
17.1 Initial Claim for Benefits.................................... 80
17.2 Review of Claim Denial........................................ 80
ARTICLE XVIII
ADOPTION AND WITHDRAWAL FROM PLAN......................................... 82
18.1 Procedure for Adoption........................................ 82
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18.2 Procedure for Withdrawal...................................... 82
ARTICLE XIX
AMENDMENT, TERMINATION AND MERGER......................................... 83
19.1 Amendments.................................................... 83
19.2 Plan Termination.............................................. 84
19.3 Plan Merger................................................... 85
ARTICLE XX
SPECIAL TOP-HEAVY RULES................................................... 86
20.1 Application................................................... 86
20.2 Special Terms................................................. 86
20.3 Minimum Contribution.......................................... 90
20.4 Maximum Benefit Accrual....................................... 90
20.5 Special Vesting............................................... 90
ARTICLE XXI
MISCELLANEOUS PROVISIONS.................................................. 92
21.1 Assignment and Alienation..................................... 92
21.2 Protected Benefits............................................ 92
21.3 Plan Does Not Affect Employment Rights........................ 92
21.4 Deduction of Taxes from Amounts Payable....................... 92
21.5 Facility of Payment........................................... 92
21.6 Source of Benefits............................................ 93
21.7 Indemnification............................................... 93
21.8 Reduction for Overpayment..................................... 93
21.9 Limitation on Liability....................................... 93
21.10 Company Merger................................................ 93
21.11 Employees' Trust.............................................. 93
21.12 Gender and Number............................................. 94
21.13 Invalidity of Certain Provisions.............................. 94
21.14 Headings...................................................... 94
21.15 Uniform and Nondiscriminatory Treatment....................... 94
21.16 Notice and Information Requirements........................... 94
21.17 Military Service.............................................. 94
21.18 Law Governing................................................. 94
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE I
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DEFINITIONS
-----------
The following sections of this Article I provide basic definitions of terms
used throughout the Plan, and whenever used herein in a capitalized form, except
as otherwise expressly provided or defined in an Appendix (but in such case only
with respect to persons covered by such Appendix), the terms shall be deemed to
have the following meanings:
1.1 "Accounting Period" means the periods generally designated by the
-----------------
Administrator with respect to each Investment Fund not to exceed one year in
duration.
1.2 "Accounts" means the record of a Participant's interest in the Plan's
--------
assets represented by his or her:
(a) "ESOP Matching Account" which means a Participant's interest in
---------------------
the Plan's assets composed of Matching Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Whitman Plan on or after January 1, 1998, if any, (as identified
by the Administrator), plus all income and gains credited to, and minus all
losses, expenses, withdrawals and distributions charged to, such Account,
less the aggregate of the amounts transferred from the Participant's ESOP
Matching Account to the Participant's Matching Account pursuant to an
investment diversification election.
(b) "Formula Based Account" which means a Participant's interest in
---------------------
the Plan's assets composed of Formula Based Contributions allocated on or
after January 1, 1998 to the Participant under the Plan and an amount
transferred from the Participant's "Formula Based Account" in the Whitman
Plan on January 1, 1998, if any (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(c) "Matching Account" which means a Participant's interest in the
----------------
Plan's assets composed of Matching Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Matching Account" in the Whitman Plan on or after
January 1, 1998, if any (as identified by the Administrator), and the
aggregate of the amounts transferred from the Participant's ESOP Matching
Account to the Participant's Matching Account pursuant to an investment
diversification
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
election under Section 7.3(d), plus all income and gains credited to, and
minus all losses, expenses, withdrawals and distributions charged to, such
Account.
(d) "Post-Tax Account" which means a Participant's interest in the
----------------
Plan's assets composed of post-tax contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Post-Tax Account" in the Whitman Plan on or after
January 1, 1998, if any (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(e) "Pre-Tax Account" which means a Participant's interest in the
---------------
Plan's assets composed of Pre-Tax Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Pre-Tax Account" in the Whitman Plan on or after
January 1, 1998, if any (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(f) "Rollover Account" which means a Participant's interest in the
----------------
Plan's assets composed of Rollover Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Rollover Account" in the Whitman Plan on or after
January 1, 1998, if any (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(g) "Special Account" which means a Participant's interest in the
---------------
Plan's assets composed of Special Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Special Account" in the Whitman Plan on or after
January 1, 1998, if any (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
1.3 "Accrued Benefit" means the units held in or posted to Accounts on the
---------------
Settlement Date in accordance with the terms of this Plan, including any
applicable Administrative Services Agreement.
1.4 "Administrative Services Agreement" means a contractual arrangement
---------------------------------
with, or if no separate contractual arrangement exists, that portion of an
Insurance Contract Arrangement with, a Trustee, Named Fiduciary or a Contract
Administrator which describes the services to be rendered by the Trustee, Named
Fiduciary or Contract Administrator to or on behalf of the Plan and which
Administrative Services Agreement is incorporated into and made a part of the
Plan.
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MIDAS RSP FOR HOURLY EMPLOYEES
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1.5 "Administrator" means the Senior Vice President of Human Resources.
-------------
References to the Administrator in this document shall include any Fiduciary
(other than a Named Fiduciary) to whom the Administrator has allocated or
delegated its authority to control and manage pursuant to the procedures in
Article XVI.
1.6 "Appendix" means a written supplement attached to this Plan and made a
--------
part hereof which has been added in accordance with the provisions of the Plan.
1.7 "Applicable Election Period" means, with respect to an election
--------------------------
described in Section 11.3 to waive the Normal Form, a period of time beginning
90 days before the Payment Date and ending with the Payment Date, or if later,
at any time prior to the expiration of the 7-day period that begins the day
after the explanation of the Qualified Joint and Survivor Annuity is provided to
the Participant.
1.8 "Authorized Leave of Absence" means an absence, with or without
---------------------------
Compensation, authorized on a nondiscriminatory basis by a Commonly Controlled
Entity under its standard personnel practices applicable to the Employee,
including any period of time during which such person is covered by a short-term
disability plan of his or her Employer and any period of time required to be
recognized by the collective bargaining agreement between the Employer and such
Employee's collective bargaining representative. An Employee who leaves the
service of a Commonly Controlled Entity to enter the Armed Forces of the United
States of America and who reenters the service of the Commonly Controlled Entity
with reemployment rights under any statute granting reemployment rights to
persons in the Armed Forces shall be deemed to have been on an Authorized Leave
of Absence. The date that an Employee's Authorized Leave of Absence ends shall
be determined in accordance with the personnel policies of such Commonly
Controlled Entity, which ending date shall be no earlier than the date that the
Authorized Leave of Absence is scheduled to end, unless the Employee
communicates to such Commonly Controlled Entity that he or she is to have a
Termination of Employment as of an earlier date.
1.9 "Beneficiary" means any person designated by a Participant to receive
-----------
any benefits which shall be payable with respect to the death of a Participant
under the Plan or as a result of a QDRO.
1.10 "Board of Directors" means the board of directors of the Company.
------------------
1.11 "Break in Service" means the end of five consecutive Computation
----------------
Periods (or six consecutive Computation Periods if absence from employment was
due to a Maternity/Paternity Absence) for which a Participant is credited with
less than 501 Hours of Service.
1.12 "Business Day" means any day or part of a day on which the New York
------------
Stock Exchange and the Trustee are open for business.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.13 "CEO" means the Chief Executive Officer of the Company.
---
1.14 "Change Date" means the one or more dates during the Plan Year
-----------
generally designated by the Administrator (or, with respect to a specific
Employee group, as may be provided in an Appendix) as the dates available for
implementing or changing a Participant's Contribution Election.
1.15 "Commonly Controlled Entity" means (1) an Employer and any
--------------------------
corporation, trade or business, but only for so long as it and the Employer are
members of a controlled group of corporations as defined in Section 414(b) of
the Code or under common control as defined in Section 414(c) of the Code;
provided, however, that solely for purposes of the limitations of Code Section
415, the standard of control under Sections 414(b) and 414(c) of the Code shall
be deemed to be "more than 50%" rather than "at least 80%," (2) an Employer and
an organization, but only for so long as it and the Employer are, on and after
the Effective Date, members of an affiliated service group as defined in Section
414(m) of the Code, (3) an Employer and an organization, but only for so long as
the employees of it and the Employer are required to be aggregated, on and after
the Effective Date, under Section 414(o) of the Code, or (4) any other
organization designated as such by the Administrator.
1.16 "Company" means MIDAS, INC. or any successor corporation by merger,
-------
consolidation, purchase, or otherwise, which elects to adopt the Plan and the
Trust.
1.17 "Company Stock" means common stock issued by WHITMAN CORPORATION;
-------------
provided however, on and after the date of distribution by WHITMAN CORPORATION
to its shareholders of the outstanding shares of common stock of the Company,
Company Stock will means shares of common stock issued by the Company.
1.18 "Company Stock Fund" means an Investment Fund primarily invested in
------------------
Employer Securities.
1.19 "Compensation" means:
------------
(a) for purposes of allocating Contributions with respect to a
Participant, compensation as specified in an Appendix which applies to such
Participant;
(b) for purposes of applying Section 415 of the Code to the Plan and
its Participants for any limitation year, such compensation from a Commonly
Controlled Entity, as determined by the Administrator, and satisfying the
definition of compensation under Section 415 of the Code (within the
meaning of Treasury Regulation 1.415-2(d)(2) and (3)); and
(c) for any determination period with respect to an applicable
provision of the Code other than Section 415, such compensation from a
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Commonly Controlled Entity, as determined by the Administrator, and which
satisfies the requirements of Section 414(s) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994 the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner of Internal Revenue for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
twelve (12) months, over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than twelve (12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994 any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994 the OBRA '93 annual
compensation limit is $150,000.
1.20 "Computation Period" means:
------------------
(a) with respect to Eligibility Service, and any Break in Service
with respect to Eligibility Service, the twelve (12) consecutive month
period commencing with an Employee's Employment Date (or if Eligibility
Service is disregarded due to the occurrence of a Break in Service, the
Employment Date thereafter) and the Plan Year which includes the first
anniversary of the Employment Date and each subsequent Plan Year; and
(b) with respect to Vesting Service, and any Break in Service with
respect to Vesting Service, the Plan Year beginning with the Plan Year in
which occurs the Employee's Employment Date (or if Vesting Service is
disregarded due to the occurrence of a Break in Service, the Employment
Date thereafter) and each Plan Year thereafter.
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MIDAS RSP FOR HOURLY EMPLOYEES
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1.21 "Contract Administrator" means each individual and entity designated
----------------------
by the Administrator or another Named Fiduciary, pursuant to this Plan, to
render services to the Plan or Trust as a Fiduciary.
1.22 "Contributions" means amounts contributed to the Plan by the Employer
-------------
or an Eligible Employee. Specific types of contributions include:
(a) "ESOP Matching". An amount contributed by the Employer to the
ESOP portion of the Plan based upon the amount contributed by the
Participant as a Pre-Tax or Post-Tax Contribution.
(b) "Formula Based". An amount contributed by the Employer and
allocated based on a formula to eligible Participants' Accounts.
(c) "Matching". An amount contributed by the Employer based upon the
amount contributed by the eligible Participant as a Pre-Tax or
Post-Tax Contribution.
(d) "Post-Tax". An amount contributed on a post-tax basis.
(e) "Pre-Tax". An amount contributed on a pre-tax basis in
conjunction with a Participant's Code Section 401(k) salary
deferral agreement.
(f) "Special". An amount contributed by the Employer to avoid
prohibited discrimination under Section 401(a)(4) of the Code.
1.23 "Contribution Dollar Limit" means the annual limit imposed on each
-------------------------
Participant pursuant to Section 402(g) of the Code, which shall be seven
thousand dollars ($7,000) per calendar year (as indexed for cost of living
adjustments pursuant to Code Section 402(g)(5) and 415(d)).
1.24 "Contribution Election" or "Election" means the election made by a
-----------------------------------
Participant to reduce his or her Compensation from the Employer by an amount
equal to the product of his or her Contribution Percentage and such Compensation
subject to the Contribution Election; provided however, effective January 1,
1998, the Contribution Election for a Participant for whom assets and
liabilities have been transferred to this Plan from the Whitman Plan shall be
the same as the Contribution Election of such Participant under the Whitman
Plan.
1.25 "Contribution Percentage" means the percentage (or flat dollar amount
-----------------------
which results in a percentage) of a Participant's Compensation which is to be
contributed to the Plan by his or her Employer as a Pre-Tax or a Post-Tax
Contribution.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.26 "Conversion Election" means an election by a Participant to change the
-------------------
investment of all or some specified portion of such Participant's Accounts by
voice response to the telephone number provided by the Named Fiduciary to whom
it is spoken, or on such form that may be required by the Named Fiduciary to
whom it is delivered. No Conversion Election shall be deemed to have been given
to the Named Fiduciary unless it is complete and delivered in accordance with
the procedures established by such Named Fiduciary for this purpose.
1.27 "Custodial Agreement" means the Trust Agreement or an insurance
-------------------
contract to provide for the holding of the assets of the Plan.
1.28 "Custodian" means the Trustee or an insurance company if the contract
---------
issued by such company is not held by the Trustee.
1.29 "Direct Rollover" means a payment by the Plan to the Eligible
---------------
Retirement Plan specified by the Distributee.
1.30 "Disability or Disabled" means a Participant is eligible to receive
----------------------
disability benefits under the Social Security Act.
1.31 "Distributee" includes an Employee or former Employee. In addition,
-----------
the Employee's or former Employee's surviving Spouse and the Employee's or
former Employee's Spouse or former Spouse who is the alternate payee under a
QDRO are Distributees with regard to the interest of the Spouse or former
Spouse.
1.32 "Early Retirement Date" has the meaning given to it in an Appendix.
---------------------
1.33 "Effective Date" means January 1, 1998, the date upon which the
--------------
provisions of this document become effective (unless otherwise specified in an
Appendix with respect to a specific Employee group). In general, the provisions
of this document only apply to Participants who are Employees on or after the
Effective Date. However, investment and distribution provisions apply to all
Participants with Account balances to be invested or distributed after the
Effective Date.
1.34 "Elective Deferral" means amounts subject to the Contribution Dollar
-----------------
Limit.
1.35 "Eligible Employee" means any Employee (including an Employee on an
-----------------
Authorized Leave of Absence) of an Employer, on and after the Effective Date of
the adoption of this Plan by the Employer, who is included in a group of
Employees of an Employer to whom the Plan has been extended either unilaterally
by an Employer or pursuant to a collective bargaining or other agreement entered
into between an Employer and any other union or non-union group, and that is
described in an Appendix, but excluding any Employee:
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
(a) who is considered an Employee solely because of the application
of Section 414(n) of the Code; or
(b) who is not a U.S. citizen or a resident alien.
1.36 "Eligibility Service" means the sum of an Employee's Years of Service;
-------------------
provided however, Years of Service shall be disregarded:
(a) if the Employee had no vested interest in his or her
Contributions by an Employer, Years of Service earned before a Break in
Service shall be disregarded; or
(b) if such Years of Service were earned prior to the date the
Employee's Employer became a Commonly Controlled Entity, unless the
Administrator makes such a determination not to apply this exclusion with
respect to each such Employee in a uniform and nondiscriminatory manner.
1.37 "Eligible Retirement Plan" means an individual retirement account
------------------------
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.38 "Eligible Rollover Distribution" means any distribution of all or any
------------------------------
portion of the balance to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include any distribution that is one of a series
of substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's designated
Beneficiary, or for a specified period of ten years or more; any distribution to
the extent such distribution is required under Section 401(a)(9) of the Code;
and the portion any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
1.39 "Employee" means any person who renders services as a common law
--------
employee to a Commonly Controlled Entity or is on an Authorized Leave of
Absence, including the period of time before which the trade or business became
a Commonly Controlled Entity, but excluding the period of time after which it
ceases to be a Commonly Controlled Entity. No person who was hired through a
temporary agency (including but not limited to any leased Employee) shall be
considered an Employee and no person, the terms of whose services are governed
by an independent contractor or consulting agreement with an Employer, shall be
considered an Employee except to the extent explicitly provided to the contrary
in such agreement;
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
provided, however, any individual considered an Employee of a Commonly
Controlled Entity under Section 414(n) of the Code shall be deemed employed by
the Commonly Controlled Entity for which the individual performed services.
1.40 "Employee Benefits Committee" means the committee appointed pursuant
---------------------------
to the terms of the Trust.
1.41 "Employer" means the Company, Midas International Corporation, and
--------
any Commonly Controlled Entity which has adopted the Plan; provided, that an
entity will cease to be an Employer when it ceases to be a Commonly Controlled
Entity; provided however, each Employer, for whom assets and liabilities are
transferred to this Plan from the Whitman Plan on behalf of its Employees on or
after the Effective Date, shall be deemed to be an Employer.
1.42 "Employer Securities" means stock described in Section 4975(e)(8) of
-------------------
the Code or in Treasury Regulation Section 54.4975-12.
1.43 "Employment Date" means the day an Employee first earns an Hour of
---------------
Service.
1.44 "ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended. Reference to any specific Section shall include such Section, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such Section.
1.45 "ESOP" means an employee stock ownership plan, which is designed to
----
invest primarily in Employer Securities as described in ERISA and the Code,
which shall include the aggregate of each ESOP Matching Account and which
portion of this Plan shall be maintained separately.
1.46 "Fiduciary" means (a) any individual or entity who performs a
---------
Fiduciary function under the Plan as defined in accordance with Section 3(21) of
ERISA; (b) such individual or entity which the Administrator or Employee
Benefits Committee, acting on behalf of the Plan Sponsor, designates to be a
Named Fiduciary with respect to such person's authority to control and manage
the operation and administration of the Plan or Trust; or (c) such individual or
entity which a Named Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary with respect to such person's authority to control and manage the
operation and administration of the Plan or Trust.
1.47 "Forfeiture" means the portion of the Participant's Accrued Benefit
----------
which is forfeited pursuant to the terms of the Plan.
1.48 "Forfeiture Account" means an account holding amounts forfeited by
------------------
Participants.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.49 "Highly Compensated Eligible Employee" or "HCE" means a highly
---------------------------------------------
compensated active employee or a highly compensated former employee.
A highly compensated active employee includes any Employee who performs
service for the Employer during the determination year and who, during the look-
back year: (i) received Compensation from the Employer in excess of $75,000 (as
adjusted pursuant to Section 415(d) of the Code); (ii) received Compensation
from the Employer in excess of $50,000 (as adjusted pursuant to Section 415(d)
of the Code) and was a member of the top-paid group for such year; or (iii) was
an officer of the Employer and received Compensation during such year that is
greater than fifty percent (50%) of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code. The term highly compensated active employee
also includes: (i) Employees who are both described in the preceding sentence if
the term "determination year" is substituted for the term "look-back year" and
the Employee is one of the 100 Employees who received the most Compensation from
the Employer during the determination year; and (ii) Employees who are 5-percent
owners at any time during the lookback year or determination year.
If no officer has satisfied the Compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a highly compensated active employee.
For this purpose, the determination year shall be the Plan Year. The look-
back year shall be the twelve-month period immediately preceding the
determination year. Pursuant to Code Section 414(q), the Administrator may
elect for the lookback year to be the calendar year ending with or within the
applicable Plan Year determination year.
If the Employer at all times during the Plan Year maintains significant
business activities (and employs Employees in such activities) in at least two
significantly separate geographic areas and satisfies such other conditions as
the Secretary of the Treasury may prescribe, the Administrator may elect to
apply a simplified definition of Highly Compensated Employee under the Plan by
substituting "$50,000" for "$75,000" in paragraph (i) above, and disregarding
paragraph (ii) above.
An Employee who performs services for the Employer any time during the year
is in the top-paid group of Employees for any year if such Employee is in the
group consisting of the top twenty percent (20%) of the Employees when ranked on
the basis of Compensation paid during such year. For purposes of determining
the number of Employees in the top-paid group (but not for identifying the
particular Employees in the top-paid group), the following Employees shall be
excluded:
(i) Employees who have not completed six (6) months of service;
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
(ii) Employees who normally work less than seventeen and one-
half (17 1/2) Hours of Service;
(iii) Employees who normally work not more than six (6) months
during any year;
(iv) Employees who have not attained age twenty-one (21);
(v) Employees who are included in a unit of Employees covered by
a bona fide collective bargaining agreement with the Employer; and
(vi) Employees who are nonresident aliens and who receive no earned
income (within the meaning of Section 911(d)(2) of the Code) from the
Employer which constitutes income from sources within the United States
(within the meaning of Section 861(a)(3) of the Code).
The Administrator may elect to apply paragraph (i), (ii) or (iv) of this Section
by substituting a shorter period of service, smaller number of hours or months,
or lower age for that specified in such subparagraphs.
A highly compensated former employee includes any Employee who separated
from service (or was deemed to have separated) prior to the determination year,
performs no service for the Employer during the determination year, and was a
Highly Compensated Employee for either the separation year or any determination
year ending on or after the Employee's 55th birthday. If a former Employee
separated from service with the Employer prior to January 1, 1987, and the
Administrator irrevocably elects to apply this special rule, he is a Highly
Compensated Employee only if he or she was described in any one or more of the
following groups during either the Employee's separation year (or the year
preceding such separation year) or any year ending on or after such individual's
55th birthday (or the last year ending before such Employee's 55th birthday):
(i) 5-percent owner. The Employee was a 5-percent owner of the
---------------
Employer at any time during the year.
(ii) Compensation amount. The Employee received Compensation in
-------------------
excess of $50,000 during the year.
The determination of who is a Highly Compensated Employee, including the
determination of the number and identity of Employees in the top-paid group, the
top 100 Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
1.50 "Hour of Service" means:
---------------
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
(a) as it applies to Eligibility Service, each hour for which an
Employee is entitled to:
(1) payment for the performance of duties for any Commonly
Controlled Entity;
(2) payment from any Commonly Controlled Entity for any period
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
sickness, incapacity (including disability), layoff, leave of absence,
jury duty or military service;
(3) back pay, irrespective of mitigation of damages, by award or
agreement with any Commonly Controlled Entity (and these hours shall
be credited to the period to which the agreement pertains); or
(4) no payment, but is on an Authorized Leave of Absence (and
these hours shall be based upon his or her normally scheduled hours
per week or a 40 hour week if there is no regular schedule).
The crediting of hours shall be made in accordance with Department of Labor
regulation Section 2530.200b-2 and 3, but in no event shall hours be
credited in excess of the minimum number required thereunder for a
Computation Period in order to avoid a Break in Service. An equivalent
number of hours shall be credited for each payroll period in which the
Employee would be credited with at least 1 hour. The payroll period
equivalences are 190 hours monthly.
(b) as it applies to Vesting Service, each hour for which an Employee
is entitled to:
(1) payment for the performance of duties for any Commonly
Controlled Entity;
(2) payment from any Commonly Controlled Entity for any period
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
sickness, incapacity (including disability), layoff, leave of absence,
jury duty or military service;
(3) back pay, irrespective of mitigation of damages, by award or
agreement with any Commonly Controlled Company (and these hours shall
be credited to the period to which the agreement pertains); or
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
(4) no payment, but is on an Authorized Leave of Absence (and
these hours shall be based upon his or her normally scheduled hours
per week or a 40 hour week if there is no regular schedule).
The crediting of hours shall be made in accordance with Department of Labor
regulation Section 2530.200b-2 and 3, but in no event shall hours be credited in
excess of the minimum number required thereunder for a Computation Period in
order to avoid a Break in Service. An equivalent number of hours shall be
credited for each payroll period in which the Employee would be credited with at
least 1 hour. The payroll period equivalences are 190 hours monthly.
1.51 "Insurance Contract Arrangement" means a contractual arrangement of
------------------------------
one or more contracts with an entity, whether or not subject to the applicable
regulations of a State regarding reserve requirements, which assumes the risk of
payment of a Benefit primarily from its assets and which Insurance Contract
Arrangement is incorporated and made a part of this Plan, but only to the extent
it is specifically referred to herein and is not inconsistent with the terms and
provisions of this Plan.
1.52 "Internal Revenue Code" or "Code" means the Internal Revenue Code of
-------------------------------
1986, as amended, any subsequent Internal Revenue Code and final Treasury
Regulations. If there is a subsequent Internal Revenue Code, any references
herein to Internal Revenue Code Sections shall be deemed to refer to comparable
Sections of any subsequent Internal Revenue Code.
1.53 "Investment Election" means an election by which a Participant directs
-------------------
the investment of his or her Contributions by voice response to the telephone
number provided by the Named Fiduciary to whom it is spoken, or on such form
that may be required by the Named Fiduciary to whom it is delivered. No
Investment Election shall be deemed to have been given to the Named Fiduciary
unless it is complete and delivered in accordance with the procedures
established by such Named Fiduciary for this purpose; provided however,
effective January 1, 1998, the Investment Election for a Participant for whom
assets and liabilities have been transferred to this Plan from the Whitman Plan
shall be the same as the Investment Election of such Participant under the
Whitman Plan.
1.54 "Investment Fund" or "Fund" means one or more collective investment
-------------------------
funds, a pool of assets, or deposits with the Custodian, a mutual fund,
insurance contract, or managed pool of assets. The Investment Funds which are
authorized for investment by a particular Participant are described in the
adoption agreements referred to in Appendix 18.1 hereto.
1.55 "Limited Deferrals" means Elective Deferrals subject to the limits of
-----------------
Code Section 401(a)(30).
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.56 "Maternity/Paternity Absence" means a paid or unpaid and unapproved
---------------------------
absence from employment with a Commonly Controlled Entity (1) by reason of the
pregnancy of the Employee; (2) by reason of the birth of a child of the
Employee; (3) by reason of the placement of a child under age eighteen (18) in
connection with the adoption of such child by the Employee (including a trial
period prior to adoption); and (4) for the purpose of caring for a child of the
Employee immediately following the birth or adoption of such child. The
Employee must prove to the satisfaction of the Administrator or its agent that
the absence meets the above requirements and must supply information concerning
the length of the absence unless the Administrator has access to relevant
information without the Employee submitting it.
1.57 "Named Fiduciary" means:
---------------
(a) with respect to the authority each has over management and
control of the Plan's administration and operation or discretionary
authority and control it may have with respect to the Plan, the
Administrator and such other person who may be designated to be a Named
Fiduciary pursuant to Article XV;
(b) with respect to the management and control of the Plan's assets
or the discretionary authority it may have with respect to the Plan's
assets, the Trustee, the Employee Benefits Committee, and other such person
who may be designated to be a Named Fiduciary pursuant to the terms of the
Trust.
1.58 "Non-Highly Compensated Employee" or "NHCE" means an Employee who is
-----------------------------------------
not an HCE.
1.59 "Normal Retirement Date" means the date a Participant attains sixty-
----------------------
five (65) years of age.
1.60 "Notice Date" means the date established by the responsible Named
-----------
Fiduciary as the deadline for it to receive notification with respect to an
administrative matter in order to be processed as of a Change Date designated by
the responsible Named Fiduciary.
1.61 "Participant" means an Eligible Employee who begins to participate in
-----------
the Plan after completing the eligibility requirements. A Participant's
participation continues until his or her Termination of Employment and his or
her Accrued Benefit is distributed or forfeited.
1.62 "Payment Date" means the date on or after the Settlement Date on which
------------
a Participant's Accrued Benefit is distributed or commences to be distributed,
which date shall be at least the minimum number of days required by law, if any,
after the date the Participant has received any notice required by law, if any.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
If a distribution is one to which Sections 411(a)(11) and 417 of the
Internal Revenue Code do not apply, such distribution may commence less than
thirty (30) days after the notice required under Section 401(a)(11) of the
Income Tax Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least thirty (30) days after
receiving the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option), and
(b) the Participant, after receiving the notice, affirmatively elects
a distribution.
Notwithstanding the determination of a Payment Date hereunder, distribution in
accordance with an affirmative election will not commence before the expiration
of the 7-day period that begins the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
1.63 "Plan" means the MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES,
----
as set forth herein and as hereafter may be amended from time to time.
1.64 "Plan Year" means the Annual Accounting period of the Plan and Trust
---------
which ends on each December 31.
1.65 "QDRO" means a domestic relations order which the Administrator has
----
determined to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code.
1.66 "Qualified Election Period" means the five (5) consecutive Plan Year
-------------------------
period beginning with the first Plan Year on or after the later of (a) 1998 or
(b) the Plan Year in which the Participant first becomes a Qualified
Participant.
1.67 "Qualified Joint and Survivor Annuity" means the QJSA described in
------------------------------------
Article XI.
1.68 "Qualified Matching Contribution" means a Matching Contribution that
-------------------------------
is treated as a Pre-Tax Contribution and posted to the Pre-Tax Account.
1.69 "Qualified Participant" means a Participant who has attained age
---------------------
fifty-five (55) and who has completed at least ten (10) years of participation
under this Plan.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.70 "Related Plan" means:
------------
(a) with respect to Section 401(k) and 401(m) of the Code, any plan
or plans maintained by a Commonly Controlled Entity which is treated with
this Plan as a single plan for purposes of Sections 401(a)(4) or 410(b) of
the Code; and
(b) with respect to Section 415 of the Code, any other defined
contribution plan or a defined benefit plan (as defined in Section 415(k)
of the Code) maintained by a Commonly Controlled Entity, respectively
called a "Related Defined Contribution Plan" and a "Related Defined Benefit
Plan".
1.71 "Rollover Contribution" means:
---------------------
(a) a rollover contribution as described in Section 402(c) of the
Code (or its predecessor); or
(b) a Trustee Transfer (1) to the Custodian of an amount by the
custodian of a retirement plan qualified for tax-favored treatment under
Code Section 401(a), which plan provides for such transfer; (2) with
respect to which the benefits otherwise protected by Code Section 411 in
such transferor plan are no longer required by Code Section 411 to be
protected in this Plan; and (3) which does not include amounts subject to
Code Section 401(k).
1.72 "Senior Vice-President" means the Senior Vice-President of Human
---------------------
Resources for the Company, or such other officer title as which will from time
to time assume the responsibilities of the Senior Vice-President of Human
Resources.
1.73 "Settlement Date" means the date on which the transactions from the
---------------
most recent Trade Date are settled.
1.74 "Spousal Consent" means the irrevocable written consent given by a
---------------
Spouse to a Participant's election (or waiver) of a specified form of benefit or
Beneficiary designation. The Spouse's consent must acknowledge the effect on
the Spouse of the Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal Consent shall be
valid only with respect to the spouse who signs the Spousal Consent and only for
the particular choice made by the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior election, waiver or
designation that required Spousal Consent at any time before the Sweep Date
associated with the Settlement Date upon which payments will begin. Spousal
Consent also means a determination by the Administrator that there is no Spouse,
the Spouse cannot be located or such other circumstances as may be established
by applicable law.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.75 "Spouse" means a person, not of the same sex, who, as of the earlier
------
of a Participant's Payment Date and death, is alive and married to the
Participant within the meaning of the laws of the State of the Participant's
residence as evidenced by a valid marriage certificate or other proof acceptable
to the Administrator. A spouse who was the Spouse on the Payment Date but who
is divorced from the Participant at the Participant's death shall still be the
Spouse at the date of the Participant's death, except as otherwise provided in a
QDRO.
1.76 "Sweep Date" means the date established by the responsible Named
----------
Fiduciary as the cutoff date and time for the responsible Named Fiduciary to
receive notification with respect to a financial transaction for an Accounting
Period in order to be processed with respect to a Trade Date designated by the
responsible Named Fiduciary (or, with respect to a specific Employee group, as
may be provided in an Appendix).
1.77 "Termination of Employment" occurs when a person ceases to be an
-------------------------
Employee, as determined by the personnel policies of the Commonly Controlled
Entity to whom he or she rendered services; provided, however, where a Commonly
Controlled Entity ceases to be such with respect to an Employee as a result of
either an asset sale or stock sale an Employee of the Commonly Controlled Entity
shall be deemed not to have incurred a Termination of Employment: (a) unless the
Administrator shall make a determination that the transaction satisfies Section
401(k) of the Code, or if no such determination is made, until such Employee
ceases to be employed by the successor to the Commonly Controlled Entity; or (b)
if the Administrator shall make a Trustee Transfer of his or her Accrued
Benefit. Transfer of employment from one Commonly Controlled Entity to another
Commonly Controlled Entity shall not constitute a Termination of Employment for
purposes of the Plan.
1.78 "Total Distribution" means a distribution to a Participant or a
------------------
Participant's beneficiary, within one taxable year of such receipt, of the
entire balance to the credit of the ESOP Matching Account.
1.79 "Trade Date" means the date as of which a financial transaction
----------
occurs, however with respect to a transaction involving Investment Funds
maintained on a unit accounting methodology, the transaction shall be executed
based upon the daily Unit Value of the Fund as of the designated time of day on
the applicable Valuation Date.
1.80 "Trust" means the legal entity resulting from the agreement between
-----
the Company and the Trustee and all amendments thereto, in which some or all of
the assets of this Plan will be received, held, invested and distributed to or
for the benefit of Participants and Beneficiaries.
1.81 "Trust Agreement" means the agreement between the Company and the
---------------
Trustee establishing the Trust, and any amendments thereto.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
1.82 "Trust Fund" means any property, real or personal, received by and
----------
held by the Trustee, plus all income and gains and minus all losses, expenses,
withdrawals and distributions chargeable thereto.
1.83 "Trustee" means any corporation, individual or individuals designated
-------
in the Trust Agreement who shall accept the appointment as Trustee to execute
the duties of the Trustee as set forth in the Trust Agreement.
1.84 "Trustee Transfer" means (a) a transfer to the Custodian of an amount
----------------
by the custodian of a retirement plan qualified for tax-favored treatment under
Section 401(a) of the Code or by the trustee(s) of a trust forming part of such
a plan, which plan provides for such transfer; or (b) a Direct Rollover within
the meaning of Section 402(c)(8)(B) of the Code; provided that with respect to
any withdrawal or distribution from the Plan, a Participant may elect a transfer
to only one eligible retirement plan, except as may otherwise be determined by
the Administrator, in a uniform and nondiscriminatory manner.
1.85 "Unit Value" means the value of a unit in the applicable Investment
----------
Fund, as determined in good faith by the Trustee or the Administrator.
1.86 "Valuation Date" means the close of business on each Business Day.
--------------
1.87 "Vesting Service" means the sum of the Years of Service of an
---------------
Employee; provided however, Years of Service shall be disregarded
(a) if the Employee had no vested interest in his or her
Contributions by an Employer, and such Years of Service were earned before
the Break in Service; or
(b) if such Years of Service were earned after a Break in Service,
for purposes of determining the nonforfeitable percentage of his or her
Accrued Benefit earned before such Break in Service; or
(c) if applicable as provided in the Appendix for such Employee, such
Years of Service were earned prior to the date the Employee's Employer
became a Commonly Controlled Entity, unless the Administrator makes such a
determination not to apply this exclusion with respect to each such
Employee in a uniform and nondiscriminatory manner; or
-18-
<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
(d) if applicable as provided in the Appendix for such Employee, such
Years of Service were earned before the Effective Date with respect to an
Eligible Employee.
1.88 "Whitman Plan" means the Whitman Corporation Master Retirement Savings
------------
Plan.
1.89 "Year of Service" means:
---------------
(a) as it applies to Eligibility Service, each Computation Period in
which an Employee is credited with at least 1,000 Hours of Service; and to
the extent not already recognized, each Year of Service recognized under
the Whitman Plan with respect to a Participant for whom this Plan has
received a transfer of assets and liabilities from the Whitman Plan.
(b) as it applies to Vesting Service, a Computation Period in which
an Employee is credited with at least 1,000 Hours of Service and such other
periods of employment continuation recognized by an applicable Appendix;
and to the extent not already recognized, each Year of Service recognized
under the Whitman Plan with respect to a Participant for whom this Plan has
received a transfer of assets and liabilities from the Whitman Plan.
An Employee's service with a company, the assets of which are acquired by a
Commonly Controlled Entity, shall only be counted as employment with such
Commonly Controlled Entity in the determination of his or her Years of Service
if (1) the Administrator directs that credit for such service be granted, or (2)
a qualified plan of the acquired company is subsequently maintained by any
Employer or Commonly Controlled Entity. Notwithstanding the above, prior to the
date this Plan was first amended to comply with ERISA, a Year of Service was
each year earned and recognized as of such date under the terms and provisions
of the Plan used to measure service immediately prior to such date.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE II
- --------------------------------------------------------------------------------
PARTICIPATION
-------------
2.1 Eligibility. On or after the Effective Date as to each Employer:
-----------
(a) Participant on January 1, 1998. Each Eligible Employee shall
------------------------------
become a Participant on the first day of the month on or after the date he
or she completes at least one year of Eligibility Service.
(b) Participant in the Whitman Plan . Each person who was a
--------------------------------
participant in the Whitman Plan whose accrued benefit under the Whitman
Plan was (or is to be) transferred to this Plan shall become a Participant
as of January 1, 1998, or, if later, the date of such transfer.
2.2 Reemployment.
------------
(a) Eligible Employee Was Previously a Participant. An Eligible
----------------------------------------------
Employee who has at least one year of Eligibility Service and previously
was a Participant prior to his or her Termination of Employment shall
become a Participant on the first day he or she earns an Hour of Service.
(b) Eligible Employee Had a Termination. An Eligible Employee who
-----------------------------------
previously completed the service requirement to become a Participant and
who had a Termination of Employment before he or she became a Participant
shall be eligible to become a Participant on the later of (1) the date he
or she would have become a Participant but for his or her Termination of
Employment, or (2) the date he or she again performs an Hour of Service.
2.3 Participation Upon Change of Job Status. An Employee who is not an
---------------------------------------
Eligible Employee shall become a Participant on the later of (1) the date he or
she would have become a Participant had he or she always been an Eligible
Employee, or (2) the date he or she becomes an Eligible Employee.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE III
- --------------------------------------------------------------------------------
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Pre-Tax Contribution Elections.
------------------------------
(a) A Participant who is an Eligible Employee and who desires to have
Pre-Tax Contributions made on his or her behalf by his or her Employer
shall file a Contribution Election, pursuant to procedures adopted by the
responsible Named Fiduciary, specifying his or her Contribution Percentage,
which percentage shall be no less nor more than the percentages authorized
in an Appendix which applies to such Eligible Employee, and authorizing the
Compensation otherwise payable to him or her to be reduced in the
contribution periods selected in such Appendix.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year the
Administrator may determine that the maximum Contribution Percentage shall
be greater or lesser than the percentages set forth in an Appendix.
Otherwise, the maximum Contribution Percentage as provided in an Appendix
shall apply.
(c) A Participant's Contribution Election shall be effective only
with respect to Compensation not yet paid as of the date the Contribution
Election is effective. A Contribution Election received on or before a
Notice Date shall become initially effective with respect to payroll cycles
ended after the applicable Change Date or, if reemployed, on the first day
of the next month. However, the Administrator, in its sole discretion, may
declare an additional window period to Participants. Any Contribution
Election which has not been properly completed or which does not contain a
properly completed Investment Election will be deemed not to have been
received and be void.
3.2 Post-Tax Contribution Elections.
-------------------------------
(a) A Participant who is an Eligible Employee and who desires to have
Post-Tax Contributions made on his or her behalf by his or her Employer
shall file a Contribution Election, pursuant to procedures adopted by the
responsible Named Fiduciary, specifying his or her Contribution Percentage,
which percentage shall be no less nor more than the percentages authorized
in an Appendix which applies to such Eligible Employee, and authorizing the
Compensation otherwise payable to him or her to be reduced in the
contribution periods selected in such Appendix.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year the
Administrator may determine that the maximum Contribution Percentage shall
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
be greater or lesser than the percentages set forth in an Appendix.
Otherwise, the maximum Contribution Percentage as provided in an Appendix
shall apply.
(c) A Participant's Contribution Election shall be effective only
with respect to Compensation not yet paid as of the date the Contribution
Election is effective. A Contribution Election received on or before a
Notice Date shall become initially effective with respect to payroll cycles
ended after the applicable Change Date or, if reemployed, on the first day
of the next month. However, the Administrator, in its sole discretion, may
declare an additional window period to Participants. Any Contribution
Election which has not been properly completed or which does not contain a
properly completed Investment Election will be deemed not to have been
received and be void.
3.3 Election Procedures. A Participant's Contribution Election shall
-------------------
continue in effect (with automatic adjustment for any change in his or her
Compensation) until the earliest of the date (1) his or her Contribution
Election is changed in accordance with paragraph (a) hereof; (2) he or she
ceases to be paid as an Eligible Employee; or (3) his or her Contribution
Election is cancelled in accordance with paragraph (b) hereof.
(a) Changing the Election. A Participant may increase or decrease his
---------------------
or her Contribution Percentage (subject to the percentage limits stated
above) only once each Change Date by making a new Contribution Election,
pursuant to procedures specified by the responsible Named Fiduciary, on
which is specified the amount of the Contribution Percentage.
(1) If such Contribution Election is received by the Notice
Date, the change shall be effective with respect to the
first payroll cycle ended after the Change Date.
(2) However, if the Administrator deems it necessary, the
Administrator may specify an additional window period to
Participants.
(3) The amount of increase or decrease of such Contribution
Percentage shall be effective only with respect to
Compensation not yet paid.
(4) Any Contribution Election which has not been properly
completed will be deemed not to have been received and be
void.
(b) Canceling the Election. A Participant desiring to cancel his or
----------------------
her existing Contribution Election and reduce his or her Contribution
Percentage to zero must make a new Contribution Election, pursuant to
procedures specified
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
by the responsible Named Fiduciary. The responsible Named Fiduciary will
establish procedures, to be administered in a uniform and nondiscriminatory
manner, for allowing a Participant to cancel his or her Contribution
Election. Any Contribution Election received on or before a Notice Date
shall become effective with respect to the payroll cycle ended after the
next Change Date. A Participant who is an Eligible Employee and who has
cancelled his or her Election may again make a Contribution Election at any
time. If such Contribution Election is received by the Notice Date, it
shall become effective with respect to the first payroll cycle ended after
the next Change Date, provided at least the number of months of suspension
required in an Appendix applicable to the Employee have elapsed since the
effective date of the cancellation. Any Participant who has improperly
completed a Contribution Election will be deemed not to have made an
Election.
3.4 Limitation of Elective Deferrals for all Participants. A
-----------------------------------------------------
Participant's Limited Deferrals for any calendar year shall not exceed the
Contribution Dollar Limit. If a Participant advises the Administrator that he
or she has Elective Deferrals (reduced by Elective Deferrals previously
distributed or which are recharacterized as a result of the application of Code
Section 401(k)(3) to such Participant) in excess of the Contribution Dollar
Limit ("Excess Deferral"), the Administrator shall return such Excess Deferrals
for the taxable year to the Participant. To the extent the Participant's
Limited Deferrals exceed the Contribution Dollar Limit, the Employer may notify
the Plan on behalf of the Participant (and "Excess Deferral" shall be calculated
by taking into account only Limited Deferrals). If such advice was received by
the Administrator during the taxable year, the Plan shall distribute the Excess
Deferral as soon as administratively feasible. If such advice was received by
the Administrator after the taxable year but no later than March 1 following the
close of the taxable year, the Administrator shall cause the Plan to return such
Excess Deferral no later than April 15 immediately following the end of such
taxable year, adjusted by income allocable to that amount.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
The net investment gain or loss associated with the Excess Deferral is
calculated as follows:
G
E x -------- x (1 + (10% x M)
(AB-G)
where:
E = the Excess Deferral amount,
G = the net gain or loss for the Plan Year in the Participant's Pre-Tax
Account,
AB = the total value of the Participant's Pre-Tax Account, determined as
of the end of the calendar year being corrected,
M = the number of full months from the calendar year end to the date the
excess amount is paid, plus one for the month during which payment
is to be made if payment will occur after the 15th of that month.
If the application of the limitations in this Section results in a reduction of
previously contributed Pre-Tax Contributions on behalf of a Participant,
Matching Contributions or ESOP Matching Contributions allocable with respect
thereto (prior to such reduction) which are not distributed under the ACP Test
shall be forfeited.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE IV
- --------------------------------------------------------------------------------
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------
4.1 Participant Contributions.
-------------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the terms of
this Plan, for each period for which a Contribution Election is in effect,
the Employer shall contribute to the Plan on behalf of each Participant who
is an Eligible Employee an amount equal to the amount designated by the
Participant as a Pre-Tax or Post-Tax Contribution on his or her
Contribution Election.
(b) Allocation. Any Pre-Tax Contribution shall be allocated to the
----------
Pre-Tax Account of the Participant with respect to whom the amount is paid
and any Post-Tax Contribution shall be allocated to the Post-Tax Account of
the Participant with respect to whom the amount is paid.
(c) Timing, Medium and Posting. Pre-Tax and Post-Tax Contributions
--------------------------
shall be paid to the Custodian in cash and posted to each Participant's
Pre-Tax or Post-Tax Account, respectively, by the Administrator as soon as
such amounts can reasonably be balanced against the specific amount made on
behalf of each Participant. Pre-Tax and Post-Tax Contributions shall be
paid to the Custodian not later than the fifteenth (15th) day of the month
next following the month in which amounts are deducted from the
Participant's Compensation.
4.2 Matching Contributions.
----------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each period for which Participants' Contributions are made, the Employer
shall make Matching Contributions as described in the following Allocation
Method paragraph on behalf of each Participant who is an Eligible Employee
and who contributed during the period.
(b) Allocation Method. The Matching Contributions for each period
-----------------
with respect to each Participant shall be the amount, if any, as is
described in an Appendix which applies to such Participant. The Employer
may change the matching rate to any other percentages, including zero (0%).
(c) Timing, Medium and Posting. The Employer shall make each
--------------------------
period's Matching Contribution in cash as soon as is feasible as of or
after the
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
date provided in an applicable Appendix, and not later than the Employer's
federal tax filing date, including extensions, for deducting such
Contribution. The Administrator shall post such amount to each
Participant's ESOP Matching Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be credited
to each Participant's ESOP Matching Account.
(d) Compensation. Compensation from the Employer shall be measured
------------
by the period (not to exceed the Plan Year) for which the Contribution is
being made provided the Eligible Employee is a Participant during such
period.
4.3 ESOP Matching Contributions.
---------------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each period for which Participants' Contributions are made, the Employer
shall make ESOP Matching Contributions as described in the following
Allocation Method paragraph on behalf of each Participant who is an
Eligible Employee and who contributed during the period.
(b) Allocation Method. The ESOP Matching Contributions for each
-----------------
period with respect to each Participant shall be the amount, if any, as is
described in an Appendix which applies to such Participant. The Employer
may change the matching rate to any other percentages, including zero (0%).
(c) Timing, Medium and Posting. The Employer shall make each
--------------------------
period's ESOP Matching Contribution in cash as soon as is feasible as of or
after the date provided in an applicable Appendix, and not later than the
Employer's federal tax filing date, including extensions, for deducting
such Contribution. The Administrator shall post such amount to each
Participant's ESOP Matching Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be credited
to each Participant's ESOP Matching Account.
(d) Compensation. Compensation from the Employer shall be measured by
------------
the period (not to exceed the Plan Year) for which the Contribution is
being made provided the Eligible Employee is a Participant during such
period.
4.4 Formula Based Contributions.
---------------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each period the formula is in effect, the Employer shall make a Formula
Based
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Contribution with respect to each Participant who is an Eligible Employee
in the amount, if any, as is described in an Appendix which applies to such
Participant.
(b) Allocation Method. The Formula Based Contribution for each period
-----------------
shall be allocated among eligible Participants in the manner provided in an
Appendix which applies to each such Participant.
(c) Timing, Medium and Posting. The Employer shall make each period's
--------------------------
Formula Based Contribution in cash as soon as is feasible as of or after
the date provided in an applicable Appendix, and not later than the
Employer's federal tax filing date, including extensions, for deducting
such Contribution. The Administrator shall post such amount to each
Participant's Formula Based Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be credited
to each Participant's Formula Based Account.
(d) Compensation. Compensation from the Employer shall be measured by
------------
the period (not to exceed the Plan Year) for which the Contribution is
being made provided the Eligible Employee is a Participant during such
period.
4.5 Special Contributions.
---------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each Plan Year, the Employer may make a Special Contribution in an amount
determined by the Administrator on behalf of each Non-Highly Compensated
Employee Participant who is an Eligible Employee.
(b) Allocation Method. The Special Contribution for each period
-----------------
shall be allocated among eligible Participants as determined by the
Administrator, subject to a maximum dollar amount which may be contributed
on behalf of any Participant as determined by the Administrator.
(c) Timing, Medium and Posting. The Employer shall make each period's
--------------------------
Special Contribution in cash as soon as is feasible, but no later than
twelve (12) months after the end of the Plan Year to which it is allocated.
The Administrator shall post such amount to each Participant's Special
Account once the total Contribution received by the Custodian has been
balanced against the specific amount to be credited to each Participant's
Special Account.
(d) Compensation. Compensation from the Employer shall be measured by
------------
the period (not to exceed the Plan Year) for which the
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Contribution is being made, provided the Eligible Employee is a Participant
during such period.
4.6 Miscellaneous.
-------------
(a) Deduction Limits. In no event shall the Employer Contributions
----------------
for a Plan Year exceed the maximum the Company estimates will be deductible
(or which would be deductible if the Employers had taxable income) by any
Employer or Commonly Controlled Entity under Section 404 of the Code
("Deductible Amount"). Any amount in excess of the Deductible Amount shall
not be contributed in the following order of Contribution type, to the
extent needed to eliminate the excess:
(1) Each Participant's allocable share of Pre-Tax Contributions
for the Plan Year will be reduced by an amount equal to the
excess of the Participant's Pre-Tax Contributions over an
amount which bears the same ratio to the amount of Pre-Tax
Contributions made to the Plan on behalf of such Participant
during the Plan Year as the Deductible Amount available for
the Plan Year (reduced by the total amount of other types of
Employer Contributions for the Plan Year) bears to the
aggregate Pre-Tax Contributions made to the Plan on behalf
of all Participants subject to such Deductible Amount during
the Plan Year (before the application of this provision).
(2) If the application of Section (a)(1) would result in a
reduction of a Participant's Pre-Tax Contributions which are
matched by Matching Contributions or ESOP Matching
Contributions, the rate at which Pre-Tax Contributions are
reduced shall be offset by a reduction for each Matching
Contribution or ESOP Matching Contribution not made as a
result.
(3) Formula Based Contributions.
(b) Profit Sharing Plan. Notwithstanding anything herein to the
-------------------
contrary, the Plan shall constitute a profit sharing plan for all purposes
of the Code.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE V
- --------------------------------------------------------------------------------
ROLLOVERS
---------
5.1 Rollovers. The Administrator may authorize the Custodian to accept a
---------
Rollover Contribution from an Eligible Employee if Rollover Contributions are
allowed with respect to such Eligible Employee in an Appendix which applies to
such Eligible Employee. In such case, the Employee shall furnish satisfactory
evidence to the Administrator that the amount is eligible for rollover
treatment. Such amount shall be posted to the Employee's Rollover Account by
the Administrator as of the date received by the Custodian.
If it is later determined that an amount transferred pursuant to the above
paragraph did not in fact qualify as a Rollover Contribution, the balance
credited to the Employee's Rollover Account shall immediately be (1) segregated
from all other Plan assets, (2) treated as a non-qualified trust established by
and for the benefit of the Employee, and (3) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the
Plan.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE VI
- --------------------------------------------------------------------------------
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS
---------------------------------
6.1 Individual Participant Accounting.
---------------------------------
(a) Account Maintenance. The responsible Named Fiduciary shall cause
-------------------
the Account for each Participant to reflect transactions involving assets
of the Account in accordance with this Article. Financial transactions
during or with respect to an Accounting Period shall be accounted for at
the individual Account level by "posting" each transaction to the
appropriate Account of each affected Participant. Participant Account
values shall be maintained in units. At any point in time, the value of a
Participant's Accrued Benefit shall be equal to the net Unit Value of his
or her Account determined by using the most recent Trade Date values
provided by the Custodian.
(b) Trade Date Accounting and Investment Cycle. For any transaction
------------------------------------------
to be processed as of a Trade Date, the responsible Named Fiduciary must
receive instructions by the Sweep Date and such instructions shall apply
only to amounts held in or posted to the Accounts as of the Trade Date.
Financial transactions in an Investment Fund shall be posted to a
Participant's Account as of the Trade Date and based upon the Trade Date
values provided by the Custodian. All transactions shall be effected on
the Settlement Date relating to the Trade Date (or as soon as is
administratively feasible).
(c) Suspension of Transactions. Whenever the responsible Named
--------------------------
Fiduciary considers such action to be in the best interest of the
Participants, the Administrator in its discretion may suspend from time to
time the Trade Date.
(d) Temporary Investment. To the extent practicable, the responsible
--------------------
Named Fiduciary shall direct the Custodian to make temporary investments in
a short term interest fund of assets in an Account held pending a Trade
Date.
(e) How Fees and Expenses are Charged to Participants. Account
-------------------------------------------------
maintenance fees to the extent not paid by the Employer shall be charged
prorata to each Participant's Account on the basis of each Participant's
Accrued Benefit, provided that no fee shall reduce a Participant's Account
balance below zero. Transaction type fees (such as special asset fees,
Conversion Election change fees, etc.) shall be charged to the Accounts
involved in the transaction. Fees and expenses incurred for the management
and maintenance of Investment Funds shall be charged at the Investment Fund
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
level and reflected in the net gain or loss of each Fund to the extent not
paid by the Employer.
(f) Error Correction. The Administrator may correct any errors or
----------------
omissions in the administration of the Plan by restoring or charging any
Participant's Accrued Benefit with the amount that would be credited or
charged to the Account had no error or omission been made. Funds necessary
for any such restoration shall be provided through payment made by the
responsible Named Fiduciary.
(g) Accounting for Participant Loans. Participant loans shall be
--------------------------------
held in a separate Fund for investment only by such Participant and
accounted for in dollars as an earmarked asset of the borrowing
Participant's Account.
6.2 Accounting for Investment Funds.
-------------------------------
(a) Unit Accounting. The investments in each Investment Fund
---------------
designated in the Appendix shall be maintained in full and fractional
units. The responsible Named Fiduciary is responsible for determining the
number of full and fractional units of each such Fund. To the extent an
Investment Fund is comprised of a collective investment fund of the
Custodian, the net asset and unit values shall be determined in accordance
with the rules governing such collective investment funds, which are
incorporated herein by reference. Fees and expenses incurred for the
management and maintenance of Investment Funds shall be charged at the
Investment Fund level and reflected in the net gain or loss of each Fund to
the extent not paid by the Employer.
(b) Accounting for Company Stock. The following additional rules
----------------------------
shall apply to the Company Stock Fund:
(1) Shareholder Rights. Shareholder Rights with respect to all
------------------
Company Stock in an Account shall be exercised by the
Trustee in accordance with directions from the Participant
pursuant to the procedures of the Trust Agreement.
(2) Tender Offer. If a tender offer is commenced for Company
------------
Stock, the provisions of the Trust Agreement regarding the
response to such tender offer, the holding and investment of
proceeds derived from such tender offer and the substitution
of new securities for such proceeds shall be followed.
(3) Dividends and Income. Dividends (whether in cash or in
--------------------
property) and other income received by the Custodian in
respect of Company Stock shall be reinvested in Company
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Stock and shall constitute income and be recognized on an
accrual basis for the Accounting Period in which occurs the
record date with respect to such dividend; provided that,
with respect to any dividend which is reflected in the
market price of the underlying stock, the Administrator
shall direct the Custodian during such trading period to
trade such stock the regular way to reflect the value of the
dividend, and all Fund transfers and cash distributions
shall be transacted accordingly with no accrual of such
dividend, other than as reflected in such market price.
(4) Transaction Costs. Any brokerage commissions, transfer
-----------------
taxes, transaction charges, and other charges and expenses
in connection with the purchase or sale of Company Stock
shall be added to the cost thereof in the case of a purchase
or deducted from the proceeds thereof in the case of a sale;
provided, however, where the purchase or sale of Company
Stock is with a "disqualified person" as defined in Section
4975(e)(2) of the Code or a "party in interest" as defined
in Section 3(14) of ERISA, no commissions may be charged
with respect thereto.
6.3 Accounts for QDRO Beneficiaries. A separate Account shall be
-------------------------------
established for a Beneficiary entitled to any portion of a Participant's Account
under a QDRO as of the date and in accordance with the directions specified in
the QDRO. Such Account shall be valued and accounted for in the same manner as
any other Account.
(a) Investment Direction. A QDRO Beneficiary may direct the
--------------------
investment of such Account in the same manner as any other Participant.
(b) Distributions. A QDRO Beneficiary shall be entitled to payment
-------------
as provided in the QDRO and permissible under the otherwise applicable
terms of this Plan, regardless of whether the Participant is an Employee,
and to name a Beneficiary as specified in the QDRO.
(c) Participant Loans. A QDRO Beneficiary shall not be entitled to
-----------------
borrow from his or her Account. If a QDRO specifies that the QDRO
Beneficiary is entitled to any portion of the Account of a Participant who
has an outstanding loan balance, all outstanding loans shall continue to be
held in the Participant's Account and shall not be divided between the
Participant's and QDRO Beneficiary's Accounts.
6.4 Special Accounting During Conversion Period. The responsible Named
-------------------------------------------
Fiduciary and Custodian may use any reasonable accounting methods in performing
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
their respective duties during the period of converting the prior accounting
system of the Plan and Trust to conform to the individual Participant accounting
system described in this Section. This includes, but is not limited to, the
method for allocating net investment gains or losses and the extent, if any, to
which contributions received by and distributions paid from the Trust during
this period share in such allocation. All or a portion of the Trust assets may
be held, if necessary, in a short term interest bearing vehicle, which may
include deposits of the Trustee, during the conversion period for establishing
such individual Participant Accounts.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE VII
- --------------------------------------------------------------------------------
INVESTMENT FUNDS AND ELECTIONS
------------------------------
7.1 Investment Funds. Except for a Participant's loan Account, the Trust
----------------
shall be maintained in various Investment Funds. The Administrator may change
the number or composition of the Investment Funds, subject to the terms and
conditions agreed to with the Custodian.
7.2 Investment of Contributions.
---------------------------
(a) Investment Election. Each Participant may direct the Trustee, by
-------------------
submission to the responsible Named Fiduciary of a completed Investment
Election provided for that purpose by the responsible Named Fiduciary, to
invest Contributions posted to his or her Accounts in one or more
Investment Funds which are available for investments by such Participant,
as described in an Appendix which applies to such Participant; provided
however, a Participant may not make an Investment Election with respect to
an ESOP Matching Contribution. All ESOP Matching Contributions will be
invested in the Company Stock Fund.
(b) Effective Date of Investment Election; Change of Investment
-----------------------------------------------------------
Election. A Participant's initial Investment Election will be effective
--------
with respect to a Fund on the Trade Date which relates to the Sweep Date on
which or prior to which the Investment Election is received pursuant to
procedures specified by the responsible Named Fiduciary. Any Investment
Election which has not been properly completed will be deemed not to have
been received. A Participant's Investment Election shall continue in
effect, notwithstanding any change in his or her Compensation or his or her
Contribution Percentage, until the earliest of (1) the effective date of a
new Investment Election, or (2) the date he or she ceases to be paid as an
Eligible Employee. A change in Investment Election shall be effective with
respect to a Fund on the Trade Date which relates to the Sweep Date on
which or prior to which the Administrator receives the Participant's new
Investment Election. Any Investment Election which has not been properly
completed will be deemed not to have been received.
(c) Switching Fees. A reasonable processing fee may be charged
--------------
directly to a Participant's Account for Investment Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
7.3 Investment of Accounts.
----------------------
(a) Conversion Election. Notwithstanding a Participant's Investment
-------------------
Election, a Participant or Beneficiary may direct the Trustee, by
submission of a completed Conversion Election provided for that purpose to
the responsible Named Fiduciary, to change the interest his or her Accrued
Benefit has in one or more Investment Funds to one or more Investment Funds
which are available for investments by such Participant, as described in an
Appendix which applies to such Participant; provided however, a Participant
may not make a Conversion Election with respect to the ESOP Matching
Account. Each ESOP Matching Account will be invested in the Company Stock
Fund.
(b) Effective Date of Conversion Election. A Conversion Election to
-------------------------------------
change a Participant's or Beneficiary's investment of his or her Accrued
Benefit in one Investment Fund to another Fund shall be effective with
respect to such Funds on the Trade Date(s) which relates to the Sweep Date
on which or prior to which the Election is received pursuant to procedures
specified by the responsible Named Fiduciary. Notwithstanding the
foregoing, to the extent required by any provisions of an Investment Fund,
the effective date of any Conversion Election may be delayed or the amount
of any permissible Conversion Election may be reduced. Any Conversion
Election which has not been properly completed will be deemed not to have
been received.
(c) Switching Fees. A reasonable processing fee may be charged
--------------
directly to a Participant's Account for Conversion Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
(d) Diversification Election. The Participant's ESOP Matching
------------------------
Account shall be invested solely in the Company Stock Fund, except that
each Qualified Participant shall be permitted to make an investment
diversification election to transfer amounts during the Qualified Election
Period from his ESOP Matching Account to his Matching Account and
thereafter make such investment elections with respect to his Matching
Account as may be permitted hereunder. The portion of a Qualified
Participant's ESOP Matching Account which is subject to the investment
diversification election with respect to the first, second, third and
fourth Plan Year of the Qualified Election Period shall be no greater than
twenty-five percent (25%), and with respect to the fifth Plan Year of the
Qualified Election Period shall be no greater than fifty percent (50%), of
the number of units of the Company Stock Fund that have ever been allocated
to the Participant's ESOP Matching Account on or before the Valuation Date
as of which the investment diversification election is made, reduced by the
aggregate number of units of the Company Stock Fund which have been
liquidated pursuant to an investment diversification election by such
Qualified Participant prior to such Valuation Date. For this purpose, the
number of units shall be adjusted proportionately if the Company Stock Fund
is ever
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
recapitalized in a manner which reduces or increases the outstanding number of
units without a corresponding liquidation or contribution, respectively, of
assets based on the then current value of a unit. Notwithstanding the preceding,
a Qualified Participant shall have no right to make an investment
diversification election until the Valuation Date as of which the value of his
ESOP Matching Account is equal to or greater than $500.00.
7.4 Establishment of Investment Funds. The Administrator shall cause to
---------------------------------
be established one or more Investment Funds set forth in the Appendix. In
addition, the Administrator may, from time to time, in its discretion:
(a) limit investments in or transfers from an Investment Fund;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise reorganize an existing
Investment Fund; or
(d) add new Investment Funds to the Appendix which are available
through the Trust.
7.5 Transition Rules. Effective as of the date any Investment Fund is
----------------
added or deleted to an Appendix which applies to any Participant or Beneficiary,
each such Participant and Beneficiary shall have the opportunity to submit new
Investment Elections and Conversion Elections to the responsible Named Fiduciary
no later than the applicable Sweep Date. The responsible Named Fiduciary and
Custodian may use any reasonable accounting methods in performing their
respective duties during the period of transition from one Investment Fund to
another, including, but not limited to:
(a) designating into which Investment Fund a Participant's Accrued
Benefit will be invested if the Participant fails to submit a proper
Conversion Election;
(b) the method for allocating net investment gains or losses and the
extent, if any, to which amounts received by and distributions paid from
the Trust during this period share in such allocation;
(c) investing all or a portion of the Trust's assets in a short-term,
interest-bearing Fund during such transition period; or
(d) delaying any Trade Date during a designated transition period or
changing any Notice Date, Sweep Date or Change Date during such transition
period.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
7.6 Assets Transferred from the Whitman Plan. Assets received from the
----------------------------------------
Whitman Plan shall be invested on the date of receipt in the same Investment
Fund in this Plan as such assets were invested in the Whitman Plan on the date
of transfer.
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE VIII
- --------------------------------------------------------------------------------
VESTING AND FORFEITURES
-----------------------
8.1 Fully Vested Contribution Accounts.
----------------------------------
A Participant shall be fully vested and have a nonforfeitable right to
his or her Accrued Benefit in these Accounts at all times:
Post-Tax Account
Pre-Tax Account
Rollover Account
Special Account
8.2 Vesting; Payment of Accrued Benefit On or After Retirement or
-------------------------------------------------------------
Disability. A Participant's Accrued Benefit shall be fully vested and
- ----------
nonforfeitable upon the occurrence of any one or more of the following events:
(a) completion of at least the minimum number of years of Vesting
Service in the Vesting Schedule for a 100% nonforfeitable percentage;
(b) attainment of Normal Retirement Date or Early Retirement Date;
(c) his or her Termination of Employment for reason of a Disability;
or
(d) he or she dies while an Employee.
8.3 Vesting Schedule and Forfeitures.
--------------------------------
(a) Vesting. If a Participant has a Termination of Employment, the
-------
Participant shall be vested and have a nonforfeitable right to his or her
Accrued Benefit in his or her Matching, ESOP Matching and Formula Based
Accounts, determined in accordance with the following vesting schedule
(unless a separate vesting schedule is otherwise provided for in an
Appendix which applies to such Participant):
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<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Years of Vesting Service Nonforfeitable Percentage
-------------------------- -------------------------
Less than 1 year 0%
1 year but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 years or more 100%
Notwithstanding the preceding sentence, with respect to that portion of a
Participant's Accounts that is attributable to amounts transferred from the
Whitman Plan, the vested percentage of such Accounts shall be no less than
their vested percentage under the Whitman Plan as of the transfer's
effective date.
8.4 Forfeitures.
-----------
(a) Forfeiture Where Payment Commences After a Break in Service. If
------------------------------------------------------------
no Payment Date of a Participant's nonforfeitable Accrued Benefit occurs
before having incurred a Break in Service, that portion of the
Participant's Accrued Benefit (which is Employer-derived) which is
forfeitable as of his or her Termination of Employment shall be forfeited
as of the completion of a Break in Service. If the Participant is
reemployed as an Employee prior to having incurred a Break in Service, the
Forfeiture shall not occur. If the Participant is reemployed as an
Employee after incurring a Break in Service, the Participant shall be fully
vested and have a nonforfeitable interest in that portion of his or her
Accounts accrued prior to the Break in Service and not forfeited as a
result of such Break in Service. A Participant who incurs a Termination of
Employment with a zero vested interest in his or her Accrued Benefit (which
is Employer-derived) shall be deemed to have a Payment Date and a
Forfeiture of his or her Accrued Benefit as of such Termination of
Employment.
(b) Forfeiture Where Payment Commences Prior to a Break in Service.
--------------------------------------------------------------
If the Payment Date of a Participant's nonforfeitable percentage of his or
her Accrued Benefit occurs prior to having incurred a Break in Service,
that portion of his or her Accrued Benefit which is forfeitable shall be
forfeited as of the Payment Date. Thereafter, if such person is rehired as
an Employee prior to incurring a Break in Service, he or she shall be
entitled to make repayment to the Plan of the full amount distributed to
him or her on or after the Payment Date no later than (1) the date he or
she incurs a Break in Service, and (2) the last day of the 5-year period
commencing on or after his or her date of reemployment. Upon making
repayment in a single payment of the amount distributed to him or her, the
amount repaid shall be credited to the
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Participant's Account from which paid and the Forfeiture shall be
reinstated to his or her Accounts and invested in the same manner as the
Account to which it is posted. The amount required to restore such
Participant's Accounts shall be charged against the Plan's Forfeitures, and
if insufficient, be made up from additional Employer Contributions. Where a
Participant has been deemed to have a Payment Date because he or she had a
zero vested interest in his or her Accrued Benefit, he or she will be
deemed to have made the repayment required by this subparagraph on his or
her date of hire.
If the Employee makes the above-described repayment, such repayment
shall be considered to be the "investment in the contract" for purposes of
Sections 72(c)(1)(A), 72(f) and 402(e)(4)(D)(i) of the Code in relation to
the amount reinstated in his or her Account on account of the repayment.
8.5 Forfeiture Account.
------------------
A Forfeiture will be posted, no later than the end of the Plan Year in
which the Forfeiture arises, to the Forfeiture Account on the Settlement Date
for the Trade Date on which the Custodian, at the direction of the
Administrator, has converted the Forfeiture to cash. The Forfeiture Account
shall be invested in interest bearing deposits of the Custodian or short term
money market instruments. No later than the end of such Plan Year, the
Forfeiture Account shall be used in the following order: to reinstate Accrued
Benefits and to reduce Employer Contributions, as determined by the
Administrator and to pay expenses of the Plan.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE IX
- --------------------------------------------------------------------------------
PARTICIPANT LOANS
-----------------
9.1 Participant Loans Permitted. The Administrator is authorized to
---------------------------
establish and administer a loan program for a Participant who is an Eligible
Employee or a former Eligible Employee who is a "party in interest" under ERISA
pursuant to the terms and conditions set forth in this Article. All loan limits
are determined as of the Trade Date the Trustee reserves funds for the loan.
The funds will be disbursed to the Participant as soon as is administratively
feasible after the next following Settlement Date. Loans will be available to a
Participant only to the extent provided in the Appendix applicable to that
Participant.
9.2 Loan Funding Limits.
-------------------
The loan amount must meet the following limits:
(a) Plan Minimum Limit. The minimum amount for any loan is $1,000.00.
------------------
(b) Plan Maximum Limit. Subject to the legal limit described in (c)
------------------
below, the maximum a Participant may borrow, including the outstanding
balance of existing Plan loans, is fifty percent (50%) of his or her
following Accounts which are fully vested:
Pre-Tax Account
Special Account
Matching Account
Formula Based Account
ESOP Matching Account
Rollover Account
Post-Tax Account.
(c) Legal Maximum Limit. The maximum a Participant may borrow,
-------------------
including the outstanding balance of existing loans, is based upon the
value of his or her vested interest in this Plan and all other qualified
plans maintained by a Commonly Controlled Entity (the "Vested Interest").
The maximum amount is equal to fifty percent (50%) of his or her Vested
Interest, not to exceed $50,000. However, the $50,000 amount is reduced by
the Participant's highest outstanding balance of all loans from any
Commonly Controlled Entity's qualified plans during the 12-month period
ending on the day before the Trade Date on which the loan is made.
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9.3 Maximum Number of Loans. A Participant may have only one loan
-----------------------
outstanding at any given time, and any prior existing loan must be fully repaid
for sixty (60) days before a new loan may be secured.
9.4 Source of Loan Funding. A loan to a Participant shall be made solely
----------------------
from the assets of his or her following Accounts which are fully vested:
Pre-Tax Account
Special Account
Matching Account
Formula Based Account
Rollover Account
Post-Tax Account
ESOP Matching Account.
The available assets shall be determined first by Contribution Account and then
by investment type within each type of Contribution Account. The hierarchy for
loan funding by type of Contribution Account shall be the order listed in the
preceding Plan Maximum Limit paragraph. Within each Account used for funding,
amounts shall first be taken from the available cash in the Account and then
taken by type of investment in direct proportion to the market value of the
Participant's interest in each Investment Fund as of the Sweep Date on which the
loan is made.
9.5 Interest Rate. The interest rate charged on Participant loans shall
-------------
be fixed and equal to the Trustee's prime rate in effect on Monday of the week
in which the loan request is received by the responsible Named Fiduciary.
9.6 Repayment. Substantially level amortization shall be required of each
---------
loan with payments made at least monthly, through payroll deduction, provided
that payment can be made by check for advance loan payments, or when a
Participant is on an Authorized Leave of Absence, Disabled or transferred to the
employ of a Commonly Controlled Entity which is not participating in the Plan.
Loans may be prepaid in full or in part at any time. The loan repayment period
shall be as mutually agreed upon by the Participant and Administrator, not to
exceed five (5) years.
9.7 Repayment Hierarchy. Loan principal repayments shall be credited to
-------------------
the Participant's Contribution Accounts in the inverse of the order used to fund
the loan. Loan interest shall be credited to the Contribution Account in direct
proportion to the principal repayment. Loan payments are credited by investment
type based upon the Participant's current Conversion Election for that Account.
9.8 Loan Application, Note and Security. A Participant shall apply for
-----------------------------------
any loan in accordance with a procedure established by the responsible Named
Fiduciary. The responsible Named Fiduciary shall administer Participant loans
and shall specify the time frame for approving loan applications. All loans
shall be evidenced by a
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MIDAS RSP FOR HOURLY EMPLOYEES
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promissory note and security agreement and secured only by a Participant's
vested Account balance. The Plan shall have a lien on a Participant's Account to
the extent of any outstanding loan balance.
9.9 Default, Suspension and Acceleration Feature.
--------------------------------------------
(a) Default. A loan is treated as a default on the earlier of (i) the
-------
date any scheduled loan payment is more than ninety (90) days late,
provided that the Administrator may agree to a suspension of loan payments
for up to twelve (12) months for a Participant who is on an Authorized
Leave of Absence; or (ii) thirty (30) days from the time the Participant
receives written notice of the note being due and payable and a demand for
past due amounts.
(b) Actions upon Default. In the event of default, the Administrator
--------------------
will direct the Trustee to report the default as a taxable distribution.
As soon as a Plan withdrawal or distribution to such Participant would
otherwise be permitted, the Administrator will direct the Trustee to
execute upon its security interest in the Participant's Account by
segregating the unpaid loan balance from the Account, including interest to
the date of default, and to distribute the note to the Participant.
(c) Acceleration. A loan shall become due and payable in full once
------------
the Participant incurs a Termination of Employment.
9.10 Military Service. Loan repayments will be suspended under this Plan
----------------
as permitted under section 414(u) of the Code.
9.11 Loans from Whitman Plan. Each loan from the Whitman Plan, which is a
-----------------------
portion of assets and liabilities transferred to this Plan from the Whitman
Plan, shall be established as a loan from this Plan to the same Participant, the
note shall be credited to a separate Investment Fund for investment only by such
Participant and accounted for in dollars as an earmarked asset of the same
Account of the borrowing Participant as it had been reflected in the Whitman
Plan.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE X
- --------------------------------------------------------------------------------
IN-SERVICE WITHDRAWALS
----------------------
10.1 Withdrawals for General Hardship.
--------------------------------
(a) Requirements. To the extent permitted by an Appendix, a
------------
Participant may request the withdrawal of any amount from the vested
portion of his or her Accounts needed to satisfy a general hardship by
submitting a completed withdrawal request to the Administrator.
(b) General Hardship. General hardship will mean circumstances of
----------------
sufficient severity that a Participant is confronted by present or
impending financial ruin or his or her family is clearly endangered by
present or impending want or privation.
(c) Contribution Account Sources for Withdrawal. All available
-------------------------------------------
amounts must first be withdrawn from his or her Accounts under Sections
10.2 or 10.3 to the extent either such Section applies to such Participant
(as specified in an applicable Appendix). The remaining withdrawal amount
shall come only from his or her Accounts, in the following priority order
of Post-Tax Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
ESOP Matching Account
10.2 Withdrawals for 401(k) Hardship.
-------------------------------
(a) Requirements. To the extent permitted in an Appendix which
------------
applies to a Participant, each such Participant may request the withdrawal
of any amount from the portion of his or her Accounts to the extent vested
needed to satisfy a financial need by making a withdrawal request in
accordance with a procedure established by the Administrator. The
Administrator shall only approve those requests for withdrawals (1) on
account of a Participant's "Deemed Financial Need", and (2) which are
"Deemed Necessary" to satisfy the financial need.
(b) "Deemed Financial Need". Financial commitments relating to:
-----------------------
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MIDAS RSP FOR HOURLY EMPLOYEES
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(1) costs directly related to the purchase or construction
(excluding mortgage payments or balloon payments) of a
Participant's principal residence;
(2) the payment of expenses for medical care described in
Section 213(d) of the Code previously incurred by the
Participant, the Participant's Spouse, or any dependents of
the Participant (as defined in Section 152 of the Code) or
necessary for those persons to obtain medical care
described in Section 213(d) of the Code;
(3) payment of tuition and related educational fees and room
and board expenses for the next twelve (12) months of post-
secondary education for the Participant, his or her Spouse,
children or dependents (as defined in Section 152 of the
Code); or
(4) necessary payments to prevent the eviction of the
Participant from his or her principal residence or the
foreclosure on the mortgage of the Participant's principal
residence.
(c) "Deemed Necessary". A withdrawal is "deemed necessary" to
------------------
satisfy the financial need only if all of these conditions are met:
(1) the withdrawal may not exceed the dollar amount needed to
satisfy the Participant's documented Financial Hardship,
plus an amount necessary to pay federal, state, or local
income taxes or penalties reasonably anticipated to result
from such withdrawal;
(2) the Participant must have obtained all distributions, other
than Financial Hardship distributions, and all nontaxable
loans under all plans maintained by the Company or any
Commonly Controlled Entity;
(3) the Participant will be suspended from making Pre-Tax
Contributions and Post-Tax Contributions (or similar
contributions under any other qualified or nonqualified
plan of deferred compensation maintained by a Commonly
Controlled Entity) for at least twelve (12) months from the
date the withdrawal is received; and
(4) the Contribution Dollar Limit for the taxable year
immediately following the taxable year in which the
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Financial Hardship withdrawal is received shall be reduced
by the Elective Deferrals for the taxable year in which the
Financial Hardship withdrawal is received.
(d) Account Sources for Withdrawal. All available amounts must first
------------------------------
be withdrawn from his or her Accounts under Section 10.2 or 10.3 to the
extent either such Section applies to such Participant (as specified in an
applicable Appendix). The remaining withdrawal amount shall come only from
his or her Accounts, to the extent vested, in the following priority order
of Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
Pre-Tax Account
ESOP Matching Account
The amount that may be withdrawn from a Participant's Pre-Tax Account shall
not include earnings and Qualified Matching Contributions posted to his or
her Pre-Tax Account after the end of the Plan Year which ends before July
1, 1989.
10.3 Withdrawals for Participants over age 59 1/2 or who are Disabled.
----------------------------------------------------------------
(a) Requirements. To the extent permitted in an Appendix which
------------
applies to a Participant, each such Participant who is over age 59 1/2 or
who is Disabled may withdraw from the portion of his or her Accounts to the
extent vested listed in paragraph (b) below.
(b) Account Sources for Withdrawal. When requesting a withdrawal,
------------------------------
any withdrawal amount shall come only from his or her Accounts, to the
extent vested, in the following priority order of Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
Pre-Tax Account
Special Account
ESOP Matching Account.
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MIDAS RSP FOR HOURLY EMPLOYEES
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10.4 Unrestricted Withdrawals.
------------------------
(a) Requirements. To the extent permitted in an Appendix, withdrawal
------------
is permitted from an amount credited to any of the Accounts listed in
paragraph (b) below.
(b) Contribution Account Sources for Withdrawal. When requesting a
-------------------------------------------
withdrawal, any withdrawal amount shall come only from his or her Accounts,
in the following priority order of Accounts:
Post-Tax Account
Rollover Account
10.5 Withdrawal Processing.
---------------------
(a) Ordering of Post-Tax Account Withdrawals. To the extent of the
----------------------------------------
outstanding principal amount (excluding earnings) as of December 31, 1986
attributable to his or her Post-Tax Account, any withdrawal hereunder shall
be deemed first to be made therefrom, second from Post-Tax Contributions,
if any, made after December 31, 1986, plus earnings thereon in the same pro
rata manner as required by Code Section 72(e), and, thirdly, from earnings
on such principal amount as of December 31, 1986.
(b) Minimum Amount. There is no minimum payment for any type of
--------------
withdrawal.
(c) Permitted Frequency. The maximum number of withdrawals permitted
-------------------
in any Plan Year (other than for 401(k) Hardship) is two. For this
purpose, two types of withdrawals distributed in one payment shall
constitute one withdrawal.
(d) Application by Participant. A Participant must submit a
--------------------------
withdrawal request in accordance with a procedure established by the
responsible Named Fiduciary to the responsible Named Fiduciary to apply for
any type of withdrawal. Only a Participant who is an Employee may make a
withdrawal request.
(e) Approval by Responsible Named Fiduciary. The responsible Named
---------------------------------------
Fiduciary is responsible for determining that a withdrawal request conforms
to the requirements described in this Section and notifying the Custodian
of any payments to be made in a timely manner.
(f) Time of Processing. The Custodian shall process all withdrawal
------------------
requests which it receives by a Sweep Date, based on the value as of the
Trade Date to which it relates, and fund them on the next Settlement Date.
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MIDAS RSP FOR HOURLY EMPLOYEES
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The Custodian shall then make payment to the Participant as soon thereafter
as is administratively feasible.
(g) Medium and Form of Payment. The medium of payment for
--------------------------
withdrawals is either cash or direct deposit; provided however, a
withdrawal under either Section 10.3 or 10.4 may be paid, as directed by
the Participant, in whole shares of Company Stock to the extent the
withdrawal is funded from the Company Stock Fund. The form of payment for
withdrawals shall be a single installment.
(h) Investment Fund Sources. Within each Account used for funding a
-----------------------
withdrawal, amounts shall be taken by type of investment in direct
proportion to the market value of the Participant's interest in each
Investment Fund (which excludes the Participant's loans) at the time the
withdrawal is made.
(i) Direct Rollover. With respect to any cash payment hereunder in
---------------
excess of $200 which constitutes an Eligible Rollover Distribution, a
Distributee may direct the responsible Named Fiduciary to have all or some
portion of such payment (other than from a Post-Tax Account) paid in the
form of a Trustee Transfer, in accordance with procedures established by
the responsible Named Fiduciary, provided the responsible Named Fiduciary
receives written notice of such direction with specific instructions as to
the Eligible Retirement Plan on or prior to the applicable Sweep Date for
payment. If the Participant does not transfer all of such payment, the
minimum amount which can be transferred is $500.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XI
- --------------------------------------------------------------------------------
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT
-------------------------
11.1 Request for Distribution of Benefits.
------------------------------------
(a) Request for Distribution. Subject to the other requirements of
------------------------
this Article, a Participant may elect to have his or her vested Accrued
Benefit paid to him or her beginning upon any Settlement Date following
his or her Termination of Employment by submitting a completed distribution
election in accordance with a procedure established by the responsible
Named Fiduciary. Such election form shall include or be accompanied by a
notice which provides the Participant with information regarding all
optional times and forms of payment available. The election must be
submitted to the responsible Named Fiduciary by the Sweep Date that relates
to the Payment Date.
(b) Failure to Request Distribution. If a Participant has a
-------------------------------
Termination of Employment and fails to submit a distribution request in
accordance with a procedure established by the responsible Named Fiduciary
by the last Payment Date permitted under this Article, his or her vested
Accrued Benefit shall be valued as of the Valuation Date which immediately
precedes such latest date of distribution (called the "Default Valuation
Date") and a notice of such deemed distribution shall be issued to his or
her last known address as soon as administratively possible. If the
Participant does not respond to the notice or cannot be located, his or her
vested Accrued Benefit determined on the Default Valuation Date shall be
treated as a Forfeiture. If the Participant subsequently files a claim,
the amount forfeited (unadjusted for gains and losses) shall be reinstated
to his or her Accounts and distributed as soon as administratively
feasible, and such payment shall be accounted for by charging it against
the Forfeiture Account or by a contribution from the Employer of the
affected Participant.
11.2 Deadline for Distribution. In addition to any other Plan
-------------------------
requirements and unless the Participant elects otherwise, or cannot be located,
the Payment Date of a Participant's vested Accrued Benefit shall be not later
than sixty (60) days after the latest of the close of the Plan Year in which (i)
the Participant attains the earlier of age sixty-five (65) or his or her Normal
Retirement Date, (ii) occurs the tenth (10th) anniversary of the Plan Year in
which the Participant commenced participation, or (iii) the Participant had a
Termination of Employment. However, if the amount of the payment or the
location of the Participant (after a reasonable search) cannot be ascertained by
that deadline, payment shall be made no later than sixty (60) days after the
earliest date on which such amount or location is ascertained. In any case,
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the Payment Date of the Accrued Benefit of a Participant (i) who is not an
Employee or (ii) who is an Employee and who is a 5-percent owner (as defined in
Code Section 416), shall not be later than April 1 following the calendar year
in which the Participant attains age seventy and one-half (70 1/2) and each
December 31 thereafter and shall comply with the requirements of Section
401(a)(9) of the Code and the Treasury Regulations promulgated thereunder.
11.3 ESOP Matching Account. This Section 11.3 shall apply to the ESOP
---------------------
Matching Account and shall not eliminate any time of distribution available
under the Plan prior to January 1, 1998. Notwithstanding any other provision of
the Plan, other than such provisions as require the consent of the Participant
and the Participant's spouse to a distribution with a present value in excess of
$5,000, a Participant may elect to have the portion of the Participant's ESOP
Matching Account distributed as follows:
(a) If the Participant has a Termination of Employment by reason of
the attainment of age sixty-five (65), death, or incurs a Disability, the
distribution of such portion of the Participant's ESOP Matching Account
balance will begin not later than one year after the close of the Plan Year
in which such event occurs unless the Participant otherwise elects under
the provisions of the Plan other than this Section 11.3.
(b) If the Participant has a Termination of Employment for any reason
other than those enumerated in paragraph (a) above, and is not reemployed
by the Employer at the end of the fifth Plan Year following the Plan Year
of such Termination of Employment, distribution of such portion of the
Participant's ESOP Matching Account balance will begin not later than one
year after the close of the fifth Plan Year following the Plan Year in
which the Participant has a Termination of Employment unless the
Participant otherwise elects under the provisions of this Plan other than
this Section 11.3.
(c) If the Participant has a Termination of Employment for a reason
other than those described enumerated in paragraph (a) above, and is
employed by the Employer as of the last day of the fifth Plan Year
following the Plan Year of such Termination of Employment, distribution to
the Participant, prior to any subsequent Termination of Employment, shall
be in accordance with the terms of the Plan other than this Section 11.3.
11.4 Payment Form and Medium.
-----------------------
(a) General. A Participant's vested Accrued Benefit shall be paid in
-------
the form of:
(1) a single sum,
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(2) periodic installments as selected by the Participant, not to
exceed 15 years, or
(3) periodic distributions of at least $500.00, each in an
amount designated by the Participant but not to exceed two
distributions per Plan Year .
(b) ESOP Matching Account. This Section 11.4(b) shall apply to
---------------------
distributions from the ESOP Matching Account and shall not eliminate any time or
form of distribution available under the Plan prior to adoption of this
amendment. Notwithstanding any other provisions of the Plan regarding a
Participant's right to exercise a put option, in the case of a distribution of
Employer Securities which are not readily tradable on an established securities
market, the Plan shall provide the Participant with a put option that complies
with the requirements of section 409(h) of the Code. Such put option shall
provide that if an Employee exercises the put option, the Employer, or the Plan
if the Plan so elects, shall repurchase the Employer Securities as follows:
(1) If the distribution constitutes a Total Distribution, payment of
the Unit Value of a Participant's ESOP Matching Account balance
shall be made over a period not exceeding five (5) substantially
equal annual payments. The first installment shall be paid not
later than thirty (30) days after the Participant exercises the
put option. The Plan will pay a reasonable rate of interest and
provide adequate security on amounts not paid after thirty (30)
days.
(2) If the distribution does not constitute a Total Distribution,
the Plan shall pay the Participant an amount equal to the Unit
Value of the Employer Securities repurchased no later than
thirty (30) days after the Participant exercises the put option.
(c) Medium of Payment. Payments will generally be made in cash
-----------------
(generally by check); alternatively, if the Participant elects a single sum
distribution, a single sum payment will be made, as directed by the
Participant, in whole shares of Company Stock (to the extent his or her
distribution is funded from the Company Stock Fund). Any annuity option
permitted will be provided through the purchase of a non-transferable
single premium contract from an insurance company which must conform to the
terms of the Plan and Section 401(a)(9) of the Code and which will be
distributed to the Participant or Beneficiary in complete satisfaction of
the benefit due.
11.5 Small Amounts Paid Immediately. If a Participant has a Termination
------------------------------
of Employment and the Participant's vested Accrued Benefit is $5,000 or less,
the
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Participant's Accrued Benefit shall be paid as a single sum as soon as
administratively feasible after his or her Termination of Employment.
11.6 Payment Within Life Expectancy. The Participant's payment election
------------------------------
must be consistent with the requirement of Code Section 401(a)(9) that all
payments are to be completed within a period not to exceed the lives or the
joint and last survivor life expectancy of the Participant and his or her
Beneficiary. The life expectancies of a Participant and his or her spouse may be
recomputed annually.
11.7 Incidental Benefit Rule. The Participant's payment election must be
-----------------------
consistent with the requirement that, if the Participant's Spouse is not his or
her sole primary Beneficiary, the minimum annual distribution for each calendar
year, beginning with the year in which he or she attains age seventy and one-
half (70 1/2), shall not be less than the quotient obtained by dividing (a) the
Participant's vested Accrued Benefit as of the last Trade Date of the preceding
year by (b) the applicable divisor as determined under the incidental benefit
requirements of Code Section 401(a)(9).
11.8 QJSA and QPSA Information and Elections. The following information
---------------------------------------
and election rules will apply to any Participant who elects an annuity option
with respect to that portion of the Participant's Account which includes a
transfer from the Whitman Plan as of January 1, 1998.
(a) "QJSA". A qualified joint and fifty percent (50%) survivor
------
annuity, meaning a form of benefit payment which is the actuarial
equivalent of the Participant's applicable portion of the vested Accrued
Benefit at the Payment Date, payable to the Participant in monthly payments
for life and providing that, if the Participant's Spouse survives him or
her, monthly payments equal to fifty percent (50%) of the amount payable to
the Participant during his or her lifetime will be paid to the Spouse for
the remainder of such person's lifetime.
(b) "QPSA". A qualified pre-retirement survivor annuity, meaning
------
that upon the death of a Participant before the Payment Date of the
applicable portion of his or her vested Accrued Benefit, such benefit will
become payable to the surviving Spouse as an annuity, unless Spousal
Consent has been given to a different Beneficiary or the surviving Spouse
chooses a different form of payment.
(c) QJSA Information to a Participant. No more than ninety (90) days
---------------------------------
before the Payment Date, each Participant who has a Spouse and requests or
will receive an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of the QJSA to his or her
annuity; (2) the right to make an election to waive this form of payment
and choose an optional form of payment and the effect of this election; (3)
the right to revoke
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this election and the effect of this revocation; (4) the need for Spousal
Consent; and (5) the right of the Participant to consider, for at least
thirty (30) days, whether to waive the Qualified Joint and Survivor
Annuity.
(d) QJSA Election. A Participant may elect (and such election shall
-------------
include Spousal Consent if married), at any time within the ninety (90) day
period ending on the Payment Date, to (1) waive the right to receive the
QJSA and elect an optional form of payment; or (2) revoke or change any
such election.
(e) QJSA Spousal Consent to Participant Loans. Spousal Consent must
-----------------------------------------
be obtained for any Participant loan which is funded from any amount to
which the election in paragraph (d) above applies within the ninety (90)
day period ending on the date such loan is secured.
(f) QJSA Spousal Consent to Participant In-Service Withdrawals.
----------------------------------------------------------
Spousal Consent must be obtained for any Participant in-service withdrawal
which is funded from the applicable portion of his or her Account or any
portion of an Account to which the election in paragraph (d) above applies
within the ninety (90) day period ending on the date of such in-service
withdrawal.
(g) QPSA Beneficiary Information to Participant. Each married
-------------------------------------------
Participant who has requested or will receive an annuity form of payment
shall be given written information stating that (1) his or her death
benefit is payable to his or her surviving Spouse; (2) his or her ability
to choose that the benefit be paid to a different Beneficiary; (3) the
right to revoke or change a prior designation and the effects of such
revocation or change; and (4) the need for Spousal Consent. Such
information shall be provided during whichever of the following periods
ends later:
(1) the period that begins one year before the date on which
the Participant requests an annuity form of payment and
that ends one year after such date; and
(2) the period that begins with the first day of the Plan Year
in which the Participant attains age thirty-two (32) and
that ends with the close of the Plan Year in which the
Participant attains age thirty-five (35).
Notwithstanding the foregoing, if the Participant incurs a Termination of
Employment after requesting an annuity form of payment, but before
attaining age thirty-five (35), the information described in the first
sentence of this Subsection shall be provided during the period that begins
one year before the
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MIDAS RSP FOR HOURLY EMPLOYEES
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date of the Participant's Termination of Employment and that ends one year
after such date.
(h) QPSA Beneficiary Designation by Participant. A married
-------------------------------------------
Participant may designate (with Spousal Consent) a non-spouse Beneficiary
at any time after the Participant has been given the information in the
QPSA Beneficiary Information to Participant paragraph above and upon the
earlier of (1) the date the Participant incurs a Termination of Employment,
or (2) the beginning of the Plan Year in which that Participant attains age
thirty-five (35).
11.9 Continued Payment of Amounts in Payment Status on January 1, 1998.
-----------------------------------------------------------------
Any person who became a Participant prior to January 1, 1998 only because he or
she had an Accrued Benefit and who had commenced to receive payments prior to
January 1, 1998 shall continue to receive such payments in the same form and
payment schedule under this Plan.
11.10 TEFRA Transitional Rule. Notwithstanding any other provisions of
-----------------------
this Plan, distribution on behalf of any Participant may be made in accordance
with the following requirements (regardless of when such distribution
commences):
(a) The distribution must have been one provided for in the Plan.
(b) The distribution by the Plan is one which would not have
disqualified the Plan under Code Section 401(a)(9) as in effect prior to
amendment by TEFRA.
(c) The distribution is in accordance with a method of distribution
designated by the Participant whose interest is being distributed or, if
the Participant is deceased, by a Beneficiary of such Participant.
(d) Such designation was in writing, was signed by the Participant
or the Beneficiary, and was made before January 1, 1984.
(e) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(f) The method of distribution designated by the Participant or the
Beneficiary specifies the time at which distribution will commence, the
period over which distribution will be made, and in the case of any
distribution upon the Participant's death, the Beneficiaries of the
Participant listed in order of priority.
11.11 Direct Rollover. With respect to any payment in excess of $200
---------------
hereunder which constitutes an Eligible Rollover Distribution, a Distributee may
direct the Administrator to have such payment (other than from a Post-Tax
Account) paid
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MIDAS RSP FOR HOURLY EMPLOYEES
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in the form of a Trustee Transfer, in accordance with procedures established by
the Administrator, provided the responsible Named Fiduciary receives written
notice of such direction with specific instructions as to the Eligible
Retirement Plan on or prior to the applicable Sweep Date for payment. If the
Participant does not transfer all of such payment, the minimum amount which can
be transferred is $500.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XII
- --------------------------------------------------------------------------------
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
-----------------------------------------
12.1 Payment to Beneficiary. On the death of a Participant prior to his
----------------------
or her Payment Date, his or her vested Accrued Benefit shall be paid to the
Beneficiary or Beneficiaries designated by the Participant in accordance with
the procedure established by the responsible Named Fiduciary. Death of a
Participant on or after his or her Payment Date shall result in payment to his
or her Beneficiary of whatever death benefit is provided by the form of payment
in effect on his or her Payment Date.
12.2 Beneficiary Designation. Each Participant shall complete a
-----------------------
beneficiary designation indicating the Beneficiary who is to receive the
Participant's remaining Plan interest at the time of his or her death. The
Participant may change such designation of Beneficiary from time to time by
filing a new beneficiary designation with the Administrator. No designation of
Beneficiary or change of Beneficiary shall be effective until properly filed
with the Administrator. Notwithstanding any designation to the contrary, the
Participant's Beneficiary shall be the Participant's Spouse to whom the
Participant is legally married under the laws of the State of the Participant's
residence on the date of the Participant's death and surviving him or her on
such date, unless such designation includes Spousal Consent. If the Participant
dies leaving no Spouse and either (1) the Participant shall have failed to file
a valid beneficiary designation, or (2) all persons designated on the
beneficiary designation shall have predeceased the Participant, the
Administrator shall have the Custodian distribute such Participant's Accrued
Benefit in a single sum to his or her estate.
12.3 Benefit Election.
----------------
(a) Request for Distribution. In the event of a Participant's death
------------------------
prior to his or her Payment Date, a Beneficiary may elect to have the
vested Accrued Benefit of a deceased Participant paid to him or her
beginning upon any Settlement Date following the Participant's date of
death by submitting a completed distribution election in accordance with
the procedure established by the responsible Named Fiduciary. The election
must be submitted to the responsible Named Fiduciary by the Sweep Date that
relates to the Settlement Date upon which payments are to begin.
(b) Failure to Request Distribution. In the event a Beneficiary
-------------------------------
fails to submit a timely distribution request, his or her vested Accrued
Benefit shall be valued as of the Valuation Date which immediately precedes
such latest date of distribution (called the "Default Valuation Date") and
a notice of such deemed distribution shall be issued to his or her last
known address as soon
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MIDAS RSP FOR HOURLY EMPLOYEES
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as administratively possible. If the Beneficiary does not respond to the
notice or cannot be located, his or her vested Accrued Benefit determined
on the Default Valuation Date shall be treated as a Forfeiture. If the
Beneficiary subsequently files a claim, the amount forfeited (unadjusted
for gains and losses) shall be reinstated to his or her Accounts and
distributed as soon as administratively feasible, and such payment shall be
accounted for by charging it against the Forfeiture or by a Contribution
from the Employer of the affected Beneficiary.
12.4 Payment Form. In the event of a Participant's death after his or
------------
her Payment Date, payment shall be made in the form selected by the Participant.
Otherwise, a Beneficiary shall be limited to the same form and medium of payment
to which the Participant was limited. Payments will generally be made in cash
(by check); alternatively, if the Beneficiary elects an in-kind distribution, a
single sum payment will be made in a combination of cash and whole shares.
12.5 Time Limit for Payment to Beneficiary. Payment to a Beneficiary must
-------------------------------------
either:
(a) be completed within five (5) years of the Participant's death;
or
(b) begin within one year of his or her death and be completed
within the period of the Beneficiary's lifetime, except that:
(1) If the Participant dies after the April 1 immediately
following the end of the calendar year in which he or she
attains age seventy and one-half (70 1/2), payment to his
or her Beneficiary must be made at least as rapidly as
provided in the Participant's distribution election;
(2) If the surviving Spouse is the Beneficiary, payments need
not begin until the date on which the Participant would
have attained age seventy and one-half (70 1/2) and must be
completed within the Spouse's lifetime; and
(3) If the Participant and the surviving Spouse who is the
Beneficiary die (A) before the April 1 immediately
following the end of the calendar year in which the
Participant would have attained age seventy and one-half
(70 1/2); and (B) before payments have begun to the Spouse,
the Spouse will be treated as the Participant in applying
these rules.
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MIDAS RSP FOR HOURLY EMPLOYEES
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12.6 QPSA Information and Election. The following information and
-----------------------------
election rules will apply to any Beneficiary of a Participant who dies prior to
his or her Payment Date after having elected a life annuity option.
(a) Form of Payment. The applicable portion of a Participant's
---------------
vested Accrued Benefit will be paid in the form of a QPSA.
(b) QPSA Information to a Surviving Spouse. Each surviving Spouse
--------------------------------------
who requests an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of being paid his or her vested
Accrued Benefit in the form of a single life annuity, (2) the right to make
an election to waive this form of payment and choose an optional form of
payment and the effect of making this election, and (3) the right to revoke
this election and the effect of this revocation.
(c) QPSA Election by Surviving Spouse. A surviving Spouse may
---------------------------------
elect, at any time up to the Sweep Date associated with the Settlement Date
upon which payments will begin, to (1) waive the single life annuity and
elect an optional form of payment, or (2) revoke or change any such
election.
(d) Small Amounts Paid Immediately. If a Beneficiary's vested
------------------------------
Accrued Benefit is $5,000 or less, the Beneficiary's Accrued Benefit shall
be paid as a single sum as soon as administratively feasible.
12.7 Direct Rollover. With respect to any cash payment in excess of $200
---------------
hereunder which constitutes an Eligible Rollover Distribution, a Distributee may
direct the Administrator to have such payment (other than from a Post-Tax
Account) paid in the form of a Trustee Transfer, in accordance with the
procedure established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written Notice of such direction with
specific instructions as to the Eligible Retirement Plan on or prior to the
applicable Sweep Date for payment. If the Participant does not transfer all of
such payment, the minimum amount which can be transferred is $500.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XIII
- --------------------------------------------------------------------------------
MAXIMUM CONTRIBUTIONS
---------------------
13.1 Definitions.
-----------
(a) "Annual Additions" means with respect to a Participant for any
------------------
Plan Year the sum of:
(1) Contributions and Forfeitures (and any earnings thereon)
allocated as of a date within the Plan Year;
(2) All contributions, forfeitures and suspended amounts (and
income thereon) for such Plan Year, allocated to such
Participant's account(s) under any Related Defined
Contribution Plan as of a date within such Plan Year;
(3) The sum of all after-tax contributions of the Participant
to Related Plans for the Plan Year and allocated to such
Participant's accounts under such Related Plan as of a date
within such Plan Year ("Aggregate Employee Contributions");
(4) Solely for purposes of this Section, all contributions to
any "separate account" (as defined in Section 419A(d) of
the Code) allocated to such Participant as of a date within
the Plan Year if such Participant is a "Key Employee"
within the meaning of Code Section 416(i); and
(5) Solely for purposes of this Section, all contributions to
any "individual medical benefit account" (as defined in
Section 415(l) of the Code) allocated to such Participant
as of a date within the Plan Year.
(b) "Maximum Annual Additions" of a Participant for a Plan Year
--------------------------
means the lesser of:
(1) twenty-five percent (25%) of the Participant's
Compensation, or
(2) the greater of thirty thousand dollars ($30,000) or one-
quarter of the dollar limitation in Code Section
415(b)(1)(A) as adjusted for cost of living increases
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MIDAS RSP FOR HOURLY EMPLOYEES
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(determined in accordance with regulations prescribed by
the Secretary of the Treasury or his or her delegate
pursuant to the provisions of Section 415(d) of the Code).
(c) "Annual Excess" means, for each Participant affected, the amount
---------------
by which the allocable Annual Additions for such Participant exceeds or
would exceed the Maximum Annual Addition for such Participant.
13.2 Avoiding an Annual Excess. Notwithstanding any other provision of
-------------------------
this Plan, a Participant's "Annual Additions" for any Plan Year, which is hereby
designated as the "limitation year" for the Plan, as that term is used in
Section 415 of the Code, shall not exceed his or her "Maximum Annual Additions."
If, at any time during a Plan Year, the allocation of additional Contributions
for a Plan Year would produce an Annual Excess, the affected Participant shall
receive only the Maximum Annual Addition from Contributions, and, at the
direction of the responsible Named Fiduciary, for the remainder of the Plan Year
Contributions will be reduced, if possible, to the amount needed for each
affected Participant to receive only the Maximum Annual Addition.
13.3 Correcting an Annual Excess. If for any Plan Year as a result of a
---------------------------
reasonable error in estimating a person's Compensation, Elective Deferrals, or
such other facts and circumstances which the Internal Revenue Service will
permit, a Participant's Annual Excess shall be treated in the following manner:
(a) Aggregate Employee Contributions allocable under a Related Plan
shall be distributed to the Participant, if permitted, and then Post-Tax
Contributions to the Plan shall be distributed, by the amount of the Annual
Excess.
(b) If any Annual Excess remains, Pre-Tax Contributions (and
earnings thereon) shall be distributed to such Participant.
(c) If any Annual Excess (adjusted for investment gains and losses)
remains, Contributions shall be a Forfeiture for such Participant in the
following order:
(1) Matching Contributions;
(2) ESOP Matching Contributions;
(3) Formula Based Contributions.
(d) Any Forfeiture of a Participant's allocations of Contributions
under subparagraph 13.3(c) above shall be held in the Forfeiture Account
and shall be used for the Plan Year to reduce or applied as Contributions.
If any such amount remains in the Forfeiture Account, it shall again be
held in
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MIDAS RSP FOR HOURLY EMPLOYEES
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suspense in the Forfeiture Account and be utilized to reduce future
Contributions for succeeding Plan Years.
(e) Any amounts held in suspense in the Forfeiture Account pursuant
to Paragraph 13.3(d) above remaining upon Plan termination shall be
returned to the Employers in such proportions as shall be determined by the
Administrator.
13.4 Correcting a Multiple Plan Excess. If a Participant's Accounts have
---------------------------------
or would have an Annual Excess, the Annual Excess shall be corrected by reducing
the Annual Addition to this Plan before reductions have been made to other
Related Defined Contribution Plans.
13.5 Two-Plan Limit. If a Participant participates in any Related Defined
--------------
Benefit Plan, the sum of the "Defined Benefit Plan Fraction" (as defined
below) and the "Defined Contribution Plan Fraction" (as defined below) for
such Participant shall not exceed one (called the "Combined Fraction").
(a) "Defined Benefit Plan Fraction" means, for any Plan Year, a
-------------------------------
fraction, the numerator of which is the projected benefit payable pursuant
to Code Section 415(e)(2)(A) under all Related Defined Benefit Plans and
the denominator of which is the lesser of: (i) the product of 1.25 and the
dollar limit in effect for the Plan Year under Code Section 415(b)(1)(A),
and (ii) the product of 1.4 and one hundred percent (100%) of the
Participant's average Compensation for his or her high three (3) years.
(b) "Defined Contribution Plan Fraction" means, for any Plan Year, a
------------------------------------
fraction, the numerator of which is the sum of the Annual Additions (as
determined pursuant to Section 415(c) of the Code in effect for such Plan
Year) to a Participant's Accounts as of the end of the Plan Year under the
Plan or any Related Defined Contribution Plan, and the denominator of which
is the lesser of:
(1) The sum of the products of 1.25 and the dollar limit under
Code Section 415(c)(1)(A) for such Plan Year and for each
prior year of service with a Commonly Controlled Entity and
its predecessor, and
(2) the sum of the products of 1.4 and twenty-five percent
(25%) of the Participant's Compensation for such Plan Year
and for each prior year of service with a Commonly
Controlled Entity and its predecessor.
If the Combined Fraction of such Participant exceeds one and if the Related
Defined Benefit Plan permits it, the Participant's Defined Benefit Plan
Fraction
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MIDAS RSP FOR HOURLY EMPLOYEES
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shall be reduced by limiting the Participant's annual benefits
payable from the Related Defined Benefit Plan in which he or she
participates to the extent necessary to reduce the Combined Fraction of
such Participant to one.
13.6 Short Plan Year. With respect to any change of the Plan Year (and
---------------
co-existent limitation year), the dollar limitation of the Maximum Annual
Addition for such Plan Year shall be determined by multiplying such dollar
amount by a fraction, the numerator of which is the number of months (including
fractional parts of a month) in the short Plan Year, and the denominator of
which is twelve (12).
13.7 Grandfathering of Applicable Limitations. The Plan shall recognize
----------------------------------------
and apply any grandfathering of applicable benefits and contributions
limitations which are permitted under ERISA, the Tax Equity and Fiscal
Responsibility Act of 1982 and the Tax Reform Act of 1986.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XIV
- --------------------------------------------------------------------------------
ADP AND ACP TESTS
-----------------
14.1 Contribution Limitation Definitions. For purposes of this Article,
-----------------------------------
the following terms are defined as follows:
(a) "Average Contribution Percentage" or "ACP" means, separately,
-----------------------------------------
the average of the Calculated Percentage for Participants within the HCE
Group and the NHCE Group, respectively, for a Plan Year.
(b) "Average Deferral Percentage" or "ADP" means, separately, the
--------------------------------------
average of the Calculated Percentage calculated for Participants within the
HCE Group and the NHCE Group, respectively, for a Plan Year.
(c) "Calculated Percentage" means the calculated percentage for a
-----------------------
Participant. The calculated percentage refers to either the K-
Contributions (including amounts distributed because they exceeded the
Contribution Dollar Limit) with respect to Compensation which would have
been received by the Participant in the Plan Year but for his or her
Contribution Election, or M-Contributions allocated to the Participant's
Account as of a date within the Plan Year, divided by his or her
Compensation for such Plan Year.
(d) "HCE Group" and "NHCE Group" means, with respect to each
----------------------------
Employer and its Commonly Controlled Entities, the respective group of HCEs
and NHCEs who are eligible to have amounts contributed on their behalf for
the Plan Year, including Employees who would be eligible but for their
election not to participate or to contribute, or because their pay is
greater than zero but does not exceed a stated minimum, but subject to the
following:
(1) If the Related Plans are subject to the ADP or ACP Test,
and are considered as one plan for purposes of Code
Sections 401(a)(4) or 410(b) (other than 410(b)(2)), all
such plans shall be aggregated and treated as one plan for
purposes of meeting the ADP and ACP Tests provided that,
for Plan Years beginning after December 31, 1989, plans may
only be aggregated if they have the same Plan Year.
(2) If an HCE is covered by more than one cash or deferred
arrangement maintained by the Related Plans, all such
arrangements (other than arrangements in plans that are not
required to be aggregated for this purpose under
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Treas. Reg. (S)1.401(k)-1(g)(l)(ii)(B)) with respect to the
Plan Years ending with or within the same calendar year
shall be aggregated and treated as one arrangement for
purposes of calculating the separate percentage for the HCE
which is used in the determination of the Average
Percentage.
(e) "K-Contributions" shall include Pre-Tax Contributions
-----------------
(excluding Pre-Tax Contributions treated as Matching Contributions), but
shall exclude Limited Deferrals to this Plan made on behalf of any NHCE in
excess of the Contribution Dollar Limit. In addition, Deferrals may include
Qualified Matching Contributions and Special Contributions, but only to the
extent that (1) the Administrator elects to use them and (2) they meet the
requirements of Code Section 401(k) to be regarded as elective
contributions.
(f) "M-Contributions" shall include Matching, ESOP Matching and
-----------------
Post-Tax Contributions (excluding Qualified Matching Contributions), and
Pre-Tax Contributions which are recharacterized as Post-Tax Contributions.
In addition, M-Contributions may include Pre-Tax Contributions and Special
Contributions treated as Matching or ESOP Matching Contributions, but only
to the extent that (1) the Administrator elects to use them; and (2) they
meet the requirements of Code Section 401(m) to be regarded as matching
contributions. M-Contributions shall not include Matching or ESOP Matching
Contributions which become a Forfeiture because the Contribution to which
it relates is in excess of the ADP Test, ACP Test or the Contribution
Dollar Limit.
14.2 ADP and ACP Tests. For each Plan Year, the ADP and ACP for the HCE
-----------------
Group must meet either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group:
(a) Basic Limitation. The ADP or ACP for the HCE Group may not
----------------
exceed 1.25 times the ADP or ACP, respectively, for the NHCE Group.
(b) Alternative Limitation. The ADP or ACP for the HCE Group is
----------------------
limited by reference to the ADP or ACP, respectively, for the NHCE Group as
follows:
If the NHCE Group Then the Maximum HCE
Percentage is : Group Percentage is:
---------------- -------------------
Less than 2% 2 times ADP or ACP for the NHCE Group
2% to 8% ADP or ACP for the NHCE Group plus 2%
More than 8% Basic Limitation applies
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14.3 Correction of ADP and ACP Tests.
-------------------------------
(a) Reduction of K-Contributions or M-Contributions. If the ADP or
-----------------------------------------------
ACP are not met or will not be met, the Administrator shall determine a
maximum percentage to be used in place of the Calculated Percentage for
each HCE that would reduce the ADP or ACP of the HCE Group by a sufficient
amount to meet the ADP and ACP Tests.
(b) ADP Correction. Pre-Tax Contributions (including amounts
--------------
previously refunded because they exceeded the Contribution Dollar Limit)
shall be refunded to the Participant by the end of the next Plan Year in an
amount equal to the actual K-Contribution minus the product of the maximum
percentage for that HCE and the HCE's Compensation. Matching Contributions
with respect to such distributed Pre-Tax Contributions shall be forfeited
(unless paid to the Participant due to an ACP Correction).
(c) ACP Correction. Matching or ESOP Matching Contribution amounts
--------------
in excess of the maximum percentage of an HCE's Compensation shall, by the
end of the next Plan Year, be refunded to the Participant to the extent
vested, and forfeited to the extent such amounts were not vested as of the
end of the Plan Year being tested. The excess amounts shall first be taken
from unmatched Post-Tax Contributions, and then as a proportional
combination of matched Post-Tax and Matching or ESOP Matching
Contributions.
(d) Investment Fund Sources. Once the amount of Pre-Tax, Post-Tax
-----------------------
and Matching or ESOP Matching Contributions to be refunded is determined,
amounts shall then be taken by type of investment in direct proportion to
the market value of the Participant's interest in each Investment Fund
(which excludes Participant loans) as of the Trade Date as of which the
correction is processed.
14.4 Method of Calculation. The Administrator shall determine the
---------------------
maximum percentage for each HCE whose Calculated Percentage(s) is(are) the
highest at any one time by reducing his or her Calculated Percentage in the
following manner until the ADP and/or ACP Test is satisfied:
(a) The Calculated Percentage for each HCE under a Related Plan
shall be reduced to the extent permitted under such Related Plan.
(b) If more reduction is needed, the Calculated Percentage of each
HCE whose Calculated Percentage (stated in absolute terms) is the greatest
shall be reduced by one-hundredth (1/100) of one percentage point.
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MIDAS RSP FOR HOURLY EMPLOYEES
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(c) If more reduction is needed, the Calculated Percentage of each
HCE whose Calculated Percentage (stated in absolute terms) is the greatest
(including the Calculated Percentage of any HCE whose Calculated Percentage
was adjusted under Paragraph (b) shall be reduced by one-hundredth (1/100)
of one percentage point.
(d) If more reduction is needed, the procedures of Paragraph (c)
shall be repeated.
14.5 Multiple Use Test. If the Average Contribution Percentage and the
-----------------
Average Deferral Percentage for the HCE Group exceeds the Basic Limitation in
both the ADP or the ACP Tests (after correction of the ADP and ACP Test), the
ADP and ACP (as corrected) for the HCE Group must also comply with the
requirements of Code Section 401(m)(9), which as of the Effective Date require
that the sum of these two percentages (as determined after any corrections
needed to meet the ADP or ACP Tests have been made) must not exceed the greater
of:
(a) the sum of
(1) the larger of the ADP or ACP for the NHCE Group times 1.25;
and
(2) the smaller of the ADP or ACP for the NHCE Group, times two
(2) if the NHCE Average Percentage is less than two percent
(2%), or plus two percent (2%) if it is two percent (2%) or
more; or
(b) the sum of
(1) the lesser of the ADP or ACP for the NHCE Group times 1.25;
and
(2) the greater of the ADP or ACP for the NHCE Group, times two
(2) if the NHCE Average Percentage is less than two percent
(2%), or plus two percent (2%) if it is two percent (2%) or
more.
If the multiple use limit is exceeded, the Administrator shall determine a
maximum ADP or ACP for the HCE Group and shall reduce the ADP or ACP for
each HCE in the same manner as would be used to correct to ADP or ACP.
14.6 Adjustment for Investment Gain or Loss. The net investment gain or
--------------------------------------
loss associated with the K-Contributions and/or M-Contributions to be
distributed shall be distributed or charged against a distribution within two
and one-half (2 1/2) months
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MIDAS RSP FOR HOURLY EMPLOYEES
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but no later than twelve (12) months following the close of the applicable Plan
Year. Such gain or loss is calculated as follows:
G
E x -------- x (1 + (10% x M))
(AB-G)
where:
E = the total excess Deferrals or Contributions,
G = the net gain or loss for the Plan Year from all of an HCE's
affected Accounts,
AB = the total value of an HCE's affected Accounts, determined
as of the end of the Plan Year being corrected,
M = the number of full months from the Plan Year end to the
date excess amounts are paid, plus one for the month during
which payment is to be made if payment will occur after the
fifteenth (15th) of the month.
14.7 Required Records. The Administrator shall maintain records which
----------------
are sufficient to demonstrate that the ADP, ACP and Multiple Use Test has been
met for each Plan Year for at least as long as the Employer's corresponding tax
year is open to audit.
14.8 Incorporation by Reference. The provisions of this Section are
--------------------------
intended to satisfy the requirements of Code Sections 401(k)(3), (m)(2), (m)(9)
and Treas. Reg. (S)(S) 1.401(k)-1(b), 1.401(m)-1(b) and 1.401(m)-2 and, to the
extent not otherwise stated in this Section, those Code Sections and Treasury
Regulations are incorporated herein by reference.
14.9 Collectively Bargained Employees. The provisions of this Article
--------------------------------
shall apply separately to Participants who are collectively bargained employees
within the meaning of Treas. Reg. (S) 1.410(b)-6(d)(2) and for Participants who
are not collectively bargained employees to the extent required by law.
14.10 QSLOB. The Administrator in its sole discretion may apply the
-----
provisions of this Article separately with respect to each qualified separate
line of business, as defined in Section 414(r) of the Code.
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ARTICLE XV
- --------------------------------------------------------------------------------
CUSTODIAL ARRANGEMENTS
----------------------
15.1 Custodial Agreement. The Administrator may enter into one or more
-------------------
Custodial Agreements to provide for the holding, investment and payment of Plan
assets, or direct by execution of an insurance contract that all or a specified
portion of the Plan's assets be held, invested and paid under such a contract.
All Custodial Agreements, as from time to time amended, shall continue in force
and shall be deemed to form a part of the Plan. Subject to the requirements of
the Code and ERISA, the Administrator may cause assets of the Plan which are
securities to be held in the name of a nominee or in street name provided such
securities are held on behalf of the Plan by:
(a) a bank or trust company that is subject to supervision by the
United States or a State, or a nominee of such bank or trust company;
(b) a broker or dealer registered under the Securities Exchange Act
of 1934, or a nominee of such broker or dealer; or
(c) a "clearing agency" as defined in Section 3(a)(23) of the
Securities Exchange Act of 1934, or its nominee.
15.2 Selection of Custodian. The Administrator shall select, remove or
----------------------
replace the Custodian in accordance with the Custodial Agreement. The
subsequent resignation or removal of a Custodian and the approval of its
accounts shall all be accomplished in the manner provided in the Custodial
Agreement.
15.3 Custodian's Duties. Except as provided in ERISA, the powers, duties
------------------
and responsibilities of the Custodian shall be as stated in the Custodial
Agreement, and unless expressly stated or delegated to the Custodian (with the
Custodian's acceptance), nothing contained in this Plan shall be deemed by
implication to impose any additional powers, duties or responsibilities upon the
Custodian. All Employer Contributions and Rollover Contributions shall be paid
into the Trust, and all benefits payable under the Plan shall be paid from the
Trust, except to the extent such amounts are paid to a Custodian other than the
Trustee. An Employer shall have no rights or claims of any nature in or to the
assets of the Plan except the right to require the Custodian to hold, use, apply
and pay such assets in its hands, in accordance with the directions of the
Administrator, for the exclusive benefit of the Participants and their
Beneficiaries, except as hereinafter provided.
15.4 Separate Entity. The Custodial Agreement under this Plan from its
---------------
inception shall be a separate entity aside and apart from Employers or their
assets,
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and the corpus and income thereof shall in no event and in no manner whatsoever
be subject to the rights or claims of any creditor of any Employer.
15.5 Plan Asset Valuation. As of each Valuation Date, the Unit Value of
--------------------
the Plan's assets held or posted to an Investment Fund shall be determined by
the Administrator or the Custodian, as appropriate.
15.6 Right of Employers to Plan Assets. The Employers shall have no right
---------------------------------
or claim of any nature in or to the assets of the Plan except the right to
require the Custodian to hold, use, apply, and pay such assets in its possession
in accordance with the Plan for the exclusive benefit of the Participants or
their Beneficiaries and for defraying the reasonable expenses of administering
the Plan; provided, that:
(a) if the Plan receives an adverse determination with respect to its
initial qualification under Sections 401(a), 401(k) and 401(m) of the Code,
Contributions conditioned upon the qualification of the Plan shall be
returned to the appropriate Employer within one (1) year of such denial of
qualification; provided, that the application for determination of initial
qualification is made by the time prescribed by law for filing the
respective Employer's return for the taxable year in which the Plan is
adopted, or by such later date as is prescribed by the Secretary of the
Treasury under Section 403(c)(2)(B) of ERISA;
(b) if, and to the extent that, deduction for a Contribution under
Section 404 of the Code is disallowed, Contributions conditioned upon
deductibility shall be returned to the appropriate Employer within one (1)
year after the disallowance of the deduction;
(c) if, and to the extent that, a Contribution is made through
mistake of fact, such Contribution shall be returned to the appropriate
Employer within one year of the payment of the Contribution; and
(d) any amounts held suspended pursuant to the limitations of Code
Section 415 shall be returned to the Employers upon termination of the
Plan.
All Contributions made hereunder are conditioned upon the Plan being
qualified under Sections 401(a) or 401(k) and 401(m) of the Code and a
deduction being allowed for such contributions under Section 404 of the
Code. Pre-Tax and Post-Tax Contributions returned to an Employer pursuant
to this Section shall be paid to the Participant for whom contributed as
soon as administratively convenient. If these provisions result in the
return of Contributions after such amounts have been allocated to Accounts,
such Accounts shall be reduced by the amount of the allocation attributable
to such amount, adjusted for any losses or expenses.
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ARTICLE XVI
- --------------------------------------------------------------------------------
ADMINISTRATION AND INVESTMENT MANAGEMENT
----------------------------------------
16.1 General. The Company, through the authority vested in the Board of
-------
Directors, has established, by separate documentation, the Administrator and
Employee Benefits Committee, and has enabled each, respectively, to have the
power and authority to act, to the extent delegated to each, on behalf of the
Company (and therefore all Employers), with respect to matters which relate to
the Plan and Trust, but not on behalf of the Plan and Trust. Furthermore, the
Company has adopted the Plan and Trust, thereby:
(a) establishing a separate Administrator and Employee Benefits
Committee, and enabling each, respectively, to have the power and authority to
act, to the extent provided in the Plan or Trust, on behalf of the Plan or
Trust, but not on behalf of the Company; and
(b) enabling the Administrator and Employee Benefits Committee to
have the power and authority to act, to the extent provided in and the manner
provided in the Plan or Trust, on behalf of the Company, but not on behalf of
the Plan or Trust.
16.2 Administrator Acting as Employer. The Administrator has the
--------------------------------
following authority and control and such other authority and control as shall be
granted to it, from time to time, to act on behalf of the Company:
(a) amend or terminate the Plan to the extent permitted in the Plan;
(b) designate which employee groups are eligible to participate in
the Plan to the extent permitted in the Plan;
(c) select, monitor and remove, as necessary, consultants, actuaries,
underwriters, insurance companies, third party administrators, or other service
providers, and to appoint and remove any such person as a Named Fiduciary, and
determine and delegate to them their duties and responsibilities, either
directly or by the adoption of Plan provisions which specify such duties and
responsibilities (the provisions of the Plan documents will control in the case
of a conflict);
(d) appoint and consult with legal counsel, independent consulting or
evaluation firms, accountants, actuaries, or other advisors, as necessary, to
perform its functions;
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(e) determine what expenses, if any, related to the operation and
administration of the Plan and the investment of Plan assets, may be paid from
Plan assets, subject to applicable law;
(f) report to the CEO all Plan changes requiring his or her
approval;
(g) report to the CEO any Plan matters of significance to the
Company;
(h) review with the CEO any proposals which would be submitted to
the Board of Directors; and
(i) establish such policies and make such other delegations or
designations necessary or incidental to the Company's sponsorship of the Plan;
and
(j) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
16.3 Employee Benefits Committee Acting as Employer. The Employee
----------------------------------------------
Benefits Committee has the following authority and control and such other
authority and control, as shall be granted to it, from time to time, to act on
behalf of the Company:
(a) adopt, amend or terminate, in part or completely, a Trust
document, provided such action is consistent with the Plan for which the Trust
is established;
(b) appoint and consult with legal counsel, investment advisors,
independent consulting or evaluation firms, accountants, actuaries, or other
advisors, as necessary, to perform its functions;
(c) determine the funding policies of the Plan and related matters;
(d) report to the CEO any Plan funding or investment policies of
significance to the Company;
(e) review with the CEO any proposals which would be submitted to
the Board of Directors;
(f) establish such policies and make such other delegations or
designations necessary or incidental to the Company's sponsorship of the Plan or
Trust;
(g) select, monitor and remove, as necessary, consultants, actuaries,
underwriters, insurance companies, third party administrators, or other
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service providers, and to appoint and remove any such person as a Named
Fiduciary, and determine and delegate to them their duties and responsibilities,
either directly or by the adoption of Trust provisions which specify such duties
and responsibilities (the provisions of the Plan or Trust documents will control
in the case of a conflict); and
(h) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
16.4 Administrator as Named Fiduciary.
--------------------------------
(a) The Administrator, acting on behalf of the Plan or Trust and
subject to subsection (b) hereof, shall be a Named Fiduciary with respect to the
authority to manage and control the administration and operation of the Plan,
including without limitation, the management and control with respect to the
operation and administration of the Plan contained in an agreement with a Named
Fiduciary but only to the extent it has been specifically designated in such
agreement as being the responsibility of the Administrator, an Employer, the
Company, or any employee, member or delegate of any of them.
(b) The Administrator shall not be a Named Fiduciary whenever it acts
on behalf of the Company and, notwithstanding any other term or provision of the
Plan, Trust, or an agreement with a Named Fiduciary, the Administrator shall
cease to be a Named Fiduciary with respect to some specified portion of the
operation and administration of the Plan or Trust, to the extent that a Named
Fiduciary is designated pursuant to the procedure in the Plan or Trust to
severally have authority to manage and control such portion of the operation and
administration of the Plan or Trust.
16.5 Employee Benefits Committee as Named Fiduciary.
----------------------------------------------
(a) The Employee Benefits Committee, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to its authority to manage and control the Plan or Trust or the Plan's
assets, but only to the extent not inconsistent with the Plan or Trust.
(b) The Employee Benefits Committee shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Employee Benefits Committee shall cease to be a Named Fiduciary with respect to
some specified portion of the operation and administration of the Plan or Trust,
to the extent that a Named Fiduciary is designated pursuant to the procedure in
the Plan or Trust to severally have authority to manage and control such portion
of the operation and administration of the Plan or Trust.
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16.6 Employee Benefits Committee Membership. The Employee Benefits
--------------------------------------
Committee each consist of not less than 3 persons, who shall be appointed by the
CEO. Members shall remain in office at the will of the CEO and the CEO may from
time to time remove any of said members with or without cause and shall appoint
their successors.
16.7 Employee Benefits Committee Structure. Any individual may be a
-------------------------------------
member of the Employee Benefits Committee. Any member may resign by delivering
his or her written resignation to CEO, and such resignation shall become
effective upon the date specified therein. A member who is an Employee shall
automatically cease to be a member upon his or her Termination of Employment.
In the event of a vacancy in membership, the remaining members shall constitute
the Employee Benefits Committee in question with full power to act until said
vacancy is filled.
16.8 Actions. The Administrator or Employee Benefits Committee may act,
-------
whether as a Named Fiduciary on behalf of the Plan or on behalf of the Company,
as follows:
(a) The members may act at a meeting (including a meeting at
different locations by telephone conference) or in writing without a meeting
(through the use of a single document or concurrent document).
(b) Any member by writing may delegate any or all of his or her
rights, powers, duties and discretions to any other member with the consent of
such other member.
(c) The Administrator or Employee Benefits Committee shall act by
majority decision, which action shall be effective as if such action had been
taken by all members; provided that by majority action one or more members or
other persons may be authorized to act with respect to particular matters on
behalf of all members.
(d) Subject to applicable law, no member shall be liable for an act
or omission of the other members of the same committee in which the former had
not concurred.
(e) Any action by the Administrator or Employee Benefits Committee on
behalf of this Plan or Trust involving its authority to manage and control the
operation and administration of the Plan or Trust or the Plan's assets shall be
treated as an action of a Named Fiduciary under this Plan.
(f) Where reference is made in this Plan (or where the Administrator
or Employee Benefits Committee designates in writing) that its action is on
behalf of the Company, such committee shall be acting only on behalf of the
Company and not as a Named Fiduciary.
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(g) Except as provided in Section 16.25, the Administrator or
Employee Benefits Committee may, in writing delivered to the Trustee, empower a
representative to act on its behalf and such person shall have the authority to
act within the scope of such empowerment to the full extent the Employee
Benefits Committee could have acted.
16.9 Procedures for Designation of a Named Fiduciary. The Administrator
-----------------------------------------------
or Employee Benefits Committee, acting on behalf of the Company, may from time
to time, designate a person to be a Named Fiduciary with respect to some portion
of the authority it may have with respect to management and control of the
operation and administration of the Plan or the management and control of the
Plan's assets. Such designation shall specify the person designated by name and
either (a) specify the management and control authority with respect to which
the person will be a Named Fiduciary; or (b) incorporate by reference an
agreement with such person to provide services to or on behalf of the Plan or
Trust and use such agreement as a means for specifying the management and
control authority with respect to which such person will be a Named Fiduciary.
No person who is designated as a Named Fiduciary hereunder must consent to such
designation nor shall it be necessary for the Administrator or Employee Benefits
Committee to seek such person's acquiescence. The authority to manage and
control, which any person who is designated to be a Named Fiduciary hereunder
may have, shall be several and not joint with the Administrator or Employee
Benefits Committee, whichever is applicable, and shall result in the
Administrator or Employee Benefits Committee, whichever is applicable, no longer
being a Named Fiduciary with respect to, nor having any longer, such authority
to manage and control. On and after the designation of a person as a Named
Fiduciary, the Employer, the Administrator, the Employee Benefits Committee, and
any other Named Fiduciary with respect to the Plan or Trust, shall have no
liability for the acts (or failure to act) of any such Named Fiduciary except to
the extent of its co-Fiduciary duty under ERISA.
16.10 Compensation. The Administrator or members of the Employee Benefits
------------
Committee, acting on behalf of the Plan or Trust, shall serve without
compensation for their services as such.
16.11 Discretionary Authority of each Named Fiduciary. Each Named
-----------------------------------------------
Fiduciary on behalf of the Plan and Trust will enforce the Plan and Trust in
accordance with their terms. Each Named Fiduciary shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control) over that portion of the management,
administration, and operation of the Plan or Trust allocated to such Named
Fiduciary, including, but not limited to, the authority and discretion to:
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(a) formulate, adopt, issue and apply procedures and rules and
change, alter or amend such procedures and rules in accordance with law and as
may be consistent with the terms of the Plan or Trust;
(b) specify the basis upon which payments are to be made under the
Plan and, as the final appeals Fiduciary under ERISA Section 503, to make a
final determination, based upon the information known to the Named Fiduciary
within the scope of its authority and control as a Named Fiduciary, based upon
determinations made and such other information made available from an Employer
plus such final determinations made by each other Named Fiduciary within the
scope of its authority and control, as are determined to be relevant to the
final appeals Fiduciary;
(c) exercise such discretion as may be required to construe and apply
the provisions of the Plan or Trust, subject only to the terms and conditions of
the Plan or Trust; and
(d) take all necessary and proper acts as are required for such Named
Fiduciary to fulfill its duties and obligations under the Plan or Trust.
16.12 Responsibility and Powers of the Administrator Regarding
--------------------------------------------------------
Administration of the Plan. The Administrator shall have full and complete
- --------------------------
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control only if specifically provided) over that
portion of the management, administration, and operation of the Plan or Trust
allocated to the Administrator and the power to act on behalf of the Plan or
Trust, including, but not limited to, the authority and discretion to:
(a) appoint and compensate such specialists (including attorneys,
actuaries and accountants) to aid it in the administration of the Plan, and
arrange for such other services, as the Administrator considers necessary or
appropriate in carrying out the provisions of the Plan;
(b) appoint and compensate an independent outside accountant to
conduct such audits of the financial statements of the Trust as the
Administrator considers necessary or appropriate;
(c) settle or compromise any litigation against the Plan or a
Fiduciary with respect to which the Plan has an indemnity obligation;
(d) assure that the Plan does not violate any provisions of ERISA
limiting the acquisition or holding of Company Stock;
(e) appoint the Plan Administrator to act within the duties and
responsibilities set forth in Section 16.23;
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(f) act as the Fiduciary responsible for monitoring the
confidentiality and independent Fiduciary requirements associated with Company
Stock in order for the Plan to qualify as a Section 404(c) plan under Department
of Labor regulations;
(g) create a legal remedy to the Plan with respect to a Participant
or Beneficiary, or to a Participant or Beneficiary, for any loss incurred
(whether restitution or opportunity losses) by the Plan on behalf of such
Participant or Beneficiary, or by such Participant or Beneficiary, due to a
breach of Fiduciary duty to the Plan by a Named Fiduciary or other error
(whether negligent or willful) which the Administrator determines is a
substantial contributing factor to such loss (or a portion of such loss); and
(h) take all necessary and proper acts as are required for the
Administrator to fulfill its duties and obligations under the Plan or Trust.
16.13 Allocations and Delegations of Responsibility.
---------------------------------------------
(a) Delegations. Each Named Fiduciary may designate persons (other
-----------
than a Named Fiduciary) to carry out Fiduciary responsibilities (other than
trustee responsibilities as described in Section 405(c)(3) of ERISA) it may have
with respect to the Plan or Trust and make a change of delegated
responsibilities. Such delegation shall specify the delegated person by name
and either (a) specify the discretionary authority with respect to which the
person will be a Fiduciary; or (b) incorporate by reference an agreement with
such Named Fiduciary to provide services to the Plan or Trust on behalf of the
delegating Named Fiduciary as a means of specifying the discretionary authority
with respect to which such person will be a Fiduciary. No person (other than an
investment manager (as defined in Section 3(38) of ERISA) to whom Fiduciary
responsibility has been delegated must consent to being a Fiduciary nor shall it
be necessary for the Named Fiduciary to seek such person's acquiescence;
however, where such person has not contractually accepted the responsibility
delegated, he or she must be given notification of the services to be performed
and, in either case, will be deemed to have accepted such Fiduciary
responsibility if he or she performs the services described for thirty (30) days
or more without specific objection thereto. The discretionary authority any
person who is delegated Fiduciary responsibilities hereunder may have shall be
several and not joint with the Named Fiduciary delegating and each other Named
Fiduciaries. A delegation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein shall not be void; however, whether
the delegating Named Fiduciary shall have joint liability for acts of such
person shall be determined by applicable law.
(b) Allocations. The Administrator or Employee Benefits Committee,
-----------
acting on behalf of the Company, may allocate Fiduciary responsibilities (other
than trustee responsibilities described in Section 405(c)(3) of ERISA) among
Named Fiduciaries when it designates a Named Fiduciary in the manner described
in
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Section 16.9, or may reallocate Fiduciary responsibilities among existing Named
Fiduciaries by action of such Administrator or Employee Benefits Committee in
accordance with Sections 16.8 and 16.9; provided each such Named Fiduciary is
given notice of the services, management and control authority allocated to it
either by way of an amendment to the Plan, Trust or a contract with such person,
or by way of correspondence from the Administrator or Employee Benefits
Committee, whichever is applicable. Each Named Fiduciary, by signing its
contract or by accepting such amendment or correspondence and rendering the
services requested without objection for thirty (30) days, shall be conclusively
bound to have assumed such Fiduciary responsibility as a Named Fiduciary. An
allocation of Fiduciary responsibility to a person which is not implemented in
the manner set forth herein shall not be void, however, such person may not be a
Named Fiduciary with respect to the Plan and Trust.
(c) Limit on Liability. Fiduciary duties and responsibilities which
------------------
have been allocated or delegated pursuant to the terms of the Plan or the Trust,
are intended to limit the liability of the Company, the Administrator, the
Employee Benefits Committee, and each Named Fiduciary, as appropriate, in
accordance with the provisions of Section 405(c) of ERISA.
16.14 Bonding. The Administrator and members of the Employee Benefits
-------
Committee, acting on behalf of the Plan and Trust, shall serve without bond
(except as otherwise required by federal law).
16.15 Information to be Supplied by Employer. Each Employer shall supply
--------------------------------------
to the Administrator or Employee Benefits Committee, acting on behalf of the
Plan and Trust, or a designated Named Fiduciary, within a reasonable time of its
request, the names of all Employees, their age, their date of hire, the names
and dates of all Employees who incurred a Termination of Employment during the
Plan Year, Compensation and such other information in the Employer's possession
as the Administrator or Employee Benefits Committee shall from time to time need
in the discharge of its duties. The Administrator or Employee Benefits
Committee and each Named Fiduciary may rely conclusively on the information
certified to it by an Employer.
16.16 Information to be Supplied by Named Fiduciary. Whenever a term,
---------------------------------------------
definition, standard, protocol, policy, interpretation, rule, practice or
procedure under an Administrative Services Agreement, or other basis for
determining whether a Participant's or Beneficiary's accrued benefit, optional
form of benefit, right or feature is required or used, the Named Fiduciary who
has the authority to manage and control the administration and operation of the
Plan with respect to such accrued benefit, optional form of payment, right or
feature shall be solely responsible for establishing and maintaining such
framework of definitions, standards, protocols, policies, interpretations,
rules, practices and procedures under such Administrative Services Agreement and
shall provide a copy thereof either (1) to the Administrator or
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Employee Benefits Committee, upon its request, on behalf of the Company (2) to a
Participant or Beneficiary but only to the extent required by law, or (3) to the
extent required in any proceeding involving the Plan or any Named Fiduciary with
respect to the Plan.
16.17 Misrepresentations. The Administrator or Employee Benefits
------------------
Committee, acting on behalf of the Plan and Trust, may, but shall not be
required to, rely upon any certificate, statement or other representation made
to it by an Employee, Participant, other Named Fiduciary, or other individual
with respect to any fact regarding any of the provisions of the Plan. If relied
upon, any such certificate, statement or other representation shall be
conclusively binding upon such Employee, Participant, other Named Fiduciary, or
other individual or personal representative thereof, heir, or assignee (but not
upon the Administrator or Employee Benefits Committee), and any such person
shall thereafter be estopped from disputing the truth of any such certificate,
statement or other representation.
16.18 Records. The regularly kept records of the designated Named
-------
Fiduciary (or, where applicable, the Trustee) and any Employer shall be
conclusive evidence of a person's age, his or her status as an Eligible
Employee, and all other matters contained therein applicable to this Plan;
provided that a Participant may request a correction in the record of his or her
age at any time prior to retirement, and such correction shall be made if within
ninety (90) days after such request he or she furnishes in support thereof a
birth certificate, baptismal certificate, or other documentary proof of age
satisfactory to the Administrator.
16.19 Plan Expenses. All expenses of the Plan which have been approved by
-------------
the Administrator or Employee Benefits Committee, acting on behalf of the Plan
and Trust, respectively, shall be paid by the Trust except to the extent paid by
the Employers; and if paid by the Employers, such Employers may, if authorized
by the Administrator acting on behalf of the Company, seek reimbursement of such
expenses from the Trust and the Trust shall reimburse the Employers. If borne
by the Employers, expenses of administering the Plan shall be borne by the
Employers in such proportions as the Administrator, acting on behalf of the
Company, shall determine.
16.20 Fiduciary Capacity. Any person or group of persons may serve in
------------------
more than one Fiduciary capacity with respect to the Plan.
16.21 Employer's Agent. The Administrator and Employee Benefits Committee
----------------
shall act as agent for the Company when acting on behalf of the Company and the
Company shall act as agent for each Employer.
16.22 Plan Administrator. The Plan Administrator (within the meaning of
------------------
Section 3(16)(A)) shall be appointed by the Administrator, acting on behalf of
the Company, and may (but need not) be the Administrator; and in the absence of
such
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appointment, the Administrator, acting on behalf of the Plan and Trust, shall be
the Plan Administrator.
16.23 Plan Administrator Duties and Power. The Plan Administrator will
-----------------------------------
have full and complete authority, responsibility and control over the
management, administration and operation of the Plan with respect to the
following:
(a) satisfy all reporting and disclosure requirements applicable to
the Plan, Trust or Plan Administrator under ERISA, the Code or other applicable
law;
(b) make appropriate determinations as to whether Rollover
Contributions constitute such;
(c) provide and deliver all written forms used by Participants and
Beneficiaries, give notices required by law, and seek a favorable determination
letter for the Plan and Trust;
(d) withhold any amounts required by the Code to be withheld at the
source and to transmit funds withheld and any and all necessary reports with
respect to such withholding to the Internal Revenue Service;
(e) where applicable, to provide each Participant or his or her
Spouse with QJSA and QPSA information;
(f) certify to the Trustee the amount and kind of benefits payable to
or withdrawn from Participants and Beneficiaries and the date of payment,
including withdrawals;
(g) respond to a QDRO;
(h) make available for inspection and to provide upon request at such
charge as may be permitted and determined by it, documents and instruments
required to be disclosed by ERISA;
(i) make a determination of whether a Participant is suffering a
deemed or demonstrated financial need and whether a withdrawal from this Plan is
deemed or demonstrated necessary to satisfy such financial need; provided
however, in making such determination, the Plan Administrator may rely, if
reasonable to do so, upon representations made by such Participant in connection
with his or her request for a withdrawal;
(j) take such actions as are necessary to establish and maintain the
Plan in full and timely compliance with any law or regulation having pertinence
to this Plan;
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(k) perform whatever responsibilities are delegated to the Plan
Administrator by the Administrator; and
(l) interpret and construe the provisions of the Plan, to make
regulations and settle disputes described above which are not inconsistent with
the terms thereof.
16.24 Named Fiduciary Decisions Final. The decision of the Administrator,
-------------------------------
the Employee Benefits Committee, or a Named Fiduciary in matters within its
jurisdiction shall be final, binding, and conclusive upon the Employers and the
Trustee and upon each Employee, Participant, Spouse, Beneficiary, and every
other person or party interested or concerned.
16.25 No Agency. Each Named Fiduciary shall perform (or fail to perform)
---------
its responsibilities and duties or discretionary authority with respect to the
Plan and Trust as an independent contractor and not as an agent of the Company,
any Employer, the Administrator or Employee Benefits Committee. No agency is
intended to be created nor is the Administrator or Employee Benefits Committee
empowered to create an agency relationship with a Named Fiduciary.
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ESTABLISHED JANUARY 1, 1998
ARTICLE XVII
- --------------------------------------------------------------------------------
CLAIMS PROCEDURE
----------------
17.1 Initial Claim for Benefits. Each person entitled to benefits under
--------------------------
this Plan (a "Claimant") must sign and submit his or her claim for benefits to
the Administrator or its agent in writing in such form as is provided or
approved by such Administrator. A Claimant shall have no right to seek review
of a denial of benefits, or to bring any action in any court to enforce a claim
for benefits prior to his or her filing a claim for benefits and exhausting his
or her rights under this Section. When a claim for benefits has been filed
properly, such claim for benefits shall be evaluated and the Claimant shall be
notified by the Administrator or agent of its approval or denial within ninety
(90) days after the receipt of such claim unless special circumstances require
an extension of time for processing the claim. If such an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant by the Administrator or agent prior to the termination of the
initial ninety (90) day period which shall specify the special circumstances
requiring an extension and the date by which a final decision will be reached
(which date shall not be later than one hundred eighty (180) days after the date
on which the claim was filed). A Claimant shall be given a written notice in
which the Claimant shall be advised as to whether the claim is granted or
denied, in whole or in part. If a claim is denied, in whole or in part, the
Claimant shall be given written notice which shall contain (1) the specific
reasons for the denial, (2) references to pertinent Plan provisions upon which
the denial is based, (3) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is necessary, and (4) the Claimant's rights to seek review of the
denial.
17.2 Review of Claim Denial. If a claim is denied, in whole or in part
----------------------
(or if within the time periods prescribed for in the initial claim, the
Administrator or agent has not furnished the Claimant with a denial and the
claim is therefore deemed denied), the Claimant shall have the right to request
that the Administrator review the denial, provided that the Claimant files a
written request for review with the Administrator within sixty (60) days after
the date on which the Claimant received written notification of the denial. A
Claimant (or his or her duly authorized representative) may review pertinent
documents and submit issues and comments in writing to the Administrator.
Within sixty (60) days after a request for review is received, the review shall
be made and the Claimant shall be advised in writing by the Administrator of the
decision on review, unless special circumstances require an extension of time
for processing the review, in which case the Claimant shall be given a written
notification by the Administrator within such initial sixty (60) day period
specifying the reasons for the extension and when such review shall be completed
(provided that such review shall be completed within one hundred and twenty
(120) days after the date on which the request for review was filed). The
decision on
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review shall be forwarded to the Claimant by the Administrator in writing and
shall include specific reasons for the decision and references to Plan
provisions upon which the decision is based. A decision on review shall be final
and binding on all persons for all purposes. If a Claimant shall fail to file a
request for review in accordance with the procedures described in this Section,
such Claimant shall have no right to review and shall have no right to bring
action in any court and the denial of the claim shall become final and binding
on all persons for all purposes.
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ARTICLE XVIII
- --------------------------------------------------------------------------------
ADOPTION AND WITHDRAWAL FROM PLAN
---------------------------------
18.1 Procedure for Adoption. Any Commonly Controlled Entity may adopt the
----------------------
Plan for the benefit of its eligible employees by resolution of such Commonly
Controlled Entity's board of directors and by completing (or the Administrator
completing pursuant to its authority to amend this Plan) one or more Appendices
with respect to such Employees, which adoption shall be effective as of the date
specified in the board resolution. No such adoption shall be effective until
such adoption and any Appendix to be used in connection therewith has been
approved by the Administrator.
18.2 Procedure for Withdrawal. Any Employer (other than the Company) may,
------------------------
by resolution of the board of directors of such Employer, with the consent of
the Administrator and subject to such conditions as may be imposed by the
Administrator (or the Administrator acting on behalf of the Company pursuant to
its authority to amend this Plan), terminate its adoption of the Plan.
Notwithstanding the foregoing, an Employer will be deemed to have terminated its
adoption of the Plan when it ceases to be a Commonly Controlled Entity. With
respect to any Participant whose Employer is deemed to have withdrawn from the
Plan because it ceases to be a Commonly Controlled Entity, such Participant's
Account shall be fully vested.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XIX
- --------------------------------------------------------------------------------
AMENDMENT, TERMINATION AND MERGER
---------------------------------
19.1 Amendments.
----------
(a) Power to Amend. The Company, by action of its Board of Directors
--------------
on behalf of all Employers, or the Administrator as provided in Subsection
(c) below, may amend, modify, change, revise or discontinue this Plan or
any Appendix, in whole or in part, or with respect to all persons or a
designated group of persons, by amendment at any time; provided, however,
that no amendment shall:
(1) increase the duties or liabilities of the Custodian or the
Administrator without its written consent;
(2) have the effect of vesting in any Employer any interest in
any funds, securities or other property, subject to the
terms of this Plan and the Custodial Agreement;
(3) authorize or permit at any time any part of the corpus or
income of the Plan's assets to be used or diverted to
purposes other than for the exclusive benefit of
Participants and Beneficiaries;
(4) except to the extent permissible under ERISA and the Code,
make it possible for any portion of the Trust assets to
revert to an Employer to be used for, or diverted to, any
purpose other than for the exclusive benefit of Participants
and Beneficiaries entitled to Plan benefits and to defray
reasonable expenses of administering the Plan;
(5) permit an Employee to be paid the balance of his or her Pre-
Tax Account unless the payment would otherwise be permitted
under Code Section 401(k); and
(6) have any retroactive effect as to deprive any such person of
any benefit already accrued, except that no amendment made
in order to conform the Plan as a plan described in Section
401(a) of the Code of which amendments are permitted by the
Code or are required or permitted by any other statute
relating to employees' trusts, or any official regulations
or ruling issued pursuant
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thereto, shall be considered prejudicial to the rights of
any such person.
(b) Restriction on Amendment. No amendment to the Plan shall deprive
------------------------
a Participant of his or her nonforfeitable rights to benefits accrued to
the date of the amendment. Further, if the vesting schedule of the Plan is
amended, each Participant with at least three (3) years of Vesting Service
with the Employer may elect, within a reasonable period after the adoption
of the amendment, to have his or her nonforfeitable percentage computed
under the Plan without regard to such amendment. The period during which
the election may be made shall commence with the date the amendment is
adopted and shall end on the latest of:
(1) sixty (60) days after the amendment is adopted;
(2) sixty (60) days after the amendment becomes effective; or
(3) sixty (60) days after the Participant is issued written
notice of the amendment by the Employer or the
Administrator.
The preceding language concerning an amendment to the Plan's vesting
schedule shall also apply when a Plan with a different vesting schedule is
merged into this Plan. In addition to the foregoing, the Plan shall not be
amended so as to eliminate an optional form of payment of an Accrued
Benefit attributable to employment prior to the date of the amendment. The
foregoing limitations do not apply to benefit accrual occurring after the
date of the amendment.
(c) The Administrator. The Administrator, acting on behalf of the
-----------------
Company, may amend, modify, change or revise the Plan or any Appendix, in
whole or in part, or with respect to all persons or a designated group of
persons; provided however, (i) no such action may be taken if it could not
have been adopted under this Section by the Board of Directors, (ii) except
for the purpose of reflecting an Employer's obligations pursuant to
bonafide collective bargaining with a collective bargaining representative
in a collective bargaining agreement, no such action may be taken if it
causes a material change in the level or type of contributions to be made
to the Plan or otherwise materially increase the duties and obligations of
any or all Employers with respect to the Plans, and (iii) no such action
may amend Articles XVI and XIX.
19.2 Plan Termination. It is the expectation of the Company that it will
----------------
continue the Plan and the payment of Contributions hereunder indefinitely, but
the continuation of the Plan and the payment of Contributions hereunder is not
assumed
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MIDAS RSP FOR HOURLY EMPLOYEES
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as a contractual obligation of the Company or any other Employer. The right is
reserved by the Company to terminate the Plan at any time, and the right is
reserved by the Company by action of its Board of Directors or the Administrator
acting on behalf of the Company pursuant to its power to amend the Plan at any
time to reduce, suspend or discontinue its or any other Employer's Contributions
hereunder, provided, however, that the Contributions for any Plan Year accrued
or determined prior to the end of said year shall not after the end of said year
be retroactively reduced, suspended or discontinued except as may be permitted
by law. Upon termination of the Plan or complete discontinuance of Contributions
hereunder (other than for the reason that the Employer has had no net profits or
accumulated net profits), each Participant's Accrued Benefit shall be fully
vested. Upon termination of the Plan or a complete discontinuance of
Contributions, unclaimed amounts shall be applied as Forfeitures and any
unallocated amounts shall be allocated to Participants who are Eligible
Employees as of the date of such termination or discontinuance on the basis of
Compensation for the Plan Year (or short Plan Year). Upon a partial termination
of the Plan, the Accrued Benefit of each affected Participant shall be fully
vested. In the event of termination of the Plan, the Administrator shall direct
the Custodian to distribute to each Participant the entire amount of his or her
Accrued Benefit as soon as administratively possible, but not earlier than would
be permitted in order to retain the Plan's qualified status under Sections
401(a), (k) and (m) of the Code, as if all Participants who are Employees had
incurred a Termination of Employment on the Plan's termination date. Should a
Participant or a Beneficiary) not elect immediate payment of a nonforfeitable
Accrued Benefit in excess of three thousand five hundred dollars ($5,000), the
Administrator shall direct the Custodian to continue the Plan and Custodial
Agreement for the sole purpose of paying to such Participant his or her Accrued
Benefit or death benefit, respectively, unless in the opinion of the
Administrator, to make immediate single sum payments to such Participant or
Beneficiary would not adversely affect the tax qualified status of the Plan upon
termination and would not impose additional liability upon any Employer or the
Custodian.
19.3 Plan Merger. The Plan shall not merge or consolidate with, or
-----------
transfer any assets or liabilities to any other plan, unless each person
entitled to benefits would receive a benefit immediately after the merger,
consolidation or transfer (if the Plan were then terminated) which is equal to
or greater than the benefit he or she would have been entitled to immediately
before the merger, consolidation or transfer (if the Plan were then terminated).
The Administrator shall amend or take such other action as is necessary to amend
the Plan in order to satisfy the requirements applicable to any merger,
consolidation or transfer of assets and liabilities.
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
ARTICLE XX
- --------------------------------------------------------------------------------
SPECIAL TOP-HEAVY RULES
-----------------------
20.1 Application. Notwithstanding any provisions of this Plan to the
-----------
contrary, the provisions of this Article shall apply and be effective for any
Plan Year for which the Plan shall be determined to be a "Top-Heavy Plan" as
provided and defined herein.
20.2 Special Terms. For purposes of this Article, the following terms
-------------
shall have the following meanings:
(a) "Aggregate Benefit" means the sum of:
-----------------
(1) the present value of the accrued benefit under each and all
defined benefit plans in the Aggregation Group determined on
each plan's individual Determination Date as if there were a
termination of employment on the most recent date the plan
is valued by an actuary for purposes of computing plan costs
under Section 412 of the Code within the twelve (12) month
period ending on the Determination Date of each such plan,
but with respect to the first plan year of any such plan
determined by taking into account the estimated accrued
benefit as of the Determination Date; provided (A) the
method of accrual used for the purpose of this Paragraph (1)
shall be the same as that used under all plans maintained by
all Employers and Commonly Controlled Entities if a single
method is used by all stock plans or, otherwise, the slowest
accrual method permitted under Section 411(b)(1)(C) of the
Code, and (B) the actuarial assumptions to be applied for
purposes of this Paragraph (1) shall be the same assumptions
as those applied for purposes of determining the actuarial
equivalents of optional benefits under the particular plan,
except that the interest rate assumption shall be five
percent (5%);
(2) the present value of the accrued benefit (i.e., account
balances) under each and all defined contribution plans in
the Aggregation Group, valued as of the valuation date
coinciding with or immediately preceding the Determination
Date of each such plan, including (A) contributions made
after the valuation date but on or prior
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
to the Determination Date, (B) with respect to the first
plan year of any plan, any contribution made subsequent to
the Determination Date but allocable as of any date in the
first plan year, or (C) with respect to any defined
contribution plan subject to Section 412 of the Code, any
contribution made after the Determination Date that is
allocable as of a date on or prior to the Determination
Date; and
(3) the sum of each and all amounts distributed (other than a
rollover or plan-to-plan transfer) from any Aggregation
Group Plan, plus a rollover or plan-to-plan transfer
initiated by the Employee and made to a plan which is not an
Aggregation Group Plan within the Current Plan Year or
within the preceding four (4) plan years of any such plan,
provided such amounts are not already included in the
present value of the accrued benefits as of the valuation
date coincident with or immediately preceding the
Determination Date.
The Aggregate Benefit shall not include the value of any rollover or plan-
to-plan transfer to an Aggregation Group Plan, which rollover or transfer
was initiated by a Participant, was from a plan which was not maintained by
an Employer or a Commonly Controlled Entity, and was made after December
31, 1983, nor shall the Aggregate Benefit include the value of employee
contributions which are deductible pursuant to Section 219 of the Code.
(b) "Aggregation Group" means the Plan and one or more plans
------------------
(including plans that terminated) which is described in Section 401(a) of
the Code, is an annuity contract described in Section 403(a) of the Code or
is a simplified employee pension described in Section 408(k) of the Code
maintained or adopted by an Employer or a Commonly Controlled Entity in the
Current Plan Year or one of the four preceding Plan Years which is either a
"Required Aggregation Group" or a "Permissive Aggregation Group".
(1) A "Required Aggregation Group" means all Aggregation Group
--------------------------
Plans in which either (1) a Key Employee participates or (2)
which enables any Aggregation Group Plan in which a Key
Employee participates to satisfy the requirements of
Sections 401(a)(4) and 410 of the Code.
(2) A "Permissive Aggregation Group" means Aggregation Group
----------------------------
Plans included in the Required Aggregation Group, plus one
or more other Aggregation Group Plans, as designated by the
Administrator in its sole discretion,
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
which satisfy the requirements of Sections 401(a)(4) and 410
of the Code, when considered with the other component plans
of the Required Aggregation Group.
(c) "Aggregation Group Plan" means the Plan and each other plan in
----------------------
the Aggregation Group.
(d) "Current Plan Year" means (1) with respect to the Plan, the Plan
-----------------
Year in which the Determination Date occurs, and (2) with respect to each
other Aggregation Group Plan, the plan year of such other plan in which
occurs the Determination Date of such other plan.
(e) "Determination Date" means (1) with respect to the Plan and its
------------------
Plan Year, the last day of the preceding Plan Year; or (2) with respect to
any other Aggregation Group Plan in any calendar year during which the Plan
is not the only component plan of an Aggregation Group, the determination
date of each plan in such Aggregation Group to occur during the calendar
year as determined under the provisions of each such plan.
(f) "Former Key Employee" means an Employee (including a terminated
-------------------
Employee) who is not a Key Employee but who was a Key Employee.
(g) "Key Employee" means an Employee (or a terminated Employee) who
------------
at any time during the Current Plan Year or at any time during the four
preceding Plan Years is:
(1) an officer of a Commonly Controlled Entity whose
compensation from a Commonly Controlled Entity during the
Plan Year is greater than fifty percent (50%) of the amount
specified in Section 415(b)(1)(A) of the Code (as adjusted
for cost-of-living increases by the Secretary of the
Treasury) for the calendar year in which the Plan Year ends;
provided, however, that no more than the lesser of (A) fifty
(50) Employees, or (B) the greater of (i) three (3)
Employees or (ii) ten percent (10%) (rounded to the next
whole integer) of the greatest number of Employees during
the Current Plan Year or any of the preceding four Plan
Years shall be considered as officers for this purpose. Such
officers considered will be those with the greatest annual
compensation as an officer during the five (5) year period
ending on the Determination Date;
(2) One of the ten employees who owns (or is considered to own
within the meaning of Section 318 of the Code)
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MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
more than a one half percent ( 1/2%) interest in value and
the largest percentage ownership interest in value in a
Commonly Controlled Entity and whose total annual
compensation from a Commonly Controlled Entity is not less
than the amount specified in Section 415(b)(1)(A) of the
Code (as adjusted for cost-of-living increases by the
Secretary of the Treasury) for the calendar year in which
the Plan Year ends;
(3) A person who owns more than five percent (5%) of the value
of the outstanding stock of any Commonly Controlled Entity
or more than five percent (5%) of the total combined voting
power of all stock of any Commonly Controlled Entity
(considered separately) or;
(4) A person who owns more than one percent (1%) of the value of
the outstanding stock of a Commonly Controlled Entity or
more than one percent (1%) of the total combined voting
power of all stock of a Commonly Controlled Entity
(considered separately) and whose total annual compensation
(as defined in Section 1.415-2(d) of the Treasury
Regulations) from the Employer or a Commonly Controlled
Entity is in excess of one hundred and fifty thousand
dollars ($150,000).
The rules of Section 416 (i)(1)(B) and (C) of the Code shall be applied for
purposes of determining an Employee's ownership interest in a Commonly
Controlled Entity for purposes of Paragraphs (3) and (4) herein. A
Beneficiary (who would not otherwise be considered a Key Employee) of a
deceased Key Employee shall be deemed to be a Key Employee in substitution
for such deceased Key Employee. Any person who is a Key Employee under
more than one of the four Paragraphs of this Section shall have his or her
Aggregate Benefit under the Aggregation Group Plans counted only once with
respect to computing the Aggregate Benefit of Key Employees as of any
Determination Date. Any Employee who is not a Key Employee shall be a Non-
Key Employee.
(h) "Top-Heavy Plan" means the Plan with respect to any Plan Year if
--------------
the Aggregate Benefit of all Key Employees or the Beneficiaries of Key
Employees determined on the Determination Date is an amount in excess of
sixty percent (60%) of the Aggregate Benefit of all persons who are
Employees within the Current Plan Year; provided, that if an individual has
not performed services for an Employer or a Commonly Controlled Entity at
any time during the five (5) year period ending on the Determination Date,
the individuals's Accrued Benefit shall not be taken into account. With
respect to any calendar year during which the Plan is not the only
Aggregation Group Plan, the ratio
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MIDAS RSP FOR HOURLY EMPLOYEES
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determined under the preceding sentence shall be computed based on the sum
of the Aggregate Benefits of each Aggregation Group Plan totaled as of the
last Determination Date of any Aggregation Group Plan to occur during the
calendar year.
20.3 Minimum Contribution. For any Plan Year that the Plan shall be a
--------------------
Top-Heavy Plan, each Participant who is an Eligible Employee but who is neither
a Key Employee nor a Former Key Employee on the last day of the Plan Year shall
have allocated to his or her Formula Based Account on the last day of the Plan
Year a Formula Based Contribution in an amount equal to three percent (3%) of
such Participant's Compensation not in excess of two hundred thousand dollars
($200,000); provided, however, in no event shall such contribution on behalf of
such Participant be less than five percent (5%) of such Compensation if any
Aggregation Group Plan is a defined benefit plan which does not satisfy the
minimum benefit requirements with respect to such Participant. The amount of
Formula Based Contributions required to be allocated under this Section for any
Plan Year shall be reduced by the amount of Employer Contributions and
Forfeitures allocated under this Plan on behalf of the Participant and employer
contributions and forfeitures allocated on behalf of the Participant under any
other defined contribution plan in the Aggregation Group for the Plan Year.
Elective Deferrals to any Aggregation Group Plan made on behalf of a Participant
in Plan Years beginning after December 31, 1984 but before January 1, 1989 shall
be deemed to be Employer Contributions for the purpose of this Section.
Elective Deferrals and Matching or ESOP Matching Contributions to Aggregation
Group Plans in Plan Years beginning on or after January 1, 1989 shall not be
used to meet the minimum contribution requirements of this Section. Where
Employer Contributions and Forfeitures allocated on behalf of a Participant are
insufficient to satisfy the minimum contribution otherwise required by this
Section, an additional employer contribution shall be made and allocated to the
Matching, ESOP Matching or Formula Based Account of such Participant.
20.4 Maximum Benefit Accrual. For any Plan Year that the Plan is a Top-
-----------------------
Heavy Plan, the denominator of the "defined benefit plan fraction" and the
denominator of the "defined contribution plan fraction" shall be determined by
substituting "1.0" for "1.25"; provided, however, this limit shall not apply
with respect to an Employee for any Plan Year during which he or she accrues no
benefit under any plan of the Aggregation Group. The preceding sentence shall
not apply if, within this Article, there is substituted "four percent (4%)" for
"three percent (3%)" and "seven and one-half percent (7.5%)" for "five percent
(5%)" and "ninety percent (90%)" for "sixty percent (60%)."
20.5 Special Vesting. If the Plan becomes a Top-Heavy Plan after the
---------------
Effective Date, vesting for all Employees shall thereafter be accelerated to the
extent the following vesting schedule produces a greater vested percentage for
the Employee than the normal vesting schedule at any relevant time:
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Years of Vesting Service Vested Percentage
------------------------ -----------------
Less than 3 years 0%
3 years or more 100%
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ARTICLE XXI
- --------------------------------------------------------------------------------
MISCELLANEOUS PROVISIONS
------------------------
21.1 Assignment and Alienation. As provided by Code Section 401(a)(13)
-------------------------
and to the extent not otherwise required by law, no benefit provided by the Plan
may be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit with
respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as security for a
loan from the Plan which is permitted pursuant to Code Section 4975.
21.2 Protected Benefits. All benefits which are protected by the terms
------------------
of Code Section 411(d)(6) and ERISA Section 204(g), which cannot be eliminated
without adversely affecting the qualified status of the Plan on and after
January 1, 1998, shall be provided under this Plan to Participants for whom such
benefits are protected. The Administrator shall cause such benefits to be
determined and the terms and provisions of the Plan immediately prior to January
1, 1998 are incorporated herein by reference and made a part hereof, but only to
the extent such terms and provisions are so protected. Otherwise, they shall
operate within the terms and provisions of this Plan, as determined by the
Administrator.
21.3 Plan Does Not Affect Employment Rights. The Plan does not provide
--------------------------------------
any employment rights to any Employee. The Employer expressly reserves the
right to discharge an Employee at any time, with or without Cause, without
regard to the effect such discharge would have upon the Employee's interest in
the Plan.
21.4 Deduction of Taxes from Amounts Payable. The Custodian shall deduct
---------------------------------------
from the amount to be distributed such amount as the Custodian, in its sole
discretion, deems proper to protect the Custodian and the Plan's assets held
under the Custodial Agreement against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted,
the Custodian may discharge any such liability and pay the amount remaining to
the Participant, the Beneficiary or the deceased Participant's estate, as the
case may be.
21.5 Facility of Payment. If a Participant or Beneficiary is declared an
-------------------
incompetent or is a minor and a conservator, guardian, or other person legally
charged with his or her care has been appointed, any benefits to which such
Participant or Beneficiary is entitled shall be payable to such conservator,
guardian, or other person legally charged with his or her care. The decision of
the Administrator in such matters shall be final, binding, and conclusive upon
the
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Employer and the Custodian and upon each Employee, Participant, Beneficiary, and
every other person or party interested or concerned. An Employer, the Custodian
and the Administrator shall not be under any duty to see to the proper
application of such payments.
21.6 Source of Benefits. All benefits payable under the Plan shall be
------------------
paid or provided for solely from the Plan's assets held under the Custodial
Agreement and the Employers assume no liability or responsibility therefor.
21.7 Indemnification. To the extent permitted by law each Employer shall
---------------
indemnify and hold harmless each member (and former member) of the Board of
Directors, each member (and former member) of the Employee Benefits Committee
and the Administrator, and each officer and employee (and each former officer
and employee) of an Employer to whom are (or were) delegated duties,
responsibilities, and authority with respect to the Plan against all claims,
liabilities, fines and penalties, and all expenses reasonably incurred by or
imposed upon him or her (including but not limited to reasonable attorney fees
and amounts paid in any settlement relating to the Plan) by reason of his or her
service under the Plan if he or she did not act dishonestly, with gross
negligence, or otherwise in knowing violation of the law under which such
liability, loss, cost or expense arises. This indemnity shall not preclude such
other indemnities as may be available under insurance purchased or provided by
an Employer under any by-law, agreement, or otherwise, to the extent permitted
by law. Payments of any indemnity, expenses or fees under this Section shall be
made solely from assets of the Employer and shall not be made directly or
indirectly from the assets of the Plan.
21.8 Reduction for Overpayment. The Administrator shall, whenever it
-------------------------
determines that a person has received benefit payments under this Plan in excess
of the amount to which the person is entitled under the terms of the Plan, make
two reasonable attempts to collect such overpayment from the person.
21.9 Limitation on Liability. No Employer nor any agent or
-----------------------
representative of any Employer who is an employee, officer, or director of an
Employer in any manner guarantees the assets of the Plan against loss or
depreciation, and to the extent not prohibited by federal law, none of them
shall be liable (except for his or her own gross negligence or willful
misconduct), for any act or failure to act, done or omitted in good faith, with
respect to the Plan. No Employer shall be responsible for any act or failure to
act of any Custodian appointed to administer the assets of the Plan.
21.10 Company Merger. In the event any successor corporation to the
--------------
Company, by merger, consolidation, purchase or otherwise, shall elect to adopt
the Plan, such successor corporation shall be substituted hereunder for the
Company upon filing in writing with the Custodian its election so to do.
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21.11 Employees' Trust. The Plan and Custodial Agreement are created for
----------------
the exclusive purpose of providing benefits to the Participants in the Plan and
their Beneficiaries and defraying reasonable expenses of administering the Plan,
and the Plan and Custodial Agreement shall be interpreted in a manner consistent
with their being, respectively, a Plan described in Sections 401(a), 401(k) and
401(m) of the Code and Custodial Agreements exempt under Section 501(a) of the
Code. At no time shall the assets of the Plan be diverted from the above
purpose.
21.12 Gender and Number. Except when the context indicates to the
-----------------
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.
21.13 Invalidity of Certain Provisions. If any provision of this Plan
--------------------------------
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Plan shall be construed and
enforced as if such provisions, to the extent invalid or unenforceable, had not
been included.
21.14 Headings. The headings or articles are included solely for
--------
convenience of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
21.15 Uniform and Nondiscriminatory Treatment. Any discretion exercisable
---------------------------------------
hereunder by an Employer or the Administrator shall be exercised in a uniform
and nondiscriminatory manner.
21.16 Notice and Information Requirements. Except as otherwise provided
-----------------------------------
in this Plan or in the Custodial Agreement or as otherwise required by law, the
Employer shall have no duty or obligation to affirmatively disclose to any
Participant or Beneficiary, nor shall any Participant or Beneficiary have any
right to be advised of, any material information regarding the Employer, at any
time prior to, upon or in connection with the Employer's purchase, or any other
distribution or transfer (or decision to defer any such distribution) of any
Company Stock or any other stock held under the Plan.
21.17 Military Service. Notwithstanding any provision 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 Code.
21.18 Law Governing. The Plan shall be construed and enforced according
-------------
to the laws of the state in which the Trust is located, to the extent not
preempted by ERISA.
-95-
<PAGE>
MIDAS RSP FOR HOURLY EMPLOYEES
ESTABLISHED JANUARY 1, 1998
Executed this ____ day of _________________, 19___.
MIDAS, INC.
By:________________________________
Title:_____________________________
-96-
<PAGE>
APPENDIX 18.1
ADOPTION AGREEMENTS
This Appendix 18.1 contains several adoption agreements each of which
specify, with respect to the employees identified in each, the applicable terms
of the Plan for a designated period of time.
Appendix 18.1 - Page 1
<PAGE>
================================================================================
PLAN SPONSOR: MIDAS, INC.
NAME OF PLAN: MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
The following are wholly-owned, directly or indirectly, subsidiaries of the
Plan Sponsor and have adopted the Plan with the Plan Sponsor as of January 1,
1998:
================================================================================
MIDAS INTERNATIONAL CORPORATION
================================================================================
<TABLE>
<CAPTION>
LOCATION ACTIVE BENEFIT FORMULA AND MONTHLY BENEFIT AS OF 1/1/98
================================================================================================================================
<S> <C>
Atlanta Warehouse Basic pre-tax employee contribution is $6, 12, or 18 per month with a supplemental
contribution of $6, 12, 18 or 24 per month; employer contributes $8 per month to all
eligible employees plus matches 50% ($3, 6 or 9) of basic contribution per month
- --------------------------------------------------------------------------------------------------------------------------------
Baltimore Employee contributes 1% to 12% of pay on an pre-tax basis; employer contributes $10
per month to all eligible employees plus matches 50% up to a maximum match of 2.5%
of pay
- --------------------------------------------------------------------------------------------------------------------------------
Chicago, Illinois Basic pre-tax employee contribution is $4, 8, 12, 16, 18, 20 or 24 per week with a
Brake Remanufacturing supplemental contribution of $4, 8, 12, 16, 18, 20 or 24 per week; employer matches
50% of basic contribution per week up to maximum match of $12
- --------------------------------------------------------------------------------------------------------------------------------
Chicago Warehouse Basic pre-tax employee contribution is $5, 10 or 12 per week with a supplemental
(Member of UAW, Local contribution of $5, 10, 20, 30 or 40 per week; employer matches 50% of basic
419) contribution per week up to maximum match of $6
--------------------------------------------------------------------------------------------------------------------------------
Dallas, Texas Effective 2/1/96, basic pre-tax employee contribution is $4 or 6 per week with a
Distribution Center supplemental contribution of $5, 10, 15, 20 or 25 per week; employer matches 25% of
basic contribution per week up to maximum match of $1.50;
Effective 2/1/97, basic pre-tax employee contribution is $4, 6 or 8 per week with a
supplemental contribution of $5, 10, 15, 20, 25 or 30 per week; employer matches
25% of basic contribution per week up to maximum match of $2.00;
Effective 2/1/98, basic pre-tax employee contribution is $4, 6, 8 or 10 per week with a
supplemental contribution of $5, 10, 15, 20, 25 or 30 per week; employer matches
25% of basic contribution per week up to maximum match of $2.50
Effective 2/1/99, basic pre-tax employee contribution is $4, 6, 8, 10 or 12 per week
with a supplemental contribution of $5, 10, 15, 20, 25 or 35 per week; employer
matches 25% of basic contribution per week up to maximum match of $3.00
- --------------------------------------------------------------------------------------------------------------------------------
Huth Corporation Basic pre-tax employee contribution is $4, 6, 8, 10, 12, 14, 16 or 18 per week with a
supplemental contribution of $4, 6, 8, 10, 12, 14, 16, 18 or 22 per week; employer
matches 50% of basic contribution per week up to maximum match of $9
- --------------------------------------------------------------------------------------------------------------------------------
La Mirada Effective 11/1/96, basic pre-tax employee contribution is $12, 24 or 32 per month with
a supplemental contribution of $12, 24, 36, 48 or 60 per month; employer contributes
$10 per month to all eligible employees plus matches 50% of basic contribution per
month up to maximum match of $16
Effective 11/1/98, basic pre-tax employee contribution of $12, 24 or 36 per month with
a supplemental contribution of $12, 24, 36, 48 60 per month; employer contributes
$10 per month to all eligible employees plus matches 50% of basic contribution per
month up to maximum match of $18
- --------------------------------------------------------------------------------------------------------------------------------
North Brunswick Warehouse Basic pre-tax employee contribution is $10, 24 or 28 per month with a supplemental
(Local 2326) contribution of $30, 60, 90 or 120 per month; employer matches 50% of basic
contribution per month up to maximum match of $14
--------------------------------------------------------------------------------------------------------------------------------
Taunton, Massachusetts Employee contributes 1% to 12% of pay pre-tax; employer matches 50% up to a
maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Appendix 18.1 -Page 1
<PAGE>
================================================================================
PLAN SPONSOR: MIDAS, INC.
NAME OF PLAN: MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
The following are wholly-owned, directly or indirectly, subsidiaries of the
Plan Sponsor and have adopted the Plan with the Plan Sponsor as of January 1,
1998:
================================================================================
MIDAS INTERNATIONAL CORPORATION
================================================================================
<TABLE>
<CAPTION>
LOCATION ACTIVE BENEFIT FORMULA AND MONTHLY BENEFIT AS OF 1/1/98
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Toledo Distribution Center Basic pre-tax employee contribution of $5 per week with a supplemental contribution of
(Perrysburg, Ohio) $10, 20, 30, 40 or 50 per week; employer matches 25% of basic contribution per week
up to maximum match of $1.25
Effective 2/20/97, basic pre-tax employee contribution of $6 per week with a
supplemental contribution of $10, 20, 30, 40 or 50 per week; employer matches 25%
of basic contribution per week up to maximum match of $1.50
Effective 2/20/98, basic pre-tax employee contribution of $7 per week with a
supplemental contribution of $10, 20, 30, 40 or 50 per week; employer matches 25%
of basic contribution per week up to maximum match of $1.75
- --------------------------------------------------------------------------------------------------------------------------------
Woodland Warehouse Employee contributes 1% to 15% of pay on a pre-tax basis; employer matches 50% up
to a maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
COSMIC ENTERPRISES, INC. (A SUSIDIARY OF MIDAS INTERNATIONAL CORPORATION)
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union, Non- Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
Chicagoland
--------------------------------------------------------------------------------------------------------------------------------
Union Local 73 Pre-tax contribution of $6, 12, 18 or 24 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union, Chicagoland Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Salary Shop Pre-tax contribution from 1% to 10% of covered pay; employer match of 50% up to a
maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
Cosmic 723/Union Pre-tax contribution of $6, 12, 18 or 24 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
COSMIC STORES, INC. (A SUBSIDIARY OF MIDAS INTERNATIONAL CORPORATION)
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union/Hourly Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Salary Shop Pre-tax contribution from 1% to 10% of covered pay; employer match of 50% up to a
maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
COSMIC OF COSTA MESA, INC. (A SUBSIDIARY OF MIDAS INTERNATIONAL CORPORATION)
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Salaried Shop Employee contributes 1% to 10% of pay on a pre-tax basis; employer matches 50% up
to a maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
COSMIC OF ORANGE, INC. (A SUBSIDIARY OF MIDAS INTERNATIONAL CORPORATION)
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Salaried Shop Employee contributes 1% to 10% of pay on a pre-tax basis; employer matches 50% up
to a maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
COSMIC OF HUNTINGTON BEACH, INC. (A SUBSIDIARY OF MIDAS INTERNATIONAL CORPORATION)
- --------------------------------------------------------------------------------------------------------------------------------
Non-Union Pre-tax contribution of $12, 24, 36 or 48 per week; no employer match
- --------------------------------------------------------------------------------------------------------------------------------
Salaried Shop Employee contributes 1% to 10% of pay on a pre-tax basis; employer matches 50% up
to a maximum match of 3% of pay
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Appendix 18.1 - Page 2
<PAGE>
================================================================================
PLAN SPONSOR: MIDAS, INC.
NAME OF PLAN: MIDAS RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
The following are wholly-owned, directly or indirectly, subsidiaries of the
Plan Sponsor and have adopted the Plan with the Plan Sponsor as of January 1,
1998:
================================================================================
MIDAS INTERNATIONAL CORPORATION
================================================================================
<TABLE>
<CAPTION>
LOCATION ACTIVE BENEFIT FORMULA AND MONTHLY BENEFIT AS OF 1/1/98
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MUFFLER CORPORATION OF AMERICA (A SUBSIDIARY OF MIDAS, INC.)
Bedford Park, Illinois Basic pre-tax employee contribution is $1, 2, 3, 4 or 5 per week with a supplemental
Member of MWU, Local 761 contribution of $5, 10, 15, 20 or 27 per week; employer matches 50% of basic
contribution per week to a maximum match of $2.50
=========================================================================================================================
</TABLE>
Appendix 18.1 - Page 3
<PAGE>
EXHIBIT 4.7
- --------------------------------------------------------------------------------
MIDAS, INC.
__________
MIDAS RETIREMENT
SAVINGS PLAN FOR
SALARIED EMPLOYEES
__________
ESTABLISHED EFFECTIVE JANUARY 1, 1998
- --------------------------------------------------------------------------------
<PAGE>
MIDAS RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES
- --------------------------------------------------------------------------------
MIDAS, INC. establishes the MIDAS RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES
for the benefit of eligible employees of the Company, Midas International
Corporation, and their participating affiliates. The Plan is intended to
constitute a qualified profit sharing plan, as described in Code Section 401(a),
which includes a qualified cash or deferred arrangement, as described in Code
Section 401(k). Such Plan is set forth herein, amended and restated effective as
of January 1, 1998 (except as otherwise specified herein or required by law) to
add an employee stock ownership plan ("ESOP") consisting solely of an ESOP
Matching Account for each Participant.
As of the date this Plan receives a transfer of assets and liabilities from the
Whitman Corporation Retirement Savings Plan, such assets and liabilities shall
be allocated to the respective account of each Participant and Beneficiary
hereunder. References herein to dates prior to January 1, 1998 shall be deemed
to refer to this Plan as it existed under the Whitman Corporation Retirement
Savings Plan.
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS.................................................................... 1
1.1 "Accounting Period"............................................... 1
1.2 "Accounts"........................................................ 1
1.3 "Accrued Benefit"................................................. 3
1.4 "Administrative Committee"........................................ 3
1.5 "Administrative Services Agreement"............................... 3
1.6 "Administrator"................................................... 3
1.7 "Appendix"........................................................ 3
1.8 "Applicable Election Period"...................................... 3
1.9 "Authorized Leave of Absence"..................................... 3
1.10 "Beneficiary"..................................................... 4
1.11 "Board of Directors".............................................. 4
1.12 "Business Day".................................................... 4
1.13 "CEO"............................................................. 4
1.14 "Change Date"..................................................... 4
1.15 "Commonly Controlled Entity"...................................... 4
1.16 "Company"......................................................... 4
1.17 "Company Stock"................................................... 4
1.18 "Company Stock Fund".............................................. 4
1.19 "Compensation".................................................... 4
1.20 "Computation Period".............................................. 5
1.21 "Contract Administrator".......................................... 5
1.22 "Contributions"................................................... 5
1.23 "Contribution Dollar Limit"....................................... 6
1.24 "Contribution Election" or "Election"............................. 6
1.25 "Contribution Percentage"......................................... 6
1.26 "Conversion Election"............................................. 6
1.27 "Custodial Agreement"............................................. 6
1.28 "Custodian"....................................................... 6
1.29 "Direct Rollover"................................................. 7
1.30 "Disability or Disabled".......................................... 7
1.31 "Distributee"..................................................... 7
1.32 "Effective Date".................................................. 7
1.33 "Elective Deferral"............................................... 7
1.34 "Eligible Employee"............................................... 7
1.35 "Eligibility Service"............................................. 7
1.36 "Eligible Retirement Plan"........................................ 7
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
1.37 "Eligible Rollover Distribution".................................. 8
1.38 "Employee"........................................................ 8
1.39 "Employer"........................................................ 8
1.40 "Employer Securities"............................................. 8
1.41 "Employment Date"................................................. 8
1.42 "ERISA"........................................................... 8
1.43 "ESOP"............................................................ 8
1.44 "Fiduciary"....................................................... 9
1.45 "Highly Compensated Eligible Employee" or "HCE"................... 9
1.46 "Hour of Service"................................................. 11
1.47 "Insurance Contract Arrangement".................................. 11
1.48 "Internal Revenue Code" or "Code"................................. 11
1.49 "Investment Election"............................................. 11
1.50 "Investment Fund" or "Fund"....................................... 12
1.51 "Limited Deferrals"............................................... 12
1.52 "Named Fiduciary"................................................. 12
1.53 "Non-Highly Compensated Employee" or "NHCE"....................... 12
1.54 "Normal Retirement Date".......................................... 12
1.55 "Notice Date"..................................................... 12
1.56 "Participant"..................................................... 12
1.57 "Payment Date".................................................... 12
1.58 "Plan"............................................................ 13
1.59 "Plan Year"....................................................... 13
1.60 "QDRO"............................................................ 13
1.61 "Qualified Election Period"....................................... 13
1.62 "Qualified Joint and Survivor Annuity"............................ 13
1.63 "Qualified Matching Contribution"................................. 13
1.64 "Qualified Participant"........................................... 13
1.65 "Related Plan".................................................... 13
1.66 "Rollover Contribution"........................................... 14
1.67 "Senior Vice President"........................................... 14
1.68 "Settlement Date"................................................. 14
1.69 "Spousal Consent"................................................. 14
1.70 "Spouse".......................................................... 14
1.71 "Sweep Date"...................................................... 15
1.72 "Termination of Employment"....................................... 15
1.73 "Total Distribution".............................................. 15
1.74 "Trade Date"...................................................... 15
1.75 "Trust"........................................................... 15
1.76 "Trust Agreement"................................................. 15
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
1.77 "Trust Fund"...................................................... 15
1.78 "Trustee"......................................................... 15
1.79 "Trustee Transfer"................................................ 15
1.80 "Unit Value"...................................................... 16
1.81 "Valuation Date".................................................. 16
1.82 "Whitman Plan".................................................... 16
1.83 "Year of Service"................................................. 16
ARTICLE II
PARTICIPATION.................................................................. 17
2.1 Eligibility....................................................... 17
2.2 Reemployment...................................................... 17
2.3 Participation Upon Change of Job Status........................... 17
ARTICLE III
PARTICIPANT CONTRIBUTIONS...................................................... 18
3.1 Pre-Tax Contribution Election..................................... 18
3.2 Election Procedures............................................... 18
3.3 Limitation of Elective Deferrals for all Participants............. 19
ARTICLE IV
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS......................................... 21
4.1 Pre-Tax Contributions............................................. 21
4.2 Matching Contributions............................................ 21
4.3 Pay Based Contributions........................................... 22
4.4 Special Contributions............................................. 22
4.5 Miscellaneous..................................................... 23
ARTICLE V
ROLLOVERS...................................................................... 25
5.1 Rollovers......................................................... 25
ARTICLE VI
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS.............................................. 26
</TABLE>
-iii-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
6.1 Individual Participant Accounting................................. 26
6.2 Accounting for Investment Funds................................... 27
6.3 Accounts for QDRO Beneficiaries................................... 28
6.4 Special Accounting During Conversion Period....................... 28
ARTICLE VII
INVESTMENT FUNDS AND ELECTIONS................................................. 30
7.1 Investment Funds.................................................. 30
7.2 Investment of Contributions....................................... 30
7.3 Investment of Accounts............................................ 31
7.4 Establishment of Investment Funds................................. 32
7.5 Transition Rules.................................................. 32
7.6 Assets Transferred from the Whitman Plan.......................... 32
ARTICLE VIII
VESTING AND FORFEITURES........................................................ 33
8.1 Fully Vested Contribution Accounts................................ 33
ARTICLE IX
PARTICIPANT LOANS.............................................................. 34
9.1 Participant Loans Permitted....................................... 34
9.2 Loan Funding Limits............................................... 34
9.3 Maximum Number of Loans........................................... 35
9.4 Source of Loan Funding............................................ 35
9.5 Interest Rate..................................................... 35
9.6 Repayment......................................................... 35
9.7 Repayment Hierarchy............................................... 35
9.8 Loan Application, Note and Security............................... 35
9.9 Default, Suspension and Acceleration Feature...................... 35
9.10 Military Service.................................................. 36
9.11 Loans from Whitman Plan........................................... 36
ARTICLE X
IN-SERVICE WITHDRAWALS......................................................... 37
10.1 Withdrawals for 401(k) Hardship................................... 37
</TABLE>
-iv-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
10.2 Withdrawals for Participants over age 59 1/2 or who are
Disabled.......................................................... 38
10.3 Withdrawals of Mature Amounts..................................... 39
10.4 Withdrawal Processing............................................. 39
ARTICLE XI
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT...................................................... 41
11.1 Request for Distribution of Benefits.............................. 41
11.2 Deadline for Distribution......................................... 41
11.3 ESOP Matching Account............................................. 42
11.4 Payment Form and Medium........................................... 42
11.5 Small Amounts Paid Immediately.................................... 43
11.6 Payment Within Life Expectancy.................................... 44
11.7 Incidental Benefit Rule........................................... 44
11.8 QJSA and QPSA Information and Elections........................... 44
11.9 Continued Payment of Amounts in Payment Status on
January 1, 1998................................................... 45
11.10 TEFRA Transitional Rule........................................... 46
11.11 Direct Rollover................................................... 46
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH...................................... 47
12.1 Payment to Beneficiary............................................ 47
12.2 Beneficiary Designation........................................... 47
12.3 Benefit Election.................................................. 47
12.4 Payment Form...................................................... 48
12.5 Time Limit for Payment to Beneficiary............................. 48
12.6 QPSA Information and Election..................................... 48
12.7 Direct Rollover................................................... 49
ARTICLE XIII
MAXIMUM CONTRIBUTIONS.......................................................... 50
13.1 Definitions....................................................... 50
13.2 Avoiding an Annual Excess......................................... 51
13.3 Correcting an Annual Excess....................................... 51
13.4 Correcting a Multiple Plan Excess................................. 52
</TABLE>
-v-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
13.5 Two-Plan Limit.................................................... 52
13.6 Short Plan Year................................................... 52
13.7 Grandfathering of Applicable Limitations.......................... 53
ARTICLE XIV
ADP AND ACP TESTS.............................................................. 54
14.1 Contribution Limitation Definitions............................... 54
14.2 ADP and ACP Tests................................................. 55
14.3 Correction of ADP and ACP Tests................................... 55
14.4 Method of Calculation............................................. 56
14.5 Multiple Use Test................................................. 56
14.6 Adjustment for Investment Gain or Loss............................ 57
14.7 Required Records.................................................. 58
14.8 Incorporation by Reference........................................ 58
14.9 Collectively Bargained Employees.................................. 58
14.10 QSLOB............................................................. 58
ARTICLE XV
CUSTODIAL ARRANGEMENTS......................................................... 59
15.1 Custodial Agreement............................................... 59
15.2 Selection of Custodian............................................ 59
15.3 Custodian's Duties................................................ 59
15.4 Separate Entity................................................... 59
15.5 Plan Asset Valuation.............................................. 60
15.6 Right of Employers to Plan Assets................................. 60
ARTICLE XVI
ADMINISTRATION AND INVESTMENT MANAGEMENT....................................... 61
16.1 General........................................................... 61
16.2 Administrator Acting as Employer.................................. 61
16.3 Administrative Committee Acting as Employer....................... 62
16.4 Administrator as Named Fiduciary.................................. 63
16.5 Administrative Committee as Named Fiduciary....................... 63
16.6 Administrative Committee Membership............................... 63
16.7 Administrative Committee Structure................................ 63
</TABLE>
-vi-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
16.8 Actions.......................................................... 64
16.9 Procedures for Designation of a Named Fiduciary.................. 64
16.10 Compensation..................................................... 65
16.11 Discretionary Authority of each Named Fiduciary.................. 65
16.12 Responsibility and Powers of the Administrator Regarding
Administration of the Plan....................................... 66
16.13 Allocations and Delegations of Responsibility.................... 67
16.14 Bonding.......................................................... 68
16.15 Information to be Supplied by Employer........................... 68
16.16 Information to be Supplied by Named Fiduciary.................... 68
16.17 Misrepresentations............................................... 68
16.18 Records.......................................................... 69
16.19 Plan Expenses.................................................... 69
16.20 Fiduciary Capacity............................................... 69
16.21 Employer's Agent................................................. 69
16.22 Plan Administrator............................................... 69
16.23 Plan Administrator Duties and Power.............................. 69
16.24 Named Fiduciary Decisions Final.................................. 70
16.25 No Agency........................................................ 70
ARTICLE XVII
CLAIMS PROCEDURE............................................................... 71
17.1 Initial Claim for Benefits....................................... 71
17.2 Review of Claim Denial........................................... 71
ARTICLE XVIII
ADOPTION AND WITHDRAWAL FROM PLAN.............................................. 73
18.1 Procedure for Adoption........................................... 73
18.2 Procedure for Withdrawal......................................... 73
ARTICLE XIX
AMENDMENT, TERMINATION AND MERGER.............................................. 74
19.1 Amendments....................................................... 74
19.2 Plan Termination................................................. 75
19.3 Plan Merger...................................................... 76
</TABLE>
ARTICLE XX
-vii-
<PAGE>
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
SPECIAL TOP-HEAVY RULES........................................................ 77
20.1 Application...................................................... 77
20.2 Special Terms.................................................... 77
20.3 Minimum Contribution............................................. 80
20.4 Maximum Benefit Accrual.......................................... 81
ARTICLE XXI
MISCELLANEOUS PROVISIONS....................................................... 82
21.1 Assignment and Alienation........................................ 82
21.2 Protected Benefits............................................... 82
21.3 Plan Does Not Affect Employment Rights........................... 82
21.4 Deduction of Taxes from Amounts Payable.......................... 82
21.5 Facility of Payment.............................................. 82
21.6 Source of Benefits............................................... 83
21.7 Indemnification.................................................. 83
21.8 Reduction for Overpayment........................................ 83
21.9 Limitation on Liability.......................................... 83
21.10 Company Merger................................................... 83
21.11 Employees' Trust................................................. 83
21.12 Gender and Number................................................ 84
21.13 Invalidity of Certain Provisions................................. 84
21.14 Headings......................................................... 84
21.15 Uniform and Nondiscriminatory Treatment.......................... 84
21.16 Law Governing.................................................... 84
21.17 Military Service................................................. 84
21.18 Notice and Information Requirements.............................. 84
</TABLE>
-viii-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE I
- --------------------------------------------------------------------------------
DEFINITIONS
-----------
The following sections of this Article I provide basic definitions of terms
used throughout the Plan, and whenever used herein in a capitalized form, except
as otherwise expressly provided, the terms shall be deemed to have the following
meanings:
1.1 "Accounting Period" means the periods designated by the Administrator
-------------------
with respect to each Investment Fund not to exceed one year in duration.
1.2 "Accounts" means the record of a Participant's interest in the Plan's
----------
assets represented by his or her:
(a) "ESOP Account" which means a Participant's interest in the Plan's
------------
assets composed of an amount transferred from the Participant's "ESOP
Account" in the Whitman Plan on or after January 1, 1998, if any, (as
identified by the Administrator) plus all income and gains credited to, and
minus all losses, expenses, withdrawals and distributions charged to, such
Account.
(b) "ESOP Matching Account" which means a Participant's interest in
---------------------
the Plan's assets composed of Matching Contributions allocated on or after
January 1, 1998 to the Participant under the Plan, plus all income and
gains credited to, and minus all losses, expenses, withdrawals and
distributions charged to, such Account, less the aggregate of the amounts
transferred from the Participant's ESOP Matching Account to the
Participant's Matching Account pursuant to an investment diversification
election.
(c) "Former Matching Contribution Account" which means a Participant's
------------------------------------
interest in the Plan's assets composed of an amount transferred from the
Participant's "Former Matching Contribution Account" in the Whitman Plan on
or after January 1, 1998, if any, (as identified by the Administrator),
plus all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(d) "Matching Account" which means a Participant's interest in the
----------------
Plan's assets composed of an amount transferred from the Participant's
"Matching Account" in the Whitman Plan on or after January 1, 1998, if
any,(as identified by the Administrator), and the aggregate of the amounts
transferred from the Participant's ESOP Matching Account to the
Participant's Matching Account pursuant to an investment diversification
election under
-1-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Section 7.3(d), plus all income and gains credited to, and minus all
losses, expenses, withdrawals and distributions charged to, such Account.
(e) "Pay Based Account" which means a Participant's interest in the
-----------------
Plan's assets composed of Pay Based Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Pay Based Account" in the Whitman Plan on or after
January 1, 1998, if any, (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(f) "Post-Tax Account" which means a Participant's interest in the
----------------
Plan's assets composed of an amount transferred from the Participant's
"Post-Tax Account" in the Whitman Plan on or after January 1, 1998, if any,
(as identified by the Administrator), plus all income and gains credited
to, and minus all losses, expenses, withdrawals and distributions charged
to, such Account.
(g) "Pre-Tax Account" which means a Participant's interest in the
---------------
Plan's assets composed of Pre-Tax Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Pre-Tax Account" in the Whitman Plan on or after
January 1, 1998, if any, (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(h) "QVEC Account" which means a Participant's interest in the Plan's
------------
assets composed of an amount transferred from the Participant's "QVEC
Account" in the Whitman Plan on or after January 1, 1998, if any, (as
identified by the Administrator), plus all income and gains credited to,
and minus all losses, expenses, withdrawals and distributions charged to,
such Account.
(i) "Rollover Account" which means a Participant's interest in the
----------------
Plan's assets composed of Rollover Contributions transferred on or after
January 1, 1998 to the Participant under the Plan and an amount allocated
from the Participant's "Rollover Account" in the Whitman Plan on or after
January 1, 1998, if any, (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(j) "Special Account" which means a Participant's interest in the
---------------
Plan's assets composed of Special Contributions allocated on or after
January 1, 1998 to the Participant under the Plan and an amount transferred
from the Participant's "Special Account" in the Whitman Plan on or after
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MIDAS RSP FOR SALARIED EMPLOYEES
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January 1, 1998, if any, (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.
(k) "TRASOP Account" which means a Participant's interest in the
--------------
Plan's assets composed of an amount transferred from the Participant's
"TRASOP Account" in the Whitman Plan on or after January 1, 1998, if any,
(as identified by the Administrator) plus all income and gains credited to,
and minus all losses, expenses, withdrawals and distributions charged to,
such Account.
1.3 "Accrued Benefit" means the shares or units held in or posted to
-----------------
Accounts on the Settlement Date in accordance with the terms of this Plan,
including any applicable Administrative Services Agreement.
1.4 "Administrative Committee" means the committee appointed pursuant to
--------------------------
the terms of the Trust.
1.5 "Administrative Services Agreement" means a contractual arrangement
-----------------------------------
with, or if no separate contractual arrangement exists, that portion of an
Insurance Contract Arrangement with, a Trustee, Named Fiduciary or a Contract
Administrator which describes the services to be rendered by the Trustee, Named
Fiduciary or Contract Administrator to or on behalf of the Plan and which
Administrative Services Agreement is incorporated into and made a part of the
Plan.
1.6 "Administrator" means the Senior Vice-President of Human Resources.
---------------
References to the Administrator in this document shall include any Fiduciary
(other than a Named Fiduciary) to whom the Administrator has allocated or
delegated its authority to control and manage pursuant to the procedures in
Article XVI.
1.7 "Appendix" means a written supplement attached to this Plan and made a
----------
part hereof which has been added in accordance with the provisions of the Plan.
1.8 "Applicable Election Period" means, with respect to an election
---------------------------
described in Section 11.3 to waive the Normal Form, a period of time beginning
90 days before the Payment Date and ending with the Payment Date, or if later,
at any time prior to the expiration of the 7-day period that begins the day
after the explanation of the Qualified Joint and Survivor Annuity is provided to
the Participant.
1.9 "Authorized Leave of Absence" means an absence, with or without
-----------------------------
Compensation, authorized on a nondiscriminatory basis by a Commonly Controlled
Entity under its standard personnel practices applicable to the Employee,
including any period of time during which such person is covered by a short-term
disability plan of his or her Employer. An Employee who leaves the service of a
Commonly Controlled Entity to enter the Armed Forces of the United States of
America and who
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
reenters the service of the Commonly Controlled Entity with reemployment rights
under any statute granting reemployment rights to persons in the Armed Forces
shall be deemed to have been on an Authorized Leave of Absence. The date that an
Employee's Authorized Leave of Absence ends shall be determined in accordance
with the personnel policies of such Commonly Controlled Entity, which ending
date shall be no earlier than the date that the Authorized Leave of Absence is
scheduled to end, unless the Employee communicates to such Commonly Controlled
Entity that he or she is to have a Termination of Employment as of an earlier
date.
1.10 "Beneficiary" means any person designated by a Participant to receive
-------------
any benefits which shall be payable with respect to the death of a Participant
under the Plan or as a result of a QDRO.
1.11 "Board of Directors" means the board of directors of the Company.
--------------------
1.12 "Business Day" means any day or part of a day on which the New York
--------------
Stock Exchange and the Trustee are open for business.
1.13 "CEO" means the Chief Executive Officer of the Company.
-----
1.14 "Change Date" means the one or more dates during the Plan Year
-------------
designated by the Administrator as the dates available for implementing or
changing a Participant's Contribution Election.
1.15 "Commonly Controlled Entity" means (1) an Employer and any
----------------------------
corporation, trade or business, but only for so long as it and the Employer are
members of a controlled group of corporations as defined in Section 414(b) of
the Code or under common control as defined in Section 414(c) of the Code;
provided, however, that solely for purposes of the limitations of Code Section
415, the standard of control under Sections 414(b) and 414(c) of the Code shall
be deemed to be "more than 50%" rather than "at least 80%," (2) an Employer and
an organization, but only for so long as it and the Employer are, on and after
the Effective Date, members of an affiliated service group as defined in Section
414(m) of the Code, (3) an Employer and an organization, but only for so long as
the employees of it and the Employer are required to be aggregated, on and after
the Effective Date, under Section 414(o) of the Code, or (4) any other
organization designated as such by the Administrator.
1.16 "Company" means MIDAS, INC. or any successor corporation by merger,
---------
consolidation, purchase, or otherwise, which elects to adopt the Plan and the
Trust.
1.17 "Company Stock" means common stock issued by WHITMAN CORPORATION;
---------------
provided however, on and after the date of distribution by WHITMAN CORPORATION
to its shareholders of the outstanding shares of common stock of the Company,
Company Stock will means shares of common stock issued by the Company.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
1.18 "Company Stock Fund" means an Investment Fund primarily invested in
--------------------
Employer Securities.
1.19 "Compensation" means:
--------------
(a) for purposes of allocating Contributions and for purposes of
applying Section 415 of the Code to the Plan and its Participants for any
limitation year, such compensation, as determined by the Administrator and
satisfying the definition of compensation under Section 415 of the Code
(within the meaning of Treasury Regulation 1.415-2(d)(2) and (3)); provided
however, for purposes of allocating Contributions, a car allowance paid to
an HCE shall be excluded; and
(b) for any determination period with respect to an applicable
provision of the Code other than Section 415, such compensation from a
Commonly Controlled Entity, as determined by the Administrator, and which
satisfies the requirements of Section 414(s) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner of Internal Revenue for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
twelve (12) months, over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than twelve (12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
1.20 "Computation Period" means with respect to Eligibility Service, the
--------------------
twelve (12) consecutive month period commencing with an Employee's Employment
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Date and the Plan Year which includes the first anniversary of the Employment
Date and each subsequent Plan Year.
1.21 "Contract Administrator" means each individual and entity designated
------------------------
by the Administrator or another Named Fiduciary, pursuant to this Plan, to
render services to the Plan or Trust as a Fiduciary.
1.22 "Contributions" means amounts contributed to the Plan by the Employer
---------------
or an Eligible Employee. Specific types of contributions include:
(a) "Matching". An amount contributed by the Employer based upon the
amount contributed by the eligible Participant as a Pre-Tax
Contribution.
(b) "Pay Based". An amount contributed by the Employer and allocated
on a pay based formula to eligible Participants' Accounts.
(c) "Pre-Tax". An amount contributed on a pre-tax basis in
conjunction with a Participant's Code Section 401(k) salary
deferral agreement.
(d) "Special". An amount contributed by the Employer to avoid
prohibited discrimination under Section 401(a)(4) of the Code.
1.23 "Contribution Dollar Limit" means the annual limit imposed on each
---------------------------
Participant pursuant to Section 402(g) of the Code, which shall be seven
thousand dollars ($7,000) per calendar year (as indexed for cost of living
adjustments pursuant to Code Section 402(g)(5) and 415(d)).
1.24 "Contribution Election" or "Election" means the election made by a
-------------------------------------
Participant to reduce his or her Compensation by an amount equal to the product
of his or her Contribution Percentage and such Compensation from the Employer
subject to the Contribution Election; provided however, effective January 1,
1998, the Contribution Election for a Participant for whom assets and
liabilities have been transferred to this Plan from the Whitman Plan shall be
the same as the Contribution Election of such Participant under the Whitman
Plan.
1.25 "Contribution Percentage" means the percentage of a Participant's
-------------------------
Compensation which is to be contributed to the Plan by his or her Employer as a
Contribution.
1.26 "Conversion Election" means an election by a Participant to change the
---------------------
investment of all or some specified portion of such Participant's Accounts by
voice response to the telephone number provided by the Named Fiduciary to whom
it is
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<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
spoken, or on such form that may be required by the Named Fiduciary to whom it
is delivered. No Conversion Election shall be deemed to have been given to the
Named Fiduciary unless it is complete and delivered in accordance with the
procedures established by such Named Fiduciary for this purpose.
1.27 "Custodial Agreement" means the Trust Agreement or an insurance
---------------------
contract to provide for the holding of the assets of the Plan.
1.28 "Custodian" means the Trustee or an insurance company if the contract
-----------
issued by such company is not held by the Trustee.
1.29 "Direct Rollover" means a payment by the Plan to the Eligible
-----------------
Retirement Plan specified by the Distributee.
1.30 "Disability or Disabled" means the Participant is disabled for
------------------------
purposes of the Employer's long term disability plan.
1.31 "Distributee" includes an Employee or former Employee. In addition,
-------------
the Employee's or former Employee's surviving Spouse and the Employee's or
former Employee's Spouse or former Spouse who is the alternate payee under a
QDRO are Distributees with regard to the interest of the Spouse or former
Spouse.
1.32 "Effective Date" means January 1, 1998, the date upon which the
----------------
provisions of this document become effective. In general, the provisions of
this document only apply to Participants who are Employees on or after the
Effective Date. However, investment and distribution provisions apply to all
Participants with Account balances to be invested or distributed after the
Effective Date.
1.33 "Elective Deferral" means amounts subject to the Contribution Dollar
-------------------
Limit.
1.34 "Eligible Employee" means any salaried Employee (including an Employee
-------------------
on an Authorized Leave of Absence) of an Employer on and after the Effective
Date of the adoption of this Plan by the Employer, excluding any salaried
Employee:
(a) who is a member of a group of Employees represented by a
collective bargaining representative, unless a currently effective
collective bargaining agreement between his or her Employer and the
collective bargaining representative of the group of Employees of which he
or she is a member provides for coverage by the Plan;
(b) who is considered an Employee solely because of the application of
Section 414(n) of the Code;
(c) who is not a U.S. citizen or a resident alien; and
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
(d) who is scheduled in Appendix 1.28.
1.35 "Eligibility Service" means the sum of an Employee's Years of Service.
---------------------
1.36 "Eligible Retirement Plan" means an individual retirement account
--------------------------
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.37 "Eligible Rollover Distribution" means any distribution of all or any
--------------------------------
portion of the balance to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include any distribution that is one of a series
of substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's designated
Beneficiary, or for a specified period of ten years or more; any distribution to
the extent such distribution is required under Section 401(a)(9) of the Code;
and the portion any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
1.38 "Employee" means any person who renders services as a common law
----------
employee to a Commonly Controlled Entity or is on an Authorized Leave of
Absence, including the period of time before which the trade or business became
a Commonly Controlled Entity, but excluding the period of time after which it
ceases to be a Commonly Controlled Entity. No person who was hired through a
temporary agency (including but not limited to any leased Employee) shall be
considered an Employee and no person, the terms of whose services are governed
by an independent contractor or consulting agreement with an Employer, shall be
considered an Employee except to the extent explicitly provided to the contrary
in such agreement; provided, however, any individual considered an Employee of a
Commonly Controlled Entity under Section 414(n) of the Code shall be deemed
employed by the Commonly Controlled Entity for which the individual performed
services.
1.39 "Employer" means the Company, Midas International Corporation, and any
----------
Commonly Controlled Entity which has adopted the Plan; provided however, each
Employer, for whom assets and liabilities are transferred to the Plan from the
Whitman Plan on behalf of its Employees on and after the Effective Date, shall
be deemed to be an Employer; and provided further, that an entity will cease to
be an Employer when it ceases to be a Commonly Controlled Entity.
1.40 "Employer Securities" means stock described in Section 4975(e)(8) of
---------------------
the Code or in Treasury Regulation Section 54.4975-12.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
1.41 "Employment Date" means the day an Employee first earns an Hour of
-----------------
Service.
1.42 "ERISA" means the Employee Retirement Income Security Act of 1974, as
-------
amended. Reference to any specific Section shall include such Section, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such Section.
1.43 "ESOP" means an employee stock ownership plan, which is designed to
------
invest primarily in Employer Securities as described in ERISA and the Code,
which shall include the aggregate of each ESOP Matching Account and which
portion of this Plan shall be maintained separately.
1.44 "Fiduciary" means (a) any individual or entity who performs a
-----------
Fiduciary function under the Plan as defined in accordance with Section 3(21) of
ERISA; (b) such individual or entity which the Administrator or Administrative
Committee, acting on behalf of the Plan Sponsor, designates to be a Named
Fiduciary with respect to such person's authority to control and manage the
operation and administration of the Plan or Trust; or (c) such individual or
entity which a Named Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary with respect to such person's authority to control and manage the
operation and administration of the Plan or Trust.
1.45 "Highly Compensated Eligible Employee" or "HCE" means a highly
-----------------------------------------------
compensated active employee or a highly compensated former employee.
A highly compensated active employee includes any Employee who performs
service for the Employer during the determination year and who, during the look-
back year: (i) received Compensation from the Employer in excess of $75,000 (as
adjusted pursuant to Section 415(d) of the Code); (ii) received Compensation
from the Employer in excess of $50,000 (as adjusted pursuant to Section 415(d)
of the Code) and was a member of the top-paid group for such year; or (iii) was
an officer of the Employer and received Compensation during such year that is
greater than fifty percent (50%) of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code. The term highly compensated active employee
also includes: (i) Employees who are both described in the preceding sentence if
the term "determination year" is substituted for the term "look-back year" and
the Employee is one of the one-hundred (100) Employees who received the most
Compensation from the Employer during the determination year; and (ii) Employees
who are five percent (5%) owners at any time during the look-back year or
determination year.
If no officer has satisfied the Compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a highly compensated active employee.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
For this purpose, the determination year shall be the Plan Year. The look-
back year shall be the twelve(12)-month period immediately preceding the
determination year. Pursuant to Code Section 414(q), the Administrator may
elect for the look-back year to be the calendar year ending with or within the
applicable Plan Year determination year.
If the Employer at all times during the Plan Year maintains significant
business activities (and employs Employees in such activities) in at least two
significantly separate geographic areas and satisfies such other conditions as
the Secretary of the Treasury may prescribe, the Administrator may elect to
apply a simplified definition of Highly Compensated Employee under the Plan by
substituting "$50,000" for "$75,000" in paragraph (i) above, and disregarding
paragraph (ii) above.
An Employee who performs services for the Employer any time during the year
is in the top-paid group of Employees for any year if such Employee is in the
group consisting of the top twenty percent (20%) of the Employees when ranked on
the basis of Compensation paid during such year. For purposes of determining the
number of Employees in the top-paid group (but not for identifying the
particular Employees in the top-paid group), the following Employees shall be
excluded:
(i) Employees who have not completed six (6) months of service;
(ii) Employees who normally work less than seventeen and one-
half (17 1/2) Hours of Service per week;
(iii) Employees who normally work not more than six (6) months
during any year;
(iv) Employees who have not attained age twenty-one (21);
(v) Employees who are included in a unit of Employees covered
by a bona fide collective bargaining agreement with the Employer; and
(vi) Employees who are nonresident aliens and who receive no
earned income (within the meaning of Section 911(d)(2) of the Code) from
the Employer which constitutes income from sources within the United States
(within the meaning of Section 861(a)(3) of the Code).
The Administrator may elect to apply paragraph (i), (ii) or (iv) of this Section
by substituting a shorter period of service, smaller number of hours or months,
or lower age for that specified in such subparagraphs.
A highly compensated former employee includes any Employee who separated
from service (or was deemed to have separated) prior to the determination year,
performs no service for the Employer during the determination year, and was a
Highly
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Compensated Employee for either the separation year or any determination year
ending on or after the Employee's 55th birthday. If a former Employee separated
from service with the Employer prior to January 1, 1987, and the Administrator
irrevocably elects to apply this special rule, he is a Highly Compensated
Employee only if he or she was described in any one or more of the following
groups during either the Employee's separation year (or the year preceding such
separation year) or any year ending on or after such individual's 55th birthday
(or the last year ending before such Employee's 55th birthday):
(i) 5-percent owner. The Employee was a five percent (5%) owner
---------------
of the Employer at any time during the year.
(ii) Compensation amount. The Employee received Compensation in
-------------------
excess of $50,000 during the year.
The determination of who is a Highly Compensated Employee, including the
determination of the number and identity of Employees in the top-paid group, the
top 100 Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
1.46 "Hour of Service" means, as it applies to Computation Periods, each
-----------------
hour for which an Employee is entitled to:
(a) payment for the performance of duties for any Commonly Controlled
Entity;
(b) payment from any Commonly Controlled Entity for any period during
which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, sickness, incapacity
(including disability), layoff, leave of absence, jury duty or military
service;
(c) back pay, irrespective of mitigation of damages, by award or
agreement with any Commonly Controlled Entity (and these hours shall be
credited to the period to which the agreement pertains); or
(d) no payment, but is on an Authorized Leave of Absence (and these
hours shall be based upon his or her normally scheduled hours per week or a
40 hour week if there is no regular schedule).
The crediting of hours shall be made in accordance with Department of Labor
regulation Section 2530.200b-2 and 3, but in no event shall hours be credited in
excess of the minimum number required thereunder for a Computation Period in
order to avoid a Break in Service. An equivalent number of hours shall be
credited for each
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<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
payroll period in which the full-time Employee would be credited with at least 1
hour. The payroll period equivalences are 190 hours monthly.
1.47 "Insurance Contract Arrangement" means a contractual arrangement of
--------------------------------
one or more contracts with an entity, whether or not subject to the applicable
regulations of a State regarding reserve requirements, which assumes the risk of
payment of a Benefit primarily from its assets and which Insurance Contract
Arrangement is incorporated and made a part of this Plan, but only to the extent
it is specifically referred to herein and is not inconsistent with the terms and
provisions of this Plan.
1.48 "Internal Revenue Code" or "Code" means the Internal Revenue Code of
---------------------------------
1986, as amended, any subsequent Internal Revenue Code and final Treasury
Regulations. If there is a subsequent Internal Revenue Code, any references
herein to Internal Revenue Code Sections shall be deemed to refer to comparable
Sections of any subsequent Internal Revenue Code.
1.49 "Investment Election" means an election by which a Participant directs
---------------------
the investment of his or her Contributions by voice response to the telephone
number provided by the Named Fiduciary to whom it is spoken, or on such form
that may be required by the Named Fiduciary to whom it is delivered. No
Investment Election shall be deemed to have been given to the Named Fiduciary
unless it is complete and delivered in accordance with the procedures
established by such Named Fiduciary for this purpose; provided however,
effective January 1, 1998, the Investment Election for a Participant for whom
assets and liabilities have been transferred to this Plan from the Whitman Plan
shall be the same as the Investment Election of such Participant under the
Whitman Plan.
1.50 "Investment Fund" or "Fund" means one or more collective investment
---------------------------
funds, a pool of assets, or deposits with the Custodian, a mutual fund,
insurance contract, or managed pool of assets. The Investment Funds authorized
by the Administrator are listed in Appendix 7.4.
1.51 "Limited Deferrals" means Elective Deferrals subject to the limits of
-------------------
Code Section 401(a)(30).
1.52 "Named Fiduciary" means:
-----------------
(a) with respect to the authority each has over management and control
of the Plan's administration and operation or discretionary authority and
control it may have with respect to the Plan, the Administrator and such
other person who may be designated to be a Named Fiduciary pursuant to
Article XVI;
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
(b) with respect to the management and control of the Plan's assets or
the discretionary authority it may have with respect to the Plan's assets,
the Trustee, the Administrative Committee, and other such person who may be
designated to be a Named Fiduciary pursuant to the terms of the Trust.
1.53 "Non-Highly Compensated Employee" or "NHCE" means an Employee who is
-------------------------------------------
not an HCE.
1.54 "Normal Retirement Date" means the date a Participant attains sixty-
------------------------
five (65) years of age.
1.55 "Notice Date" means the date established by the responsible Named
-------------
Fiduciary as the deadline for it to receive notification with respect to an
administrative matter in order to be processed as of a Change Date designated by
the responsible Named Fiduciary.
1.56 "Participant" means an Eligible Employee who begins to participate in
-------------
the Plan after completing the eligibility requirements. A Participant's
participation continues until his or her Termination of Employment and his or
her Accrued Benefit is distributed or forfeited.
1.57 "Payment Date" means the date on or after the Settlement Date on which
--------------
a Participant's Accrued Benefit is distributed or commences to be distributed,
which date shall be at least the minimum number of days required by law, if any,
after the date the Participant has received any notice required by law, if any.
If a distribution is one to which Sections 411(a)(11) and 417 of the Internal
Revenue Code do not apply, such distribution may commence less than thirty (30)
days after the notice required under Section 401(a)(11) of the Income Tax
Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least thirty (30) days after
receiving the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option); and
(b) the Participant, after receiving the notice, affirmatively elects
a distribution.
Notwithstanding the determination of a Payment Date hereunder, distribution in
accordance with an affirmative election will not commence before the expiration
of the 7-day period that begins the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
1.58 "Plan" means the MIDAS RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES,
------
as set forth herein and as hereafter may be amended from time to time.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
1.59 "Plan Year" means the Annual Accounting period of the Plan and Trust
-----------
which ends on each December 31.
1.60 "QDRO" means a domestic relations order which the Administrator has
------
determined to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code.
1.61 "Qualified Election Period" means the five (5) consecutive Plan Year
---------------------------
period beginning with the first Plan Year on or after the later of (a) 1998 or
(b) the Plan Year in which the Participant first becomes a Qualified
Participant.
1.62 "Qualified Joint and Survivor Annuity" means the QJSA described in
--------------------------------------
Article XI.
1.63 "Qualified Matching Contribution" means a Matching Contribution that
---------------------------------
is treated as a Pre-Tax Contribution and posted to the Pre-Tax Account.
1.64 "Qualified Participant" means a Participant who has attained age
-----------------------
fifty-five (55) and who has completed at least ten (10) years of participation
under this Plan.
1.65 "Related Plan" means:
--------------
(a) with respect to Section 401(k) and 401(m) of the Code, any plan or
plans maintained by a Commonly Controlled Entity which is treated with this
Plan as a single plan for purposes of Sections 401(a)(4) or 410(b) of the
Code; and
(b) with respect to Section 415 of the Code, any other defined
contribution plan or a defined benefit plan (as defined in Section 415(k)
of the Code) maintained by a Commonly Controlled Entity, respectively
called a "Related Defined Contribution Plan" and a "Related Defined Benefit
Plan".
1.66 "Rollover Contribution" means:
-----------------------
(a) a rollover contribution as described in Section 402(c) of the Code
(or its predecessor); or
(b) a Trustee Transfer (1) to the Custodian of an amount by the
custodian of a retirement plan qualified for tax-favored treatment under
Code Section 401(a), which plan provides for such transfer; (2) with
respect to which the benefits otherwise protected by Code Section 411 in
such transferor plan are no longer required by Code Section 411 to be
protected in this Plan; and (3) which does not include amounts subject to
Code Section 401(k).
-14-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
1.67 "Senior Vice President" means the Senior Vice-President of Human
-----------------------
Resources for the Company, or such other officer title as which will from time
to time assume the responsibilities of the Senior Vice-President of Human
Resources.
1.68 "Settlement Date" means the date on which the transactions from the
-----------------
most recent Trade Date are settled.
1.69 "Spousal Consent" means the irrevocable written consent given by a
-----------------
Spouse to a Participant's election (or waiver) of a specified form of benefit or
Beneficiary designation. The Spouse's consent must acknowledge the effect on
the Spouse of the Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal Consent shall be
valid only with respect to the spouse who signs the Spousal Consent and only for
the particular choice made by the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior election, waiver or
designation that required Spousal Consent at any time before the Sweep Date
associated with the Settlement Date upon which payments will begin. Spousal
Consent also means a determination by the Administrator that there is no Spouse,
the Spouse cannot be located or such other circumstances as may be established
by applicable law.
1.70 "Spouse" means a person, not of the same sex, who, as of the earlier
--------
of a Participant's Payment Date and death, is alive and married to the
Participant within the meaning of the laws of the State of the Participant's
residence as evidenced by a valid marriage certificate or other proof acceptable
to the Administrator. A spouse who was the Spouse on the Payment Date but who
is divorced from the Participant at the Participant's death shall still be the
Spouse at the date of the Participant's death, except as otherwise provided in a
QDRO.
1.71 "Sweep Date" means the date established by the responsible Named
------------
Fiduciary as the cutoff date and time for the responsible Named Fiduciary to
receive notification with respect to a financial transaction for an Accounting
Period in order to be processed with respect to a Trade Date designated by the
responsible Named Fiduciary.
1.72 "Termination of Employment" occurs when a person ceases to be an
---------------------------
Employee, as determined by the personnel policies of the Commonly Controlled
Entity to whom he or she rendered services; provided, however, where a Commonly
Controlled Entity ceases to be such with respect to an Employee as a result of
either an asset sale or stock sale an Employee of the Commonly Controlled Entity
shall be deemed not to have incurred a Termination of Employment: (a) unless
the Administrator shall make a determination that the transaction satisfies
Section 401(k) of the Code, or if no such determination is made, until such
Employee ceases to be employed by the successor to the Commonly Controlled
Entity; or (b) if the Administrator shall make a Trustee Transfer of his or her
Accrued Benefit. Transfer
-15-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
of employment from one Commonly Controlled Entity to another Commonly Controlled
Entity shall not constitute a Termination of Employment for purposes of the
Plan.
1.73 "Total Distribution" means a distribution to a Participant or a
--------------------
Participant's beneficiary, within one taxable year of such receipt, of the
entire balance to the credit of the ESOP Matching Account.
1.74 "Trade Date" means the date as of which a financial transaction
------------
occurs, however with respect to a transaction involving Investment Funds
maintained on a share accounting methodology, the transaction shall be executed
based upon the daily average of the proceeds or purchase price of sales and
purchases, respectively, of a share.
1.75 "Trust" means the legal entity resulting from the agreement between
-------
the Company and the Trustee and all amendments thereto, in which some or all of
the assets of this Plan will be received, held, invested and distributed to or
for the benefit of Participants and Beneficiaries.
1.76 "Trust Agreement" means the agreement between the Company and the
-----------------
Trustee establishing the Trust, and any amendments thereto.
1.77 "Trust Fund" means any property, real or personal, received by and
------------
held by the Trustee, plus all income and gains and minus all losses, expenses,
withdrawals and distributions chargeable thereto.
1.78 "Trustee" means any corporation, individual or individuals designated
---------
in the Trust Agreement who shall accept the appointment as Trustee to execute
the duties of the Trustee as set forth in the Trust Agreement.
1.79 "Trustee Transfer" means (a) a transfer to the Custodian of an amount
------------------
by the custodian of a retirement plan qualified for tax-favored treatment under
Section 401(a) of the Code or by the trustee(s) of a trust forming part of such
a plan, which plan provides for such transfer; or (b) a Direct Rollover within
the meaning of Section 402(c)(8)(B) of the Code; provided that with respect to
any withdrawal or distribution from the Plan, a Participant may elect a transfer
to only one eligible retirement plan, except as may otherwise be determined by
the Administrator, in a uniform and nondiscriminatory manner.
1.80 "Unit Value" means the value of a unit in the applicable Investment
------------
Fund, as determined in good faith by the Trustee or the Administrator.
1.81 "Valuation Date" means the close of business on each Business Day.
----------------
1.82 "Whitman Plan" means the Whitman Corporation Retirement Savings Plan.
--------------
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<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
1.83 "Year of Service" means, as it applies to Eligibility Service, each
-----------------
Computation Period in which an Employee is credited with at least 1,000 Hours of
Service; and to the extent not already recognized, each Year of Service
recognized under the Whitman Plan with respect to a Participant for whom this
Plan has received a transfer of assets and liabilities from the Whitman Plan.
An Employee's service with a company, the assets of which are acquired by a
Commonly Controlled Entity, shall only be counted as employment with such
Commonly Controlled Entity in the determination of his or her Years of Service
if (1) the Administrator directs that credit for such service be granted in
Appendix 1.68, or (2) a qualified plan of the acquired company is subsequently
maintained by any Employer or Commonly Controlled Entity.
-17-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE II
- --------------------------------------------------------------------------------
PARTICIPATION
-------------
2.1 Eligibility. On or after the Effective Date as to each Employer:
-----------
(a) Participant on January 1, 1998. Each Eligible Employee shall
------------------------------
become a Participant on the first day of the month on or after the date he
or she completes at least one year of Eligibility Service.
(b) Participant in the Whitman Plan . Each person who was a
--------------------------------
participant in the Whitman Plan whose accrued benefit under the Whitman
Plan was (or is to be) transferred to this Plan shall become a Participant
as of January 1, 1998, or, if later, the date of such transfer.
2.2 Reemployment.
------------
(a) Eligible Employee Was Previously a Participant. An Eligible
----------------------------------------------
Employee who previously was a Participant prior to his or her Termination
of Employment shall become a Participant on the first day he or she earns
an Hour of Service.
(b) Eligible Employee Had a Termination. An Eligible Employee who
-----------------------------------
previously completed the service requirement to become a Participant and
who had a Termination of Employment before he or she became a Participant
shall be eligible to become a Participant on the later of (1) the date he
or she would have become a Participant but for his or her Termination of
Employment, or (2) the date he or she performs an Hour of Service.
2.3 Participation Upon Change of Job Status. An Employee who is not an
---------------------------------------
Eligible Employee shall become a Participant on the later of (1) the date he or
she would have become a Participant had he or she always been an Eligible
Employee, or (2) the date he or she becomes an Eligible Employee.
-18-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE III
- --------------------------------------------------------------------------------
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Pre-Tax Contribution Election.
-----------------------------
(a) A Participant who is an Eligible Employee and who desires to have
Pre-Tax Contributions made on his or her behalf by his or her Employer
shall file a Contribution Election pursuant to procedures specified by the
responsible Named Fiduciary specifying his or her Contribution Percentage
of not less than two percent (2.00%) nor more than ten percent (10%)
(stated as a whole integer percentage) and authorizing the Compensation
otherwise payable to him or her to be reduced.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year the
Administrator may determine that the maximum Contribution Percentage shall
be greater or lesser than the percentages set forth in Subsection (a)
hereof. Otherwise, the maximum Contribution Percentage as provided in
Subsection (a) hereof shall apply.
(c) A Participant's Contribution Election shall be effective only with
respect to Compensation not yet paid as of the date the Contribution
Election is effective. A Contribution Election received on or before a
Notice Date shall become initially effective with respect to payroll cycles
ended after the applicable Change Date or if reemployed on the first day of
the next month. However, the Administrator, in its sole discretion, may
declare an additional window period to Participants. Any Contribution
Election which has not been properly completed or which does not contain a
properly completed Investment Election will be deemed not to have been
received and be void.
3.2 Election Procedures. A Participant's Contribution Election shall
-------------------
continue in effect (with automatic adjustment for any change in his or her
Compensation) until the earliest of the date (1) his or her Contribution
Election is changed in accordance with paragraph (a) hereof; (2) he or she
ceases to be paid as an Eligible Employee; or (3) his or her Contribution
Election is cancelled in accordance with paragraph (b) hereof.
(a) Changing the Election. A Participant may increase or decrease his
---------------------
or her Contribution Percentage (subject to the percentage limits stated
above) only once each Change Date by making a new Contribution Election,
pursuant to procedures specified by the responsible Named Fiduciary, on
which is specified the amount of the Contribution Percentage.
-19-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
(1) If such Contribution Election is received by the Notice
Date, the change shall be effective with respect to the
first payroll cycle ended after the Change Date.
(2) However, if the Administrator deems it necessary, the
Administrator may specify an additional window period to
Participants.
(3) The amount of increase or decrease of such Contribution
Percentage shall be effective only with respect to
Compensation not yet paid.
(4) Any Contribution Election which has not been properly
completed will be deemed not to have been received and be
void.
(b) Canceling the Election. A Participant desiring to cancel his or
----------------------
her existing Contribution Election and reduce his or her Contribution
Percentage to zero must make a new Contribution Election, pursuant to
procedures specified by the responsible Named Fiduciary. The responsible
Named Fiduciary will establish procedures, to be administered in a uniform
and nondiscriminatory manner, for allowing a Participant to cancel his or
her Contribution Election. Any Contribution Election received on or before
a Notice Date shall become effective with respect to the payroll cycle
ended after the next Change Date. A Participant who is an Eligible
Employee and who has cancelled his or her Election may again make a
Contribution Election at any time. If such Contribution Election is
received by the Notice Date, it shall become effective with respect to the
first payroll cycle ended after the next Change Date. Any Participant who
has improperly completed a Contribution Election will be deemed not to have
made an Election.
3.3 Limitation of Elective Deferrals for all Participants. A
-----------------------------------------------------
Participant's Limited Deferrals for any calendar year shall not exceed the
Contribution Dollar Limit. If a Participant advises the Administrator that he
or she has Elective Deferrals (reduced by Elective Deferrals previously
distributed or which are recharacterized as a result of the application of Code
Section 401(k)(3) to such Participant) in excess of the Contribution Dollar
Limit ("Excess Deferral"), the Administrator shall return such Excess Deferrals
for the taxable year to the Participant. To the extent the Participant's
Limited Deferrals exceed the Contribution Dollar Limit, the Employer may notify
the Plan on behalf of the Participant (and "Excess Deferral" shall be calculated
by taking into account only Limited Deferrals). If such advice was received by
the Administrator during the taxable year, the Plan shall distribute the Excess
Deferral as soon as administratively feasible. If such advice was received by
the Administrator after the taxable year but no later than March 1 following the
close of the taxable year, the Administrator shall cause the Plan to return such
Excess Deferral no later
-20-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
than April 15 immediately following the end of such taxable year, adjusted by
income allocable to that amount.
The net investment gain or loss associated with the Excess Deferral is
calculated as follows:
G
Ex ---------- x (1 + (10% x M))
(AB-G)
where:
E = the Excess Deferral amount,
G = the net gain or loss for the Plan Year in the Participant's Pre-
Tax Account,
B = the total value of the Participant's Pre-Tax Account, determined
as of the end of the calendar year being corrected,
M = the number of full months from the calendar year end to the date
the excess amount is paid, plus one for the month during which
payment is to be made if payment will occur after the 15th of
that month.
If the application of the limitations in this Section results in a reduction of
previously contributed Pre-Tax Contributions on behalf of a Participant,
Matching Contributions allocable with respect thereto (prior to such reduction)
which are not distributed under the ACP Test shall be forfeited.
-21-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE IV
- --------------------------------------------------------------------------------
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------
4.1 Pre-Tax Contributions.
---------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the terms of
this Plan, for each period for which a Contribution Election is in effect,
the Employer shall contribute to the Plan on behalf of each Participant an
amount equal to the amount designated by the Participant as a Pre-Tax
Contribution on his or her Contribution Election.
(b) Allocation. The Pre-Tax Contribution shall be allocated to the
----------
Pre-Tax Account of the Participant with respect to whom the amount is paid.
(c) Timing, Medium and Posting. Pre-Tax Contributions shall be paid
--------------------------
to the Custodian in cash and posted to each Participant's Pre-Tax Account
by the Administrator as soon as such amounts can reasonably be balanced
against the specific amount made on behalf of each Participant. Pre-Tax
Contributions shall be paid to the Custodian not later than the fifteenth
(15th) day of the month next following the month in which amounts are
deducted from the Participant's Compensation.
4.2 Matching Contributions.
----------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each period for which Participants' Contributions are made, the Employer
shall make Matching Contributions as described in the following Allocation
Method paragraph on behalf of each Participant who contributed during the
period and was an Eligible Employee at any time during each payroll period.
(b) Allocation Method. The Matching Contributions for each period
-----------------
shall total one hundred percent (100%) of each eligible Participant's Pre-
Tax Contributions for the period, provided that no Matching Contributions
shall be made based upon a Participant's Contributions in excess of six
percent (6%) of his or her Compensation. The Employer may change the one
hundred percent (100%) matching rate or the six percent (6%) of considered
Compensation to any other percentages, including zero (0%).
(c) Timing, Medium and Posting. The Employer shall make each period's
--------------------------
Matching Contribution in cash as soon as is feasible, and not later than
the Employer's federal tax filing date, including extensions, for deducting
-22-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
such Contribution. The Administrator shall post such amount to each
Participant's ESOP Matching Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be credited
to each Participant's ESOP Matching Account.
(d) Compensation. Compensation from the Employer shall be measured
------------
by the period (not to exceed the Plan Year) for which the Contribution is
being made provided the Eligible Employee is a Participant during such
period.
4.3 Pay Based Contributions.
-----------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each Plan Year, the Employer may make a Pay Based Contribution in an
amount determined by the Employer on behalf of each Participant who was an
Eligible Employee on the last day of each Plan Year. In addition, such
Contribution shall be made on behalf of each Participant who ceased being
an Employee during the period after having attained his or her Normal
Retirement Date, or by reason of his or her Disability or death.
(b) Allocation Method. The Pay Based Contribution for each period
-----------------
shall be allocated among eligible Participants in direct proportion to
their Compensation from the Employer.
(c) Timing, Medium and Posting. The Employer shall make each
--------------------------
period's Pay Based Contribution in cash as soon as is feasible, and not
later than the Employer's federal tax filing date, including extensions,
for deducting such Contribution. The Administrator shall post such amount
to each Participant's Pay Based Account once the total Contribution
received by the Custodian has been balanced against the specific amount to
be credited to each Participant's Pay Based Account.
(d) Compensation. Compensation from the Employer shall be measured
------------
by the period (not to exceed the Plan Year) for which the Contribution is
being made provided the Eligible Employee is a Participant during such
period.
4.4 Special Contributions.
---------------------
(a) Frequency and Eligibility. Subject to the limits of the Plan and
-------------------------
to the Administrator's authority to limit Contributions under the Plan, for
each Plan Year, the Employer may make a Special Contribution in an amount
determined by the Administrator on behalf of each Non-Highly Compensated
-23-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Employee Participant who was an Eligible Employee at any time during the
Plan Year.
(b) Allocation Method. The Special Contribution for each period
-----------------
shall be allocated among eligible Participants as determined by the
Administrator, subject to a maximum dollar amount which may be contributed
on behalf of any Participant as determined by the Administrator.
(c) Timing, Medium and Posting. The Employer shall make each
--------------------------
period's Special Contribution in cash as soon as is feasible, but no later
than twelve (12) months after the end of the Plan Year to which it is
allocated. The Administrator shall post such amount to each Participant's
Special Account once the total Contribution received by the Custodian has
been balanced against the specific amount to be credited to each
Participant's Special Account.
(d) True-Up Contribution. For each Participant who is an Employee on
--------------------
the last Business Day of the Plan Year and who has elected to contribute at
least six percent (6%) of his or her Compensation as a Pre-Tax Contribution
for all periods during such Plan Year in which he or she could make Pre-Tax
Contributions, the Employer shall make a Matching Contribution equal to the
least of:
(1) six percent (6%) of the Participant's Compensation for the
Plan Year;
(2) the Participant's Pre-Tax Contributions for the Plan Year;
or
(3) six percent (6%) of the dollar limit in Code Section
401(a)(17),
minus the aggregate amount of any Matching Contribution already made for
the Participant under Section 4.2 hereof for the Plan Year.
(e) Compensation. Compensation shall be measured by the period (not
------------
to exceed the Plan Year) for which the Contribution is being made, provided
the Eligible Employee is a Participant during such period.
4.5 Miscellaneous.
-------------
(a) Deduction Limits. In no event shall the Employer Contributions
----------------
for a Plan Year exceed the maximum the Company estimates will be deductible
(or which would be deductible if the Employers had taxable income) by any
Employer or Commonly Controlled Entity under Section 404 of the Code
("Deductible Amount"). Any amount in excess of the Deductible Amount shall
-24-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
not be contributed in the following order of Contribution type, to the
extent needed to eliminate the excess:
(1) Each Participant's allocable share of Pre-Tax Contributions
for the Plan Year will be reduced by an amount equal to the
excess of the Participant's Pre-Tax Contributions over an
amount which bears the same ratio to the amount of
Pre-Tax Contributions made to the Plan on behalf of such
Participant during the Plan Year as the Deductible Amount
available for the Plan Year (reduced by the total amount of
other types of Employer Contributions for the Plan Year)
bears to the aggregate Pre-Tax Contributions made to the
Plan on behalf of all Participants subject to such
Deductible Amount during the Plan Year (before the
application of this provision).
(2) If the application of Section (a)(1) would result in a
reduction of a Participant's Pre-Tax Contributions which are
matched by Matching Contributions, the rate at which Pre-Tax
Contributions are reduced shall be offset by a reduction for
each Matching Contribution not made as a result.
(3) Pay Based Contributions.
(b) Profit Sharing Plan. Notwithstanding anything herein to the
-------------------
contrary, the Plan shall constitute a profit sharing plan for all purposes
of the Code.
-25-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE V
- --------------------------------------------------------------------------------
ROLLOVERS
---------
5.1 Rollovers. The Administrator may authorize the Custodian to accept a
---------
Rollover Contribution from an Eligible Employee in cash, even if he or she is
not yet a Participant. The Employee shall furnish satisfactory evidence to the
Administrator that the amount is eligible for rollover treatment. Such amount
shall be posted to the Employee's Rollover Account by the Administrator as of
the date received by the Custodian.
If it is later determined that an amount transferred pursuant to the above
paragraph did not in fact qualify as a Rollover Contribution, the balance
credited to the Employee's Rollover Account shall immediately be (1) segregated
from all other Plan assets, (2) treated as a non-qualified trust established by
and for the benefit of the Employee, and (3) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the
Plan.
-26-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE VI
- --------------------------------------------------------------------------------
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS
---------------------------------
6.1 Individual Participant Accounting.
---------------------------------
(a) Account Maintenance. The responsible Named Fiduciary shall cause
-------------------
the Accounts for each Participant to reflect transactions involving assets
of the Accounts in accordance with this Article. Financial transactions
during or with respect to an Accounting Period shall be accounted for at
the individual Account level by "posting" each transaction to the
appropriate Account of each affected Participant. Participant Account
values shall be maintained in units. At any point in time, the value of a
Participant's Accrued Benefit shall be equal to the net Unit Value of his
or her Account determined by using the most recent Trade Date values
provided by the Custodian.
(b) Trade Date Accounting and Investment Cycle. For any transaction
------------------------------------------
to be processed as of a Trade Date, the responsible Named Fiduciary must
receive instructions by the Sweep Date and such instructions shall apply
only to amounts held in or posted to the Accounts as of the Trade Date.
Financial transactions in an Investment Fund shall be posted to a
Participant's Account as of the Trade Date and based upon the Trade Date
values provided by the Custodian. All transactions shall be effected on
the Settlement Date relating to the Trade Date (or as soon as is
administratively feasible).
(c) Suspension of Transactions. Whenever the responsible Named
--------------------------
Fiduciary considers such action to be in the best interest of the
Participants, the Administrator in its discretion may suspend from time to
time the Trade Date.
(d) Temporary Investment. To the extent practicable, the responsible
--------------------
Named Fiduciary shall direct the Custodian to make temporary investments in
a short term interest fund of assets in an Account held pending a Trade
Date.
(e) How Fees and Expenses are Charged to Participants. Account
-------------------------------------------------
maintenance fees to the extent not paid by the Employer shall be charged
prorata to each Participant's Account on the basis of each Participant's
Accrued Benefit, provided that no fee shall reduce a Participant's Account
balance below zero. Transaction type fees (such as special asset fees,
Conversion Election change fees, etc.) shall be charged to the Accounts
involved in the transaction. Fees and expenses incurred for the management
and maintenance of Investment Funds shall be charged at the Investment Fund
-27-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
level and reflected in the net gain or loss of each Fund to the extent not
paid by the Employer.
(f) Error Correction. The Administrator may correct any errors or
----------------
omissions in the administration of the Plan by restoring or charging any
Participant's Accrued Benefit with the amount that would be credited or
charged to the Account had no error or omission been made. Funds necessary
for any such restoration shall be provided through payment made by the
responsible Named Fiduciary.
(g) Accounting for Participant Loans. Participant loans shall be
--------------------------------
held in a separate Fund for investment only by such Participant and
accounted for in dollars as an earmarked asset of the borrowing
Participant's Account.
6.2 Accounting for Investment Funds.
-------------------------------
(a) Unit Accounting. The investments in each Investment Fund
---------------
designated in Appendix 7.4 shall be maintained in full and fractional
units. The responsible Named Fiduciary is responsible for determining the
number of full and fractional units of each such Fund. To the extent an
Investment Fund is comprised of a collective investment fund of the
Custodian, the net asset and unit values shall be determined in accordance
with the rules governing such collective investment funds, which are
incorporated herein by reference. Fees and expenses incurred for the
management and maintenance of Investment Funds shall be charged at the
Investment Fund level and reflected in the net gain or loss of each Fund to
the extent not paid by the Employer.
(b) Accounting for Company Stock. The following additional rules
----------------------------
shall apply to the Company Stock Fund:
(1) Shareholder Rights. Shareholder Rights with respect to all
------------------
Company Stock in an Account shall be exercised by the
Trustee in accordance with directions from the Participant
pursuant to the procedures of the Trust Agreement.
(2) Tender Offer. If a tender offer is commenced for Company
------------
Stock, the provisions of the Trust Agreement regarding the
response to such tender offer, the holding and investment of
proceeds derived from such tender offer and the substitution
of new securities for such proceeds shall be followed.
(3) Dividends and Income. Dividends (whether in cash or in
--------------------
property) and other income received by the Custodian in
respect of Company Stock shall be reinvested in Company
-28-
<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Stock and shall constitute income and be recognized on an
accrual basis for the Accounting Period in which occurs the
record date with respect to such dividend; provided that,
with respect to any dividend which is reflected in the
market price of the underlying stock, the Administrator
shall direct the Custodian during such trading period to
trade such stock the regular way to reflect the value of the
dividend, and all Fund transfers and cash distributions
shall be transacted accordingly with no accrual of such
dividend, other than as reflected in such market price.
(4) Transaction Costs. Any brokerage commissions, transfer
-----------------
taxes, transaction charges, and other charges and expenses
in connection with the purchase or sale of Company Stock
shall be added to the cost thereof in the case of a purchase
or deducted from the proceeds thereof in the case of a sale;
provided, however, where the purchase or sale of Company
Stock is with a "disqualified person" as defined in Section
4975(e)(2) of the Code or a "party in interest" as defined
in Section 3(14) of ERISA, no commissions may be charged
with respect thereto.
6.3 Accounts for QDRO Beneficiaries. A separate Account shall be
-------------------------------
established for a Beneficiary entitled to any portion of a Participant's Account
under a QDRO as of the date and in accordance with the directions specified in
the QDRO. Such Account shall be valued and accounted for in the same manner as
any other Account.
(a) Investment Direction. A QDRO Beneficiary may direct the
--------------------
investment of such Account in the same manner as any other Participant.
(b) Distributions. A QDRO Beneficiary shall be entitled to payment
-------------
as provided in the QDRO and permissible under the otherwise applicable
terms of this Plan, regardless of whether the Participant is an Employee,
and to name a Beneficiary as specified in the QDRO.
(c) Participant Loans. A QDRO Beneficiary shall not be entitled to
-----------------
borrow from his or her Account. If a QDRO specifies that the QDRO
Beneficiary is entitled to any portion of the Account of a Participant who
has an outstanding loan balance, all outstanding loans shall continue to be
held in the Participant's Account and shall not be divided between the
Participant's and QDRO Beneficiary's Accounts.
6.4 Special Accounting During Conversion Period. The responsible Named
-------------------------------------------
Fiduciary and Custodian may use any reasonable accounting methods in performing
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
their respective duties during the period of converting the prior accounting
system of the Plan and Trust to conform to the individual Participant accounting
system described in this Section. This includes, but is not limited to, the
method for allocating net investment gains or losses and the extent, if any, to
which contributions received by and distributions paid from the Trust during
this period share in such allocation. All or a portion of the Trust assets may
be held, if necessary, in a short term interest bearing vehicle, which may
include deposits of the Trustee, during the conversion period for establishing
such individual Participant Accounts.
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MIDAS RSP FOR SALARIED EMPLOYEES
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ARTICLE VII
- --------------------------------------------------------------------------------
INVESTMENT FUNDS AND ELECTIONS
------------------------------
7.1 Investment Funds. Except for a Participant's loan Account, the Trust
----------------
shall be maintained in various Investment Funds. The Administrator may change
the number or composition of the Investment Funds, subject to the terms and
conditions agreed to with the Custodian.
7.2 Investment of Contributions.
---------------------------
(a) Investment Election. Each Participant may direct the Trustee, by
-------------------
submission to the responsible Named Fiduciary of a completed Investment
Election provided for that purpose by the responsible Named Fiduciary, to
invest Contributions posted to his or her Accounts in one or more
Investment Funds; provided however, a Participant may not make an
Investment Election with respect to a Matching Contribution. All Matching
Contributions will be invested in the Company Stock Fund. If the
Administrator directs, for any Accounting Period, Contributions with
respect to which the Participant has investment control may be invested
separately in Funds.
(b) Effective Date of Investment Election; Change of Investment
-----------------------------------------------------------
Election. A Participant's initial Investment Election will be effective
--------
with respect to a Fund on the Trade Date which relates to the Sweep Date on
which or prior to which the Investment Election is received pursuant to
procedures specified by the responsible Named Fiduciary. Any Investment
Election which has not been properly completed will be deemed not to have
been received. A Participant's Investment Election shall continue in
effect, notwithstanding any change in his or her Compensation or his or her
Contribution Percentage, until the earliest of (1) the effective date of a
new Investment Election, or (2) the date he or she ceases to be paid as an
Eligible Employee. A change in Investment Election shall be effective with
respect to a Fund on the Trade Date which relates to the Sweep Date on
which or prior to which the Administrator receives the Participant's new
Investment Election. Any Investment Election which has not been properly
completed will be deemed not to have been received.
(c) Switching Fees. A reasonable processing fee may be charged
--------------
directly to a Participant's Account for Investment Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
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MIDAS RSP FOR SALARIED EMPLOYEES
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7.3 Investment of Accounts.
----------------------
(a) Conversion Election. Notwithstanding a Participant's Investment
-------------------
Election, a Participant or Beneficiary may direct the Trustee, by
submission of a completed Conversion Election provided for that purpose to
the responsible Named Fiduciary, to change the interest his or her Accrued
Benefit has in one or more Investment Funds; provided however, a
Participant may not make a Conversion Election with respect to the ESOP
Matching Account. Each ESOP Matching Account will be invested in the
Company Stock Fund.
(b) Effective Date of Conversion Election. A Conversion Election to
-------------------------------------
change a Participant's or Beneficiary's investment of his or her Accrued
Benefit in one Investment Fund to another Fund shall be effective with
respect to such Funds on the Trade Date(s) which relates to the Sweep Date
on which or prior to which the Election is received pursuant to procedures
specified by the responsible Named Fiduciary. Notwithstanding the
foregoing, to the extent required by any provisions of an Investment Fund,
the effective date of any Conversion Election may be delayed or the amount
of any permissible Conversion Election may be reduced. Any Conversion
Election which has not been properly completed will be deemed not to have
been received.
(c) Switching Fees. A reasonable processing fee may be charged
--------------
directly to a Participant's Account for Conversion Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
(d) Diversification Election. The Participant's ESOP Matching
------------------------
Account shall be invested solely in the Company Stock Fund, except that
each Qualified Participant shall be permitted to make an investment
diversification election, within ninety (90) days after the last day of
each Plan Year during the Participant's Qualified Election Period, to
transfer amounts during the Qualified Election Period from his ESOP
Matching Account to his Matching Account and thereafter make such
investment elections with respect to his Matching Account as may be
permitted hereunder. The portion of a Qualified Participant's ESOP Matching
Account which is subject to the investment diversification election with
respect to the first, second, third and fourth Plan Year of the Qualified
Election Period shall be no greater than twenty-five percent (25%), and
with respect to the fifth Plan Year of the Qualified Election Period shall
be no greater than fifty percent (50%), of the number of units of the
Company Stock Fund that have ever been allocated to the Participant's ESOP
Matching Account on or before the Valuation Date as of which the investment
diversification election is made, reduced by the aggregate number of units
of the Company Stock Fund which have been liquidated pursuant to an
investment diversification election by such Qualified Participant prior to
such Valuation Date. For this purpose, the number of units shall be
adjusted proportionately if the Company Stock Fund is ever recapitalized in
a manner
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MIDAS RSP FOR SALARIED EMPLOYEES
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which reduces or increases the outstanding number of units without a
corresponding liquidation or contribution, respectively, of assets based on
the then current value of a unit. Notwithstanding the preceding, a
Qualified Participant shall have no right to make an investment
diversification election until the Valuation Date as of which the value of
his ESOP Matching Account is equal to or greater than $500.00.
7.4 Establishment of Investment Funds. The Administrator shall cause to
---------------------------------
be established one or more Investment Funds set forth in Appendix 7.4. In
addition, the Administrator may, from time to time, in its discretion:
(a) limit investments in or transfers from an Investment Fund;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise reorganize an existing
Investment Fund; or
(d) add new Investment Funds to Appendix 7.4 which are available
through the Trust.
7.5 Transition Rules. Effective as of the date any Investment Fund is
----------------
added or deleted, each Participant and Beneficiary shall have the opportunity to
submit new Investment Elections and Conversion Elections to the responsible
Named Fiduciary no later than the applicable Sweep Date. The responsible Named
Fiduciary and Custodian may use any reasonable accounting methods in performing
their respective duties during the period of transition from one Investment Fund
to another, including, but not limited to:
(a) designating into which Investment Fund a Participant's Accrued
Benefit will be invested if the Participant fails to submit a proper
Conversion Election;
(b) the method for allocating net investment gains or losses and the
extent, if any, to which amounts received by and distributions paid from
the Trust during this period share in such allocation;
(c) investing all or a portion of the Trust's assets in a short-term,
interest-bearing Fund during such transition period; or
(d) delaying any Trade Date during a designated transition period or
changing any Notice Date, Sweep Date or Change Date during such transition
period.
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MIDAS RSP FOR SALARIED EMPLOYEES
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7.6 Assets Transferred from the Whitman Plan. Assets received from the
----------------------------------------
Whitman Plan shall be invested on the date of receipt in the same Investment
Fund in this Plan as such assets were invested in the Whitman Plan on the date
of transfer.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE VIII
- --------------------------------------------------------------------------------
VESTING AND FORFEITURES
-----------------------
8.1 Fully Vested Contribution Accounts.
----------------------------------
A Participant who is an Employee on January 1, 1998, shall be fully
vested and have a nonforfeitable right to his or her Accrued Benefit in all
Accounts at all times. A Participant who is not an Employee on or after January
1, 1998 shall have a vested and nonforfeitable right to his or her Accrued
Benefit in the manner determined under this Plan as it existed on his or her
Termination of Employment.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE IX
- --------------------------------------------------------------------------------
PARTICIPANT LOANS
-----------------
9.1 Participant Loans Permitted. The Administrator is authorized to
---------------------------
establish and administer a loan program for a Participant who is an Eligible
Employee or a former Eligible Employee who is a "party in interest" under ERISA
pursuant to the terms and conditions set forth in this Article. All loan limits
are determined as of the Trade Date the Trustee reserves funds for the loan.
The funds will be disbursed to the Participant as soon as is administratively
feasible after the next following Settlement Date.
9.2 Loan Funding Limits.
-------------------
The loan amount must meet the following limits:
(a) Plan Minimum Limit. The minimum amount for any loan is
------------------
$1,000.00.
(b) Plan Maximum Limit. Subject to the legal limit described in (c)
------------------
below, the maximum a Participant may borrow, including the outstanding
balance of existing Plan loans, is fifty percent (50%) of vested balance of
the following Accounts:
Pre-Tax Account
Special Account
Matching Account
Pay Based Account
Former Matching Contribution Account
ESOP Account
TRASOP Account
Rollover Account
ESOP Matching Account and
Post-Tax Account.
(c) Legal Maximum Limit. The maximum a Participant may borrow,
-------------------
including the outstanding balance of existing loans, is based upon the
value of his or her vested interest in this Plan and all other qualified
plans maintained by a Commonly Controlled Entity (the "Vested Interest").
The maximum amount is equal to fifty percent (50%) of his or her Vested
Interest, not to exceed $50,000. However, the $50,000 amount is reduced by
the Participant's highest outstanding balance of all loans from any
Commonly Controlled Entity's qualified plans during the 12-month period
ending on the day before the Trade Date on which the loan is made.
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MIDAS RSP FOR SALARIED EMPLOYEES
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9.3 Maximum Number of Loans. A Participant may have only one loan
-----------------------
outstanding at any given time, and any prior existing loan must be fully repaid
for three (3) months before a new loan may be secured.
9.4 Source of Loan Funding. A loan to a Participant shall be made solely
----------------------
from the assets of his or her own Accounts. The available assets shall be
determined first by Contribution Account and then by investment type within each
type of Contribution Account. The hierarchy for loan funding by type of
Contribution Account shall be the order listed in the preceding Plan Maximum
Limit paragraph. Within each Account used for funding, amounts shall first be
taken from the available cash in the Account and then taken by type of
investment in direct proportion to the market value of the Participant's
interest in each Investment Fund as of the Sweep Date on which the loan is made.
9.5 Interest Rate. The interest rate charged on Participant loans shall
-------------
be fixed and equal to the Trustee's prime rate in effect on Monday of the week
in which the loan request is received by the responsible Named Fiduciary.
9.6 Repayment. Substantially level amortization shall be required of each
---------
loan with payments made at least monthly, through payroll deduction, provided
that payment can be made by check for advance loan payments, or when a
Participant is on an Authorized Leave of Absence, Disabled or transferred to the
employ of a Commonly Controlled Entity which is not participating in the Plan.
Loans may be prepaid in full or in part at any time. The loan repayment period
shall be as mutually agreed upon by the Participant and Administrator, not to
exceed five (5) years.
9.7 Repayment Hierarchy. Loan principal repayments shall be credited to
-------------------
the Participant's Contribution Accounts in the inverse of the order used to fund
the loan. Loan interest shall be credited to the Contribution Account in direct
proportion to the principal repayment. Loan payments are credited by investment
type based upon the Participant's current Conversion Election for that Account.
9.8 Loan Application, Note and Security. A Participant shall apply for
-----------------------------------
any loan in accordance with a procedure established by the responsible Named
Fiduciary. The responsible Named Fiduciary shall administer Participant loans
and shall specify the time frame for approving loan applications. All loans
shall be evidenced by a promissory note and security agreement and secured only
by a Participant's Account balance. The Plan shall have a lien on a
Participant's Account to the extent of any outstanding loan balance.
9.9 Default, Suspension and Acceleration Feature.
--------------------------------------------
(a) Default. A loan is treated as a default on the earlier of (i)
-------
the date any scheduled loan payment is more than ninety (90) days late,
provided that the Administrator may agree to a suspension of loan payments
for up to twelve
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
(12) months for a Participant who is on an Authorized Leave of Absence; or
(ii) thirty (30) days from the time the Participant receives written notice
of the note being due and payable and a demand for past due amounts.
(b) Actions upon Default. In the event of default, the Administrator
--------------------
will direct the Trustee to report the default as a taxable distribution.
As soon as a Plan withdrawal or distribution to such Participant would
otherwise be permitted, the Administrator will direct the Trustee to
execute upon its security interest in the Participant's Account by
segregating the unpaid loan balance from the Account, including interest to
the date of default, and to distribute the note to the Participant.
(c) Acceleration. A loan shall become due and payable in full once
------------
the Participant incurs a Termination of Employment.
9.10 Military Service. Loan repayments will be suspended under this Plan
----------------
as permitted under section 414(u) of the Code.
9.11 Loans from Whitman Plan. Each loan from the Whitman Plan, which is a
-----------------------
portion of assets and liabilities transferred to this Plan from the Whitman
Plan, shall be established as a Loan from this Plan to the same Participant, and
the note shall be created to a separate Fund for investment only by such
Participant and accounted for in dollars as an earmarked asset of the same
Account of the borrowing Participant as it had been reflected in the Whitman
Plan.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE X
- --------------------------------------------------------------------------------
IN-SERVICE WITHDRAWALS
----------------------
10.1 Withdrawals for 401(k) Hardship.
-------------------------------
(a) Requirements. A Participant may request the withdrawal of any
------------
amount from the portion of his or her Accounts needed to satisfy a
financial need by making a withdrawal request in accordance with a
procedure established by the Administrator. The Administrator shall only
approve those requests for withdrawals (1) on account of a Participant's
"Deemed Financial Need", and (2) which are "Deemed Necessary" to satisfy
the financial need.
(b) "Deemed Financial Need". Financial commitments relating to:
-----------------------
(1) costs directly related to the purchase or construction
(excluding mortgage payments or balloon payments) of a
Participant's principal residence;
(2) the payment of expenses for medical care described in
Section 213(d) of the Code previously incurred by the
Participant, the Participant's Spouse, or any dependents of
the Participant (as defined in Section 152 of the Code) or
necessary for those persons to obtain medical care described
in Section 213(d) of the Code;
(3) payment of tuition and related educational fees and room
and board expenses for the next twelve (12) months of post-
secondary education for the Participant, his or her Spouse,
children or dependents (as defined in Section 152 of the
Code); or
(4) necessary payments to prevent the eviction of the
Participant from his or her principal residence or the
foreclosure on the mortgage of the Participant's principal
residence.
(c) "Deemed Necessary". A withdrawal is "deemed necessary" to
------------------
satisfy the financial need only if all of these conditions are met:
(1) the withdrawal may not exceed the dollar amount needed to
satisfy the Participant's documented Financial Hardship,
plus an amount necessary to pay federal, state,
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
or local income taxes or penalties reasonably anticipated to
result from such withdrawal;
(2) the Participant must have obtained all distributions, other than
Financial Hardship distributions, and all nontaxable loans under
all plans maintained by the Company or any Commonly Controlled
Entity;
(3) the Participant will be suspended from making Pre-Tax
Contributions, post-tax contributions, (or similar contributions
under any other qualified or nonqualified plan of deferred
compensation maintained by a Commonly Controlled Entity) for at
least twelve (12) months from the date the withdrawal is
received; and
(4) the Contribution Dollar Limit for the taxable year immediately
following the taxable year in which the Financial Hardship
withdrawal is received shall be reduced by the Elective Deferrals
for the taxable year in which the Financial Hardship withdrawal
is received.
(d) Account Sources for Withdrawal. All available amounts must first
------------------------------
be withdrawn from his or her Accounts under Section 10.2 or 10.3. The remaining
withdrawal amount shall come only from his or her Accounts, in the following
priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account
Former Matching Contribution Account
Pay Based Account
Matching Account
ESOP Matching Account
Pre-Tax Account
The amount that may be withdrawn from a Participant's Pre-Tax Account shall not
include earnings and Qualified Matching Contributions posted to his or her Pre-
Tax Account after the end of the Plan Year which ends before July 1, 1989.
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MIDAS RSP FOR SALARIED EMPLOYEES
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10.2 Withdrawals for Participants over age 59 1/2 or who are Disabled.
----------------------------------------------------------------
(a) Requirements. A Participant who is over age 59 1/2 or who is
------------
Disabled may withdraw from the portion of his or her Accounts listed in
paragraph (b) below.
(b) Account Sources for Withdrawal. When requesting a withdrawal,
------------------------------
any withdrawal amount shall come only from his or her Accounts, in the
following priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account
Former Matching Contribution Account
Pay Based Account
Matching Account
ESOP Matching Account
Pre-Tax Account
Special Account.
10.3 Withdrawals of Mature Amounts.
-----------------------------
(a) Requirements. Withdrawal is permitted from an amount credited to
------------
any of the Accounts listed in paragraph (b) below.
(b) Contribution Account Sources for Withdrawal. When requesting a
-------------------------------------------
withdrawal, any withdrawal amount shall come only from his or her Accounts,
in the following priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account
Former Matching Contribution Account.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
10.4 Withdrawal Processing.
---------------------
(a) Ordering. To the extent of the outstanding principal amount
--------
(excluding earnings) as of December 31, 1986 attributable to his or her
Post-Tax Account, any withdrawal hereunder shall be deemed first to be made
therefrom, second from Post-Tax Contributions, if any, made after December
31, 1986, plus earnings thereon in the same pro rata manner as required by
Code Section 72(e), and, thirdly, from earnings on such principal amount as
of December 31, 1986.
(b) Minimum Amount. There is no minimum payment for any type of
--------------
withdrawal.
(c) Permitted Frequency. The maximum number of withdrawals permitted
-------------------
in any Plan Year (other than for 401(k) Hardship) is two. For this purpose,
two types of withdrawals distributed in one payment shall constitute one
withdrawal.
(d) Application by Participant. A Participant must submit a
--------------------------
withdrawal request in accordance with a procedure established by the
responsible Named Fiduciary to the responsible Named Fiduciary to apply for
any type of withdrawal. Only a Participant who is an Employee may make a
withdrawal request.
(e) Approval by Responsible Named Fiduciary. The responsible Named
---------------------------------------
Fiduciary is responsible for determining that a withdrawal request conforms
to the requirements described in this Section and notifying the Custodian
of any payments to be made in a timely manner.
(f) Time of Processing. The Custodian shall process all withdrawal
------------------
requests which it receives by a Sweep Date, based on the value as of the
Trade Date to which it relates, and fund them on the next Settlement Date.
The Custodian shall then make payment to the Participant as soon thereafter
as is administratively feasible.
(g) Medium and Form of Payment. The medium of payment for
--------------------------
withdrawals is either cash or direct deposit; provided however, a
withdrawal under either Section 10.2 or 10.3 may be paid, as directed by
the Participant, in whole shares of Company Stock to the extent the
withdrawal is funded from the Company Stock Fund. The form of payment for
withdrawals shall be a single installment.
(h) Investment Fund Sources. Within each Account used for funding a
-----------------------
withdrawal, amounts shall be taken by type of investment in direct
proportion
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
to the market value of the Participant's interest in each Investment Fund
(which excludes the Participant's loans) at the time the withdrawal is
made.
(i) Direct Rollover. With respect to any cash payment hereunder in
---------------
excess of $200 which constitutes an Eligible Rollover Distribution, a
Distributee may direct the responsible Named Fiduciary to have all or some
portion of such payment (other than from a Post-Tax Account) paid in the
form of a Trustee Transfer, in accordance with procedures established by
the responsible Named Fiduciary, provided the responsible Named Fiduciary
receives written notice of such direction with specific instructions as to
the Eligible Retirement Plan on or prior to the applicable Sweep Date for
payment. If the Participant does not transfer all of such payment, the
minimum amount which can be transferred is $500.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
ARTICLE XI
- ------------------------------------------------------------------------------
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT
-------------------------
11.1 Request for Distribution of Benefits.
------------------------------------
(a) Request for Distribution. Subject to the other requirements of
------------------------
this Article, a Participant may elect to have his or her vested Accrued
Benefit paid to him or her beginning upon any Settlement Date following
his or her Termination of Employment by submitting a completed distribution
election in accordance with a procedure established by the responsible
Named Fiduciary. Such election form shall include or be accompanied by a
notice which provides the Participant with information regarding all
optional times and forms of payment available. The election must be
submitted to the responsible Named Fiduciary by the Sweep Date that relates
to the Payment Date.
(b) Failure to Request Distribution. If a Participant has a
-------------------------------
Termination of Employment and fails to submit a distribution request in
accordance with a procedure established by the responsible Named Fiduciary
by the last Payment Date permitted under this Article, his or her vested
Accrued Benefit shall be valued as of the Valuation Date which immediately
precedes such latest date of distribution (called the "Default Valuation
Date") and a notice of such deemed distribution shall be issued to his or
her last known address as soon as administratively possible. If the
Participant does not respond to the notice or cannot be located, his or her
vested Accrued Benefit determined on the Default Valuation Date shall be
treated as a Forfeiture. If the Participant subsequently files a claim,
the amount forfeited (unadjusted for gains and losses) shall be reinstated
to his or her Accounts and distributed as soon as administratively
feasible, and such payment shall be accounted for by charging it against
the Forfeiture Account or by a contribution from the Employer of the
affected Participant.
11.2 Deadline for Distribution. In addition to any other Plan
-------------------------
requirements and unless the Participant elects otherwise, or cannot be located,
the Payment Date of a Participant's vested Accrued Benefit shall be not later
than sixty (60) days after the latest of the close of the Plan Year in which (i)
the Participant attains the earlier of age sixty-five (65) or his or her Normal
Retirement Date, (ii) occurs the tenth (10th) anniversary of the Plan Year in
which the Participant commenced participation, or (iii) the Participant had a
Termination of Employment. However, if the amount of the payment or the
location of the Participant (after a reasonable search) cannot be ascertained by
that deadline, payment shall be made no later than sixty (60) days after the
earliest date on which such amount or location is ascertained. In any case, the
Payment Date of the Accrued Benefit of a Participant (i) who is not an Employee
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
or (ii) who is an Employee and who is a 5-percent owner (as defined in Code
Section 416), shall not be later than April 1 following the calendar year in
which the Participant attains age seventy and one-half (70 1/2) and each
December 31 thereafter and shall comply with the requirements of Section
401(a)(9) of the Code and the Treasury Regulations promulgated thereunder.
11.3 ESOP Matching Account. This Section 11.3 shall apply to the ESOP
---------------------
Matching Account and shall not eliminate any time of distribution available
under the Plan prior to January 1, 1998. Notwithstanding any other provision of
the Plan, other than such provisions as require the consent of the Participant
and the Participant's spouse to a distribution with a present value in excess of
$5,000, a Participant may elect to have the portion of the Participant's ESOP
Matching Account distributed as follows:
(a) If the Participant has a Termination of Employment by reason of
the attainment of age sixty-five (65), death, or incurs a Disability, the
distribution of such portion of the Participant's ESOP Matching Account
balance will begin not later than one year after the close of the Plan Year
in which such event occurs unless the Participant otherwise elects under
the provisions of the Plan other than this Section 11.3.
(b) If the Participant has a Termination of Employment for any reason
other than those enumerated in paragraph (a) above, and is not reemployed
by the Employer at the end of the fifth Plan Year following the Plan Year
of such Termination of Employment, distribution of such portion of the
Participant's ESOP Matching Account balance will begin not later than one
year after the close of the fifth Plan Year following the Plan Year in
which the Participant has a Termination of Employment unless the
Participant otherwise elects under the provisions of this Plan other than
this Section 11.3.
(c) If the Participant has a Termination of Employment for a reason
other than those described enumerated in paragraph (a) above, and is
employed by the Employer as of the last day of the fifth Plan Year
following the Plan Year of such Termination of Employment, distribution to
the Participant, prior to any subsequent Termination of Employment, shall
be in accordance with the terms of the Plan other than this Section 11.3.
11.4 Payment Form and Medium.
-----------------------
(a) General. A Participant's vested Accrued Benefit shall be paid in the
-------
form of:
(1) a single sum,
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
(2) periodic installments as selected by the Participant, not to
exceed 15 years,
(3) a single or joint life annuity, or
(4) periodic distributions of at least $500.00, each in an amount
designated by the Participant but not to exceed two distributions
per Plan Year.
Within each Account used for funding a distribution, amounts shall be taken by
type of investment in direct proportion to the market value of the Participant's
interest in each Investment Fund at the time the distribution is made.
(b) ESOP Matching Account. This Section 11.4(b) shall apply to
---------------------
distributions from the ESOP Matching Account and shall not eliminate any time or
form of distribution available under the Plan prior to adoption of this
amendment. Notwithstanding any other provisions of the Plan regarding a
Participant's right to exercise a put option, in the case of a distribution of
Employer Securities which are not readily tradable on an established securities
market, the Plan shall provide the Participant with a put option that complies
with the requirements of section 409(h) of the Code. Such put option shall
provide that if an Employee exercises the put option, the Employer, or the Plan
if the Plan so elects, shall repurchase the Employer Securities as follows:
(1) If the distribution constitutes a Total Distribution, payment of
the Unit Value of a Participant's ESOP Matching Account balance
shall be made over a period not exceeding five (5) substantially
equal annual payments. The first installment shall be paid not
later than thirty (30) days after the Participant exercises the
put option. The Plan will pay a reasonable rate of interest and
provide adequate security on amounts not paid after thirty (30)
days.
(2) If the distribution does not constitute a Total Distribution,
the Plan shall pay the Participant an amount equal to the Unit
Value of the Employer Securities repurchased no later than
thirty (30) days after the Participant exercises the put option.
(c) Medium of Payment. Payments will generally be made in cash
-----------------
(generally by check), alternatively, if the Participant elects a single sum
distribution, a single sum payment will be made, as directed by the Participant,
in a combination of cash and whole shares of Company Stock to the extent the
distribution is funded from the Company Stock Fund. Any annuity option permitted
will be provided through the purchase of a non-transferable single premium
contract from an insurance company which must conform to the terms of the Plan
and Section 401(a)(9) of the
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Code and which will be distributed to the Participant or Beneficiary in complete
satisfaction of the benefit due.
11.5 Small Amounts Paid Immediately. If a Participant has a Termination
------------------------------
of Employment and the Participant's vested Accrued Benefit is $5,000 or less,
the Participant's Accrued Benefit shall be paid as a single sum as soon as
administratively feasible after his or her Termination of Employment.
11.6 Payment Within Life Expectancy. The Participant's payment election
------------------------------
must be consistent with the requirement of Code Section 401(a)(9) that all
payments are to be completed within a period not to exceed the lives or the
joint and last survivor life expectancy of the Participant and his or her
Beneficiary. The life expectancies of a Participant and his or her spouse may
be recomputed annually.
11.7 Incidental Benefit Rule. The Participant's payment election must be
-----------------------
consistent with the requirement that, if the Participant's Spouse is not his or
her sole primary Beneficiary, the minimum annual distribution for each calendar
year, beginning with the year in which he or she attains age seventy and one-
half (70 1/2), shall not be less than the quotient obtained by dividing (a) the
Participant's vested Accrued Benefit as of the last Trade Date of the preceding
year by (b) the applicable divisor as determined under the incidental benefit
requirements of Code Section 401(a)(9).
11.8 QJSA and QPSA Information and Elections. The following information
---------------------------------------
and election rules will apply to any Participant who elects an annuity option:
(a) "QJSA". A qualified joint and fifty percent (50%) survivor
------
annuity, meaning a form of benefit payment which is the actuarial
equivalent of the Participant's vested Accrued Benefit at the Payment Date,
payable to the Participant in monthly payments for life and providing that,
if the Participant's Spouse survives him or her, monthly payments equal to
fifty percent (50%) of the amount payable to the Participant during his or
her lifetime will be paid to the Spouse for the remainder of such person's
lifetime.
(b) "QPSA". A qualified pre-retirement survivor annuity, meaning
------
that upon the death of a Participant before the Payment Date of his or her
vested Accrued Benefit, such benefit will become payable to the surviving
Spouse as an annuity, unless Spousal Consent has been given to a different
Beneficiary or the surviving Spouse chooses a different form of payment.
(c) QJSA Information to a Participant. No more than ninety (90) days
---------------------------------
before the Payment Date, each Participant who has a Spouse and requests an
annuity form of payment shall be given a written explanation of (1) the
terms and conditions of the QJSA to his or her annuity; (2) the right to
make an election to waive this form of payment and choose an optional form
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of payment and the effect of this election; (3) the right to revoke this
election and the effect of this revocation; (4) the need for Spousal
Consent; and (5) the right of the Participant to consider, for at least
thirty (30) days, whether to waive the Qualified Joint and Survivor
Annuity.
(d) QJSA Election. A Participant may elect (and such election shall
-------------
include Spousal Consent if married), at any time within the ninety (90) day
period ending on the Payment Date, to (1) waive the right to receive the
QJSA and elect an optional form of payment; or (2) revoke or change any
such election.
(e) QJSA Spousal Consent to Participant Loans. Spousal Consent must
-----------------------------------------
be obtained for any Participant loan which is funded from any amount to
which the election in paragraph (d) above applies within the ninety (90)
day period ending on the date such loan is secured.
(f) QJSA Spousal Consent to Participant In-Service Withdrawals.
----------------------------------------------------------
Spousal Consent must be obtained for any Participant in-service withdrawal
which is funded from any portion of an Account to which the election in
paragraph (d) above applies within the ninety (90) day period ending on the
date of such in-service withdrawal.
(g) QPSA Beneficiary Information to Participant. Each married
-------------------------------------------
Participant who has requested an annuity form of payment shall be given
written information stating that (1) his or her death benefit is payable to
his or her surviving Spouse; (2) his or her ability to choose that the
benefit be paid to a different Beneficiary; (3) the right to revoke or
change a prior designation and the effects of such revocation or change;
and (4) the need for Spousal Consent. Such information shall be provided
during whichever of the following periods ends later:
(1) the period that begins one year before the date on which
the Participant requests an annuity form of payment and
that ends one year after such date; and
(2) the period that begins with the first day of the Plan Year
in which the Participant attains age thirty-two (32) and
that ends with the close of the Plan Year in which the
Participant attains age thirty-five (35).
Notwithstanding the foregoing, if the Participant incurs a Termination of
Employment after requesting an annuity form of payment, but before
attaining age thirty-five (35), the information described in the first
sentence of this Subsection shall be provided during the period that begins
one year before the
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MIDAS RSP FOR SALARIED EMPLOYEES
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date of the Participant's Termination of Employment and that ends one year
after such date.
(h) QPSA Beneficiary Designation by Participant. A married
-------------------------------------------
Participant may designate (with Spousal Consent) a non-spouse Beneficiary
at any time after the Participant has been given the information in the
QPSA Beneficiary Information to Participant paragraph above and upon the
earlier of (1) the date the Participant incurs a Termination of Employment,
or (2) the beginning of the Plan Year in which that Participant attains age
thirty-five (35).
11.9 Continued Payment of Amounts in Payment Status on January 1, 1998.
-----------------------------------------------------------------
Any person who became a Participant prior to January 1, 1998 only because he or
she had an Accrued Benefit and who had commenced to receive payments prior to
January 1, 1998 shall continue to receive such payments in the same form and
payment schedule under this Plan.
11.10 TEFRA Transitional Rule. Notwithstanding any other provisions of
-----------------------
this Plan, distribution on behalf of any Participant may be made in accordance
with the following requirements (regardless of when such distribution
commences):
(a) The distribution must have been one provided for in the Plan.
(b) The distribution by the Plan is one which would not have
disqualified the Plan under Code Section 401(a)(9) as in effect prior to
amendment by TEFRA.
(c) The distribution is in accordance with a method of distribution
designated by the Participant whose interest is being distributed or, if
the Participant is deceased, by a Beneficiary of such Participant.
(d) Such designation was in writing, was signed by the Participant or
the Beneficiary, and was made before January 1, 1984.
(e) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(f) The method of distribution designated by the Participant or the
Beneficiary specifies the time at which distribution will commence, the
period over which distribution will be made, and in the case of any
distribution upon the Participant's death, the Beneficiaries of the
Participant listed in order of priority.
11.11 Direct Rollover. With respect to any cash payment in excess of $200
---------------
hereunder which constitutes an Eligible Rollover Distribution, a Distributee may
direct the Administrator to have such payment (other than from a Post-Tax
Account) paid
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MIDAS RSP FOR SALARIED EMPLOYEES
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in the form of a Trustee Transfer, in accordance with procedures established by
the Administrator, provided the responsible Named Fiduciary receives written
notice of such direction with specific instructions as to the Eligible
Retirement Plan on or prior to the applicable Sweep Date for payment. If the
Participant does not transfer all of such payment, the minimum amount which can
be transferred is $500.
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MIDAS RSP FOR SALARIED EMPLOYEES
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ARTICLE XII
- --------------------------------------------------------------------------------
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
-----------------------------------------
12.1 Payment to Beneficiary. On the death of a Participant prior to his
----------------------
or her Payment Date, his or her vested Accrued Benefit shall be paid to the
Beneficiary or Beneficiaries designated by the Participant in accordance with
the procedure established by the responsible Named Fiduciary. Death of a
Participant on or after his or her Payment Date shall result in payment to his
or her Beneficiary of whatever death benefit is provided by the form of payment
in effect on his or her Payment Date.
12.2 Beneficiary Designation. Each Participant shall complete a
-----------------------
beneficiary designation indicating the Beneficiary who is to receive the
Participant's remaining Plan interest at the time of his or her death. The
Participant may change such designation of Beneficiary from time to time by
filing a new beneficiary designation with the Administrator. No designation of
Beneficiary or change of Beneficiary shall be effective until properly filed
with the Administrator. Notwithstanding any designation to the contrary, if a
Participant has earned an Hour of Service on or after August 23, 1984, the
Participant's Beneficiary shall be the Participant's Spouse to whom the
Participant is legally married under the laws of the State of the Participant's
residence on the date of the Participant's death and surviving him or her on
such date, unless such designation includes Spousal Consent. If the Participant
dies leaving no Spouse and either (1) the Participant shall have failed to file
a valid beneficiary designation, or (2) all persons designated on the
beneficiary designation shall have predeceased the Participant, the
Administrator shall have the Custodian distribute such Participant's Accrued
Benefit in a single sum to his or her estate.
12.3 Benefit Election.
----------------
(a) Request for Distribution. In the event of a Participant's death
------------------------
prior to his or her Payment Date, a Beneficiary may elect to have the
Accrued Benefit of a deceased Participant paid to him or her beginning upon
any Settlement Date following the Participant's date of death by submitting
a completed distribution election in accordance with the procedure
established by the responsible Named Fiduciary. The election must be
submitted to the responsible Named Fiduciary by the Sweep Date that relates
to the Settlement Date upon which payments are to begin.
(b) Failure to Request Distribution. In the event a Beneficiary
-------------------------------
fails to submit a timely distribution request, his or her vested Accrued
Benefit shall be valued as of the Valuation Date which immediately precedes
such latest date of distribution (called the "Default Valuation Date") and
a notice of such deemed distribution shall be issued to his or her last
known address as soon
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MIDAS RSP FOR SALARIED EMPLOYEES
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as administratively possible. If the Beneficiary does not respond to the
notice or cannot be located, his or her vested Accrued Benefit determined
on the Default Valuation Date shall be treated as a Forfeiture. If the
Beneficiary subsequently files a claim, the amount forfeited (unadjusted
for gains and losses) shall be reinstated to his or her Accounts and
distributed as soon as administratively feasible, and such payment shall be
accounted for by charging it against the Forfeiture or by a Contribution
from the Employer of the affected Beneficiary.
12.4 Payment Form. In the event of a Participant's death after his or her
------------
Payment Date, payment shall be made in the form selected by the Participant.
Otherwise, a Beneficiary shall be limited to the same form and medium of payment
to which the Participant was limited. Payments will generally be made in cash
(by check); alternatively, if the Beneficiary elects an in-kind distribution, a
single sum payment will be made in a combination of cash and whole shares.
12.5 Time Limit for Payment to Beneficiary. Payment to a Beneficiary must
-------------------------------------
either:
(a) be completed within five (5) years of the Participant's death; or
(b) begin within one year of his or her death and be completed within
the period of the Beneficiary's lifetime, except that:
(1) If the Participant dies after the April 1 immediately
following the end of the calendar year in which he or she
attains age seventy and one-half (70 1/2), payment to his
or her Beneficiary must be made at least as rapidly as
provided in the Participant's distribution election;
(2) If the surviving Spouse is the Beneficiary, payments need
not begin until the date on which the Participant would
have attained age seventy and one-half (70 1/2) and must be
completed within the Spouse's lifetime; and
(3) If the Participant and the surviving Spouse who is the
Beneficiary die (A) before the April 1 immediately
following the end of the calendar year in which the
Participant would have attained age seventy and one-half
(70 1/2); and (B) before payments have begun to the Spouse,
the Spouse will be treated as the Participant in applying
these rules.
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MIDAS RSP FOR SALARIED EMPLOYEES
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12.6 QPSA Information and Election. The following information and
-----------------------------
election rules will apply to any Beneficiary of a Participant who dies prior to
his or her Payment Date after having elected a life annuity option.
(a) Form of Payment. The Participant's vested Accrued Benefit will
---------------
be paid in the form of a QPSA.
(b) QPSA Information to a Surviving Spouse. Each surviving Spouse
--------------------------------------
who requests an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of being paid his or her vested
Accrued Benefit in the form of a single life annuity, (2) the right to make
an election to waive this form of payment and choose an optional form of
payment and the effect of making this election, and (3) the right to revoke
this election and the effect of this revocation.
(c) QPSA Election by Surviving Spouse. A surviving Spouse may elect,
---------------------------------
at any time up to the Sweep Date associated with the Settlement Date upon
which payments will begin, to (1) waive the single life annuity and elect
an optional form of payment, or (2) revoke or change any such election.
(d) Small Amounts Paid Immediately. If a Beneficiary's vested
------------------------------
Accrued Benefit is $5,000 or less, the Beneficiary's Accrued Benefit shall
be paid as a single sum as soon as administratively feasible.
12.7 Direct Rollover. With respect to any cash payment in excess of $200
---------------
hereunder which constitutes an Eligible Rollover Distribution, a Distributee may
direct the Administrator to have such payment (other than from a Post-Tax
Account) paid in the form of a Trustee Transfer, in accordance with the
procedure established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written Notice of such direction with
specific instructions as to the Eligible Retirement Plan on or prior to the
applicable Sweep Date for payment. If the Participant does not transfer all of
such payment, the minimum amount which can be transferred is $500.
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MIDAS RSP FOR SALARIED EMPLOYEES
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ARTICLE XIII
- --------------------------------------------------------------------------------
MAXIMUM CONTRIBUTIONS
---------------------
13.1 Definitions.
-----------
(a) "Annual Additions" means with respect to a Participant for any
------------------
Plan Year the sum of:
(1) Contributions and Forfeitures (and any earnings thereon)
allocated as of a date within the Plan Year;
(2) All contributions, forfeitures and suspended amounts (and
income thereon) for such Plan Year, allocated to such
Participant's account(s) under any Related Defined
Contribution Plan as of a date within such Plan Year;
(3) The sum of all after-tax contributions of the Participant
to Related Plans for the Plan Year and allocated to such
Participant's accounts under such Related Plan as of a date
within such Plan Year ("Aggregate Employee Contributions");
(4) Solely for purposes of this Section, all contributions to
any "separate account" (as defined in Section 419A(d) of
the Code) allocated to such Participant as of a date within
the Plan Year if such Participant is a "Key Employee"
within the meaning of Code Section 416(i); and
(5) Solely for purposes of this Section, all contributions to
any "individual medical benefit account" (as defined in
Section 415(l) of the Code) allocated to such Participant
as of a date within the Plan Year.
(b) "Maximum Annual Additions" of a Participant for a Plan Year means
--------------------------
the lesser of:
(1) twenty-five percent (25%) of the Participant's Compensation,
or
(2) the greater of thirty thousand dollars ($30,000) or one-
quarter of the dollar limitation in Code Section
415(b)(1)(A) as adjusted for cost of living increases
(determined in accordance with regulations prescribed by
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MIDAS RSP FOR SALARIED EMPLOYEES
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the Secretary of the Treasury or his or her delegate
pursuant to the provisions of Section 415(d) of the Code).
(c) "Annual Excess" means, for each Participant affected, the amount
---------------
by which the allocable Annual Additions for such Participant exceeds or
would exceed the Maximum Annual Addition for such Participant.
13.2 Avoiding an Annual Excess. Notwithstanding any other provision of
-------------------------
this Plan, a Participant's "Annual Additions" for any Plan Year, which is hereby
designated as the "limitation year" for the Plan, as that term is used in
Section 415 of the Code, shall not exceed his or her "Maximum Annual Additions."
If, at any time during a Plan Year, the allocation of additional Contributions
for a Plan Year would produce an Annual Excess, the affected Participant shall
receive only the Maximum Annual Addition from Contributions, and, at the
direction of the responsible Named Fiduciary, for the remainder of the Plan Year
Contributions will be reduced, if possible, to the amount needed for each
affected Participant to receive only the Maximum Annual Addition.
13.3 Correcting an Annual Excess. If for any Plan Year as a result of a
---------------------------
reasonable error in estimating a person's Compensation, Elective Deferrals, or
such other facts and circumstances which the Internal Revenue Service will
permit, a Participant's Annual Excess shall be treated in the following manner:
(a) Aggregate Employee Contributions allocable under a Related Plan
shall be distributed to the Participant, if permitted, by the amount of the
Annual Excess.
(b) If any Annual Excess remains, Pre-Tax Contributions (and earnings
thereon) shall be distributed to such Participant.
(c) If any Annual Excess (adjusted for investment gains and losses)
remains, Contributions shall be a Forfeiture for such Participant in the
following order:
(1) Matching Contributions;
(2) Pay-Based Contributions.
(d) Any Forfeiture of a Participant's allocations of Contributions
under subparagraph 13.3(c) above shall be held and shall be used for the
Plan Year to reduce or applied as Contributions. If any such amount
remains, it shall again be held in suspense and be utilized to reduce
future Contributions for succeeding Plan Years.
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MIDAS RSP FOR SALARIED EMPLOYEES
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(e) Any amounts held in suspense pursuant to Paragraph 13.3(d) above
remaining upon Plan termination shall be returned to the Employers in such
proportions as shall be determined by the Administrator.
13.4 Correcting a Multiple Plan Excess. If a Participant's Accounts have
---------------------------------
or would have an Annual Excess, the Annual Excess shall be corrected by reducing
the Annual Addition to this Plan before reductions have been made to other
Related Defined Contribution Plans.
13.5 Two-Plan Limit. If a Participant participates in any Related Defined
--------------
Benefit Plan, the sum of the "Defined Benefit Plan Fraction" (as defined below)
and the "Defined Contribution Plan Fraction" (as defined below) for such
Participant shall not exceed one (called the "Combined Fraction").
(a) "Defined Benefit Plan Fraction" means, for any Plan Year, a
-------------------------------
fraction, the numerator of which is the projected benefit payable pursuant
to Code Section 415(e)(2)(A) under all Related Defined Benefit Plans and
the denominator of which is the lesser of: (i) the product of 1.25 and the
dollar limit in effect for the Plan Year under Code Section 415(b)(1)(A),
and (ii) the product of 1.4 and one hundred percent (100%) of the
Participant's average Compensation for his or her high three (3) years.
(b) "Defined Contribution Plan Fraction" means, for any Plan Year, a
------------------------------------
fraction, the numerator of which is the sum of the Annual Additions (as
determined pursuant to Section 415(c) of the Code in effect for such Plan
Year) to a Participant's Accounts as of the end of the Plan Year under the
Plan or any Related Defined Contribution Plan, and the denominator of which
is the lesser of:
(1) The sum of the products of 1.25 and the dollar limit under
Code Section 415(c)(1)(A) for such Plan Year and for each
prior year of service with a Commonly Controlled Entity and
its predecessor, and
(2) the sum of the products of 1.4 and twenty-five percent
(25%) of the Participant's Compensation for such Plan Year
and for each prior year of service with a Commonly
Controlled Entity and its predecessor.
If the Combined Fraction of such Participant exceeds one and if the Related
Defined Benefit Plan permits it, the Participant's Defined Benefit Plan
Fraction shall be reduced by limiting the Participant's annual benefits
payable from the Related Defined Benefit Plan in which he or she
participates to the extent necessary to reduce the Combined Fraction of
such Participant to one.
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13.6 Short Plan Year. With respect to any change of the Plan Year (and
---------------
co-existent limitation year), the dollar limitation of the Maximum Annual
Addition for such Plan Year shall be determined by multiplying such dollar
amount by a fraction, the numerator of which is the number of months (including
fractional parts of a month) in the short Plan Year, and the denominator of
which is twelve (12).
13.7 Grandfathering of Applicable Limitations. The Plan shall recognize
----------------------------------------
and apply any grandfathering of applicable benefits and contributions
limitations which are permitted under ERISA, the Tax Equity and Fiscal
Responsibility Act of 1982 and the Tax Reform Act of 1986.
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MIDAS RSP FOR SALARIED EMPLOYEES
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ARTICLE XIV
- --------------------------------------------------------------------------------
ADP AND ACP TESTS
-----------------
14.1 Contribution Limitation Definitions. For purposes of this Article,
-----------------------------------
the following terms are defined as follows:
(a) "Average Contribution Percentage" or "ACP" means, separately,
------------------------------------------
the average of the Calculated Percentage for Participants within the HCE
Group and the NHCE Group, respectively, for a Plan Year.
(b) "Average Deferral Percentage" or "ADP" means, separately, the
--------------------------------------
average of the Calculated Percentage calculated for Participants within the
HCE Group and the NHCE Group, respectively, for a Plan Year.
(c) "Calculated Percentage" means the calculated percentage for a
-----------------------
Participant. The calculated percentage refers to either the K-
Contributions (including amounts distributed because they exceeded the
Contribution Dollar Limit) with respect to Compensation which would have
been received by the Participant in the Plan Year but for his or her
Contribution Election, or M-Contributions allocated to the Participant's
Account as of a date within the Plan Year, divided by his or her
Compensation for such Plan Year.
(d) "M-Contributions" shall include Matching Contributions
-----------------
(excluding Qualified Matching Contributions). In addition, M-Contributions
may include Pre-Tax Contributions and Special Contributions treated as
Matching Contributions, but only to the extent that (1) the Administrator
elects to use them; and (2) they meet the requirements of Code Section
401(m) to be regarded as Matching Contributions. M-Contributions shall not
include Matching Contributions which become a Forfeiture because the
Contribution to which it relates is in excess of the ADP Test, ACP Test or
the Contribution Dollar Limit.
(e) "K-Contributions" shall include Pre-Tax Contributions (excluding
-----------------
Pre-Tax Contributions treated as Matching Contributions), but shall exclude
Limited Deferrals to this Plan made on behalf of any NHCE in excess of the
Contribution Dollar Limit. In addition, Deferrals may include Qualified
Matching Contributions and Special Contributions, but only to the extent
that (1) the Administrator elects to use them and (2) they meet the
requirements of Code Section 401(k) to be regarded as elective
contributions.
(f) "HCE Group" and "NHCE Group" means, with respect to each
----------------------------
Employer and its Commonly Controlled Entities, the respective group of HCEs
and NHCEs who are eligible to have amounts contributed on their behalf for
the
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Plan Year, including Employees who would be eligible but for their election
not to participate or to contribute, or because their pay is greater than
zero but does not exceed a stated minimum, but subject to the following:
(1) If the Related Plans are subject to the ADP or ACP Test,
and are considered as one plan for purposes of Code
Sections 401(a)(4) or 410(b) (other than 410(b)(2)), all
such plans shall be aggregated and treated as one plan for
purposes of meeting the ADP and ACP Tests provided that,
for Plan Years beginning after December 31, 1989, plans
may only be aggregated if they have the same Plan Year.
(2) If an HCE is covered by more than one cash or deferred
arrangement maintained by the Related Plans, all such
arrangements (other than arrangements in plans that are
not required to be aggregated for this purpose under
Treas. Reg. (S)1.401(k)-1(g)(l)(ii)(B)) with respect to
the Plan Years ending with or within the same calendar
year shall be aggregated and treated as one arrangement
for purposes of calculating the separate percentage for
the HCE which is used in the determination of the Average
Percentage.
14.2 ADP and ACP Tests. For each Plan Year, the ADP and ACP for the HCE
-----------------
Group must meet either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group:
(a) Basic Limitation. The ADP or ACP for the HCE Group may not
----------------
exceed 1.25 times the ADP or ACP, respectively, for the NHCE Group.
(b) Alternative Limitation. The ADP or ACP for the HCE Group is
----------------------
limited by reference to the ADP or ACP, respectively, for the NHCE Group as
follows:
If the NHCE Group Then the Maximum HCE
Percentage is : Group Percentage is:
---------------- -------------------
Less than 2% 2 times ADP or ACP for the NHCE Group
2% to 8% ADP or ACP for the NHCE Group plus 2%
More than 8% Basic Limitation applies
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14.3 Correction of ADP and ACP Tests.
-------------------------------
(a) Reduction of K-Contributions or M-Contributions. If the ADP or
-----------------------------------------------
ACP are not met or will not be met, the Administrator shall determine a
maximum percentage to be used in place of the Calculated Percentage for
each HCE that would reduce the ADP or ACP of the HCE Group by a sufficient
amount to meet the ADP and ACP Tests.
(b) ADP Correction. Pre-Tax Contributions (including amounts
--------------
previously refunded because they exceeded the Contribution Dollar Limit)
shall be refunded to the Participant by the end of the next Plan Year in
an amount equal to the actual K-Contribution minus the product of the
maximum percentage for that HCE and the HCE's Compensation. Matching
Contributions with respect to such distributed Pre-Tax Contributions shall
be forfeited (unless paid to the Participant due to an ACP Correction).
(c) ACP Correction. Matching Contribution amounts in excess of the
--------------
maximum percentage of an HCE's Compensation shall, by the end of the next
Plan Year, be refunded to the Participant.
(d) Investment Fund Sources. Once the amount of Pre-Tax and
-----------------------
Matching Contributions to be refunded is determined, amounts shall then be
taken by type of investment in direct proportion to the market value of
the Participant's interest in each Investment Fund (which excludes
Participant loans) as of the Trade Date as of which the correction is
processed.
14.4 Method of Calculation. The Administrator shall determine the
---------------------
maximum percentage for each HCE whose Calculated Percentage(s) is(are) the
highest at any one time by reducing his or her Calculated Percentage in the
following manner until the ADP and/or ACP Test is satisfied:
(a) The Calculated Percentage for each HCE under a Related Plan
shall be reduced to the extent permitted under such Related Plan.
(b) If more reduction is needed, the Calculated Percentage of each
HCE whose Calculated Percentage (stated in absolute terms) is the greatest
shall be reduced by one-hundredth (1/100) of one percentage point.
(c) If more reduction is needed, the Calculated Percentage of each
HCE whose Calculated Percentage (stated in absolute terms) is the greatest
(including the Calculated Percentage of any HCE whose Calculated
Percentage was adjusted under Paragraph (b) shall be reduced by one-
hundredth (1/100) of one percentage point.
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(d) If more reduction is needed, the procedures of Paragraph (c)
shall be repeated.
14.5 Multiple Use Test. If the Average Contribution Percentage and the
-----------------
Average Deferral Percentage for the HCE Group exceeds the Basic Limitation in
both the ADP or the ACP Tests (after correction of the ADP and ACP Test), the
ADP and ACP (as corrected) for the HCE Group must also comply with the
requirements of Code Section 401(m)(9), which as of the Effective Date require
that the sum of these two percentages (as determined after any corrections
needed to meet the ADP or ACP Tests have been made) must not exceed the greater
of:
(a) the sum of
(1) the larger of the ADP or ACP for the NHCE Group times
1.25; and
(2) the smaller of the ADP or ACP for the NHCE Group, times
two (2) if the NHCE Average Percentage is less than two
percent (2%), or plus two percent (2%) if it is two
percent (2%) or more; or
(b) the sum of
(1) the lesser of the ADP or ACP for the NHCE Group times
1.25; and
(2) the greater of the ADP or ACP for the NHCE Group, times
two (2) if the NHCE Average Percentage is less than two
percent (2%), or plus two percent (2%) if it is two
percent (2%) or more.
If the multiple use limit is exceeded, the Administrator shall determine a
maximum ADP or ACP for the HCE Group and shall reduce the ADP or ACP for
each HCE in the same manner as would be used to correct to ADP or ACP.
14.6 Adjustment for Investment Gain or Loss. The net investment gain or
--------------------------------------
loss associated with the K-Contributions and/or M-Contributions to be
distributed shall be distributed or charged against a distribution within two
and one-half (2 1/2) months
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but no later than twelve (12) months following the close of the applicable Plan
Year. Such gain or loss is calculated as follows:
E X G X (1+ (108 XM))
------
(AB-G)
where:
E = the total excess Deferrals or Contributions,
G = the net gain or loss for the Plan Year from all of an HCE's
affected Accounts,
AB = the total value of an HCE's affected Accounts, determined
as of the end of the Plan Year being corrected,
M = the number of full months from the Plan Year end to the date excess
amounts are paid, plus one for the month during which payment is to
be made if payment will occur after the fifteenth (15th) of the
month.
14.7 Required Records. The Administrator shall maintain records which
----------------
are sufficient to demonstrate that the ADP, ACP and Multiple Use Test has been
met for each Plan Year for at least as long as the Employer's corresponding tax
year is open to audit.
14.8 Incorporation by Reference. The provisions of this Section are
--------------------------
intended to satisfy the requirements of Code Sections 401(k)(3), (m)(2), (m)(9)
and Treas. Reg. (S)(S) 1.401(k)-1(b), 1.401(m)-1(b) and 1.401(m)-2 and, to the
extent not otherwise stated in this Section, those Code Sections and Treasury
Regulations are incorporated herein by reference.
14.9 Collectively Bargained Employees. The provisions of this Article
--------------------------------
shall apply separately to Participants who are collectively bargained employees
within the meaning of Treas. Reg. (S) 1.410(b)-6(d)(2) and for Participants who
are not collectively bargained employees.
14.10 QSLOB. The Administrator in its sole discretion may apply the
-----
provisions of this Article separately with respect to each qualified separate
line of business, as defined in Section 414(r) of the Code.
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ARTICLE XV
- --------------------------------------------------------------------------------
CUSTODIAL ARRANGEMENTS
----------------------
15.1 Custodial Agreement. The Administrator may enter into one or more
-------------------
Custodial Agreements to provide for the holding, investment and payment of Plan
assets, or direct by execution of an insurance contract that all or a specified
portion of the Plan's assets be held, invested and paid under such a contract.
All Custodial Agreements, as from time to time amended, shall continue in force
and shall be deemed to form a part of the Plan. Subject to the requirements of
the Code and ERISA, the Administrator may cause assets of the Plan which are
securities to be held in the name of a nominee or in street name provided such
securities are held on behalf of the Plan by:
(a) a bank or trust company that is subject to supervision by the
United States or a State, or a nominee of such bank or trust company;
(b) a broker or dealer registered under the Securities Exchange Act
of 1934, or a nominee of such broker or dealer; or
(c) a "clearing agency" as defined in Section 3(a)(23) of the
Securities Exchange Act of 1934, or its nominee.
15.2 Selection of Custodian. The Administrator shall select, remove or
----------------------
replace the Custodian in accordance with the Custodial Agreement. The
subsequent resignation or removal of a Custodian and the approval of its
accounts shall all be accomplished in the manner provided in the Custodial
Agreement.
15.3 Custodian's Duties. Except as provided in ERISA, the powers, duties
------------------
and responsibilities of the Custodian shall be as stated in the Custodial
Agreement, and unless expressly stated or delegated to the Custodian (with the
Custodian's acceptance), nothing contained in this Plan shall be deemed by
implication to impose any additional powers, duties or responsibilities upon the
Custodian. All Employer Contributions and Rollover Contributions shall be paid
into the Trust, and all benefits payable under the Plan shall be paid from the
Trust, except to the extent such amounts are paid to a Custodian other than the
Trustee. An Employer shall have no rights or claims of any nature in or to the
assets of the Plan except the right to require the Custodian to hold, use, apply
and pay such assets in its hands, in accordance with the directions of the
Administrator, for the exclusive benefit of the Participants and their
Beneficiaries, except as hereinafter provided.
15.4 Separate Entity. The Custodial Agreement under this Plan from its
---------------
inception shall be a separate entity aside and apart from Employers or their
assets,
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and the corpus and income thereof shall in no event and in no manner
whatsoever be subject to the rights or claims of any creditor of any Employer.
15.5 Plan Asset Valuation. As of each Valuation Date, the Unit Value of
--------------------
the Plan's assets held or posted to an Investment Fund shall be determined by
the Administrator or the Custodian, as appropriate.
15.6 Right of Employers to Plan Assets. The Employers shall have no right
---------------------------------
or claim of any nature in or to the assets of the Plan except the right to
require the Custodian to hold, use, apply, and pay such assets in its possession
in accordance with the Plan for the exclusive benefit of the Participants or
their Beneficiaries and for defraying the reasonable expenses of administering
the Plan; provided, that:
(a) if the Plan receives an adverse determination with respect to
its initial qualification under Sections 401(a), 401(k) and 401(m) of the
Code, Contributions conditioned upon the qualification of the Plan shall be
returned to the appropriate Employer within one (1) year of such denial of
qualification; provided, that the application for determination of initial
qualification is made by the time prescribed by law for filing the
respective Employer's return for the taxable year in which the Plan is
adopted, or by such later date as is prescribed by the Secretary of the
Treasury under Section 403(c)(2)(B) of ERISA;
(b) if, and to the extent that, deduction for a Contribution under
Section 404 of the Code is disallowed, Contributions conditioned upon
deductibility shall be returned to the appropriate Employer within one (1)
year after the disallowance of the deduction;
(c) if, and to the extent that, a Contribution is made through
mistake of fact, such Contribution shall be returned to the appropriate
Employer within one year of the payment of the Contribution; and
(d) any amounts held suspended pursuant to the limitations of Code
Section 415 shall be returned to the Employers upon termination of the
Plan.
All Contributions made hereunder are conditioned upon the Plan being
qualified under Sections 401(a) or 401(k) and 401(m) of the Code and a
deduction being allowed for such contributions under Section 404 of the
Code. Pre-Tax Contributions returned to an Employer pursuant to this
Section shall be paid to the Participant for whom contributed as soon as
administratively convenient. If these provisions result in the return of
Contributions after such amounts have been allocated to Accounts, such
Accounts shall be reduced by the amount of the allocation attributable to
such amount, adjusted for any losses or expenses.
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ARTICLE XVI
- --------------------------------------------------------------------------------
ADMINISTRATION AND INVESTMENT MANAGEMENT
----------------------------------------
16.1 General. The Company, through the authority vested in the Board of
-------
Directors, has established, by separate documentation, the Administrator and
Administrative Committee, and has enabled each, respectively, to have the power
and authority to act, to the extent delegated to each, on behalf of the Company
(and therefore all Employers), with respect to matters which relate to the Plan
and Trust, but not on behalf of the Plan and Trust. Furthermore, the Company
has adopted the Plan and Trust, thereby:
(a) establishing a separate Administrator and Administrative
Committee, and enabling each, respectively, to have the power and authority to
act, to the extent provided in the Plan or Trust, on behalf of the Plan or
Trust, but not on behalf of the Company; and
(b) enabling the Administrator and Administrative Committee to have
the power and authority to act, to the extent provided in and the manner
provided in the Plan or Trust, on behalf of the Company, but not on behalf of
the Plan or Trust.
16.2 Administrator Acting as Employer. The Administrator has the
--------------------------------
following authority and control and such other authority and control as shall be
granted to it, from time to time, to act on behalf of the Company:
(a) amend or terminate the Plan to the extent permitted in the Plan;
(b) designate which employee groups are eligible to participate in
the Plan to the extent permitted in the Plan;
(c) select, monitor and remove, as necessary, consultants,
actuaries, underwriters, insurance companies, third party administrators, or
other service providers, and to appoint and remove any such person as a Named
Fiduciary, and determine and delegate to them their duties and responsibilities,
either directly or by the adoption of Plan provisions which specify such duties
and responsibilities (the provisions of the Plan documents will control in the
case of a conflict);
(d) appoint and consult with legal counsel, independent consulting
or evaluation firms, accountants, actuaries, or other advisors, as necessary, to
perform its functions;
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(e) determine what expenses, if any, related to the operation and
administration of the Plan and the investment of Plan assets, may be paid from
Plan assets, subject to applicable law;
(f) recommend to the CEO all Plan changes, requiring his or her
approval;
(g) report to the CEO any Plan matters of significance to the
Company;
(h) review with the CEO any proposals which would be submitted to
the Board of Directors; and
(i) establish such policies and make such other delegations or
designations necessary or incidental to the Company's sponsorship of the Plan;
and
(j) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
16.3 Administrative Committee Acting as Employer. The Administrative
-------------------------------------------
Committee has the following authority and control and such other authority and
control, as shall be granted to it, from time to time, to act on behalf of the
Company:
(a) adopt, amend or terminate, in part or completely, a Trust
document, provided such action is consistent with the Plan for which the Trust
is established;
(b) appoint and consult with legal counsel, investment advisors,
independent consulting or evaluation firms, accountants, actuaries, or other
advisors, as necessary, to perform its functions;
(c) determine the funding policies of the Plan and related matters;
(d) report to the CEO any Plan funding or investment policies of
significance to the Company;
(e) review with the CEO any proposals which would be submitted to
the Board of Directors;
(f) establish such policies and make such other delegations or
designations necessary or incidental to the Company's sponsorship of the Plan or
Trust;
(g) select, monitor and remove, as necessary, consultants,
actuaries, underwriters, insurance companies, third party administrators, or
other
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service providers, and to appoint and remove any such person as a Named
Fiduciary, and determine and delegate to them their duties and responsibilities,
either directly or by the adoption of Trust provisions which specify such duties
and responsibilities (the provisions of the Plan or Trust documents will control
in the case of a conflict); and
(h) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
16.4 Administrator as Named Fiduciary.
--------------------------------
(a) The Administrator, acting on behalf of the Plan or Trust and
subject to subsection (b) hereof, shall be a Named Fiduciary with respect to the
authority to manage and control the administration and operation of the Plan,
including without limitation, the management and control with respect to the
operation and administration of the Plan contained in an agreement with a Named
Fiduciary but only to the extent it has been specifically designated in such
agreement as being the responsibility of the Administrator, an Employer, the
Company, or any employee, member or delegate of any of them.
(b) The Administrator shall not be a Named Fiduciary whenever it
acts on behalf of the Company and, notwithstanding any other term or provision
of the Plan, Trust, or an agreement with a Named Fiduciary, the Administrator
shall cease to be a Named Fiduciary with respect to some specified portion of
the operation and administration of the Plan or Trust, to the extent that a
Named Fiduciary is designated pursuant to the procedure in the Plan or Trust to
severally have authority to manage and control such portion of the operation and
administration of the Plan or Trust.
16.5 Administrative Committee as Named Fiduciary.
-------------------------------------------
(a) The Administrative Committee, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to its authority to manage and control the Plan or Trust or the Plan's
assets, but only to the extent not inconsistent with the Plan or Trust.
(b) The Administrative Committee shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Administrative Committee shall cease to be a Named Fiduciary with respect to
some specified portion of the operation and administration of the Plan or Trust,
to the extent that a Named Fiduciary is designated pursuant to the procedure in
the Plan or Trust to severally have authority to manage and control such portion
of the operation and administration of the Plan or Trust.
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16.6 Administrative Committee Membership. The Administrative Committee
-----------------------------------
shall consist of not less than 3 persons, who shall be appointed by the CEO.
Members shall remain in office at the will of the CEO and the CEO may from time
to time remove any of said members with or without cause and shall appoint their
successors.
16.7 Administrative Committee Structure. Any individual may be a member
----------------------------------
of the Administrative Committee. Any member may resign by delivering his or her
written resignation to CEO, and such resignation shall become effective upon the
date specified therein. A member who is an Employee shall automatically cease to
be a member upon his or her Termination of Employment. In the event of a vacancy
in membership, the remaining members shall constitute the Administrative
Committee in question with full power to act until said vacancy is filled.
16.8 Actions. The Administrator or Administrative Committee may act,
-------
whether as a Named Fiduciary on behalf of the Plan or on behalf of the Company,
as follows:
(a) The members may act at a meeting (including a meeting at
different locations by telephone conference) or in writing without a meeting
(through the use of a single document or concurrent document).
(b) Any member by writing may delegate any or all of his or her
rights, powers, duties and discretions to any other member with the consent of
such other member.
(c) The Administrator or Administrative Committee shall act by
majority decision, which action shall be effective as if such action had been
taken by all members; provided that by majority action one or more members or
other persons may be authorized to act with respect to particular matters on
behalf of all members.
(d) Subject to applicable law, no member shall be liable for an act
or omission of the other members of the same committee in which the former had
not concurred.
(e) Any action by the Administrator or Administrative Committee on
behalf of this Plan or Trust involving its authority to manage and control the
operation and administration of the Plan or Trust or the Plan's assets shall be
treated as an action of a Named Fiduciary under this Plan.
(f) Where reference is made in this Plan (or where the Administrator
or Administrative Committee designates in writing) that its action is on behalf
of the Company, such committee shall be acting only on behalf of the Company and
not as a Named Fiduciary.
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(g) Except as provided in Section 16.25, the Administrator or
Administrative Committee may, in writing delivered to the Trustee, empower a
representative to act on its behalf and such person shall have the authority to
act within the scope of such empowerment to the full extent the Administrative
Committee could have acted.
16.9 Procedures for Designation of a Named Fiduciary. The Administrator
-----------------------------------------------
or Administrative Committee, acting on behalf of the Company, may from time to
time, designate a person to be a Named Fiduciary with respect to some portion of
the authority it may have with respect to management and control of the
operation and administration of the Plan or the management and control of the
Plan's assets. Such designation shall specify the person designated by name and
either (a) specify the management and control authority with respect to which
the person will be a Named Fiduciary; or (b) incorporate by reference an
agreement with such person to provide services to or on behalf of the Plan or
Trust and use such agreement as a means for specifying the management and
control authority with respect to which such person will be a Named Fiduciary.
No person who is designated as a Named Fiduciary hereunder must consent to such
designation nor shall it be necessary for the Administrator or Administrative
Committee to seek such person's acquiescence. The authority to manage and
control, which any person who is designated to be a Named Fiduciary hereunder
may have, shall be several and not joint with the Administrator or
Administrative Committee, whichever is applicable, and shall result in the
Administrator or Administrative Committee, whichever is applicable, no longer
being a Named Fiduciary with respect to, nor having any longer, such authority
to manage and control. On and after the designation of a person as a Named
Fiduciary, the Employer, the Administrator, the Administrative Committee, and
any other Named Fiduciary with respect to the Plan or Trust, shall have no
liability for the acts (or failure to act) of any such Named Fiduciary except to
the extent of its co-Fiduciary duty under ERISA.
16.10 Compensation. The Administrator or members of the Administrative
------------
Committee, acting on behalf of the Plan or Trust, shall serve without
compensation for their services as such.
16.11 Discretionary Authority of each Named Fiduciary. Each Named
-----------------------------------------------
Fiduciary on behalf of the Plan and Trust will enforce the Plan and Trust in
accordance with their terms. Each Named Fiduciary shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control) over that portion of the management,
administration, and operation of the Plan or Trust allocated to such Named
Fiduciary, including, but not limited to, the authority and discretion to:
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(a) formulate, adopt, issue and apply procedures and rules and
change, alter or amend such procedures and rules in accordance with law and as
may be consistent with the terms of the Plan or Trust;
(b) specify the basis upon which payments are to be made under the
Plan and, as the final appeals Fiduciary under ERISA Section 503, to make a
final determination, based upon the information known to the Named Fiduciary
within the scope of its authority and control as a Named Fiduciary, based upon
determinations made and such other information made available from an Employer
plus such final determinations made by each other Named Fiduciary within the
scope of its authority and control, as are determined to be relevant to the
final appeals Fiduciary;
(c) exercise such discretion as may be required to construe and
apply the provisions of the Plan or Trust, subject only to the terms and
conditions of the Plan or Trust; and
(d) take all necessary and proper acts as are required for such
Named Fiduciary to fulfill its duties and obligations under the Plan or Trust.
16.12 Responsibility and Powers of the Administrator Regarding
--------------------------------------------------------
Administration of the Plan. The Administrator shall have full and complete
- --------------------------
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control only if specifically provided) over that
portion of the management, administration, and operation of the Plan or Trust
allocated to the Administrator and the power to act on behalf of the Plan or
Trust, including, but not limited to, the authority and discretion to:
(a) appoint and compensate such specialists (including attorneys,
actuaries and accountants) to aid it in the administration of the Plan, and
arrange for such other services, as the Administrator considers necessary or
appropriate in carrying out the provisions of the Plan;
(b) appoint and compensate an independent outside accountant to
conduct such audits of the financial statements of the Trust as the
Administrator considers necessary or appropriate;
(c) settle or compromise any litigation against the Plan or a
Fiduciary with respect to which the Plan has an indemnity obligation;
(d) assure that the Plan does not violate any provisions of ERISA
limiting the acquisition or holding of Company Stock;
(e) appoint the Plan Administrator to act within the duties and
responsibilities set forth in Section 16.23;
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(f) act as the Fiduciary responsible for monitoring the
confidentiality and independent Fiduciary requirements associated with Company
Stock in order for the Plan to qualify as a Section 404(c) plan under Department
of Labor regulations;
(g) create a legal remedy to the Plan with respect to a Participant
or Beneficiary, or to a Participant or Beneficiary, for any loss incurred
(whether restitution or opportunity losses) by the Plan on behalf of such
Participant or Beneficiary, or by such Participant or Beneficiary, due to a
breach of Fiduciary duty to the Plan by a Named Fiduciary or other error
(whether negligent or willful) which the Administrator determines is a
substantial contributing factor to such loss (or a portion of such loss); and
(h) take all necessary and proper acts as are required for the
Administrator to fulfill its duties and obligations under the Plan or Trust.
16.13 Allocations and Delegations of Responsibility.
---------------------------------------------
(a) Delegations. Each Named Fiduciary may designate persons (other
-----------
than a Named Fiduciary) to carry out Fiduciary responsibilities (other than
trustee responsibilities as described in Section 405(c)(3) of ERISA) it may have
with respect to the Plan or Trust and make a change of delegated
responsibilities. Such delegation shall specify the delegated person by name
and either (a) specify the discretionary authority with respect to which the
person will be a Fiduciary; or (b) incorporate by reference an agreement with
such Named Fiduciary to provide services to the Plan or Trust on behalf of the
delegating Named Fiduciary as a means of specifying the discretionary authority
with respect to which such person will be a Fiduciary. No person (other than an
investment manager (as defined in Section 3(38) of ERISA) to whom Fiduciary
responsibility has been delegated must consent to being a Fiduciary nor shall it
be necessary for the Named Fiduciary to seek such person's acquiescence;
however, where such person has not contractually accepted the responsibility
delegated, he or she must be given notification of the services to be performed
and, in either case, will be deemed to have accepted such Fiduciary
responsibility if he or she performs the services described for thirty (30) days
or more without specific objection thereto. The discretionary authority any
person who is delegated Fiduciary responsibilities hereunder may have shall be
several and not joint with the Named Fiduciary delegating and each other Named
Fiduciaries. A delegation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein shall not be void; however, whether
the delegating Named Fiduciary shall have joint liability for acts of such
person shall be determined by applicable law.
(b) Allocations. The Administrator or Administrative Committee,
-----------
acting on behalf of the Company, may allocate Fiduciary responsibilities (other
than trustee responsibilities described in Section 405(c)(3) of ERISA) among
Named Fiduciaries when it designates a Named Fiduciary in the manner described
in
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Section 16.9, or may reallocate Fiduciary responsibilities among existing Named
Fiduciaries by action of such Administrator or Administrative Committee in
accordance with Sections 16.8 and 16.9; provided each such Named Fiduciary is
given notice of the services, management and control authority allocated to it
either by way of an amendment to the Plan, Trust or a contract with such person,
or by way of correspondence from the Administrator or Administrative Committee,
whichever is applicable. Each Named Fiduciary, by signing its contract or by
accepting such amendment or correspondence and rendering the services requested
without objection for thirty (30) days, shall be conclusively bound to have
assumed such Fiduciary responsibility as a Named Fiduciary. An allocation of
Fiduciary responsibility to a person which is not implemented in the manner set
forth herein shall not be void, however, such person may not be a Named
Fiduciary with respect to the Plan and Trust.
(c) Limit on Liability. Fiduciary duties and responsibilities which
------------------
have been allocated or delegated pursuant to the terms of the Plan or the Trust,
are intended to limit the liability of the Company, the Administrator, the
Administrative Committee, and each Named Fiduciary, as appropriate, in
accordance with the provisions of Section 405(c) of ERISA.
16.14 Bonding. The Administrator and members of the Administrative
-------
Committee, acting on behalf of the Plan and Trust, shall serve without bond
(except as otherwise required by federal law).
16.15 Information to be Supplied by Employer. Each Employer shall supply
--------------------------------------
to the Administrator or Administrative Committee, acting on behalf of the Plan
and Trust, or a designated Named Fiduciary, within a reasonable time of its
request, the names of all Employees, their age, their date of hire, the names
and dates of all Employees who incurred a Termination of Employment during the
Plan Year, Compensation and such other information in the Employer's possession
as the Administrator or Administrative Committee shall from time to time need in
the discharge of its duties. The Administrator or Administrative Committee and
each Named Fiduciary may rely conclusively on the information certified to it by
an Employer.
16.16 Information to be Supplied by Named Fiduciary. Whenever a term,
---------------------------------------------
definition, standard, protocol, policy, interpretation, rule, practice or
procedure under an Administrative Services Agreement, or other basis for
determining whether a Participant's or Beneficiary's accrued benefit, optional
form of benefit, right or feature is required or used, the Named Fiduciary who
has the authority to manage and control the administration and operation of the
Plan with respect to such accrued benefit, optional form of payment, right or
feature shall be solely responsible for establishing and maintaining such
framework of definitions, standards, protocols, policies, interpretations,
rules, practices and procedures under such Administrative Services Agreement and
shall provide a copy thereof either (1) to the Administrator or
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Administrative Committee, upon its request, on behalf of the Company (2) to a
Participant or Beneficiary but only to the extent required by law, or (3) to the
extent required in any proceeding involving the Plan or any Named Fiduciary with
respect to the Plan.
16.17 Misrepresentations. The Administrator or Administrative Committee,
------------------
acting on behalf of the Plan and Trust, may, but shall not be required to, rely
upon any certificate, statement or other representation made to it by an
Employee, Participant, other Named Fiduciary, or other individual with respect
to any fact regarding any of the provisions of the Plan. If relied upon, any
such certificate, statement or other representation shall be conclusively
binding upon such Employee, Participant, other Named Fiduciary, or other
individual or personal representative thereof, heir, or assignee (but not upon
the Administrator or Administrative Committee), and any such person shall
thereafter be estopped from disputing the truth of any such certificate,
statement or other representation.
16.18 Records. The regularly kept records of the designated Named
-------
Fiduciary (or, where applicable, the Trustee) and any Employer shall be
conclusive evidence of a person's age, his or her status as an Eligible
Employee, and all other matters contained therein applicable to this Plan;
provided that a Participant may request a correction in the record of his or her
age at any time prior to retirement, and such correction shall be made if within
ninety (90) days after such request he or she furnishes in support thereof a
birth certificate, baptismal certificate, or other documentary proof of age
satisfactory to the Administrator.
16.19 Plan Expenses. All expenses of the Plan which have been approved by
-------------
the Administrator or Administrative Committee, acting on behalf of the Plan and
Trust, respectively, shall be paid by the Trust except to the extent paid by the
Employers; and if paid by the Employers, such Employers may, if authorized by
the Administrator acting on behalf of the Company, seek reimbursement of such
expenses from the Trust and the Trust shall reimburse the Employers. If borne
by the Employers, expenses of administering the Plan shall be borne by the
Employers in such proportions as the Administrator, acting on behalf of the
Company, shall determine.
16.20 Fiduciary Capacity. Any person or group of persons may serve in
------------------
more than one Fiduciary capacity with respect to the Plan.
16.21 Employer's Agent. The Administrator and Administrative Committee
----------------
shall act as agent for the Company when acting on behalf of the Company and the
Company shall act as agent for each Employer.
16.22 Plan Administrator. The Plan Administrator (within the meaning of
------------------
Section 3(16)(A)) shall be appointed by the Administrator, acting on behalf of
the Company, and may (but need not) be the Administrator; and in the absence of
such
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appointment, the Administrator, acting on behalf of the Plan and Trust, shall be
the Plan Administrator.
16.23 Plan Administrator Duties and Power. The Plan Administrator will
-----------------------------------
have full and complete authority, responsibility and control over the
management, administration and operation of the Plan with respect to the
following:
(a) satisfy all reporting and disclosure requirements applicable to
the Plan, Trust or Plan Administrator under ERISA, the Code or other applicable
law;
(b) make appropriate determinations as to whether Rollover
Contributions constitute such;
(c) provide and deliver all written forms used by Participants and
Beneficiaries, give notices required by law, and seek a favorable determination
letter for the Plan and Trust;
(d) withhold any amounts required by the Code to be withheld at the
source and to transmit funds withheld and any and all necessary reports with
respect to such withholding to the Internal Revenue Service;
(e) where applicable, to provide each Participant or his or her
Spouse with QJSA and QPSA information;
(f) certify to the Trustee the amount and kind of benefits payable
to or withdrawn from Participants and Beneficiaries and the date of payment,
including withdrawals;
(g) respond to a QDRO;
(h) make available for inspection and to provide upon request at
such charge as may be permitted and determined by it, documents and instruments
required to be disclosed by ERISA;
(i) make a determination of whether a Participant is suffering a
deemed or demonstrated financial need and whether a withdrawal from this Plan is
deemed or demonstrated necessary to satisfy such financial need; provided
however, in making such determination, the Plan Administrator may rely, if
reasonable to do so, upon representations made by such Participant in connection
with his or her request for a withdrawal;
(j) take such actions as are necessary to establish and maintain the
Plan in full and timely compliance with any law or regulation having pertinence
to this Plan;
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(k) perform whatever responsibilities are delegated to the Plan
Administrator by the Administrator; and
(l) interpret and construe the provisions of the Plan, to make
regulations and settle disputes described above which are not inconsistent with
the terms thereof.
16.24 Named Fiduciary Decisions Final. The decision of the Administrator,
-------------------------------
the Administrative Committee, or a Named Fiduciary in matters within its
jurisdiction shall be final, binding, and conclusive upon the Employers and the
Trustee and upon each Employee, Participant, Spouse, Beneficiary, and every
other person or party interested or concerned.
16.25 No Agency. Each Named Fiduciary shall perform (or fail to perform)
---------
its responsibilities and duties or discretionary authority with respect to the
Plan and Trust as an independent contractor and not as an agent of the Company,
any Employer, the Administrator or Administrative Committee. No agency is
intended to be created nor is the Administrator or Administrative Committee
empowered to create an agency relationship with a Named Fiduciary.
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ARTICLE XVII
- --------------------------------------------------------------------------------
CLAIMS PROCEDURE
----------------
17.1 Initial Claim for Benefits. Each person entitled to benefits under
--------------------------
this Plan (a "Claimant") must sign and submit his or her claim for benefits to
the Administrator or its agent in writing in such form as is provided or
approved by such Administrator. A Claimant shall have no right to seek review
of a denial of benefits, or to bring any action in any court to enforce a claim
for benefits prior to his or her filing a claim for benefits and exhausting his
or her rights under this Section. When a claim for benefits has been filed
properly, such claim for benefits shall be evaluated and the Claimant shall be
notified by the Administrator or agent of its approval or denial within ninety
(90) days after the receipt of such claim unless special circumstances require
an extension of time for processing the claim. If such an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant by the Administrator or agent prior to the termination of the
initial ninety (90) day period which shall specify the special circumstances
requiring an extension and the date by which a final decision will be reached
(which date shall not be later than one hundred eighty (180) days after the date
on which the claim was filed). A Claimant shall be given a written notice in
which the Claimant shall be advised as to whether the claim is granted or
denied, in whole or in part. If a claim is denied, in whole or in part, the
Claimant shall be given written notice which shall contain (1) the specific
reasons for the denial, (2) references to pertinent Plan provisions upon which
the denial is based, (3) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is necessary, and (4) the Claimant's rights to seek review of the
denial.
17.2 Review of Claim Denial. If a claim is denied, in whole or in part
----------------------
(or if within the time periods prescribed for in the initial claim, the
Administrator or agent has not furnished the Claimant with a denial and the
claim is therefore deemed denied), the Claimant shall have the right to request
that the Administrator review the denial, provided that the Claimant files a
written request for review with the Administrator within sixty (60) days after
the date on which the Claimant received written notification of the denial. A
Claimant (or his or her duly authorized representative) may review pertinent
documents and submit issues and comments in writing to the Administrator.
Within sixty (60) days after a request for review is received, the review shall
be made and the Claimant shall be advised in writing by the Administrator of the
decision on review, unless special circumstances require an extension of time
for processing the review, in which case the Claimant shall be given a written
notification by the Administrator within such initial sixty (60) day period
specifying the reasons for the extension and when such review shall be completed
(provided that such review shall be completed within one hundred and twenty
(120) days after the date on which the request for review was filed). The
decision on review shall be forwarded to the Claimant by the Administrator in
writing and shall
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include specific reasons for the decision and references to Plan provisions upon
which the decision is based. A decision on review shall be final and binding on
all persons for all purposes. If a Claimant shall fail to file a request for
review in accordance with the procedures described in this Section, such
Claimant shall have no right to review and shall have no right to bring action
in any court and the denial of the claim shall become final and binding on all
persons for all purposes.
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ARTICLE XVIII
- --------------------------------------------------------------------------------
ADOPTION AND WITHDRAWAL FROM PLAN
---------------------------------
18.1 Procedure for Adoption. Any Commonly Controlled Entity may adopt the
----------------------
Plan for the benefit of its Eligible Employees by resolution of such Commonly
Controlled Entity's board of directors and by completing (or the Administrator
completing pursuant to its authority to amend the Plan) one or more Appendices
with respect to such Employees, which adoption shall be effective as of the date
specified in the board resolution. No such adoption shall be effective until
such adoption and any such Appendices to be used in connection therewith has
been approved by the Administrator.
18.2 Procedure for Withdrawal. Any Employer (other than the Company) may,
------------------------
by resolution of the board of directors of such Employer, with the consent of
the Administrator and subject to such conditions as may be imposed by the
Administrator (or the Administrator acting on behalf of the Company pursuant to
its authority to amend this Plan), terminate its adoption of the Plan.
Notwithstanding the foregoing, an Employer will be deemed to have terminated its
adoption of the Plan when it ceases to be a Commonly Controlled Entity.
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ARTICLE XIX
- --------------------------------------------------------------------------------
AMENDMENT, TERMINATION AND MERGER
---------------------------------
19.1 Amendments.
----------
(a) Power to Amend. The Company, by action of its Board of Directors
--------------
on behalf of all Employers, or the Administrator as provided in Subsection
(c) below, may amend, modify, change, revise or discontinue this Plan or
any Appendix, in whole or in part, or with respect to all persons or a
designated group of persons, by amendment at any time; provided, however,
that no amendment shall:
(1) increase the duties or liabilities of the Custodian or the
Administrator without its written consent;
(2) have the effect of vesting in any Employer any interest in
any funds, securities or other property, subject to the
terms of this Plan and the Custodial Agreement;
(3) authorize or permit at any time any part of the corpus or
income of the Plan's assets to be used or diverted to
purposes other than for the exclusive benefit of
Participants and Beneficiaries;
(4) except to the extent permissible under ERISA and the Code,
make it possible for any portion of the Trust assets to
revert to an Employer to be used for, or diverted to, any
purpose other than for the exclusive benefit of
Participants and Beneficiaries entitled to Plan benefits
and to defray reasonable expenses of administering the
Plan;
(5) permit an Employee to be paid the balance of his or her
Pre-Tax Account unless the payment would otherwise be
permitted under Code Section 401(k); and
(6) have any retroactive effect as to deprive any such person
of any benefit already accrued, except that no amendment
made in order to conform the Plan as a plan described in
Section 401(a) of the Code of which amendments are
permitted by the Code or are required or permitted by any
other statute relating to employees' trusts, or any
official regulations or ruling issued pursuant
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thereto, shall be considered prejudicial to the rights of
any such person.
(b) Restriction on Amendment. No amendment to the Plan shall deprive
------------------------
a Participant of his or her nonforfeitable rights to benefits accrued to
the date of the amendment. In addition to the foregoing, the Plan shall
not be amended so as to eliminate an optional form of payment of an Accrued
Benefit attributable to employment prior to the date of the amendment. The
foregoing limitations do not apply to benefit accrual occurring after the
date of the amendment.
(c) The Administrator. The Administrator, acting on behalf of the
-----------------
Company, may amend, modify, change or revise the Plan or any Appendix, in
whole or in part, or with respect to all persons or a designated group of
persons; provided however, (i) no such action may be taken if it could not
have been adopted under this Section by the Board of Directors, (ii) no
such action may be taken if it causes a material change in the level or
type of contributions to be made to the Plan or otherwise materially
increase the duties and obligations of any or all Employers with respect to
the Plans, and (iii) no such action may amend Articles XVI and XIX.
19.2 Plan Termination. It is the expectation of the Company that it will
----------------
continue the Plan and the payment of Contributions hereunder indefinitely, but
the continuation of the Plan and the payment of Contributions hereunder is not
assumed as a contractual obligation of the Company or any other Employer. The
right is reserved by the Company to terminate the Plan at any time, and the
right is reserved by the Company by action of its Board of Directors or the
Administrator acting on behalf of the Company pursuant to its power to amend the
Plan at any time to reduce, suspend or discontinue its or any other Employer's
Contributions hereunder, provided, however, that the Contributions for any Plan
Year accrued or determined prior to the end of said year shall not after the end
of said year be retroactively reduced, suspended or discontinued except as may
be permitted by law. Upon termination of the Plan or complete discontinuance of
Contributions hereunder (other than for the reason that the Employer has had no
net profits or accumulated net profits), each Participant's Accrued Benefit
shall be fully vested. Upon termination of the Plan or a complete
discontinuance of Contributions, unclaimed amounts shall be applied as
Forfeitures and any unallocated amounts shall be allocated to Participants who
are Eligible Employees as of the date of such termination or discontinuance on
the basis of Compensation for the Plan Year (or short Plan Year). Upon a
partial termination of the Plan, the Accrued Benefit of each affected
Participant shall be fully vested. In the event of termination of the Plan, the
Administrator shall direct the Custodian to distribute to each Participant the
entire amount of his or her Accrued Benefit as soon as administratively
possible, but not earlier than would be permitted in order to retain the Plan's
qualified status under Sections 401(a), (k) and (m) of the Code, as if all
Participants who are Employees had
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incurred a Termination of Employment on the Plan's termination date. Should a
Participant or a Beneficiary) not elect immediate payment of a nonforfeitable
Accrued Benefit in excess of three thousand five hundred dollars ($5,000), the
Administrator shall direct the Custodian to continue the Plan and Custodial
Agreement for the sole purpose of paying to such Participant his or her Accrued
Benefit or death benefit, respectively, unless in the opinion of the
Administrator, to make immediate single sum payments to such Participant or
Beneficiary would not adversely affect the tax qualified status of the Plan upon
termination and would not impose additional liability upon any Employer or the
Custodian.
19.3 Plan Merger. The Plan shall not merge or consolidate with, or
-----------
transfer any assets or liabilities to any other plan, unless each person
entitled to benefits would receive a benefit immediately after the merger,
consolidation or transfer (if the Plan were then terminated) which is equal to
or greater than the benefit he or she would have been entitled to immediately
before the merger, consolidation or transfer (if the Plan were then terminated).
The Administrator shall amend or take such other action as is necessary to amend
the Plan in order to satisfy the requirements applicable to any merger,
consolidation or transfer of assets and liabilities.
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ARTICLE XX
- --------------------------------------------------------------------------------
SPECIAL TOP-HEAVY RULES
-----------------------
20.1 Application. Notwithstanding any provisions of this Plan to the
-----------
contrary, the provisions of this Article shall apply and be effective for any
Plan Year for which the Plan shall be determined to be a "Top-Heavy Plan" as
provided and defined herein.
20.2 Special Terms. For purposes of this Article, the following terms
-------------
shall have the following meanings:
(a) "Aggregate Benefit" means the sum of:
-----------------
(1) the present value of the accrued benefit under each and all
defined benefit plans in the Aggregation Group determined
on each plan's individual Determination Date as if there
were a termination of employment on the most recent date
the plan is valued by an actuary for purposes of computing
plan costs under Section 412 of the Code within the twelve
(12) month period ending on the Determination Date of each
such plan, but with respect to the first plan year of any
such plan determined by taking into account the estimated
accrued benefit as of the Determination Date; provided (A)
the method of accrual used for the purpose of this
Paragraph (1) shall be the same as that used under all
plans maintained by all Employers and Commonly Controlled
Entities if a single method is used by all stock plans or,
otherwise, the slowest accrual method permitted under
Section 411(b)(1)(C) of the Code, and (B) the actuarial
assumptions to be applied for purposes of this Paragraph
(1) shall be the same assumptions as those applied for
purposes of determining the actuarial equivalents of
optional benefits under the particular plan, except that
the interest rate assumption shall be five percent (5%);
(2) the present value of the accrued benefit (i.e., account
balances) under each and all defined contribution plans in
the Aggregation Group, valued as of the valuation date
coinciding with or immediately preceding the Determination
Date of each such plan, including (A) contributions made
after the valuation date but on or prior to the
Determination Date, (B) with respect to the first
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plan year of any plan, any contribution made subsequent to
the Determination Date but allocable as of any date in the
first plan year, or (C) with respect to any defined
contribution plan subject to Section 412 of the Code, any
contribution made after the Determination Date that is
allocable as of a date on or prior to the Determination
Date; and
(3) the sum of each and all amounts distributed (other than a
rollover or plan-to-plan transfer) from any Aggregation
Group Plan, plus a rollover or plan-to-plan transfer
initiated by the Employee and made to a plan which is not
an Aggregation Group Plan within the Current Plan Year or
within the preceding four (4) plan years of any such plan,
provided such amounts are not already included in the
present value of the accrued benefits as of the valuation
date coincident with or immediately preceding the
Determination Date.
The Aggregate Benefit shall not include the value of any rollover or plan-
to-plan transfer to an Aggregation Group Plan, which rollover or transfer
was initiated by a Participant, was from a plan which was not maintained by
an Employer or a Commonly Controlled Entity, and was made after December
31, 1983, nor shall the Aggregate Benefit include the value of employee
contributions which are deductible pursuant to Section 219 of the Code.
(b) "Aggregation Group" means the Plan and one or more plans
------------------
(including plans that terminated) which is described in Section 401(a) of
the Code, is an annuity contract described in Section 403(a) of the Code or
is a simplified employee pension described in Section 408(k) of the Code
maintained or adopted by an Employer or a Commonly Controlled Entity in the
Current Plan Year or one of the four preceding Plan Years which is either a
"Required Aggregation Group" or a "Permissive Aggregation Group".
(1) A "Required Aggregation Group" means all Aggregation Group
--------------------------
Plans in which either (1) a Key Employee participates or
(2) which enables any Aggregation Group Plan in which a Key
Employee participates to satisfy the requirements of
Sections 401(a)(4) and 410 of the Code.
(2) A "Permissive Aggregation Group" means Aggregation Group
----------------------------
Plans included in the Required Aggregation Group, plus one
or more other Aggregation Group Plans, as designated by the
Administrator in its sole discretion, which satisfy the
requirements of Sections 401(a)(4) and
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MIDAS RSP FOR SALARIED EMPLOYEES
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410 of the Code, when considered with the other component
plans of the Required Aggregation Group.
(c) "Aggregation Group Plan" means the Plan and each other plan in
----------------------
the Aggregation Group.
(d) "Current Plan Year" means (1) with respect to the Plan, the Plan
-----------------
Year in which the Determination Date occurs, and (2) with respect to each
other Aggregation Group Plan, the plan year of such other plan in which
occurs the Determination Date of such other plan.
(e) "Determination Date" means (1) with respect to the Plan and its
------------------
Plan Year, the last day of the preceding Plan Year; or (2) with respect to
any other Aggregation Group Plan in any calendar year during which the Plan
is not the only component plan of an Aggregation Group, the determination
date of each plan in such Aggregation Group to occur during the calendar
year as determined under the provisions of each such plan.
(f) "Former Key Employee" means an Employee (including a terminated
-------------------
Employee) who is not a Key Employee but who was a Key Employee.
(g) "Key Employee" means an Employee (or a terminated Employee) who
------------
at any time during the Current Plan Year or at any time during the four
preceding Plan Years is:
(1) an officer of a Commonly Controlled Entity whose
compensation from a Commonly Controlled Entity during the
Plan Year is greater than fifty percent (50%) of the amount
specified in Section 415(b)(1)(A) of the Code (as adjusted
for cost-of-living increases by the Secretary of the
Treasury) for the calendar year in which the Plan Year
ends; provided, however, that no more than the lesser of
(A) fifty (50) Employees, or (B) the greater of (i) three
(3) Employees or (ii) ten percent (10%) (rounded to the
next whole integer) of the greatest number of Employees
during the Current Plan Year or any of the preceding four
Plan Years shall be considered as officers for this
purpose. Such officers considered will be those with the
greatest annual compensation as an officer during the five
(5) year period ending on the Determination Date;
(2) One of the ten employees who owns (or is considered to own
within the meaning of Section 318 of the Code) more than a
one half percent (1/2%) interest in value and
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the largest percentage ownership interest in value in a
Commonly Controlled Entity and whose total annual
compensation from a Commonly Controlled Entity is not less
than the amount specified in Section 415(b)(1)(A) of the
Code (as adjusted for cost-of-living increases by the
Secretary of the Treasury) for the calendar year in which
the Plan Year ends;
(3) A person who owns more than five percent (5%) of the value
of the outstanding stock of any Commonly Controlled Entity
or more than five percent (5%) of the total combined voting
power of all stock of any Commonly Controlled Entity
(considered separately) or;
(4) A person who owns more than one percent (1%) of the value
of the outstanding stock of a Commonly Controlled Entity or
more than one percent (1%) of the total combined voting
power of all stock of a Commonly Controlled Entity
(considered separately) and whose total annual compensation
(as defined in Section 1.415-2(d) of the Treasury
Regulations) from the Employer or a Commonly Controlled
Entity is in excess of one hundred and fifty thousand
dollars ($150,000).
The rules of Section 416 (i)(1)(B) and (C) of the Code shall be applied for
purposes of determining an Employee's ownership interest in a Commonly
Controlled Entity for purposes of Paragraphs (3) and (4) herein. A
Beneficiary (who would not otherwise be considered a Key Employee) of a
deceased Key Employee shall be deemed to be a Key Employee in substitution
for such deceased Key Employee. Any person who is a Key Employee under
more than one of the four Paragraphs of this Section shall have his or her
Aggregate Benefit under the Aggregation Group Plans counted only once with
respect to computing the Aggregate Benefit of Key Employees as of any
Determination Date. Any Employee who is not a Key Employee shall be a Non-
Key Employee.
(h) "Top-Heavy Plan" means the Plan with respect to any Plan Year if
--------------
the Aggregate Benefit of all Key Employees or the Beneficiaries of Key
Employees determined on the Determination Date is an amount in excess of
sixty percent (60%) of the Aggregate Benefit of all persons who are
Employees within the Current Plan Year; provided, that if an individual has
not performed services for an Employer or a Commonly Controlled Entity at
any time during the five (5) year period ending on the Determination Date,
the individuals's Accrued Benefit shall not be taken into account. With
respect to any calendar year during which the Plan is not the only
Aggregation Group Plan, the ratio determined under the preceding sentence
shall be computed based on the sum
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of the Aggregate Benefits of each Aggregation Group Plan totaled as of the
last Determination Date of any Aggregation Group Plan to occur during the
calendar year.
20.3 Minimum Contribution. For any Plan Year that the Plan shall be a
--------------------
Top-Heavy Plan, each Participant who is an Eligible Employee but who is neither
a Key Employee nor a Former Key Employee on the last day of the Plan Year shall
have allocated to his or her Matching Account on the last day of the Plan Year a
Pay Based Contribution in an amount equal to three percent (3%) of such
Participant's Compensation not in excess of two hundred thousand dollars
($200,000); provided, however, in no event shall such contribution on behalf of
such Participant be less than five percent (5%) of such Compensation if any
Aggregation Group Plan is a defined benefit plan which does not satisfy the
minimum benefit requirements with respect to such Participant. The amount of Pay
Based Contributions required to be allocated under this Section for any Plan
Year shall be reduced by the amount of Employer Contributions and Forfeitures
allocated under this Plan on behalf of the Participant and employer
contributions and forfeitures allocated on behalf of the Participant under any
other defined contribution plan in the Aggregation Group for the Plan Year.
Elective Deferrals to any Aggregation Group Plan made on behalf of a Participant
in Plan Years beginning after December 31, 1984 but before January 1, 1989 shall
be deemed to be Employer Contributions for the purpose of this Section. Elective
Deferrals and matching contributions to Aggregation Group Plans in Plan Years
beginning on or after January 1, 1989 shall not be used to meet the minimum
contribution requirements of this Section. Where Employer Contributions and
Forfeitures allocated on behalf of a Participant are insufficient to satisfy the
minimum contribution otherwise required by this Section, an additional employer
contribution shall be made and allocated to the Matching or Pay Based Account of
such Participant.
20.4 Maximum Benefit Accrual. For any Plan Year that the Plan is a Top-
-----------------------
Heavy Plan, the denominator of the "defined benefit plan fraction" and the
denominator of the "defined contribution plan fraction" shall be determined by
substituting "1.0" for "1.25"; provided, however, this limit shall not apply
with respect to an Employee for any Plan Year during which he or she accrues no
benefit under any plan of the Aggregation Group. The preceding sentence shall
not apply if, within this Article, there is substituted "four percent (4%)" for
"three percent (3%)" and "seven and one-half percent (7.5%)" for "five percent
(5%)" and "ninety percent (90%)" for "sixty percent (60%)."
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ARTICLE XXI
- --------------------------------------------------------------------------------
MISCELLANEOUS PROVISIONS
------------------------
21.1 Assignment and Alienation. As provided by Code Section 401(a)(13)
-------------------------
and to the extent not otherwise required by law, no benefit provided by the Plan
may be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit with
respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as security for a
loan from the Plan which is permitted pursuant to Code Section 4975.
21.2 Protected Benefits. All benefits which are protected by the terms
------------------
of Code Section 411(d)(6) and ERISA Section 204(g), which cannot be eliminated
without adversely affecting the qualified status of the Plan on and after
January 1, 1998, shall be provided under this Plan to Participants for whom such
benefits are protected. The Administrator shall cause such benefits to be
determined and the terms and provisions of the Plan immediately prior to January
1, 1998 are incorporated herein by reference and made a part hereof, but only to
the extent such terms and provisions are so protected. Otherwise, they shall
operate within the terms and provisions of this Plan, as determined by the
Administrator.
21.3 Plan Does Not Affect Employment Rights. The Plan does not provide
--------------------------------------
any employment rights to any Employee. The Employer expressly reserves the
right to discharge an Employee at any time, with or without Cause, without
regard to the effect such discharge would have upon the Employee's interest in
the Plan.
21.4 Deduction of Taxes from Amounts Payable. The Custodian shall deduct
---------------------------------------
from the amount to be distributed such amount as the Custodian, in its sole
discretion, deems proper to protect the Custodian and the Plan's assets held
under the Custodial Agreement against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted,
the Custodian may discharge any such liability and pay the amount remaining to
the Participant, the Beneficiary or the deceased Participant's estate, as the
case may be.
21.5 Facility of Payment. If a Participant or Beneficiary is declared an
-------------------
incompetent or is a minor and a conservator, guardian, or other person legally
charged with his or her care has been appointed, any benefits to which such
Participant or Beneficiary is entitled shall be payable to such conservator,
guardian, or other person legally charged with his or her care. The decision of
the Administrator in such matters shall be final, binding, and conclusive upon
the Employer and the Custodian and upon each Employee, Participant, Beneficiary,
and
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EFFECTIVE JANUARY 1, 1998
every other person or party interested or concerned. An Employer, the Custodian
and the Administrator shall not be under any duty to see to the proper
application of such payments.
21.6 Source of Benefits. All benefits payable under the Plan shall be
------------------
paid or provided for solely from the Plan's assets held under the Custodial
Agreement and the Employers assume no liability or responsibility therefor.
21.7 Indemnification. To the extent permitted by law each Employer shall
---------------
indemnify and hold harmless each member (and former member) of the Board of
Directors, each member (and former member) of the Administrative Committee and
the Administrator, and each officer and employee (and each former officer and
employee) of an Employer to whom are (or were) delegated duties,
responsibilities, and authority with respect to the Plan against all claims,
liabilities, fines and penalties, and all expenses reasonably incurred by or
imposed upon him or her (including but not limited to reasonable attorney fees
and amounts paid in any settlement relating to the Plan) by reason of his or her
service under the Plan if he or she did not act dishonestly, with gross
negligence, or otherwise in knowing violation of the law under which such
liability, loss, cost or expense arises. This indemnity shall not preclude such
other indemnities as may be available under insurance purchased or provided by
an Employer under any by-law, agreement, or otherwise, to the extent permitted
by law. Payments of any indemnity, expenses or fees under this Section shall be
made solely from assets of the Employer and shall not be made directly or
indirectly from the assets of the Plan.
21.8 Reduction for Overpayment. The Administrator shall, whenever it
-------------------------
determines that a person has received benefit payments under this Plan in excess
of the amount to which the person is entitled under the terms of the Plan, make
two reasonable attempts to collect such overpayment from the person.
21.9 Limitation on Liability. No Employer nor any agent or
-----------------------
representative of any Employer who is an employee, officer, or director of an
Employer in any manner guarantees the assets of the Plan against loss or
depreciation, and to the extent not prohibited by federal law, none of them
shall be liable (except for his or her own gross negligence or willful
misconduct), for any act or failure to act, done or omitted in good faith, with
respect to the Plan. No Employer shall be responsible for any act or failure to
act of any Custodian appointed to administer the assets of the Plan.
21.10 Company Merger. In the event any successor corporation to the
--------------
Company, by merger, consolidation, purchase or otherwise, shall elect to adopt
the Plan, such successor corporation shall be substituted hereunder for the
Company upon filing in writing with the Custodian its election so to do.
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MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
21.11 Employees' Trust. The Plan and Custodial Agreement are created for
----------------
the exclusive purpose of providing benefits to the Participants in the Plan and
their Beneficiaries and defraying reasonable expenses of administering the Plan,
and the Plan and Custodial Agreement shall be interpreted in a manner consistent
with their being, respectively, a Plan described in Sections 401(a), 401(k) and
401(m) of the Code and Custodial Agreements exempt under Section 501(a) of the
Code. At no time shall the assets of the Plan be diverted from the above
purpose.
21.12 Gender and Number. Except when the context indicates to the
-----------------
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.
21.13 Invalidity of Certain Provisions. If any provision of this Plan
--------------------------------
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Plan shall be construed and
enforced as if such provisions, to the extent invalid or unenforceable, had not
been included.
21.14 Headings. The headings or articles are included solely for
--------
convenience of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
21.15 Uniform and Nondiscriminatory Treatment. Any discretion exercisable
---------------------------------------
hereunder by an Employer or the Administrator shall be exercised in a uniform
and nondiscriminatory manner.
21.16 Law Governing. The Plan shall be construed and enforced according
-------------
to the laws of the state in which the Trust is located, to the extent not
preempted by ERISA.
21.17 Military Service. Notwithstanding any provision 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 Code.
21.18 Notice and Information Requirements. Except as otherwise provided
-----------------------------------
in this Plan or in the Custodial Agreement or as otherwise required by law, the
Employer shall have no duty or obligation to affirmatively disclose to any
Participant or Beneficiary, nor shall any Participant or Beneficiary have any
right to be advised of, any material information regarding the Employer, at any
time prior to, upon or in connection with the Employer's purchase, or any other
distribution or transfer (or decision to defer any such distribution) of any
Company Stock or any other stock held under the Plan.
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<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Executed this ____ day of ___________________, 19___.
MIDAS, INC.
By:________________________________
Title:_____________________________
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<PAGE>
MIDAS RSP FOR SALARIED EMPLOYEES
EFFECTIVE JANUARY 1, 1998
Appendix 7.4
INVESTMENT FUNDS
The Investment Funds offered to Participants and Beneficiaries as of
January 1, 1998, based upon share accounting, are:
1. Fixed Income Fund
2. Company Stock Fund
3. Large Company Fund
4. Small Company Fund
5. International Fund
6. Conservative Portfolio
7. Moderate Portfolio
8. Growth Portfolio
9. Aggressive Growth Portfolio
Appendix 7.4 - Page 1
<PAGE>
Appendix 1.28
EXCLUDED EMPLOYEES
The following Employees shall not be an Eligible Employee:
(a) Any Employee of COSMIC Stores, Inc. who is an eligible employee in the
Midas Retirement Savings Plan For Hourly Employees for the Plan Year.
(b) Any Employee of COSMIC Enterprises, Inc. who is an eligible employee in
the Midas Retirement Savings Plan For Hourly Employees for the Plan Year.
Appendix 1.28 - Page 1
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Midas, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-8 and the related prospectus pertaining to the registration of Midas,
Inc. common stock for the Midas Retirement Savings Plan for Hourly Employees and
the Midas Retirement Savings Plan for Salaried Employees of our report dated
January 8, 1997, relating to the combined balance sheets of Midas as of December
1996 and 1995, and the related combined statements of operations and cash flows
for each of the years in the three-year period ended December 1996, which report
appears in the Midas, Inc. registration statement on Form 10/A No. 3 (Post-
Effective Amendment No. 1).
KPMG PEAT MARWICK LLP
Chicago, Illinois
January 21, 1998
