As filed with the Securities and
Exchange Commission on July 8, 1999 Registration No. 333-___ and No. 333-___
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
SIMON PROPERTY GROUP, INC. SPG REALTY CONSULTANTS, INC.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
046268599 13-2838638
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
NATIONAL CITY CENTER
115 W. WASHINGTON ST., SUITE 15 EAST
INDIANAPOLIS, INDIANA 46204
(317) 636-1600
(Address of Principal Executive Offices)
SIMON PROPERTY GROUP AND
ADOPTING ENTITIES MATCHING SAVINGS PLAN
(Full title of the plan)
JAMES M. BARKLEY
SIMON PROPERTY GROUP
NATIONAL CITY CENTER
115 W. WASHINGTON STREET
SUITE 15 EAST
INDIANAPOLIS, INDIANA 46204
(Name and address of agent for service)
(317) 636-1600
(Telephone number, including area code, of agent for service)
COPY TO:
DAVID C. WORRELL
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE REGISTERED (1) OFFERING PRICE AGGREGATE OFFERING PRICE (2) REGISTRATION FEE
PER SHARE (2)
<S> <C> <C> <C> <C>
Paired Shares of Common 500,000 $27 3/16 $13,593,750 $3,780
Stock, par value $.0001
per share (3)
</TABLE>
(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933
(the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. Pursuant to Rule 457(h)(2)
under the Securities Act, no separate fee is required to register such
interests.
(2)Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low prices of the Common Stock as
reported by the New York Stock Exchange on July 2, 1999.
(3)Each share of Common Stock of Simon Property Group, Inc. is paired with
a beneficial interest in 1/100th of a share of Common Stock of SPG
Realty Consultants, Inc.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I of Form S-8 to be contained in the
Section 10(a) Prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Simon Property Group, Inc.
("SPG") and SPG Realty Consultants, Inc. (with SPG, the "Registrants") or
the Simon Property Group and Adopting Entities Matching Savings Plan (the
"Plan") with the Securities and Exchange Commission are incorporated by
reference in this Registration Statement:
(1) The Registrants' Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(2) The Registrants' Form 10-Q/A for the quarter ended September 30,
1998;
(3) The Registrants' Form 10-Q for the quarter ended March 31, 1999;
(4) The Registrants' Current Report on Form 8-K dated March 4, 1999;
(5) The Registrants' Current Report on Form 8-K dated May 20, 1999;
(6) The Registrants' Definitive Proxy Statement on Schedule 14A in
connection with its 1999 Annual Meeting of Stockholders;
(7) The description of the Registrants' Paired Shares of Common Stock
contained in the Registrants' Registration Statement on Form 8-
A/A filed with the Securities and Exchange Commission on
September 24 1998, including any amendment or report filed for
the purpose of updating such description; and
(8) The Plan's Annual Report on Form 11-K for the year ended December
31, 1997.
In addition, all documents subsequently filed by the Registrants or
the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing
of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities offered hereby
then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from their respective
dates of filing.
The Registrants will promptly provide without charge to each person to
whom a prospectus is delivered a copy of any or all information that has
been incorporated herein by reference (not including exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into such information) upon the
written or oral request of such person directed to James M. Barkley, Simon
Property Group, National City Center, 115 West Washington Street, Suite 15
East, Indianapolis, Indiana 46204, (317) 636-1600.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Registrants' officers and directors are indemnified under Delaware
law, the Registrants' Charters and the Partnership Agreement of Simon
Property Group, L.P. (the "Operating Partnership") against certain
liabilities. The Delaware General Corporation Law ("DGCL") generally
permits a corporation to indemnify its directors and officers, among
others, against expenses, judgments, fines and amounts paid in settlement
actually or reasonably incurred by them in the defense or settlement of
third-party actions or action by or in right of the corporation, and for
judgments in third party actions provided there is a determination by
directors who were not parties to the action, or if directed by such
directors, by independent legal counsel or by a majority vote of a quorum
of the stockholders, that the person seeking indemnification acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the
interests of the corporation, and in a criminal proceeding, that the person
had no reason to believe his or her conduct to be unlawful. Without court
approval, however, no indemnification may be made in respect of any action
by or in right of the corporation in which such person is adjudged liable.
The DGCL states that the indemnification provided by statute shall not be
deemed exclusive of any rights under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. In addition, the
liability of officers may not be eliminated or limited under Delaware law.
The Registrants' Charters contain a provision limiting the liability
of directors and officers to the Registrants and their stockholders to the
fullest extent permitted under and in accordance with the laws of the State
of Delaware. Each of the Registrants' Charters provides that the directors
will not be personally liable to the corporation or to its stockholders for
monetary damages for breach of fiduciary duty as a director; provided,
however, that such provision will not eliminate or limit the liability of a
director for (i) any breach of the director's duty of loyalty to the
corporation and its stockholders; (ii) acts or omissions not in good faith;
(iii) any transaction from which the director derived an improper personal
benefit; or (iv) any matter in respect of which such director would be
liable under Section 174 of the DGCL. The personal liability of a director
for violation of the federal securities laws is not limited or otherwise
affected. In addition, these provisions do not affect the ability of
stockholders to obtain injunctive or other equitable relief from the courts
with respect to a transaction involving gross negligence on the part of a
director. No amendment of the Registrants' Charters shall limit or
eliminate the right to indemnification provided with respect to acts or
omissions occurring prior to such amendment or repeal. The Registrants' By-
Laws contain provisions which implement the indemnification provisions of
the Registrants' Charters.
The Partnership Agreement of the Operating Partnership provides for
indemnification of the officers and directors of each general partner of
the Operating Partnership to the same extent indemnification is provided to
officers and directors of the Registrants in their Charters, and limits the
liability of such general partners and their officers and directors to the
Operating Partnership and their partners to the same extent liability of
officers and directors of the Registrants to the Registrants and their
stockholders is limited under the Registrants' Charters.
SPG has entered into indemnification agreements with each of SPG's
directors and officers. The indemnification agreements require, among other
things, that SPG indemnify its directors and officers to the fullest extent
permitted by law, and advance to the directors and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. SPG also must indemnify and advance all
expenses incurred by directors and officers seeking to enforce their rights
under the indemnification agreements, and cover each director and officer
if SPG obtains directors' and officers' liability insurance.
In addition, the Registrants have a directors' and officers' liability
and company reimbursement policy that insures against certain liabilities,
including liabilities under the Securities Act, subject to applicable
retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
The Registrants hereby undertake that they will submit or have
submitted the Plan and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan under Section 401 of the
Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the 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 (1)(i) and (1)(ii) of this
section do not apply if 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
Registrants pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 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 remain
unsold at the termination of the offering.
The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrants' annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, the Registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the Registrants 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 Registrants will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANTS. Pursuant to the requirements of the Securities Act
of 1933, the Registrants certify that they have reasonable grounds to
believe that they meet all of the requirements for filing on Form S-8 and
have duly caused this Registration Statement to be signed on their behalf
by the undersigned, thereunto duly authorized, in the City of Indianapolis,
State of Indiana, on July 6, 1999.
SIMON PROPERTY GROUP, INC. and
SPG REALTY CONSULTANTS, INC.
By: /S/ DAVID SIMON
David Simon
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
respective capacities and on the respective dates indicated opposite their
names. Each person whose signature appears below hereby authorizes David
Simon, Stephen E. Sterrett, James R. Giuliano III and John Dahl, or any of
them, each with full power of substitution, to execute in the name and on
behalf of such person any amendment to this Registration Statement,
including post-effective amendments, and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933
and to file the same, with exhibits thereto, and other documents in
connection therewith, making such changes in this Registration Statement as
the registrant deems appropriate, and appoints David Simon, Stephen E.
Sterrett, James R. Giuliano III and John Dahl, or any of them, each with
full power of substitution, attorney-in-fact to sign any amendment to this
Registration Statement, including post-effective amendments, and any
subsequent registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933 and to file the same, with exhibits thereto, and
other documents in connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ DAVID SIMON Chief Executive Officer July 6, 1999
David Simon and Director (Principal
Executive Officer)
/S/ HERBERT SIMON Co-Chairman of the
Herbert Simon Board of Directors July 6, 1999
Melvin Simon Co-Chairman of the July _, 1999
Board of Directors
/S/ HANS C. MAUTNER Vice Chairman of the July 6, 1999
Hans C. Mautner Board of Directors
Richard Sokolov President, Chief Operating July _, 1999
Officer and Director
/S/ ROBERT E. ANGELICA Director July 6, 1999
Robert E. Angelica
/S/ BIRCH BAYH Director July 6, 1999
Birch Bayh
Pieter S. van den Berg Director July _, 1999
/S/ G. WILLIAM MILLER Director July 6, 1999
G. William Miller
/S/ FREDRICK W. PETRI Director July 6, 1999
Fredrick W. Petri
/S/ J. ALBERT SMITH Director July 6, 1999
J. Albert Smith
/S/ PHILIP J. WARD Director July 6, 1999
Philip J. Ward
/S/ M. DENISE DEBARTOLO YORK Director July 6, 1999
M. Denise DeBartolo York
/S/ JOHN DAHL Senior Vice President July 6, 1999
John Dahl (Principal Accounting
Officer)
</TABLE>
Principal Financial Officers:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ STEPHEN E. STERRETT Treasurer July 6, 1999
Stephen E. Sterrett\
/S/ JAMES R. GIULIANO III Senior Vice President July 6, 1999
James R. Giuliano III
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan)
have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Indianapolis,
State of Indiana on July 6, 1999.
SIMON PROPERTY GROUP AND ADOPTING
ENTITIES MATCHING SAVINGS PLAN
SIMON PROPERTY GROUP, L.P.,
as Plan Administrator
By: SIMON PROPERTY GROUP, INC.,
Managing General Partner
By: /S/ DAVID SIMON
David Simon, Chief Executive Officer
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
DESCRIPTION OF EXHIBIT
Exhibit
NO.
<S> <C>
4.1 Restated Certificate of Incorporation of Simon Property Group, Inc.
(incorporated by reference to Exhibit 3.1 to the Registrant's
Current Report on Form 8-K filed October 9, 1998).
4.2 Restated By-laws of Simon Property Group, Inc. (incorporated by
reference to Exhibit 3.2 to the Registrant's Current Report on Form
8-K filed October 9, 1998).
4.3 Restated Certificate of Incorporation of SPG Realty Consultants,
Inc. (incorporated by reference to Exhibit 3.3 to the Registrant's
Current Report on Form 8-K filed October 9, 1998).
4.4 Restated By-laws of SPG Realty Consultants, Inc. (incorporated by
reference to Exhibit 3.4 to the Registrant's Current Report on Form
8-K filed October 9, 1998).
4.5 Issuance Agreement dated as of September 28, 1998, between Simon
Property Group, Inc. and SPG Realty Consultants, Inc. (incorporated
by reference to Exhibit 4.5 to the Registrant's Current Report on
Form 8-K filed October 9, 1998).
4.6 Trust Agreement, dated as of October 30, 1979, among shareholders
of predecessors in interest to Simon Property Group, Inc. and SPG
Realty Consultants, Inc., and First Jersey National Bank, as
Trustee (incorporated by reference to Exhibit 4.7 of the Form S-4
filed by Corporate Property Investors, Inc. (Reg. No. 333-61399)).
4.7 Fifth Amendment and Complete Restatement of the Simon DeBartolo
Group and Adopting Entities Matching Savings Plan.
4.8 Seventh Amendment to the Simon DeBartolo Group and Adopting
Entities Matching Savings Plan.
5 Opinion of Baker & Daniels
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Baker & Daniels (included in their opinion filed as
Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the
Registration Statement).
</TABLE>
EXHIBIT 4.7
FIFTH AMENDMENT AND COMPLETE
RESTATEMENT OF THE
SIMON DEBARTOLO GROUP
AND ADOPTING ENTITIES
MATCHING SAVINGS PLAN
(AS AMENDED AND RESTATED APRIL 1, 1997)
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I ESTABLISHMENT OF THE PLAN
1.1. Effective Date
1.2. Legal Requirements
ARTICLE II DEFINITIONS
2.1. Actual Deferral Percentage
2.2. Administrator
2.3. After-Tax Contributions
2.4. Annual Additions
2.5. Appropriate Form
2.6. Approved Absence
2.7. Before-Tax Contributions
2.8. Committee
2.9. Company
2.10. Company Matched Contribution Percentage
2.11. Company Matched Contributions
2.12. Compensation
2.13. Compensation Redirection Agreement
2.14. Compensation Redirection Percentage
2.15. Defined Benefit Fraction
2.16. Defined Contribution Fraction
2.17. Employee
2.18. Employer
2.19. Enrollment Date
2.20. Forfeiture Suspense Account
2.21. Group
2.22. Highly Compensated Participant
2.23. Hour of Service
2.24. One Year Break in Service
2.25. Participant
2.26. Participant Account
2.27. Period of Separation
2.28. Period of Service
2.29. Period of Severance
2.30. Plan
2.31. Plan Year
2.32. Retirement Plan
2.33. Section 415 Compensation
2.34. Severance
2.35. Spouse
2.36. Testing Compensation
2.37. Top Paid Group
2.38. Total Disability
2.39. Trust Agreement
2.40. Trustee
2.41. Trust Fund
2.42. Valuation Date
2.43. Years of Service
2.44. DPMI
2.45. DPMI Plan
2.46. Profit-Sharing Contribution
2.47. Prior Year's Non-Highly Compensated Participant
2.48. Current Year ACP Method
2.49. Current Year ADP Method
2.50. Prior Year ACP Method
2.51. Prior Year ADP Method
ARTICLE III ELIGIBILITY
3.1. Requirements for Eligibility
3.2. Commencement of Participation
3.3. Method of Becoming a Participant
3.4. Re-employment
3.5. Loss of Eligibility
3.6. Transition Rule for DPMI Employees
ARTICLE IV COMPENSATION REDIRECTION
4.1. Compensation Redirection Agreement
4.2. Change in Compensation Redirection Percentage
4.3. Revocation of Compensation Redirection Agreement
4.4. No Make-Up of Before-Tax Contributions
4.5. Remittance of Before-Tax Contributions and
After-Tax Contributions
ARTICLE V CONTRIBUTIONS
5.1. Amount of Company Contributions
5.2. Company Matched Contributions
5.3. Remittance of Company Contributions
5.4. Maximum Annual Additions
5.5. Return of Company Contributions
5.6. Return of Before-Tax Contributions
5.7. Return of Company Matched Contributions
and After-Tax Contributions
5.8. Maximum Before-Tax Contributions
5.9. Plan Priority of Excess Contributions
5.10. Investment Fund Priority of Excess Contributions
5.11. After-Tax Contributions
5.12. Discretionary Profit-Sharing Contribution
5.13. Contribution of Vacation Pay
ARTICLE VI INVESTMENT OF CONTRIBUTIONS
6.1. Investment of Contributions
6.2. Change of Investment Election
6.3. Conversion of Investments
<PAGE>
6.4. Special Rules for Investments in Fund 7
6.5. Transition Rules
ARTICLE VII PARTICIPANT ACCOUNTS
7.1. Maintenance of Participant Accounts
7.2. Valuation of Participant Accounts
7.3. Nature of Participant's Interest in Trust Fund
ARTICLE VIII VESTING
8.1. Before-Tax Contributions Subaccount,
After-Tax Contributions Subaccount and
Retirement Plan Subaccount
8.2. Company Matched Contributions Subaccounts
and Profit-Sharing Contributions Subaccount
8.3. Forfeitures
8.4. Additional Rules Regarding Vested Interest
in Company Matched Contributions Subaccount
and Profit-Sharing Contributions Subaccount
8.5. Non-Forfeiture of Protected Benefits
ARTICLE IX LOANS
9.1. Availability of Loans
9.2. Restrictions on Loans
9.3. Additional Loan Rules
9.4. Accounting for Loans
9.5. Temporary Suspension of Loans
ARTICLE X RETIREMENT
10.1. Retirement Date
10.2. Late Retirement
10.3. Benefit at Retirement
ARTICLE XI SEVERANCE
11.1. Severance Benefits
ARTICLE XII TOTAL DISABILITY
12.1. Total Disability Benefits
ARTICLE XIII DEATH
13.1. Death Before Payment of Plan Benefits Has Been Made
13.2. Beneficiary Designation
ARTICLE XIV PAYMENT OF BENEFITS
14.1. Standard Method of Distribution upon
Termination of Employment or Retirement
14.2. Optional Methods of Distributions and
Notice Regarding Qualified Joint and
Survivor Annuity
14.3. Incapacity
14.4. Identity of Payee
14.5. Deadline for Payment of Benefits
14.6. Distribution Upon Death Prior to
Commencement of Benefits
14.7. Restrictions on Distributions
14.8. Installment Distributions
14.9. Disclaimer by Surviving Spouse or Other Beneficiary
14.10. Distribution of Small Account(s)
14.11. Suspension of Distributions
ARTICLE XV CLAIMS
15.1. Procedure
ARTICLE XVI ADMINISTRATION OF PLAN
16.1. Administration by the Committee
16.2. Delegation of Duties
16.3. Recordation of Actions
16.4. Duties of Committee
16.5. Indemnification
16.6. Communications to Trustee
16.7. Additional Rights of Committee
16.8. Compliance with Law
16.9. Waiver of Time Deadlines
16.10. Limitations on Responsibilities of Fiduciaries
ARTICLE XVII DUTIES OF THE TRUSTEE
17.1. General Provisions
17.2. Trust Agreement
17.3. Delegation of Duties
17.4. Records
17.5. Participant's Representatives
ARTICLE XVIII MISCELLANEOUS
18.1. Payment of Expenses
18.2. Forms
18.3. No Right of Employment
18.4. Construction
18.5. Copies of Documents
18.6. Jurisdiction
18.7. Nonalienation of Benefits
18.8. Non-Diversion
18.9. Extra-Ordinary Expenses
18.10. Rehire after Military Service
ARTICLE XIX AMENDMENT, TERMINATION OR MERGER
19.1. Right to Amend or Terminate
19.2. Distribution upon Termination
19.3. Plan Merger or Consolidation
<PAGE>
ARTICLE XX TEFRA TOP-HEAVY RULES
20.1. Application
20.2. Determination
20.3. Accrued Benefits
20.4. Vesting Provisions
20.5. Minimum Contribution
20.6. Code Section 415 Limitations
ARTICLE XXI TRANSFER OF ASSETS TO OR FROM OTHER PLANS
21.1. Application
21.2. Definitions
21.3. Direct Transfers From Other Plans
21.4. Rollover Transfers
21.5. Rules With Respect to Plan-to-Plan
Transfers and Rollovers
ARTICLE XXII PARTICIPATION IN PLAN BY PARENT, SUBSIDIARIES OR AFFILIATES
22.1. Additional Participation
22.2. Cessation of Participation
<PAGE>
SIMON DEBARTOLO GROUP AND
ADOPTING ENTITIES MATCHING SAVINGS PLAN
(AS AMENDED AND RESTATED APRIL 1, 1997)
The purpose of the Plan is to assist eligible employees of the
Company, and certain of its affiliates to provide additional security for
their retirement. The Plan initially became effective January 1, 1989, was
subsequently amended by the First Amendment hereto effective January 1,
1991, by the Second Amendment hereto effective July 1, 1993, by the Third
Amendment hereto effective October 1, 1993 and by the Fourth Amendment
hereto and Restatement hereof effective January 1, 1994. This Plan is a
continuation of (and was formerly known as) the Simon Property Group and
Adopting Entities Matching Savings Plan, which was a continuation of (and
was formerly known as)the Melvin Simon & Associates, Inc. and Adopting
Entities Matchings Savings Plan.
Effective January 1, 1994, the Simon Property Group and Adopting
Entities Retirement Plan, formerly known as the Melvin Simon & Associates,
Inc. and Adopting Entities Retirement Plan, (the "Retirement Plan") was
merged into this Plan, the assets and liabilities of the Retirement Plan
were transferred to this Plan, and the participants in the Retirement Plan
became participants in this Plan to the extent they were not already
participants in this Plan. Notwithstanding any other provision of this
Plan to the contrary and to the extent required by Section 411(d)(6) of the
Code, no early retirement benefit, retirement-type subsidy or optional form
of benefit shall be eliminated with respect to a Retirement Plan
participant's interest in the Retirement Plan as a result of the merger.
The provisions of this Plan shall apply to persons who were
participants in the Retirement Plan on December 31, 1993 only if their
employment with the Employers is terminated on or after January 1, 1994 or
if they were otherwise eligible to participate in this Plan on or after
January 1, 1994. The rights and benefits, if any, of persons who were
participants in the Retirement Plan on or before December 31, 1993 and who
terminated their employment with the Employers before January 1, 1994 shall
be determined solely under the Retirement Plan.
Effective April 1, 1997, the DPMI Plan has been merged into this Plan,
the assets and liabilities of the DPMI Plan have been transferred to this
Plan, and the participants in the DPMI Plan have become participants in
this Plan to the extent they were not already participants in this Plan.
Notwithstanding any other provision of this Plan to the contrary and to the
extent required by Section 411(d) (6) of the Code, no early retirement
benefit, retirement-type subsidy or optional form of benefit shall be
eliminated with respect to a DPMI Plan participant's accrued benefit or
other interest in the DPMI Plan as a result of the merger.
The provisions of this Plan shall apply to persons who were
participants in the DPMI Plan on March 31, 1997 only if their employment
with the Employers is terminated on or after April 1, 1997 or if they are
otherwise eligible to participate in this Plan on or after April 1, 1997.
The rights and benefits, if any, of persons who were participants in the
DPMI Plan on or before March 31, 1996 and who terminated their employment
with the Employers before April 1, 1997 shall be determined solely under
the DPMI Plan.
It is intended that the Plan and the Trust Agreement that is part of
the Plan meet the requirements of the Employee Retirement Income Security
Act of 1974, as now in effect or hereafter amended and regulations
promulgated thereunder, ("ERISA") and be qualified and exempt as a profit
sharing plan with a cash or deferred arrangement under Section 401(a),
Section 401(k) and Section 501(a) of the Internal Revenue Code of 1986, as
now in effect or hereafter amended and regulations promulgated thereunder
(the "Code").
It is further declared to be the express purpose and intention of the
Plan that, except as otherwise provided by ERISA, no liability whatsoever
shall attach to or be incurred by the shareholders, officers or directors
of the Company or of the Group or of any representatives appointed
hereunder by the Company under or by reason of any of the terms and
conditions of the Plan. Neither the establishment and maintenance of the
Plan nor any provision or amendment thereof nor any act or omission under
or resulting from the operation of the Plan shall be construed:
(a) as conferring upon any Employee, Participant, Spouse,
beneficiary or any other person, firm, corporation or association, any
legal or equitable right or claim against the Administrator, against
the Committee, against the Company, against any member of the Group or
against the Trustee, except to the extent that such right or claim
shall be specifically and expressly provided in the Plan or provided
by law, nor against any shareholder, officer, employee, agent or
director of the Company or any member of the Group. Any and all such
rights and claims, whether arising by common law or in equity or
created by statute, are hereby expressly waived and released to the
fullest extent permitted by law by every Employee on behalf of
himself, his Spouse or other beneficiary and any and all other persons
who might claim through him as a condition of and as a part of the
consideration for the contributions made by the Employers under the
Plan and for the receipt of benefits hereunder;
(b) as an agreement, consideration or inducement of employment or
as affecting in any manner the rights or obligations of the Company or
of any Employee to continue or to terminate the employment
relationship at any time; or
(c) as creating any responsibility or liability of the
Administrator, of any member of the Committee, of the Company, of the
Group or of the Trustee for the validity or effect of the Plan or of
any investment at any time included in the Trust Fund.
<PAGE>
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.1. EFFECTIVE DATE. The Plan was initially effective as of January
1, 1989. Except as otherwise provided herein, this amendment and
restatement is effective as of April 1, 1997.
1.2. LEGAL REQUIREMENTS. The establishment of the Plan was
contingent upon the receipt by the Company of a written determination by
the Internal Revenue Service that the Plan and the Trust Agreement
initially qualified under Section 401(a), under Section 401(k) and under
Section 501(a) of the Code.
<PAGE>
ARTICLE II
DEFINITIONS
2.1. ACTUAL DEFERRAL PERCENTAGE means for each Plan Year the average
of the ratios (calculated separately for each Participant) of:
(a) the Before-Tax Contributions of each such Participant for
that Plan Year; to
(b) that Participant's Testing Compensation for that Plan Year;
PROVIDED, HOWEVER, that any Testing Compensation received by an
Employee before the first Enrollment Date following his satisfaction
of the requirements for eligibility set forth in Section 3.1 may be
disregarded;
PROVIDED, HOWEVER, that if a Highly Compensated Participant also
participates in another tax qualified retirement plan with a salary
deferral feature maintained by the Group under Section 401(a) and Section
401(k) of the Code, his Actual Deferral Percentage shall be determined as
if all such tax qualified retirement plans with a salary deferral feature
were a single plan.
2.2. ADMINISTRATOR means the Company. The Administrator has
delegated responsibility for the administration, operation and
interpretation of the Plan to the Committee.
2.3. AFTER-TAX CONTRIBUTIONS mean the voluntary contributions made by
a Participant through payroll deductions pursuant to Section 5.11 that are
not deductible for federal income tax purposes.
2.4. ANNUAL ADDITIONS mean, with respect to any Participant for any
Plan Year and with respect to the Plan and to all other tax qualified
defined contribution plans maintained by the Group, the sum of:
(a) Company contributions, including Before-Tax Contributions and
forfeitures, if applicable, credited to his Participant Account for
that Plan Year under the Plan;
(b) the amount of that Participant's After-Tax Contributions, if
any;
(c) amounts allocated under a tax qualified defined contribution
plan to an individual medical account as then defined in Section
415(l)(2) of the Code which is part of a pension or annuity plan
maintained by the Group; and
(d) amounts derived from contributions to a tax qualified defined
contribution plan which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee as then
defined in Section 419A(d)(3) of the Code under a welfare benefit fund
as then defined in Section 419(e) of the Code maintained by the Group.
2.5. APPROPRIATE FORM means the form prescribed by the Committee for
purposes of any specific request or authorization under the Plan, and shall
also include the giving of telephonic instructions where authorized by the
Committee.
2.6. APPROVED ABSENCE means an Employee's period of absence occurring
by reason of the following events:
(a) service in the Armed Forces of the United States; PROVIDED,
HOWEVER, that the Employee has reemployment rights under applicable
laws and complies with the requirements of such laws and is reemployed
by the Group;
(b) an approved leave of absence for medical or disability
reasons granted to an Employee pursuant to his Employer's established
personnel rules and policies;
(c) any other approved leave of absence; PROVIDED, HOWEVER, that
no such leave of absence shall be approved for more than six (6)
months in the aggregate; or
(d) in the case of an Employee who is absent from work for
maternity or paternity reasons, the consecutive twenty-four (24) month
period beginning on the first date of such absence; PROVIDED, HOWEVER,
that such twenty-four (24) month period shall not constitute a break
in his Period of Service; PROVIDED, FURTHER, that an absence from work
for maternity or paternity reasons shall mean an absence:
(i) by reason of pregnancy of that Employee,
(ii) by reason of the birth of a child of that Employee,
(iii) by reason of the placement of a child with that Employee
in connection with the adoption of that child by that Employee,
or
(iv) for purposes of caring for a child for a period
beginning immediately following such birth or placement.
2.7. BEFORE-TAX CONTRIBUTIONS means the amount of redirection of a
Participant's Compensation resulting from a Compensation Redirection
Agreement between a Participant and an Employer pursuant to Section 4.1,
PLUS, solely for purposes of applying Section 5.6, any Company Matched
Contributions that are recharacterized, consistent with the requirements of
the Code, as Before-Tax Contributions, MINUS, solely for purposes of
applying Section 5.6, any Before-Tax Contributions that are
recharacterized, consistent with the requirements of the Code, as Company
Matched Contributions. The Committee shall have the authority to
recharacterize Before-Tax Contributions under the preceding sentence.
Before-Tax Contributions and Company Matched Contributions recharacterized
as Before-Tax Contributions shall be fully vested and nonforfeitable at all
times.
2.8. COMMITTEE means the administrative committee appointed by the
Company and to whom the duties and responsibilities for administration of
this Plan have been delegated by the Administrator. Unless the delegation
of authority to the Committee has otherwise been limited in writing by the
Company, all references in this Plan to the Administrator shall include the
Committee as though the Committee were the Administrator.
The Committee shall consist of from three (3) to five (5) members who
may but need not be Participants or directors, officers, shareholders or
Employees of the Employers. The member of the Committee shall serve at the
pleasure of the Company, and any or all members may be removed by the
Company at any time, with or without cause or notice. Upon the death,
resignation, removal or inability to serve (as determined by the Company,
in its sole discretion) of any member of the Committee, as now or hereafter
constituted, the Company shall name the successor of such member.
Promptly after appointment of the Committee and after each change in
membership of the Committee, the Company shall give written notice to the
Trustee of the names of the members of the Committee. The Trustee shall
not be deemed to be on notice of any change in membership of the Committee
unless so notified. Participants shall receive notice of the Committee
membership changes within a reasonable time thereafter. Notice may be
given in any manner reasonably calculated to reach the majority of the
Participants.
The Committee shall act by agreement of a majority of its members
either by vote at a meeting or in writing without a meeting. By such
action, it may authorize one or more of its members to execute documents on
behalf of the Committee, and the Trustee, upon written notification of such
authorization, shall accept and rely upon such documents until notified in
writing that the authorization has been revoked or changed by the
Committee. A member of the Committee who is also a Participant shall not
vote or act upon any matter solely affecting any of his benefits under the
Plan. In the event of a deadlock or other situation which prevents
agreement of a majority of the Committee members, the matter shall be
decided by the Company's board of directors.
2.9. COMPANY means Simon Property Group, L.P., a Delaware limited
partnership; PROVIDED, HOWEVER, that effective as of the date Simon
Property Group, L.P. is merged into Simon DeBartolo Group, L.P., a Delaware
limited partnership, COMPANY shall mean Simon DeBartolo Group, L.P., as
successor to Simon Property Group, L.P.
2.10. COMPANY MATCHED CONTRIBUTION PERCENTAGE means for each Plan
Year the average of the ratios (calculated separately for each Participant)
of:
(a) the Company Matched Contributions and After-Tax Contributions
allocated to each such Participant for that Plan Year; to
(b) that Participant's Testing Compensation for that Plan Year;
PROVIDED, HOWEVER, that any Testing Compensation received by an
Employee before the first Enrollment Date following his satisfaction
of the requirements for eligibility set forth in Section 3.1 may be
disregarded;
PROVIDED, HOWEVER, that if a Highly Compensated Participant also
participates in another tax qualified retirement plan maintained by the
Group that provides for Employer matching contributions or voluntary
employee after-tax contributions, that Highly Compensated Participant's
Company Matched Contribution Percentage shall be determined as if all such
tax qualified retirement plans were a single plan.
2.11. COMPANY MATCHED CONTRIBUTIONS means the matching contributions
made by the Company under Section 5.2, PLUS, solely for purposes of
applying Section 5.7, any Before-Tax Contributions that are
recharacterized, consistent with the requirements of the Code, as Company
Matched Contributions, MINUS, solely for purposes of applying Section 5.7,
any Company Matched Contributions that are recharacterized, consistent with
the requirements of the Code, as Before-Tax Contributions. The Committee
shall have the sole authority to recharacterize Company Matched
Contributions under the preceding sentence.
2.12. COMPENSATION means the taxable earnings received by an Employee
from an Employer during a Plan Year that would be reported by the Employer
on Treasury Form W-2 for federal income tax purposes, (including any
overtime, bonuses or commissions), excluding any geographical cost-of-
living differentials and severance payments, as increased by taxable wages
received from third parties as sick pay, any amounts contributed to the
Plan pursuant to a Compensation Redirection Agreement under Section 4.1 and
by any amount of elective contributions that are not includible in that
Employee's gross income under Section 125 of the Code. For Plan Years
beginning on or after January 1, 1997, Compensation shall exclude income
recognized by an Employee from the grant or exercise of stock options or
the award of or lapse of restrictions with respect to restricted stock.
Compensation in excess of one hundred fifty thousand dollars ($150,000), as
automatically adjusted pursuant to Section 401(a)(17)(B) and Section 415(d)
of the Code without the necessity of any amendment to the Plan, shall be
disregarded; PROVIDED, HOWEVER, that, for Plan Years beginning before
January 1, 1997, to the extent a Highly Compensated Participant had Family
Members (as such term is defined in Section 2.22 of this Plan) that were
required to be aggregated with him under Sections 401(a)(17) and 414(g)(6)
of the Code, this Compensation limit was allocated among the Family Members
in proportion to each Family Member's Compensation before application of
this limit; PROVIDED, FURTHER, that for purposes of the preceding clause,
the only Family Members required to be aggregated with a Participant were
his Spouse and his lineal descendants who had not reached age nineteen
(19); PROVIDED, FURTHER, that for Plan Years beginning before January 1,
1994, the Compensation limit prescribed in this sentence was two hundred
thousand dollars ($200,000), as automatically adjusted pursuant to Section
415(b)(1)(A) and (d)(1) of the Code.
2.13. COMPENSATION REDIRECTION AGREEMENT means the agreement between
a Participant and an Employer in which that Participant designates the
percentage of his Compensation to be contributed to the Plan as a Before-
Tax Contribution.
2.14. COMPENSATION REDIRECTION PERCENTAGE means the percentage
redirection in a Participant's Compensation resulting from the Compensation
Redirection Agreement between a Participant and an Employer pursuant to
Section 4.1.
2.15. DEFINED BENEFIT FRACTION means for any Plan Year a fraction:
(a) the numerator of which is the projected annual benefit of a
Participant under all tax qualified defined benefit plans of the Group
(determined as of the last calendar day of that Plan Year); and
(b) the denominator of which is the lesser of:
(i) the product of one and twenty-five one hundredths (1.25)
multiplied by ninety thousand dollars ($90,000), as automatically
adjusted pursuant to Section 415(b)(1)(A) and to Section
415(d)(1) of the Code without the necessity of any amendment to
the Plan; or
(ii) the product of one and four tenths (1.4) multiplied by
one hundred percent (100%) of that Participant's average Section
415 Compensation for his three (3) consecutive Plan Years that
produce the highest average.
2.16. DEFINED CONTRIBUTION FRACTION means for any Plan Year a
fraction:
(a) the numerator of which is the sum of the Annual Additions to
a Participant's accounts under all tax qualified defined contribution
plans of the Group (determined as of the last calendar day of that
Plan Year); and
(b) the denominator of which is the sum of the lesser of the
following amounts determined for that Plan Year and for each prior
Plan Year during the Participant's Period of Service with the Group:
(i) the product of one and twenty-five one hundredths (1.25)
multiplied by thirty thousand dollars ($30,000) or, if greater,
one fourth ( 1/4 th) of the dollar limitation in effect for that
Plan Year under Section 415(b)(1)(A) of the Code; or
(ii) the product of one and four tenths (1.4) multiplied by
twenty-five percent (25%) of that Participant's Section 415
Compensation for that Plan Year.
2.17. EMPLOYEE means any employee of an Employer; PROVIDED, HOWEVER,
that neither Melvin Simon, Herbert Simon, nor Fred Simon shall be an
"Employee" who is eligible to participate in the Plan; PROVIDED, FURTHER,
that a member of a collective bargaining unit with which an Employer
negotiates in good faith regarding retirement benefits shall not be an
"Employee" who is eligible to participate in the Plan unless pursuant to a
collective bargaining agreement with that Employer the members of such
bargaining unit are to be covered by the Plan.
EMPLOYEE shall also include any individual deemed to be a leased
employee (as defined below) of the Group but only to the extent then
required by the Code. For purposes of this Plan, the term "leased
employee" means any person (other than an employee of the recipient) who
pursuant to an agreement between the recipient and any other person
("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with Section
414(n)(6) of the Code) on a substantially full-time basis for a period of
at least one year, and, with respect to Plan Years beginning on or after
January 1, 1997, such services are performed under the primary direction or
control by the recipient employer; PROVIDED, HOWEVER, that a leased
employee shall not be considered an employee of the recipient if (a) such
employee is covered by a money purchase pension plan providing a
nonintegrated employer contribution rate of at least ten percent (10%) of
Compensation, immediate participation and full and immediate vesting and
(b) leased employees do not constitute more than twenty percent (20%) of
the recipient's non-highly compensated workforce; PROVIDED, FURTHER, that
for Plan Years beginning before January 1, 1997, such services were
required to be of a type historically performed by employees in the
business field of the recipient employer.
A leased employee within the meaning of Section 414(n)(2) of the Code
shall become a Participant in the Plan based on service as a leased
employee only as provided in provisions of the Plan other than this Section
2.17. Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the recipient
employer shall be treated as provided by the recipient employer.
2.18. EMPLOYER means the Company and any related entity that has
adopted this Plan pursuant to Section 22.1 of this Plan.
2.19. ENROLLMENT DATE means each January 1 and July 1.
2.20. FORFEITURE SUSPENSE ACCOUNT means the record of a Participant's
non-vested interest in his Company Matched Contributions Subaccount or
Profit-Sharing Contributions Subaccount as created and maintained pursuant
to Section 8.3.
2.21. GROUP means the Employers, and solely for the purpose of:
(a) computing an Employee's Period of Service, Years of Service
and Hours of Service to determine his eligibility to participate in
the Plan and the vesting of his benefits under the Plan;
(b) applying the limitations contained in Section 5.4;
(c) determining whether the Plan is a Top-Heavy Plan under
Section 20.2 and, thus, subject to the provisions of Article XX; and
(d) determining whether a Participant is a Highly Compensated
Participant;
the term GROUP shall also include any entity which, together with the
Employers, constitutes a member of a controlled group of corporations (as
then defined in Section 414(b) of the Code), a member of a group of trades
or businesses (whether or not incorporated) which is under common control
(as then defined in Section 414(c) of the Code), a member of an affiliated
service group (as then defined in Section 414(m) of the Code) or any other
entity then required to be aggregated with the Employers pursuant to
Section 414(o) of the Code, but only to the extent then required by the
Code.
2.22. HIGHLY COMPENSATED PARTICIPANT means for each Plan Year
beginning on or after January 1, 1997 and shall include any Employee
described in Section 414(q) of the Code who:
(a) is a five percent (5%) or more owner (as then defined in
Section 416(i)(1) of the Code) of a member of the Group at any time
during that Plan Year or the immediately preceding Plan Year; or
(b) received more than eighty thousand dollars ($80,000), as
automatically adjusted pursuant to Sections 414(q)(1) and 415(d) of
the Code without the necessity of any amendment to the Plan, of
Section 415 Compensation from the Group in the immediately preceding
Plan Year and was in the Top Paid Group for that immediately preceding
Plan Year.
HIGHLY COMPENSATED PARTICIPANT meant for each Plan Year beginning
before January 1, 1997 and included any Employee described in Section
414(q) of the Code who at any time during that Plan Year or in the
immediately preceding Plan Year:
(c) was a five percent (5%) or more owner (as then defined in
Section 416(i)(1) of the Code) of a member of the Group;
(d) received more than seventy-five thousand dollars ($75,000),
as automatically adjusted pursuant to Section 415(b)(1)(A) and (d)(1)
of the Code without the necessity of any amendment to the Plan, of
Section 415 Compensation from the Group;
(e) received more than fifty thousand dollars ($50,000), as
automatically adjusted pursuant to Section 415(b)(1)(A) and (d)(1) of
the Code without the necessity of any amendment to the Plan, of
Section 415 Compensation from the Group and was in the Top Paid Group;
or
(f) was an officer of a member of the Group whose Section 415
Compensation from the Group was greater than fifty percent (50%) of
the maximum dollar limitation under Section 415(b)(1)(A) of the Code
currently in effect; PROVIDED, HOWEVER, that no more than fifty (50)
employees or, if lesser, the greater of three (3) employees of the
Group or ten percent (10%) of the Group's employees were treated as
officers; PROVIDED, FURTHER, that if no officer of a Group member had
Section 415 Compensation greater than fifty percent (50%) of the
maximum dollar limitation under Section 415(b)(1)(A) of the Code
currently in effect, only the highest paid officer were deemed highly
compensated pursuant to this Subsection.
For purposes of determining whether an Employee is a Highly
Compensated Participant and notwithstanding anything else contained in this
Section, the following rules shall apply:
(g) An employee who has met the requirements contained in
Subsections (d), (e) or (f) above for the Plan Year for which the
determination of Highly Compensated Participants is being made but who
has not met such requirements for the preceding Plan Year shall not be
deemed to be a Highly Compensated Participant unless that employee is
among the one hundred (100) employees who have received the greatest
Section 415 Compensation from the Group in that Plan Year. This
subsection (g) shall apply only with respect to Plan Years beginning
before January 1, 1997.
(h) A former employee shall be treated as a Highly Compensated
Participant if he was a Highly Compensated Participant in the Plan
Year during which his employment with the Group terminated or in any
Plan Year during which occurs or commencing after his fifty-fifth
(55th) birthday.
(i) An employee who is a five percent (5%) or more owner of a
member of the Group or who is one (1) of the ten (10) employees
receiving the greatest Section 415 Compensation from the Group shall
be deemed to have been paid the Section 415 Compensation which is paid
to (and shall be deemed to have redirected the Before-Tax
Contributions made by) his Family Members (as that term is defined
below). For purposes of this Plan, the term "Family Members" shall
include a Participant's Spouse, his lineal ascendants or descendants
and the spouses of his lineal ascendants or descendants. This
subsection (i) shall apply only with respect to Plan Years beginning
before January 1, 1997.
(j) Solely for Plan Years beginning before January 1, 1997,
Section 415 Compensation shall be determined without regard to Section
125, Section 402(a)(8) and Section 402(h)(1)(B) of the Code.
(k) An employee shall only be deemed to be a Highly Compensated
Participant to the extent then required by the Code.
(l) For purposes of this Section 2.22, Compensation shall be
rounded to the nearest integer, and if two (2) or more employees have
the same Compensation they shall be ranked by reference to seniority
based on records maintained by the Group. This subsection (l) shall
apply only with respect to Plan Years beginning before January 1,
1997.
2.23. HOUR OF SERVICE means and shall include:
(a) each hour for which an Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties assigned
to him by the Group; these hours shall be credited to the Employee for
the computation period in which the duties are performed;
(b) each hour for which an Employee is directly or indirectly
paid, or entitled to payment, by the Group on account of a period of
time during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability but excluding any disability
payments made pursuant to Section 12.1), layoff, jury duty, military
duty or leave of absence; PROVIDED, HOWEVER, that no Hours of Service
shall be credited under this Subsection (b) if the payment is made or
due solely as reimbursement for medical or medically-related expenses
incurred by that Employee or to comply with applicable workmen's
compensation, unemployment compensation or disability insurance laws,
if any; PROVIDED, FURTHER, that no more than five hundred and one
(501) Hours of Service shall be credited under this Subsection (b) for
any single continuous period (whether or not such period occurs in a
single computation period); PROVIDED, FURTHER, that hours under this
Subsection (b) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by this reference; and
(c) each hour for which back pay, irrespective of mitigation of
damages, is either awarded to an Employee or agreed to by the Group to
the extent that such award or agreement is intended to compensate that
Employee for periods during which that Employee would have been
engaged in the performance of duties for the Group; PROVIDED, HOWEVER,
that the same Hours of Service shall not be credited both under
Subsection (a) or Subsection (b), as the case may be, and under this
Subsection; PROVIDED, FURTHER, that no more than five hundred and one
(501) Hours of Service shall be credited under this Subsection (c) for
any single continuous period (whether or not such period occurs in a
single computation period); PROVIDED, FURTHER, that hours under this
Subsection (c) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by this reference.
Solely for purposes of determining whether a Service Break for
participation and vesting purposes has occurred in any computation period,
an individual who is absent from work for maternity or paternity reasons
shall receive credit for the Hours of Service which would otherwise have
been credited to that individual but for such absence or, in any case in
which such Hours of Service cannot be determined, eight (8) Hours of
Service per each regularly scheduled work day of such absence. For
purposes of this paragraph, an absence from work for maternity or paternity
reasons means an absence by reason of the pregnancy of the individual, by
reason of the birth of a child of the individual, by reason of the
placement of a child with the individual in connection with the adoption of
that child by the individual or for purposes of caring for that child for a
period beginning immediately following such birth or placement. The Hours
of Service credited under this paragraph shall be credited in the
computation period in which the absence begins if the crediting is
necessary to prevent a Service Break in that computation period or, in all
other cases, in the next following computation period.
Hours of Service shall be determined from the records of the Group or
in accordance with the method or methods adopted by the Administrator,
which method or methods shall be uniformly, consistently and
nondiscriminatorily applied; PROVIDED, HOWEVER, that in determining the
Hours of Service of any Employee whose Compensation is not based on hours
worked, during a period of time when such hours cannot be accurately
determined, each such Employee shall be credited with not less than forty
(40) Hours of Service per week or eight (8) Hours of Service per day.
Hours of Service determined under this Section 2.23 shall be credited for
all purposes for which a determination as to Hours of Service is relevant.
An Employee shall receive credit for additional Hours of Service upon
his reemployment by an Employer for any period of time during which such
Employee was on active military duty, but only if such Employee is entitled
upon his reemployment to veteran's reemployment rights with respect to such
period of military duty under applicable federal law, and only if the
Employee complies with all other requirements of such applicable federal
law. Hours of Service shall be granted under the preceding sentence at a
rate of forty-five (45) Hours of Service for each completed week of
military service and shall be credited to the computation period during
which such military service was performed.
2.24. ONE YEAR BREAK IN SERVICE means a consecutive twelve (12) month
Period of Severance.
2.25. PARTICIPANT means any Employee of an Employer who is eligible
to and who has elected to participate in the Plan under Article III.
2.26. PARTICIPANT ACCOUNT means the account to which contributions
made on behalf of a Participant and the earnings, losses, appreciation and
depreciation attributable thereto are credited on his behalf by the Trustee
and shall include the following subaccounts:
(a) a Before-Tax Contributions Subaccount to which Before-Tax
Contributions made on behalf of that Participant pursuant to Section
5.1 (and elective deferrals, if any, made on the Participant's behalf
under the DPMI Plan) and the earnings, losses, appreciation and
depreciation attributable thereto are credited;
(b) an After-Tax Contributions Subaccount to which After-Tax
Contributions made on behalf of that Participant pursuant to Section
5.11 and the earnings, losses, appreciation and depreciation
attributable thereto are credited;
(c) a Company Matched Contributions Subaccount to which Company
Matched Contributions made on behalf of that Participant pursuant to
Section 5.2 (and employer matching contributions, if any, made on that
Participant's behalf under the DPMI Plan) and the earnings, losses,
appreciation and depreciation attributable thereto are credited;
(d) a Profit-Sharing Contributions Subaccount to which Profit-
Sharing Contributions made on behalf of that Participant pursuant to
Section 5.12 and the earnings, losses, appreciation and depreciation
attributable thereto are credited;
(e) a Rollover Contributions Subaccount to which rollover
contributions made by a Participant pursuant to Section 21.4 (and
rollover contributions that had been made to the DPMI Plan prior to
March 31, 1997) and the earnings, losses, appreciation and
depreciation attributable thereto are credited;
(f) a Retirement Plan Subaccount to which amounts transferred
from the Retirement Plan in connection with its merger into this Plan
on that Participant's behalf and the earnings, loss, appreciation and
depreciation attributable thereto are credited; and
(g) a Participant Loan Subaccount used to account for payments of
principal and interest paid on any loan granted to that Participant
(or an alternate payee or beneficiary) under this Plan (or the DPMI
Plan as of March 31, 1997)as provided in Article IX.
A Participant's interest in his Before-Tax Contributions Subaccount,
After-Tax Contributions Subaccount and Retirement Plan Subaccount shall be
fully vested and nonforfeitable at all times; PROVIDED, HOWEVER, that due
to the fluctuation of value inherent in certain investments, there is no
guarantee that the aggregate Before-Tax Contributions, After-Tax
Contributions and amounts transferred from the Retirement Plan on behalf of
a Participant will be available for distribution or other withdrawal in
accordance with the terms of the Plan.
2.27. PERIOD OF SEPARATION means a period of time commencing with the
date a person separates from service with the Group and ending with the
date that person resumes his employment with the Group.
2.28. PERIOD OF SERVICE means the period, beginning on and after
January 1, 1994, commencing on the date a person is first credited with an
Hour of Service for the Group and ending on the date a Period of Severance
begins, including any Approved Absence and also including any Period of
Separation of less than twelve (12) consecutive months. The Period of
Service of each Employee shall also include each full and partial Year of
Service earned by that Employee prior to January 1, 1994 under the method
for crediting service provided in this Plan for that period. This Section
2.28 (along with Section 8.2) is intended to reflect a change, effective
January 1, 1994, from the general method of crediting vesting service (as
described in Section 2530.200b-2 of the Department of Labor Regulations) to
the elapsed time method of crediting vesting service (as described in
Section 2530.200b-9 of the Department of Labor Regulations). The Period of
Service of each Employee who was employed by DPMI as of August 9, 1996
shall include services with DPMI both before and after the date on which
DPMI became a member of the Group.
2.29. PERIOD OF SEVERANCE means a period of time commencing with the
earlier of:
(a) the date a person terminates his employment with the Group by
reason of quitting, retirement, death or discharge; or
(b) the date twelve (12) consecutive months after the date a
person remains absent from service with the Group (with or without
pay) for any reason other than quitting, retirement, death or
discharge;
and ending, in the case of a person who terminates his employment with the
Group by reason other than death, with the date that person resumes his
employment with the Group.
2.30. PLAN means the tax qualified defined contribution plan with a
cash or deferred feature as embodied herein, as it may be hereafter amended
from time to time.
2.31. PLAN YEAR means the calendar year.
2.32. RETIREMENT PLAN means the Simon Property Group and Adopting
Entities Retirement Plan, which has been merged into this Plan effective
January 1, 1994.
2.33. SECTION 415 COMPENSATION means for each Plan Year and shall:
(a) include amounts accrued to a Participant (regardless of
whether he was a Participant during the entire Plan Year) as:
(i) wages, salaries, fees for professional services and
other amounts received for personal services actually rendered in
the course of his employment with the Group, including but not
limited to commissions, compensation for services on the basis of
a percentage of profits and bonuses;
(ii) for purposes of Subsection (a)(i)above, earned income
from sources outside the United States (as then defined in
Section 911(b) of the Code), whether or not excludible from his
gross income under Section 911 of the Code or deductible by him
under Section 913 of the Code;
(iii) amounts then described in Section 104(a)(3), Section
105(a) and Section 105(h) of the Code, but only to the extent
that these amounts are includible in the gross income of that
Participant; and
(iv) amounts paid or reimbursed by the Group for moving
expenses incurred by that Participant, but only to the extent
that these amounts are not deductible by that Participant under
Section 217 of the Code;
(b) not include:
(i) notwithstanding Subsection (a)(i) above and solely with
respect to Plan Years beginning before January 1, 1998, amounts
contributed to the Plan under Section 5.1;
(ii) other contributions made by the Group to a tax qualified
plan of deferred compensation to the extent that, before the
application of the Section 415 of the Code limitations to that
plan, the contributions are not includible in the gross income of
that Participant for the taxable year in which contributed; in
addition, Company contributions made on behalf of that
Participant to a simplified employee pension plan then described
in Section 408(k) of the Code shall not be considered as Section
415 Compensation for the taxable year in which contributed;
additionally, any distributions from a qualified plan of deferred
compensation shall not be considered as Section 415 Compensation,
regardless of whether such amounts are includible in the gross
income of that Participant when distributed; PROVIDED, HOWEVER,
that any amounts received by that Participant pursuant to an
unfunded nonqualified plan shall be considered as Section 415
Compensation in the taxable year in which such amounts are
includible in the gross income of that Participant; and
(iii) other amounts which then receive special federal income
tax treatment under the Code, such as premiums for group term
life insurance (but only to the extent that those premiums are
not includible in the gross income of that Participant).
Notwithstanding anything in this Section 2.33 to the contrary, for
Plan Years beginning on or after January 1, 1998, Section 415 Compensation
shall include any elective deferral (as defined in Section 402(g) of the
Code) and any amount contributed or deferred at the election of the
Participant that is not includible in that Participant's gross income by
reason of Section 125 or Section 457 of the Code.
Effective for Plan Years beginning on or after January 1, 1994, no
Section 415 Compensation in excess of one hundred fifty thousand dollars
($150,000) in any Plan Year shall be counted or recognized for any purpose
under the Plan; PROVIDED, HOWEVER, that this dollar limitation shall be
automatically adjusted to the extent then prescribed by Section
401(a)(17)(B) and Section 415(d) of the Code without the necessity of any
amendment to the Plan; PROVIDED, FURTHER, that for Plan Years beginning
before January 1, 1994, the Section 415 Compensation limit prescribed in
this sentence was two hundred thousand dollars ($200,000), as automatically
adjusted pursuant to Section 415(b)(1)(A) and (d)(1) of the Code.
2.34. SEVERANCE means the termination of an Employee's employment
with the Group, whether voluntarily or involuntarily, for reasons other
than his retirement, Total Disability or death.
2.35. SPOUSE means the person to whom an Employee is lawfully married
or was lawfully married at the date of his death.
2.36. TESTING COMPENSATION means, with respect to each Participant
for any Plan Year beginning on or after January 1, 1993, a definition of
compensation, selected by the Committee and uniformly applied to all
Participants for that Plan Year, that satisfies Section 414(s) of the Code.
Testing Compensation in Plan Years beginning before January 1, 1994 in
excess of two hundred thousand dollars ($200,000), as automatically
adjusted pursuant to Section 415(b) (1) (A) and (d) (1) of the Code without
the necessity of any amendment to the Plan, and Testing Compensation in any
Plan Year beginning on or after January 1, 1994 in excess of one hundred
fifty thousand dollars ($150,000), as automatically adjusted pursuant to
Section 401(a)(17)(B) and Section 415(d) of the Code without the necessity
of any amendment to the Plan, shall be disregarded; PROVIDED, HOWEVER,
that, for Plan Years beginning before January 1, 1997, to the extent a
Highly Compensated Participant had Family Members (as such term is defined
in Section 2.22 of this Plan) that were required to be aggregated with him
under Sections 401(a) (17) and 414(q)(6) of the Code, this Testing
Compensation limit was allocated among the Family Members in proportion to
each Family Member's Testing Compensation before application of this limit;
PROVIDED, FURTHER, that for purposes of the preceding clause, the only
Family Members required to be aggregated with a Participant were his Spouse
and his lineal descendants who had not reached age nineteen (19).
2.37. TOP PAID GROUP means in any Plan Year the employees who are in
the top twenty percent (20%) of the Group's employees in terms of Section
415 Compensation for that Plan Year; PROVIDED, HOWEVER, that for purposes
of determining the number of employees to be included in the Top Paid
Group, the following employees shall be excluded to the extent then
permitted by Section 414(q)(4) of the Code:
(a) employees who have not yet completed at least six (6) months
of service with the Group;
(b) employees who normally work less than seventeen and one half
(17 1/2) hours per week or less than six (6) months during a Plan
Year;
(c) employees who have not yet attained age twenty-one (21);
(d) except as then provided by regulations promulgated under the
Code, employees who are covered by a collectively bargained agreement;
and
(e) employees who are non-resident aliens and who receive no
earned income (within the meaning of Section 911(d)(2) of the Code)
from the Group which constitutes income from sources in the United
States (within the meaning of Section 861(a)(3) of the Code).
2.38. TOTAL DISABILITY means a physical or mental condition which, in
the judgment of the Committee, based upon medical reports and other
evidence satisfactory to the Committee, presumably permanently prevents an
Employee from satisfactorily performing his usual duties for an Employer or
the duties of such other position or job which an Employer makes available
to him and for which such Employee is qualified by reason of his training,
education, or experience. In making a determination regarding Total
Disability, the Committee may, but is not required to, rely on a finding
regarding disability for purposes of the federal Social Security Act;
PROVIDED, HOWEVER, that all Employees shall be treated in a manner that
does not discriminate in favor of Employees who are officers, shareholders,
or highly compensated.
2.39. TRUST AGREEMENT means the Trust Agreement for Simon DeBartolo
Group and Adopting Entities Matching Savings Plan, as it may be amended
hereafter from time to time.
2.40. TRUSTEE means the Trustee of the Trust Fund and its successors
and assigns.
2.41. TRUST FUND means the cash and other assets held and
administered by the Trustee in accordance with the provisions of the Trust
Agreement and of the Plan and shall consist of the following investment
funds:
(a) Fund 1 (the "Fixed Income Fund") which is invested by the
Trustee primarily in certificates of deposit, United States government
securities, investment contracts issued by insurance companies or
commercial banks and similar types of fixed principal investments with
a very low degree of risk;
(b) Fund 2 (the "Growth and Income Fund") which is invested by
the Trustee in a selection of fixed income and/or equity securities
other than Company Stock;
(c) Fund 3 (the "Equity Fund") which is invested by the Trustee
in common stocks (excluding Company Stock), bonds, debentures,
preferred stock convertible to common stock, equity mutual funds,
pooled funds or in other similar types of equity investments;
(d) Fund 4 (the "Equity Fund 2") which is invested by the Trustee
primarily in a portfolio of smaller capitalization common stocks,
venture capital investments and other equity investments; and
(e) Effective on or about December 1, 1996, Fund 5 (the "Equity
Index Fund") which is invested by the Trustee primarily in a portfolio
of common stocks and other equity securities designed to correspond to
those of the Standard & Poor's 500 Index.
(f) Effective on or about December 1, 1996, Fund 6 (the "Low-
Priced Stock Fund") which is invested by the Trustee primarily in a
portfolio of common stocks or other equity securities with a
relatively low purchase price at the time of purchase.
(g) Effective July 1, 1994, Fund 7 (the "Simon Stock Fund") which
is invested by the Trustee in shares of common stock, $.0001 par
value, of Simon DeBartolo Group, Inc. ("Simon Stock") pursuant to
Article VI.
(h) Fund 8 (the "International Equity Fund") which is invested by
the Trustee primarily in a portfolio of common stocks of established
non-U.S. companies in Europe, the Far East, Australia and Canada.
(i) Fund 10 which shall consist of the promissory notes
evidencing loans made to Participants in accordance with the
provisions of Article IX.
The Committee may add or delete investment funds upon written notice to
Participants without the need to formally amend the Plan.
2.42. VALUATION DATE means the last day of each calendar quarter or
such other date as may be determined by the Committee, in its sole
discretion.
2.43. YEARS OF SERVICE mean an Employee's latest period of employment
with the Group. The Plan Year shall be deemed to be the computation
period, and an Employee shall receive credit for one (1) Year of Service
only if he completes at least one thousand (1,000) or more Hours of Service
in a Plan Year; PROVIDED, HOWEVER, that an Employee shall receive credit
for one (1) Year of Service for purposes of Section 3.1 if he receives
credit for one thousand (1,000) or more Hours of Service in the consecutive
twelve (12) month computation period commencing on the first (1st) day on
which he is initially credited with an Hour of Service.
An Employee's Years of Service shall not be disregarded even if he
incurs a number of Service Breaks that would permit such Years of Service
to be disregarded under the Code.
For purposes of this Section 2.43, the term "Service Break" means any
Plan Year, after an Employee becomes eligible to participate in the Plan,
in which that Employee completes less than five hundred one (501) Hours of
Service for the Group.
2.44. DPMI means DeBartolo Properties Management, Inc.
2.45. DPMI PLAN means the DeBartolo Properties Management, Inc.
Investment Savings and Retirement Plan and Trust, as amended from time to
time.
2.46. PROFIT-SHARING CONTRIBUTION means the contribution made by the
Employers pursuant to Section 5.12 or Section 5.13 of this Plan.
2.47. PRIOR YEAR'S NON-HIGHLY COMPENSATED PARTICIPANT means, with
respect to any Plan Year beginning on or after January 1, 1997, each
individual who was in the immediately preceding Plan Year:
(a) an Employee eligible to participate in this Plan; and
(b) not a Highly Compensated Participant, as determined in
accordance with the definition of "Highly Compensated Participant" in
effect with respect to such immediately preceding Plan Year.
An individual may be a Prior Year's Non-Highly Compensated Participant
even though he is not an Employee or Participant in the current Plan Year
or even though he would be treated as a Highly Compensated Participant in
the current Plan Year.
2.48. CURRENT YEAR ACP METHOD means, with respect to a Plan Year, the
calculation of the average of the Company Matched Contribution Percentages
for all Employees who are eligible to be Participants in that Plan Year,
other than Highly Compensated Participants, based on the Company Matched
Contributions made on behalf of and the Testing Compensation earned by each
such Employee during the Plan Year to which such calculation relates.
2.49. CURRENT YEAR ADP METHOD means, with respect to a Plan Year, the
calculation of the Actual Deferral Percentage for all Employees who are
eligible to be Participants in that Plan Year, other than Highly
Compensated Participants, based on the Compensation Redirection Amounts of
and the Testing Compensation earned by each such Employee during the Plan
Year to which such calculation relates.
2.50. PRIOR YEAR ACP METHOD means, with respect to a Plan Year, the
calculation of the average of the Company Matched Contribution Percentages
of the Prior Year's Non-Highly Compensated Participants, based on the
Company Matched Contributions made on behalf of and the Testing
Compensation earned by each Prior Year's Non-Highly Compensated Participant
during the immediately preceding Plan Year.
2.51. PRIOR YEAR ADP METHOD means, with respect to a Plan Year, the
calculation of the Actual Deferral Percentage for all Prior Year's Non-
Highly Compensated Participants, based on the Compensation Reduction
Amounts of and the Testing Compensation earned by each Prior Year's Non-
Highly Compensated Participant during the immediately preceding Plan Year.
<PAGE>
ARTICLE III
ELIGIBILITY
3.1. REQUIREMENTS FOR ELIGIBILITY. Each Employee who has attained
age twenty-one (21) is eligible to become a Participant in the Plan on the
first Enrollment Date coincidental with or next following his completion of
one (1) Year of Service in which he completes at least one thousand (1,000)
Hours of Service.
3.2. COMMENCEMENT OF PARTICIPATION. An Employee shall become a
Participant in the Plan as of the first Enrollment Date following
satisfaction of the requirements for eligibility set forth in Section 3.1;
PROVIDED, HOWEVER, that such Employee has complied with Section 3.3;
PROVIDED, FURTHER, that any individual who is an Employee on April 1, 1997
and who was a participant in the DPMI Plan as of March 31, 1997 or would
have been eligible to participate in the DPMI Plan as of March 31, 1997
shall automatically become a Participant in this Plan as of April 1, 1997;
PROVIDED, FURTHER, that any individual who is employed by DPMI as of March
31, 1997, but who would not have been eligible to participate in the DPMI
Plan as of March 31, 1997 shall be eligible to become a Participant on the
earlier of the date otherwise provided in this Section 3.2 or the first
date on which he or she would have become a participant under the DPMI Plan
had the DPMI Plan not been merged into this Plan. If an Employee is
eligible to participate in the Plan but does not elect to commence his
participation in the Plan when first eligible to do so, he may become a
Participant in the Plan on any Enrollment Date thereafter, assuming he
continues to be eligible under the Plan and complies with Section 3.3.
3.3. METHOD OF BECOMING A PARTICIPANT. An Employee shall become a
Participant in the Plan by completing and returning the Appropriate Form to
the Committee at least thirty (30) calendar days before the Enrollment Date
on which his participation in the Plan is to commence and by:
(a) electing (or declining) in a Compensation Redirection
Agreement to have his Compensation reduced pursuant to Section 4.1;
(b) electing to have the amount by which his Compensation is
reduced contributed by his Employer to the Plan pursuant to Section
5.1;
(c) specifying the manner in which his Compensation Redirection
Amount shall be invested in the investment funds maintained pursuant
to Section 2.41;
(d) agreeing to the terms of the Plan; and
(e) designating a beneficiary in accordance with Section 13.2.
3.4. RE-EMPLOYMENT. If an Employee has a Service Break after
completing the eligibility requirements set forth in Section 3.1 but while
still employed by an Employer, he shall remain eligible to participate in
the Plan during such period of employment. Upon reemployment, a former
Employee who had completed the eligibility requirements in Section 3.1 and
who has had a Service Break and a former Employee whose employment by
Employers was terminated but who has had no Service Break shall be eligible
to participate in the Plan as of the later of:
(a) his reemployment date by an Employer; or
(b) the date on which he would have otherwise been eligible to
participate in the Plan had his employment by the Employers not been
terminated;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, a reemployed former
Employee shall not be eligible to enter into a Compensation Redirection
Agreement, to make After-Tax Contributions or to receive Company Matched
Contributions upon his reemployment until the later of the date specified
in subsection (b) or the first January 1, April 1, July 1 or October 1
coincident with or next following his reemployment date by an Employer.
3.5. LOSS OF ELIGIBILITY. If an individual's status as an Employee
terminates while he is still employed by the Group, he shall cease to be
eligible to participate in the Plan as an active Participant for purposes
of Article IV and Article V, but he shall retain his right to convert
investments under Section 6.3 and any right to apply for a loan under
Article IX (and shall be required to continue making principal and interest
repayments on any loans to him pursuant to Article IX) during such period
as he is in inactive status.
3.6. TRANSITION RULE FOR DPMI EMPLOYEES. Each individual who was a
participant in the DPMI Plan as of March 31, 1997 and who satisfies the
requirements for participation in this Plan as of April 1, 1997, shall
automatically become a Participant without the need to comply with Section
3.3. Such a Participant shall be deemed to have elected the same
Compensation Redirection Amount as was in effect for that Participant under
the DPMI Plan as of March 31, 1997, shall be deemed to have designated the
same beneficiary(ies) as had been designated by that Participant under the
DPMI Plan as of March 31, 1997, and shall have his Compensation Redirection
Amount invested in accordance with his investment directions in effect
under the DPMI Plan as of March 31, 1997, as modified by the Committee
consistent with Section 6.5.
<PAGE>
ARTICLE IV
COMPENSATION REDIRECTION
4.1. COMPENSATION REDIRECTION AGREEMENT. Each Participant shall
enter into a Compensation Redirection Agreement with the Company specifying
the manner in which his Compensation shall be reduced (or specifying that
his Compensation shall not be reduced), electing to have the amount by
which his Compensation is reduced contributed to the Plan on his behalf
pursuant to Section 5.1 by the Company, and specifying whether such
contributions are to be Before-Tax Contributions or (to the extent
permitted by Section 5.11) After-Tax Contributions. A Participant's
Compensation Redirection Amount shall include and be limited to any whole
percentage of his Compensation from one percent (1%) to twelve percent
(12%) and shall also be subject to limits imposed under Article V;
PROVIDED, HOWEVER, that, effective April 1, 1997, this twelve percent (12%)
limit shall be increased to sixteen percent (16%). To the extent permitted
by the Committee, a Participant shall also be permitted to direct in a
Compensation Redirection Agreement that certain special Compensation
amounts shall not be reduced notwithstanding that a Compensation
Redirection Agreement is otherwise in effect with respect to his
Compensation generally.
4.2. CHANGE IN COMPENSATION REDIRECTION PERCENTAGE. The percentage
by which a Participant has agreed to reduce his Compensation shall continue
in effect, notwithstanding any change in his Compensation, until he elects
to change such percentage. A Participant's Compensation Redirection
Percentage may be changed as of the first day of any month by filing the
Appropriate Form with the Committee within the time limit prescribed by the
Committee. The Committee may as of any payroll period modify the
Compensation Redirection Agreement of any Participant if necessary to
comply with the limits contained in Section 5.4, Section 5.6, Section 5.7
or Section 5.8; PROVIDED, HOWEVER, that any modification made by the
Committee shall be determined in a uniform and nondiscriminatory manner.
4.3. REVOCATION OF COMPENSATION REDIRECTION AGREEMENT. A Participant
may revoke his Compensation Redirection Agreement as of the first day of
any month by filing the Appropriate Form with the Committee within the time
limit prescribed by the Committee. Any Participant who revokes his
Compensation Redirection Agreement may reinstate such Compensation
Redirection Agreement any time after the effective date of his earlier
revocation; PROVIDED, HOWEVER, that in order to reinstate his Compensation
Redirection Agreement, a Participant shall follow the procedures outlined
in Section 3.3 as though he were a new Participant.
4.4. NO MAKE-UP OF BEFORE-TAX CONTRIBUTIONS. No Participant who
fails to authorize the maximum permissible amount in his Compensation
Redirection Agreement under Section 4.1, whose Compensation Redirection
Percentage is voluntarily or involuntarily changed in accordance with
Section 4.2 or who has revoked his Compensation Redirection Agreement in
accordance with Section 4.3 shall be permitted to make up such Before-Tax
Contributions in any subsequent payroll period.
4.5. REMITTANCE OF BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX
CONTRIBUTIONS. Each Participant's Before-Tax Contributions and After-Tax
Contributions shall be transferred to the Trustee under the Plan as soon as
practical after the end of the month in which the Before-Tax Contributions
and After-Tax Contributions were withheld, and shall be invested as
provided in Article VI.
<PAGE>
ARTICLE V
CONTRIBUTIONS
5.1. AMOUNT OF COMPANY CONTRIBUTIONS. Subject to the limitations of
Section 5.4, Section 5.5, Section 5.6, Section 5.7, Section 5.8 and Section
5.9, each Employer shall contribute with respect to each payroll period for
each Participant then in its employ an amount equal to that Participant's
Before-Tax Contributions; PROVIDED, HOWEVER, that in lieu of making any
reductions in the Before-Tax Contributions of the Highly Compensated
Participants in accordance with Section 5.6 or any reductions in the
Company Matched Contributions and After-Tax Contributions of Highly
Compensated Participants in accordance with Section 5.7, the Committee may,
subject to the limitations of Section 5.4 and Section 5.8, direct an
Employer to contribute with respect to any Plan Year such additional amount
as is sufficient to assure that the limitations of Section 5.6 or Section
5.7 are not exceeded, such additional contributions (which shall be one
hundred percent (100%) vested and nonforfeitable at all times) to be
allocated in that manner and to those eligible Employees who are not Highly
Compensated Participants as determined by the Committee in its sole
discretion. The amounts contributed under this Section for each
Participant shall be allocated to his Participant Account and invested
according to his election under Section 6.1 or Section 6.2. The amounts
contributed under this Section for each Participant shall be fully vested
and nonforfeitable at all times; PROVIDED, HOWEVER, that due to the
fluctuation of value inherent in certain investments, there is no guarantee
that the aggregate amount contributed by the Company pursuant to this
Section 5.1 will be available for distribution or other withdrawal in
accordance with the terms of the Plan.
5.2. COMPANY MATCHED CONTRIBUTIONS. Subject to the limitations of
Section 5.4, Section 5.5, Section 5.7 and Section 5.9, each Employer shall
contribute on behalf of each Participant who is employed by that Employer
on the last day of a calendar quarter an amount determined with respect to
each payroll period during which that Participant has in effect a
Compensation Redirection Agreement equal to: (a) with respect to
Compensation earned before April 1, 1997, one hundred percent (100%) of
that portion of that Participant's Before-Tax Contributions not in excess
of two percent (2%) of his Compensation in such payroll period to be
allocated to his Company Matched Contributions Subaccount plus an amount
equal to fifty percent (50%) of that portion of that Participant's Before-
Tax Contributions in excess of two percent (2%) but not in excess of six
percent (6%) of his Compensation in such payroll period to be allocated to
his Company Matched Contributions Subaccount; and (b) with respect to
Compensation earned on or after April 1, 1997, one hundred percent (100%)
of that portion of that Participant's Before-Tax Contributions not in
excess of two percent (2%) of his Compensation in such payroll period to be
allocated to his Company Matched Contributions Subaccount plus an amount
equal to fifty percent (50%) of that portion of that Participant's Before-
Tax Contributions in excess of two percent (2%) but not in excess of five
percent (5%) of his Compensation in such payroll period to be allocated to
his Company Matched Contributions Subaccount. Notwithstanding anything
contained in this Section 5.2 to the contrary, if the Committee reduces in
accordance with Section 5.1 of the Plan the Before-Tax Contribution of any
Participant in order to comply with Section 5.4, Section 5.6 or Section
5.8, each Employer shall contribute, for each quarter in which such a
reduction is in effect, additional Company Matched Contributions based on
the amount, if any, by which such Participant's Before-Tax Contributions
for such quarter are reduced below five percent (5%) (six percent (6%) for
quarters before April 1, 1997) of his Compensation but only to the extent
that such Participant has Before-Tax Contributions in earlier quarters in
such calendar year in excess of five percent (5%) (six percent (6%) for
quarters before April 1, 1997) of his Compensation which have not served as
a basis for the additional Before-Tax Contributions provided for in this
Section.
5.3. REMITTANCE OF COMPANY CONTRIBUTIONS. Company contributions
under Section 5.2, Section 5.12 and Section 5.13 shall be remitted (in cash
or in property that is an authorized investment of the Trust Fund) to the
Trustee at such time and in such intervals as may be determined from time
to time by the Committee, shall be allocated to the Company Matched
Contributions Subaccount or Profit-Sharing Contributions Subaccount of each
Participant on whose behalf they were made in such reasonable manner as may
be determined by the Committee, and shall be invested as provided in
Article VI.
5.4. MAXIMUM ANNUAL ADDITIONS. Notwithstanding any other provisions
of the Plan, the Annual Additions allocated to any Participant in any Plan
Year under the Plan and under any other tax qualified defined contribution
plan maintained by the Group shall not exceed the lesser of:
(a) twenty-five percent (25%) of that Participant's Section 415
Compensation from the Group in that Plan Year, or
(b) the greater of:
(i) thirty thousand dollars ($30,000), or
(ii) one fourth ( 1/4 th) of the dollar limitation in effect
in that Plan Year under Section 415(b)(1)(A) of the Code.
For Plan Years beginning before December 31, 1999, in any case in
which an Employee is a participant in one or more tax qualified defined
contribution plans and in one or more tax qualified defined benefit plans
(as those terms are then defined in Section 415(k) of the Code) maintained
by the Group, the sum of the Defined Benefit Fraction and of the Defined
Contribution Fraction in any Plan Year computed as of the last calendar day
of that Plan Year shall not exceed one (1.0).
If, as a result of a reasonable error in estimating a Participant's
Section 415 Compensation, the allocation of forfeitures, a reasonable error
in determining the amount of Before-Tax Contributions that may be
contributed to the Plan with respect to any individual under the limits of
Section 415 of the Code or other facts and circumstances which the
Commissioner of Internal Revenue finds justifies the corrective action
described in this Section 5.4, the limitations as contained in this Section
5.4 would be exceeded for any Participant, the After-Tax Contributions, the
Before-Tax Contributions, the Company Matched Contributions and the Profit-
Sharing contributions that would otherwise be allocable to his Participant
Account shall be reduced to comply with those limitations. Such reduction
shall be accomplished with respect to a Highly Compensated Participant by
reducing After-Tax Contributions that do not generate Company Matched
Contributions first, reducing Before-Tax Contributions that do not generate
Company Matched Contributions second, reducing After-Tax Contributions that
generate Company Matched Contributions and the Company Matched
Contributions attributable to such After-Tax Contributions third, reducing
Before-Tax Contributions that generate Company Matched Contributions and
the Company Matched Contributions attributable to such Before-Tax
Contributions fourth, reducing Company Matched Contributions fifth and
reducing Profit-Sharing Contributions sixth. Such reduction shall be
accomplished with respect to a Participant who is not a Highly Compensated
Participant by reducing After-Tax Contributions first, by reducing Before-
Tax Contributions second, by reducing Company Matched Contributions third,
and by reducing Profit-Sharing Contributions fourth; PROVIDED, HOWEVER,
that Company Matched Contributions or Profit-Sharing Contributions shall be
reduced only if such reductions would not violate section 401(a)(4) of the
Code. Any Company Matched Contributions or Profit-Sharing Contributions
that may not be allocated to the Participant Account of a Participant
because of the limitations imposed by this Section 5.4 shall be credited to
and held in a suspense account and shall be applied to reduce the amount of
Company Matched Contributions or Profit-Sharing Contributions otherwise
required of the Employer to whom they relate for the next following Plan
Year(s) until exhausted. Any Before-Tax Contributions reduced by reason of
this Section 5.4 may either be treated as a mistaken contribution in
accordance with Section 5.5 and returned to the Employer to whom they
relate or they may be distributed to that Participant. Any After-Tax
Contributions reduced by reason of this Section 5.4 shall be returned to
the Participant. In addition to the corrective actions expressly provided
by this Section 5.4, any other corrective action authorized by the Code
shall be permitted.
If at any time during a Plan Year the Committee, in its sole
discretion, determines that the Annual Additions for any Employee for that
Plan Year might otherwise exceed the limitations imposed by this Section
5.4, then the Committee shall have the right during that Plan Year to
require the prospective reduction for the balance of that Plan Year of the
Before-Tax Contributions and After-Tax Contributions that would otherwise
have been made by that Employee pursuant to his election under Section 4.1
or 5.11. Such prospective reductions shall be made only to the extent
necessary to insure that the limitations imposed by this Section 5.4 are
not exceeded.
5.5. RETURN OF COMPANY CONTRIBUTIONS. Notwithstanding the foregoing,
if the Commissioner of Internal Revenue or his designate initially
determines that the Plan and the Trust Agreement did not meet the
requirements of the Code, any contributions made by the Company on or after
the date on which such determination is applicable shall be returned to the
Company, without interest, within one (1) year after the date of such
determination. In addition, the Company shall be entitled to receive,
without interest, the amount of any contributions made by it to the Plan on
account of a mistake in fact or any contribution that is conditioned upon
its deductibility under Section 404 of the Code for which a deduction is
subsequently disallowed; PROVIDED, HOWEVER, that repayment of such
contributions is made to the Company within one (1) year after the date of
remittance of such contributions to the Trustee. Any contributions
returned to the Company which represent a Participant's Before-Tax
Contributions or After-Tax Contributions shall be immediately refunded to
that Participant by the Company. Any earnings attributable to amounts
refunded to a Participant in accordance with the previous sentence shall
also be paid to that Participant as soon as practicable.
5.6. RETURN OF BEFORE-TAX CONTRIBUTIONS. If after making the
adjustments required by Section 5.8 the average of the Actual Deferral
Percentages for the group of Highly Compensated Participants who are
eligible to be Participants in a Plan Year would be more than the greater
of:
(a) the average of the Actual Deferral Percentages of all other
Employees who are eligible to be Participants multiplied by one and
one fourth (1 1/4 th), or
(b) the lesser of:
(i) two percent (2%) plus the Actual Deferral Percentage of
all other Employees who are eligible to be Participants, or
(ii) the Actual Deferral Percentage of all other Employees
who are eligible to be Participants multiplied by two (2),
the Compensation Redirection Percentages of the Highly Compensated
Participants shall, except as otherwise provided in Section 5.1, be reduced
to the extent necessary so that the Actual Deferral Percentage for the
group of Highly Compensated Participants is not more than the greater of
Subsection (a) or (b) above.
For Plan Years beginning on or after January 1, 1997 and unless the
Committee properly elects at such time and in such manner as prescribed by
the Secretary of the Treasury to apply the Current Year ADP Method instead,
if after making the adjustments required by Section 5.8 the average of the
Actual Deferral Percentages for the group of Highly Compensated
Participants who are eligible to be Participants in a Plan Year would be
more than the greater of:
(c) the average of the immediately preceding Plan Year's Actual
Deferral Percentages of all Prior Year's Non-Highly Compensated
Participants multiplied by one and one fourth (1 1/4 th), or
(d) the lesser of:
(i) two percent (2%) plus the immediately preceding Plan
Year's Actual Deferral Percentage of all Prior Year's Non-Highly
Compensated Participants, or
(ii) the immediately preceding Plan Year's Actual Deferral
Percentage of all Prior Year's Non-Highly Compensated
Participants multiplied by two (2),
the Compensation Redirection Percentages of the Highly Compensated
Participants shall, except as otherwise provided in Section 5.1, be reduced
to the extent necessary so that the Actual Deferral Percentage for the
group of Highly Compensated Participants is not more than the greater of
Subsection (c) or (d) above.
Reduction of Compensation Redirection Percentages shall be
accomplished first by determining the maximum deferral for the group of
Highly Compensated Participants permitted by Subsection (a) or (b) above or
Subsection (c) and (d), whichever is applicable, and then reducing the
Compensation Redirection Percentage of the Highly Compensated Participants
with the highest Compensation Redirection Percentages by one tenth of one
percent (0.1%). If after making the above reduction the limitations are
still exceeded, the Company Matched Contribution Percentages of the Highly
Compensated Participants shall be further reduced in one tenth of one
percent (0.1%) increments until the limitations of this Section 5.6 are not
exceeded.
For Plan Years beginning before January 1, 1997, correction of excess
Before-Tax Contributions shall be accomplished as follows. The amount by
which a Participant's Before-Tax Contributions are reduced, based on the
reduction of his Compensation Redirection Percentage under this Section
5.6, plus any income allocated to such excess Before-Tax Contributions and
attributable to the Plan Year to which such excess relates shall be
recharacterized as After-Tax Contributions; PROVIDED, HOWEVER, that excess
Before-Tax Contributions shall not be recharacterized with respect to a
Highly Compensated Participant to the extent that the recharacterized
amounts, in combination with his After-Tax Contributions, exceed the
maximum amount of After-Tax Contributions (determined without regard to
Section 5.7) that he is permitted to make under the Plan in the absence of
such recharacterization.
For Plan Years beginning on or after January 1, 1997, correction of
excess Before-Tax Contributions shall be accomplished as follows. First,
the Committee shall calculate the total dollar amount of the Before-Tax
Contributions of Highly Compensated Participants that would otherwise be
reduced as the result of the reduction of the Compensation Redirection
Percentages of those Highly Compensated Participants in accordance with
this Section 5.6 (the "Total Excess Contributions") without attributing any
such dollar reduction to a particular Highly Compensated Participant. The
Before-Tax Contributions of the Highly Compensated Participant with the
highest dollar amount of Before-Tax Contributions shall then be reduced by
the amount required to cause that Highly Compensated Participant's Before-
Tax Contributions to equal the dollar amount of the Before-Tax
Contributions of the Highly Compensated Participant with the next highest
dollar amount of Before-Tax Contributions. If the total amount of the
reductions of Before-Tax Contributions in the preceding sentence is less
than the Total Excess Contributions, the process in the preceding sentence
shall be repeated. In no event shall the reductions required under the
preceding two sentences exceed the Total Excess Contributions. The amount
by which each Highly Compensated Participant's Before-Tax Contributions is
reduced, plus any income allocated to such reduced Before-Tax Contributions
and attributable to the Plan Year to which such reduction relates, shall be
recharacterized as After-Tax Contributions; PROVIDED, HOWEVER, that reduced
Before-Tax Contributions shall not be recharacterized with respect to a
Highly Compensated Participant to the extent the recharacterized amounts,
in combination with his After-Tax Contributions, exceed the maximum amount
of After-Tax Contributions (determined without regard to Section 5.7) that
he is permitted to make under the Plan in the absence of such
recharacterization.
Except as otherwise provided, the remainder of this Section 5.6 shall
apply to Plan Years beginning both before and on or after January 1, 1997.
Recharacterized excess Before-Tax Contributions shall remain subject to the
nonforfeitability requirements and distribution limitations that apply to
Before-Tax Contributions. If such recharacterization after the close of
any Plan Year is not permitted, any elected Before-Tax Contributions in
excess of the amount permitted under this Section 5.6, along with any
earnings (or, if applicable, less any losses) that are attributable to such
excess and that are attributable to the Plan Year to which such excess
relates, shall be returned to that Participant no later than the end of the
Plan Year immediately following the Plan Year for which the excess Before-
Tax Contributions were made.
The amount of excess Before-Tax Contributions to be returned shall be
reduced by any excess Before-Tax Contributions which were previously
refunded with respect to that Plan Year. The refund of excess Before-Tax
Contributions shall in all cases include the income allocable thereto. The
income allocable to excess Before-Tax Contributions shall include only
income for the Plan Year for which the excess Before-Tax Contributions were
made. Any Company Matched Contributions that are attributable to excess
Before-Tax Contributions and that are not returned in accordance with
Section 5.7 shall be treated as a mistaken contribution, shall be
forfeited, shall be credited to and held in a suspense account and shall be
applied to reduce the amount of Company Matched Contributions otherwise
required of the Company for the next following Plan Year(s) until
exhausted.
For purposes of this Section 5.6, an eligible Employee is any Employee
who is directly or indirectly eligible to enter into a Compensation
Redirection Agreement under the Plan for all or a portion of a Plan Year
and shall include:
(e) an Employee who would be a Participant but for the failure
either to enter into a Compensation Redirection Agreement or an
election to make After-Tax Contributions under Section 5.11;
(f) an Employee whose eligibility to continue to have Before-Tax
Contributions deducted from his Compensation has been suspended
because of an election either to revoke his Compensation Redirection
Agreement or to revoke his election with respect to After-Tax
Contributions, or because of having received a withdrawal or loan; and
(g) an Employee who is unable to enter into a Compensation
Redirection Agreement because his Compensation is less than a stated
dollar amount.
In the case of an eligible Employee who has no Before-Tax
Contributions withheld, the deferral ratio that shall be included in
determining the Actual Deferral Percentage is zero (0).
Before-Tax Contributions shall be taken into account in determining an
Employee's Compensation Redirection Percentage only if they relate to
Compensation that either would have been received by that Employee in that
Plan Year (but for his Compensation Redirection Agreement) or are
attributable to services performed by that Employee in that Plan Year and
would have been received by that Employee within two and one half (2 1/2)
months after the close of that Plan Year (but for his Compensation
Redirection Agreement).
Before-Tax Contributions shall be taken into account in determining an
Employee's Compensation Redirection Percentage only if they are allocated
to that Employee as of a date within that Plan Year. For this purpose,
Before-Tax Contributions shall be considered allocated as of a date within
a Plan Year only if the allocation is not contingent on participation or
performance of services after that date and the Before-Tax Contributions
are actually paid to the Trust Fund no later than twelve (12) months after
the Plan Year to which the Before-Tax Contributions relate.
Any Highly Compensated Participant who is described in Section 2.22(g)
and his Family Members (collectively referred to as a "Family Group") shall
be treated as a single Highly Compensated Participant and the Actual
Deferral Percentage for that Family Group shall be determined by combining
the Before-Tax Contributions and Compensation of the Highly Compensated
Participant and each of his Family Members. The Before-Tax Contributions
and Compensation of the Family Members of a Highly Compensated Participant
shall be disregarded for purposes of determining the average Actual
Deferral Percentage calculated under subsections (a) and (b) of this
Section 5.6. If an eligible Employee is required to be included in more
than one Family Group, all Employees who are eligible to be Participants
and who are members of those Family Groups that include such eligible
Employee shall be treated as one Family Group. The determination and
correction of the excess Before-Tax Contributions of a Highly Compensated
Participant who is a member of a Family Group shall be accomplished by
reducing the Actual Deferral Percentage of that Family Group in accordance
with this Section 5.6 and by allocating the excess Before-Tax Contributions
among the members of the Family Group in proportion to the Before-Tax
Contributions of each member of that Family Group. The foregoing rule
requiring treatment of a Highly Compensated Participant and each of his
Family Members as a single Highly Compensated Participant shall apply only
with respect to Plan Years beginning before January 1, 1997.
If at any time during a Plan Year the Committee, in its sole
discretion, determines that the average Actual Deferral Percentage for the
Highly Compensated Participants for that Plan Year might otherwise exceed
the limitations imposed by this Section 5.6, then the Committee shall have
the right during that Plan Year to require the prospective reduction for
the balance of that Plan Year of the Before-Tax Contributions that would
otherwise have been made by any Highly Compensated Participant pursuant to
his election under Section 4.1. Such prospective reductions shall be made
only to the extent necessary to insure that the limitations imposed by this
Section 5.6 are not exceeded.
To the extent permitted by the Code, the Committee shall have the
authority to apply this Section 5.6 by aggregating this Plan with any other
tax-qualified retirement plan sponsored and maintained by a member of the
Group.
5.7. RETURN OF COMPANY MATCHED CONTRIBUTIONS AND AFTER-TAX
CONTRIBUTIONS. If after making the adjustments required by Section 5.6 the
average of the Company Matched Contribution Percentages for the group of
Highly Compensated Participants in a Plan Year would be more than the
greater of:
(a) the average of the Company Matched Contribution Percentages
of all other Employees who are eligible to be Participants multiplied
by one and one fourth (1 1/4 th), or
(b) the lesser of:
(i) two percent (2%) plus the average of the Company Matched
Contribution Percentages of all other Employees who are eligible
to be Participants, or
(ii) the average of the Company Matched Contribution
Percentages of all other Employees who are eligible to be
Participants multiplied by two (2.0),
the Company Matched Contributions and After-Tax Contributions of the Highly
Compensated Participants shall be reduced to the extent necessary so that
the average of the Company Matched Contribution Percentages for the group
of Highly Compensated Participants is not more than the greater of
Subsection (a) or (b) above.
For Plan Years beginning on or after January 1, 1997 and unless the
Committee properly elects at such time and in such manner as prescribed by
the Secretary of the Treasury to apply the Current Year ACP Method instead,
if after making the adjustments required by Section 5.6 the average of the
Company Matched Contribution Percentages for the group of Highly
Compensated Participants in a Plan Year would be more than the greater of:
(c) the average of the immediately preceding Plan Year's Company
Matched Contribution Percentages of all Prior Year's Non-Highly
Compensated Participants multiplied by one and one fourth (1 1/4 th),
or
(d) the lesser of:
(i) two percent (2%) plus the average of the immediately
preceding Plan Year's Company Matched Contribution Percentages of
all Prior Year's Non-Highly Compensated Participants, or
(ii) the average of the immediately preceding Plan Year's
Company Matched Contribution Percentages of all Prior Year's Non-
Highly Compensated Participants multiplied by two (2.0),
the Company Matched Contributions and After-Tax Contributions of the Highly
Compensated Participants shall be reduced to the extent necessary so that
the average of the Company Matched Contribution Percentages for the group
of Highly Compensated Participants is not more than the greater of
Subsection (c) or (d) above.
Reduction of excess Company Matched Contributions and After-Tax
Contributions shall be accomplished first by determining the maximum
average percentage for the group of Highly Compensated Participants
permitted by Subsection (a) or (b) above or Subsection (c) or (d),
whichever is applicable, and then reducing the Company Matched
Contributions and After-Tax Contributions of the Highly Compensated
Participants with the highest Company Matched Contribution Percentage so
that their Company Matched Contribution Percentage is reduced by one tenth
of one percent (0.1%). If after making the above reduction the limitations
are still exceeded, the Company Matched Contribution Percentages of the
Highly Compensated Participants shall be further reduced in one tenth of
one percent (0.1%) increments until the limitations are not exceeded.
For Plan Years beginning before January 1, 1997, the amount of excess
Company Matched Contributions and After-Tax Contributions to be corrected
with respect to a Highly Compensated Participant shall equal the reduction
of his Company Matched Contributions and After-Tax Contributions resulting
from the reduction of his Company Matched Contribution Percentage in
accordance with this Section 5.7.
For Plan Years beginning on or after January 1, 1997, the amount of
excess Company Matched Contributions and After-Tax Contributions to be
corrected with respect to a Highly Compensated Participant shall be
determined as follows. First, the Committee shall calculate the total
dollar amount of the Company Matched Contributions and After-Tax
Contributions of Highly Compensated Participants that would otherwise be
reduced as the result of the reduction of Company Matched Contributions
Percentages in accordance with this Section 5.7 (the "Total Excess
Aggregate Contributions") without attributing any such dollar reduction to
a particular Highly Compensated Participant. The Company Matched
Contributions and After-Tax Contributions of the Highly Compensated
Participant with the highest dollar amount of Company Matched Contributions
and After-Tax Contributions shall then be reduced by the amount required to
cause that Highly Compensated Participant's Company Matched Contributions
and After-Tax Contributions to equal the dollar amount of the Company
Matched Contributions and After-Tax Contributions of the Highly Compensated
Participant with the next highest dollar amount of Company Matched
Contributions and After-Tax Contributions. If the total amount of the
reductions of Company Matched Contributions and After-Tax Contributions in
the preceding sentence is less than the Total Excess Aggregate
Contributions, the process in the preceding sentence shall be repeated. In
no event shall the reductions required under the preceding two sentences
exceed the Total Excess Aggregate Contributions.
For Plan Years beginning both before and on or after January 1, 1997,
Excess Company Matched Contributions and After-Tax Contributions shall be
corrected by taking the following actions:
(e) First, After-Tax Contributions (and Before-Tax Contributions
that are recharacterized as After-Tax Contributions under Section 5.6)
that do not generate Company Matched Contributions under Section 5.2,
plus income attributable thereto, shall be refunded to that
Participant;
(f) Second, After-Tax Contributions (and Before-Tax Contributions
that are recharacterized as After-Tax Contributions under Section 5.6)
that do generate Company Matched Contributions under Section 5.2, plus
any income attributable thereto, shall be distributed to that
Participant, and the Company Matched Contributions attributable to
such After-Tax Contributions, plus any income attributable thereto,
shall be treated in the same manner as Company Matched Contributions
are treated under subsection (h), if such Company Matched
Contributions are otherwise forfeitable under Section 8.2, or shall be
treated in the same manner as Company Matched Contributions are
treated under subsection (g), if such Company Matched Contributions
are not otherwise forfeitable under Section 8.2;
(g) Third, Company Matched Contributions that are not forfeitable
under Section 8.2, plus income attributable thereto, shall be refunded
to the affected Participants no later than the end of the Plan Year
immediately following the Plan Year for which such excess Company
Matched Contributions were made; and
(h) Fourth, Company Matched Contributions that are forfeitable
under Section 8.2, plus income attributable thereto, shall be
forfeited and applied to reduce the amount of Company Matched
Contributions otherwise required of the Employer to whom they relate
for the next following Plan Year(s) until exhausted.
The income attributable to excess Company Matched Contributions or
After-Tax Contributions shall include only income for the Plan Year for
which the Company Matched Contributions or After-Tax Contributions were
made.
After application of Section 5.6 and Subsections (a) and (b) of this
Section 5.7 (or Subsections (c) and (d), whichever is applicable), if the
average of the Company Matched Contribution Percentages for the group of
Highly Compensated Participants who are eligible to participate in the Plan
exceeds the limits prescribed by Subsection (a) above or Subsection (c)
above, whichever is applicable, and the Actual Deferral Percentage for the
group of Highly Compensated Participants who are eligible to participate in
the Plan exceeds the limits prescribed by Section 5.6(a) or Section 5.6(c),
whichever is applicable, then the following "Multiple Use Test" shall apply
under which the sum of:
(i) the average of the Company Matched Contributions Percentages
in such Plan Year for the group of Highly Compensated Participants who
are eligible to participate in the Plan, and
(j) the Actual Deferral Percentage in such Plan Year for the
group of Highly Compensated Participants who are eligible to
participate in the Plan;
shall not exceed the greater of:
(k) the sum of:
(i) one hundred and twenty-five percent (125%) of the
greater of:
(A) the average of the Company Matched Contributions
Percentages for such Plan Year determined under the Current
Year ACP Method or for the immediately preceding Plan Year
determined under the Prior Year ACP Method, whichever is
being used for such Plan Year, or
(B) the Actual Deferral Percentage for such Plan Year
determined under the Current Year ADP Method or for the
immediately preceding Plan Year determined under the Prior
Year ADP Method, whichever is being used for such Plan Year,
plus
(ii) the sum of two percent (2%) and the lesser of:
(A) the average of the Company Matched Contributions
Percentages for such Plan Year determined under the Current
Year ACP Method or for the immediately preceding Plan Year
determined under the Prior Year ACP Method, whichever is
being used for such Plan Year, or
(B) the Actual Deferral Percentage for such Plan Year
determined under the Current Year ADP Method or for the
immediately preceding Plan Year determined under the Prior
Year ADP Method, whichever is being used for such Plan Year;
PROVIDED, HOWEVER, that the amount determined under this
Subsection (k),(ii) may not exceed two hundred percent (200%) of
the lesser of (A) or (B) of this Subsection (k),(ii);
or
(l) the sum of:
(i) one hundred and twenty-five percent (125%) of the lesser
of:
(A) the average of the Company Matched Contribution
Percentages for such Plan Year determined under the Current
Year ACP Method or for the immediately preceding Plan Year
determined under the Prior Year ACP Method, whichever is
being used for such Plan Year, or
(B) the Actual Deferral Percentage for such Plan Year
determined under the Current Year ADP Method or for the
immediately preceding Plan Year determined under the Prior
Year ADP Method, whichever is being used for such Plan Year,
plus
(ii) the sum of two percent (2%) and the greater of:
(A) the average of the Company Matched Contributions
Percentages for such Plan Year determined under the Current
Year ACP Method or for the immediately preceding Plan Year
determined under the Prior Year ACP Method, whichever is
being used for such Plan Year, or
(B) the Actual Deferral Percentage for such Plan Year
determined under the Current Year ADP Method or for the
immediately preceding Plan Year determined under the Prior
Year ADP Method, whichever is being used for such Plan Year;
PROVIDED, HOWEVER, that the amount determined under this
Subsection (l),(ii) may not exceed two hundred percent (200%) of
the greater of (A) or (B) of this Subsection (l),(ii).
For Plan Years beginning on or after January 1, 1997, if there has
been a corrective distribution or recharacterization of excess Before-Tax
Contributions for a Plan Year, then, in applying the Multiple Use Test for
that Plan Year, the average Compensation Redirection Percentage for the
Highly Compensated Participants shall equal the maximum amount permitted
under Section 5.6. For Plan Years beginning on or after January 1, 1997,
if there has been a corrective distribution of excess Company Matched
Contributions or After-Tax Contributions for a Plan Year, then, in applying
the Multiple Use Test for that Plan Year, the average Company Matched
Contribution Percentage for the Highly Compensated Participants shall equal
the maximum amount permitted under Section 5.7(a) and (b) (or Section
5.7(c) and (d), whichever is applicable).
If the limits prescribed by the Multiple Use Text are exceeded, the
Committee, in its sole discretion, may elect either to reduce the Company
Matched Contributions, After-Tax Contributions or Before-Tax Contributions
of the Highly Compensated Participants who are eligible both to enter into
Compensation Redirection Agreements and to receive Company Matched
Contributions, or a combination thereof, to the extent necessary so that
the limits are not exceeded in the same manner such Company Matched
Contributions, After-Tax Contributions or Before-Tax Contributions are
reduced under Section 5.6 or Subsections (a) and (b) (or Subsections (c)
and (d), whichever is applicable) of this Section 5.7.
For purposes of this Section 5.7, an eligible Employee is any Employee
who is directly or indirectly eligible to receive an allocation of Company
Matched Contributions or to make After-Tax Contributions and shall include:
(m) an Employee who would be a Plan Participant but for the
failure either to enter into a Compensation Redirection Agreement or
to elect to make After-Tax Contributions;
(n) an Employee whose eligibility to continue either to receive
an allocation of Company Matched Contributions or to make After-Tax
Contributions has been suspended because of an election either to
revoke his Compensation Redirection Agreement or to revoke his
election with respect to After-Tax Contributions, or because of having
received a withdrawal or loan; and
(o) an Employee who is unable to receive an allocation of Company
Matched Contributions or to make After-Tax Contributions because his
Compensation is less than a stated dollar amount.
In the case of an eligible Employee who receives no Company Matched
Contributions and makes no After-Tax Contributions, the contribution ratio
that shall be included in determining the Company Matched Contribution
Percentage is zero (0).
In calculating the Company Matched Contribution Percentage for a Plan
Year, Company Matched Contributions and After-Tax Contributions shall be
taken into account only if they are allocated to the Employee's Participant
Account during that Plan Year and paid into the Trust Fund by the end of
the twelfth (12th) month following the close of that Plan Year.
All members of a Family Group (as defined in Section 5.6) shall be
treated as a single Highly Compensated Participant and the Company Matched
Contribution Percentage for that Family Group shall be determined by
combining the Company Matched Contributions, After-Tax Contributions and
Compensation of the Highly Compensated Participant and each of his Family
Members who comprise that Family Group. The Company Matched Contributions,
After-Tax Contributions and Compensation of the Family Members of a Highly
Compensated Participant shall be disregarded for purposes of determining
the average Company Matched Contribution Percentage calculated under
Subsections (a) and (b) of this Section 5.7. If an eligible Employee is
required to be included in more than one Family Group, all Employees who
are eligible to be Participants and who are members of those Family Groups
that include such eligible Employee shall be treated as one Family Group.
The determination and correction of excess Company Matched Contributions
and After-Tax Contributions of a Highly Compensated Participant who is a
member of a Family Group shall be accomplished by reducing the Company
Matched Contribution Percentage of that Family Group in accordance with
this Section 5.7 and by allocating the excess Company Matched Contributions
or After-Tax Contributions among the members of the Family Group in
proportion to the Company Matched Contributions and After-Tax Contributions
of each member of that Family Group. The foregoing rule requiring
treatment of a Highly Compensated Participant and each of his Family
Members as a single Highly Compensated Participant shall apply only with
respect to Plan Years beginning before January 1, 1997.
If at any time during a Plan Year the Committee, in its sole
discretion, determines that the Actual Contribution Percentage for any
Employee for that Plan Year might otherwise exceed the limitations imposed
by this Section, then the Committee shall have the right during that Plan
Year to require the prospective reduction for the balance of that Plan Year
of the After-Tax Contributions that would otherwise have been made by that
Employee pursuant to his election under Section 5.11. Such prospective
reductions shall be made only to the extent necessary to insure that the
limitations imposed by this Section 5.7 are not exceeded.
To the extent permitted by the Code, the Committee shall have the
authority to apply this Section 5.7 by aggregating this Plan with any other
tax-qualified retirement plan sponsored and maintained by a member of the
Group.
5.8. MAXIMUM BEFORE-TAX CONTRIBUTIONS. Notwithstanding anything
contained in the Plan to the contrary, the maximum Before-Tax Contributions
that a Participant may elect to have redirected under Section 4.1 and under
any other tax qualified retirement plan, whether or not maintained by a
member of the Group, in any calendar year is seven thousand dollars
($7,000). If due to a mistake in fact Before-Tax Contributions in excess
of seven thousand dollars ($7,000) are allocated in a calendar year to the
Participant Account of any Participant, the Trustee shall return to that
Participant the portion of his Before Tax Contributions in excess of seven
thousand dollars ($7,000) plus any earnings that are attributable to such
excess and that are attributable to the Plan Year to which such excess
relates not later than the April 15 immediately following the calendar year
during which such excess Before Tax Contributions Amount were allocated.
The seven thousand dollar ($7,000) limitation contained in this Section
shall be automatically adjusted in accordance with Sections 402(g)(5) and
415 of the Code without the necessity of any amendment to the Plan.
5.9. PLAN PRIORITY OF EXCESS CONTRIBUTIONS. If contributions by an
Employer to the Plan and benefit accruals under tax qualified defined
benefit retirement plans maintained by the Group would otherwise be in
excess of the limits contained in Section 5.4, contributions and benefit
accruals with respect to each type of tax qualified retirement plan shall
be reduced in the following order of priority:
(a) profit sharing plans with a salary deferral feature under
Section 401(k) of the Code, and
(b) defined benefit plans.
5.10. INVESTMENT FUND PRIORITY OF EXCESS CONTRIBUTIONS. If
contributions to the Plan would otherwise exceed the permissible limits
described in Section 5.4, Section 5.6, Section 5.7, Section 5.8 and Section
5.9 and Before-Tax Contributions or After-Tax Contributions are refunded to
a Participant, the investment funds in which that Participant's Participant
Account is then invested shall be liquidated on a pro rata basis in
accordance with each investment fund subaccount balance as of the date the
refund is made.
5.11. AFTER-TAX CONTRIBUTIONS. Participants shall not be permitted
to make After-Tax Contributions to the Plan.
5.12. DISCRETIONARY PROFIT-SHARING CONTRIBUTION. In addition to the
Company Matched Contributions made pursuant to Section 5.2, the Employers
may, in the sole discretion of the President of the Company, contribute
such amount (which need not be from their current or accumulated profits)
to the Plan as a Profit-Sharing Contribution. Any Profit-Sharing
Contribution made to the Plan with respect to a calendar quarter shall be
allocated among the Participants who are actively employed on the last day
of that calendar quarter in any uniform manner, as determined by the
Committee, that does not discriminate in favor of Highly Compensated
Participants. The amount of the Profit-Sharing Contribution for any
calendar quarter shall be three percent (3%) of the Compensation of each
Participant for that calendar quarter unless the President of the Company
determines and communicates to the Participants prior to the end of the
calendar quarter that some other amount shall be contributed; PROVIDED,
HOWEVER, that, effective April 1, 1997, this sentence shall be amended by
substituting "two percent (2%)" for "three percent (3%)" where it appears.
5.13. CONTRIBUTION OF VACATION PAY. On or before December 31 of each
Plan Year, each Participant who has unused vacation time for which he is
not eligible to be compensated in cash under the then-current employment
policy of his Employer shall be entitled to elect in writing to have all or
any portion of the cash value of such unused vacation pay contributed to
this Plan as an additional Profit-Sharing Contribution; PROVIDED, HOWEVER,
that a Participant shall be entitled to such Profit-Sharing Contribution
only if he is actively employed by an Employer as of the last day of the
Plan Year to which the unused vacation pay relates. The Employer shall
make such Profit-Sharing Contribution, which shall be allocated to the
Participant's Profit-Sharing Contribution Subaccount, as soon as
practicable after the end of the Plan Year to which such unused vacation
pay relates. This Section 5.13 shall be effective for Plan Years beginning
on and after January 1, 1997.
<PAGE>
ARTICLE VI
INVESTMENT OF CONTRIBUTIONS
6.1. INVESTMENT OF CONTRIBUTIONS. Each Participant shall direct on
the Appropriate Form that the amount of his Before-Tax Contributions
Subaccount, his After-Tax Contributions Subaccount, his Rollover
Contributions Subaccount and his Company Matched Contributions Subaccount
be invested in the investment funds as maintained pursuant to Section 2.41
in five percent (5%) increments. All amounts allocated to Participants'
Profit-Sharing Contributions Subaccounts and Retirement Plan Subaccounts
shall be invested as directed by the Trustee pursuant to the Trust
Agreement; PROVIDED, HOWEVER, that the Committee may, by providing written
notice to all Participants, permit all Participants to direct the
investment of their Profit-Sharing Contributions Subaccounts and Retirement
Plan Subaccounts in accordance with the rules of this Article VI.
6.2. CHANGE OF INVESTMENT ELECTION. A Participant may change his
investment election in accordance with Section 6.1 as of any Valuation Date
with respect to contributions to be made thereafter, by giving notice to
the Committee on the Appropriate Form and within the time limit prescribed
by the Committee.
6.3. CONVERSION OF INVESTMENTS. By giving notice to the Committee on
the Appropriate Form, a Participant may elect (but no more frequently than
once in each calendar month) to transfer as of any Valuation Date in five
percent (5%) increments that portion of his Before-Tax Contributions
Subaccount, his After-Tax Contributions Subaccount, his Rollover
Contributions Subaccount and his Company Matched Contributions Subaccount
invested in one of the funds described in Section 2.41 to his subaccount in
any of the other funds described in Section 2.41.
6.4. SPECIAL RULES FOR INVESTMENTS IN FUND 7. The Committee shall
adopt such policies and procedures to the extent it deems appropriate to
provide for or facilitate the exemption from Section 16(b) of the
Securities Exchange Act of 1934 of transactions involving the Simon Stock
by Participants who are subject to Section 16(b) of the Securities Exchange
Act of 1934.
Before each annual or special meeting of the shareholders of Simon
DeBartolo Group, Inc., each Participant with any portion of his Participant
Account balance invested in Fund 7 shall be furnished a copy of the
applicable proxy solicitation material for such meeting, together with a
request for his confidential instructions to the Trustee as to how the
shares of Simon Stock then credited to his Participant Account (excluding
therefrom any fractional shares) should be voted. On each matter, the
Trustee shall vote:
(a) shares of Simon Stock for which it has not received timely
voting instructions from Participants on such matter, and
(b) shares of Simon Stock which are pending allocation to
Participant Accounts, in the same proportion as it votes those shares
of Simon Stock for which it has received timely voting instructions
from Participants on such matter.
Each Participant shall also have the right, to the extent of shares of
Simon Stock allocated to his Participant Account as of the most recent
Valuation Date before such record date for which information is available,
to direct the Trustee in writing as to the manner in which to respond to a
tender or exchange offer with respect to such shares. The Trustee shall
utilize its best efforts timely to distribute or to cause to be distributed
to each Participant such information as will be distributed to shareholders
of Simon DeBartolo Group, Inc. in connection with any such tender or
exchange offer. Upon timely receipt of such written directions from a
Participant, the Trustee shall respond as directed with respect to the
shares of Simon Stock representing not less than all of the shares over
which that Participant has the right of direction. The directions received
by the Trustee from Participants shall be held by the Trustee in confidence
and shall not be divulged or released to any person, including officers or
employees of Simon DeBartolo Group, Inc. or of any other member of the
Group. If the Trustee shall not have received timely written directions
from any Participant as to the manner in which to respond to such a tender
or exchange offer, the Trustee shall not tender or exchange any such shares
with respect to which that Participant has the right of direction. Shares
of Simon Stock held by the Trustee pending allocation to Participant
Accounts shall be tendered or exchanged by the Trustee in the same
proportion as are tendered or exchanged those shares with respect to which
Participants have the right of direction.
6.5. TRANSITION RULES. In order to facilitate the merger of the DPMI
Plan into this Plan, Participants who participated in the DPMI Plan as of
March 31, 1997 shall not be permitted to give any investment instructions
or directions under Sections 6.1, 6.2 or 6.3 during the period beginning on
or about March 15, 1997 and ending on or about April 15, 1997. During this
period when investment instructions or directions are not permitted, each
Participant who had an account in the DPMI Plan as of March 31, 1997 shall
have his DPMI Plan account balance invested in those Plan investment funds
as determined by the Committee and communicated in writing to the
Participants.
<PAGE>
ARTICLE VII
PARTICIPANT ACCOUNTS
7.1. MAINTENANCE OF PARTICIPANT ACCOUNTS. The Committee shall
maintain, or cause to be maintained, a Participant Account for each
Participant. Each such Participant Account shall be maintained so as to
reflect the investments in each of the investment funds maintained pursuant
to Section 2.41 and the portion of the Participant's Account attributable
to each of the subaccounts maintained pursuant to Section 2.26.
7.2. VALUATION OF PARTICIPANT ACCOUNTS. As of each Valuation Date
the Committee shall, by uniform methods, adjust or cause to be adjusted the
Participant Account of each Participant to reflect contributions,
withdrawals, distributions, income earned and any increase or decrease in
the value of Trust Fund assets since the last preceding Valuation Date.
Income, loss, decrease or increase earned on each investment fund
maintained pursuant to Section 2.41 shall be allocated proportionately
among all Participant Accounts in accordance with the value of such
Participant Accounts attributable to that fund's investments at the last
preceding Valuation Date as adjusted to reflect any transfers among
investment funds, contributions, withdrawals and distributions since that
Valuation Date; PROVIDED, HOWEVER, that the amount, price and timing of
allocations of any interest in Simon Stock to Participants on the basis of
contributions of the Company to the Plan shall not be amended more than
once every six months (other than to comport with changes in the Code,
ERISA or the rules thereunder), unless in the opinion of counsel to the
Company, such amendment would not cause any past or future allocations of
such interest to fail to be exempt from Section 16(b) of the Securities
Exchange Act of 1934. Each Participant shall be provided a statement as
soon as is practical following each Valuation Date reflecting any
contributions, withdrawals, distributions, income earned and increase or
decrease in the value of his Participant Account since the preceding
Valuation Date.
In addition to the foregoing, Participant Accounts shall be valued in
accordance with the following rules:
(a) As of each Valuation Date there shall be allocated, by or
under the direction of the Committee, to each subaccount of a
Participant invested in a particular investment fund an amount which
bears the same ratio to the total amount of Trust gain or loss
(determined in accordance with Subsection (b) of this Section 7.2) as
the prior invested balance of such subaccount bears to the total of
the prior invested balances of all such subaccounts invested in that
investment fund. For the purposes of this Section 7.2, the "prior
invested balance" of each such subaccount shall be the value as
determined on the immediately preceding Valuation Date and shall
include any contributions received by the Trustee since the
immediately preceding Valuation Date, weighted to reflect the time
since the immediately preceding Valuation Date during which such
amounts were actually held and invested by the Trustee for the benefit
of the Participant. The "prior invested balance" of each such
subaccount shall also exclude any amount transferred to the
Participant's Forfeiture Suspense Account pursuant to Section 8.3 if
his termination of employment occurred since the immediately preceding
Valuation Date. If a terminated Participant is reemployed prior to
incurring five (5) consecutive One Year Breaks in Service, any amount
restored to his Company Matched Contributions Subaccount or Profit-
Sharing Contributions Subaccount pursuant to Section 8.4 shall be
included in the prior invested balance of his Company Matched
Contributions Subaccount or Profit-Sharing Contributions Subaccount
(whether restored from a Forfeiture Suspense Account or by additional
Employer contributions).
The "prior invested balance" of the Forfeiture Suspense Account
shall be the balance determined on the immediately preceding Valuation
Date except that it shall include the amount transferred to the
Forfeiture Suspense Account if the Participant's termination of
employment occurred since the immediately preceding Valuation Date.
Gain or loss shall be allocated to the Forfeiture Suspense Account for
any Plan Year in which the amount in the Forfeiture Suspense Account
is actually forfeited.
(b) The Trust gain or loss since the immediately preceding
Valuation Date shall be determined by or under the direction of the
Committee. The Trust gain shall be an amount equal to the excess, if
any, of the adjusted value of the Trust Fund determined on the current
Valuation Date (as provided in Subsection (c) of this Section 7.2)
over the total of all prior invested balances of all Participant
Accounts and the Forfeiture Suspense Account determined in accordance
with the Subsection (a) of this Section 7.2, provided that such prior
invested balances shall be adjusted, by or under the direction of the
Committee, to exclude the entire amount of any distribution since the
immediately preceding Valuation Date, to include the entire amount of
any allocated contributions that have been received by the Trustee as
of the current Valuation Date, and to make such other adjustments
deemed appropriate under the circumstances. If the amount determined
in the preceding sentence results in a deficit rather than an excess,
such amount shall be the Trust loss and allocated in a like manner.
(c) As of each Valuation Date, the Trustee shall determine the
fair market value of the assets of the Trust Fund, as adjusted, by or
under the direction of the Committee, by excluding the following
amounts:
(1) the amounts held in segregated accounts under the
provisions of Section 14.8;
(2) any Employer contribution already received by the
Trustee that has not already been allocated as of a preceding
Valuation Date; and
(3) any amounts restored to a Participant's Company Matched
Contributions Subaccount or Profit-Sharing Contributions
Subaccount by additional Employer contributions pursuant to
Section 8.3.
7.3. NATURE OF PARTICIPANT'S INTEREST IN TRUST FUND. The maintenance
of Participant Accounts is for accounting purposes only, and a segregation
of Plan assets shall not be required. The rights of the Participants under
the Plan are the rights to the benefits provided in the Plan, and the fact
of maintenance of individual Participant Accounts shall not vest any right,
title or interest in the assets of the Plan, in and of itself.
<PAGE>
ARTICLE VIII
VESTING
8.1. BEFORE-TAX CONTRIBUTIONS SUBACCOUNT, AFTER-TAX CONTRIBUTIONS
SUBACCOUNT AND RETIREMENT PLAN SUBACCOUNT. All Before-Tax Contributions
made under Section 5.1, all After-Tax Contributions under Section 5.11 and
the earnings thereon, and all amounts held in a Retirement Plan Subaccount
shall be one hundred percent (100%) vested and nonforfeitable at all times;
PROVIDED, HOWEVER, that due to the fluctuation of value inherent in certain
investments, there is no guarantee that the Before-Tax Contributions made
under Section 5.1, the aggregate After-Tax Contributions made under Section
5.11, and the Retirement Plan Subaccount will be available for distribution
or other withdrawal in accordance with the terms of the Plan.
8.2. COMPANY MATCHED CONTRIBUTIONS SUBACCOUNTS AND PROFIT-SHARING
CONTRIBUTIONS SUBACCOUNT. A Participant's Company Matched Contributions
Subaccount and Profit-Sharing Contributions Subaccount shall vest in
accordance with the following rules:
(a) A Participant's Company Matched Contributions Subaccount and
Profit-Sharing Contributions Subaccount shall vest and become
nonforfeitable when that Participant attains age sixty-five (65),
which is deemed to be the normal retirement age under the Plan, dies
while employed by an Employer, or terminates employment with the
Employers as a result of a Total Disability.
(b) A Participant's Company Matched Contributions Subaccount and
Profit-Sharing Contributions Subaccount shall vest and become
nonforfeitable based on that Participant's Period of Service as
follows:
PERIOD OF SERVICE VESTED PERCENTAGE
Less than three (3) years 0%
At least three (3) years, but
less than four (4) years 30%
At least four (4) years, but
less than five (5) years 40%
At least five (5) years, but
less than six (6) years 60%
At least six (6) years, but
less than seven (7) years 80%
Seven (7) years or more 100%;
PROVIDED, HOWEVER, that a Participant who participated in the DPMI Plan as
of March 31, 1997 and who, as of March 31, 1997, had at least five (5)
years of service under the DPMI Plan for vesting purposes shall be 100%
vested in his Company Matched Contributions Subaccount and Profit-Sharing
Contributions Subaccount; PROVIDED, FURTHER, that a Participant who
participated in the DPMI Plan as of March 31, 1997 and who had at least
three (3) but less than four (4) years of service under the DPMI Plan for
vesting purposes shall elect in writing before March 31, 1997 whether his
Company Matched Contributions Subaccount and Profit-Sharing Contributions
shall vest according to the vesting schedule in this Section 8.2(b) or
according to the vesting schedule of the DPMI Plan.
8.3. FORFEITURES. The rights of any Participant or, if deceased, of
his beneficiary to his Participant Account shall not be forfeited for
cause. Notwithstanding the above, the return to any Participant or, if
deceased, to his beneficiary, of the full amount contributed by the
Employers on his behalf to his Participant Account, of his aggregate After-
Tax Contributions or of his Retirement Plan Subaccount is not guaranteed
because of the fluctuation of value inherent in certain investment
categories.
Upon the termination of employment with the Group of a Participant who
is not fully vested in the value of his Company Matched Contributions
Subaccount and Profit-Sharing Contributions Subaccount, the value of his
Company Matched Contributions Subaccount and Profit-Sharing Contributions
Subaccount as of the Valuation Date immediately preceding such termination
which is in excess of the amount which is vested in accordance with the
provisions of Section 8.2 shall be transferred to a Forfeiture Suspense
Account. Gain or loss shall be allocated to such Forfeiture Suspense
Account in accordance with Section 7.2. All amounts credited to a
Forfeiture Suspense Account shall continue to be held until a forfeiture
occurs pursuant to this Section 8.3 and shall receive allocations of gain
or loss pursuant to Section 7.2. Neither the Participant whose interest
has been forfeited as provided in this Section 8.3, nor his beneficiary,
executor, administrator or other person claiming on his behalf shall
thereafter be entitled to any such forfeited interest. The amounts
forfeited under the provisions of this Section 8.3 shall be applied as soon
as possible to reduce Employer contributions under the Plan, and for all
purposes of the Plan, including allocation, shall be treated as an Employer
contribution for the Plan Year in which they are so applied; PROVIDED,
HOWEVER, that forfeitures may also be used to restore a Participant's
Company Matched Contributions Subaccount or Profit-Sharing Contributions
Subaccount as provided in Section 8.3. Each Participant's Participant
Account shall also be subject to the following rules:
(a) In the event of distribution of the Participant's entire
vested Company Matched Contributions Subaccount and Profit-Sharing
Contributions Subaccount balance prior to the date such Participant
has incurred five (5) consecutive One Year Breaks in Service, any
amount credited to his Forfeiture Suspense Account, including any gain
or loss allocated to such Forfeiture Suspense Account pursuant to
Section 7.2, shall be forfeited as of the last day of the Plan Year in
which such distribution was made, provided that the Participant is not
reemployed on or before the last day of such Plan Year.
(b) Any amount credited to a Participant's Forfeiture Suspense
Account that has not been previously forfeited in accordance with the
foregoing Subsection (a), including any gain or loss allocated to such
Forfeiture Suspense Account pursuant to Section 7.2 shall be forfeited
as of the Valuation Date coincident with or next following the date on
which the Participant incurs five (5) consecutive One Year Breaks in
Service.
(c) In the event of a Participant's reemployment prior to
incurring five (5) consecutive One Year Breaks in Service after his
termination of employment, any amount credited to his Forfeiture
Suspense Account that has not yet been forfeited pursuant to
Subsection (a) shall be restored to his Company Matched Contributions
Subaccount or Profit-Sharing Contributions Subaccount as of the date
of his reemployment.
(d) In the event of a Participant's reemployment prior to
incurring five (5) consecutive One Year Breaks in Service after his
termination of employment, any amount that was credited to a
Forfeiture Suspense Account and actually forfeited under the
provisions of Subsection (a), including any gain or loss allocated to
such Forfeiture Suspense Account pursuant to Section 7.2 prior to
actual forfeiture, shall be restored to his Company Matched
Contributions Subaccount or Profit-Sharing Contributions Subaccount if
and only if he repays to the Trust Fund a single sum equal to the full
amount of such distribution prior to incurring five (5) consecutive
One Year Breaks in Service after the date of distribution. If,
pursuant to Section 7.2, a loss is allocated to the Forfeiture
Suspense Account as of a Valuation Date following the date of
distribution, the amount restored shall not be less than the value of
the Forfeiture Suspense Account determined as of the Valuation Date
coincident with or immediately preceding the date of distribution.
Any such repayment shall likewise be restored to the Participant's
Company Matched Contributions Subaccount or Profit-Sharing
Contributions Subaccount. Any forfeitures occurring with respect to
other Participants in the Plan Year the Participant makes the required
repayment shall first be used to restore the amount that the
Participant forfeited. If forfeitures with respect to other
Participants in the current Plan Year are insufficient to provide the
necessary funds for all required restoration of forfeitures, then the
Employers shall contribute the additional amount to the Plan that is
necessary for such purpose.
(e) A Participant who terminated his employment with the Group
and is only reemployed after incurring five (5) consecutive One Year
Breaks in Service shall not have any forfeiture restored to his
Company Matched Contributions Subaccount or Profit-Sharing
Contributions Subaccount.
8.4. ADDITIONAL RULES REGARDING VESTED INTEREST IN COMPANY MATCHED
CONTRIBUTIONS SUBACCOUNT AND PROFIT-SHARING CONTRIBUTIONS SUBACCOUNT. The
following additional rules shall apply in determining the vested portion of
a Participant's Participant Account:
(a) Except as provided in Section 8.4(b), at any time after a
withdrawal or distribution has been charged in whole or in part
against a Participant's Company Matched Contribution Subaccount or
Profit-Sharing Contributions Subaccount and before such Participant is
fully vested in accordance with Section 8.2, the value of a
Participant's vested interest in his Company Matched Contributions
Subaccount or Profit-Sharing Contributions Subaccount as of any
Valuation Date for any purpose, including the determination of the
amount which is to be allocated to a Forfeiture Suspense Account upon
a subsequent termination of the Participant's employment, shall be
equal to the amount, if any, by which:
(1) his vested percentage, determined in accordance with
Section 8.2, multiplied by the sum of (A) the value of his
Company Matched Contributions Subaccount or Profit-Sharing
Contributions Subaccount as of such Valuation Date plus (B) the
aggregate amount of all withdrawals and distributions (not yet
repaid) as of such Valuation Date; exceeds
(2) the aggregate amount of all prior withdrawals and
distributions (not yet repaid) chargeable against his Company
Matched Contributions Subaccount or Profit-Sharing Contributions
Subaccount.
(b) A Participant who has terminated employment shall be treated
as fully vested in the remaining value of his Profit-Sharing
Contributions Subaccount or Company Matched Contributions Subaccount
during the period when an amount is credited to his Forfeiture
Suspense Account. A Participant who has forfeited the value of his
Profit-Sharing Contributions Subaccount or Company Matched
Contributions Subaccount that was transferred to his Forfeiture
Suspense Account shall at all times thereafter be fully vested in the
value of the nonforfeited amount in his Profit-Sharing Contributions
Subaccount and Company Matched Contributions Subaccount; PROVIDED,
HOWEVER, that if the Participant exercises his repayment right, if
any, under Section 8.3(d), then the regular vesting provisions shall
apply thereafter to his restored Profit-Sharing Contributions
Subaccount and Company Matched Contributions Subaccount. If a
Participant has forfeited the value of his Profit-Sharing
Contributions Subaccount and Company Matched Contributions Subaccount
that was transferred to his Forfeiture Suspense Account, is reemployed
by an Employer, and has not yet exercised his repayment rights under
Section 8.3(d), then any subsequent Company Matched Contributions or
Profit-Sharing Contributions to which he is entitled shall be
allocated to a separate Profit-Sharing Contributions Subaccount and
Company Matched Contributions Subaccount until such time as the
Participant is fully vested in accordance with the provisions of
Section 8.2. In any event, the vested value of a Participant's
Profit-Sharing Contributions Subaccount and Company Matched
Contributions Subaccount shall only be distributed in accordance with
Article XIV.
8.5. NON-FORFEITURE OF PROTECTED BENEFITS. With respect to any
benefit accrued under the DPMI Plan, nothing in this Plan shall be
construed to eliminate or reduce a "section 411(d)(6) protected benefit" as
that term is described in Treas. Reg. <section> 1.411(d)-4.
<PAGE>
ARTICLE IX
LOANS
9.1. AVAILABILITY OF LOANS. The Committee may, in its sole
discretion, in accordance with rules adopted and consistently applied in a
uniform and nondiscriminatory manner direct the Trustee to loan a
Participant who has completed at least two (2) years of participation in
the Plan on any Valuation Date an amount from his Before-Tax Contributions
Subaccount and the vested portion of his Company Matched Contributions
Subaccount which is not less than one thousand dollars ($1,000) and which,
when added to any other loan outstanding to that Participant under the Plan
and under any other tax qualified retirement plan maintained by the Group,
does not exceed the lesser of:
(a) fifty thousand dollars ($50,000), or
(b) the greater of ten thousand dollars ($10,000) or fifty
percent (50%) of that Participant's Participant Account balance in the
Plan;
PROVIDED, HOWEVER, that a Participant loan, when added to the outstanding
balance of all other loans to that Participant from the Plan and from any
other tax qualified retirement plan maintained by the Group shall not
exceed fifty thousand dollars ($50,000) reduced by the excess of the
highest outstanding loan balance of that Participant during the one year
period ending on the day before the loan is made over the outstanding
balance of all loans of that Participant on the date the loan is made;
PROVIDED, FURTHER, that the aforesaid loan privileges shall also be
extended to any party in interest (as defined in section 3(14) of ERISA)
who is either the beneficiary of a deceased Participant who has a vested
right to receive any portion of that deceased Participant's Participant
Account, the alternate payee of a Participant who has a right to any
portion of that Participant's Participant Account under a qualified
domestic relations order, or a former Participant who has a vested
Participant Account balance.
9.2. RESTRICTIONS ON LOANS. The following restrictions shall apply
in addition to any restrictions imposed pursuant to Section 4975(d)(1) of
the Code or pursuant to Section 408(b)(1) of ERISA:
(a) Loans shall be made available to all eligible Participants,
eligible beneficiaries of deceased Participants and eligible alternate
payees on a reasonably equivalent basis without regard to race, color,
religion, sex, age or national origin and after giving consideration
only to those factors which would be considered in a normal commercial
setting by an entity in the business of making similar types of loans,
including but not limited to the applicant's credit-worthiness and
financial need.
(b) Loans shall not be made available to Participants who are
highly compensated employees within the meaning of Section 414(q) of
the Code or officers or shareholders of the Group in an amount greater
than the amount made available to other Participants.
(c) Loans shall be made in accordance with the specific
provisions regarding such loans as set forth in this Article IX and
with rules containing strict objective criteria which are adopted by
the Committee and consistently applied in a uniform and
nondiscriminatory manner, which rules are hereby incorporated by
reference and made a part of the Plan.
(d) Loans shall bear a reasonable rate of interest (which rate
shall remain fixed during the term of the loan) to provide the Plan
with a return commensurate with the interest rates charged by entities
in the business of lending money for loans which would be made under
similar circumstances and which rate shall not be less than the prime
interest rate or such other rate quoted by the Trustee plus two
percent (2%) and adjusted as the Committee determines to be
appropriate.
(e) Loans shall be adequately secured in accordance with Section
4975(d)(1) of the Code and Section 408(b)(1) of ERISA, but in no event
shall more than fifty percent (50%) of the borrowing Participant's,
eligible beneficiary's or eligible alternate payee's, as the case may
be, vested interest in his Participant Account balance in the Plan
immediately after the origination of the loan be considered as
security. The adequacy of such security shall be determined by the
Committee, in its sole discretion, in light of the type and amount of
security which would be required in the case of an otherwise identical
transaction in a normal commercial setting between unrelated parties
on arms-length terms.
(f) The loan program established pursuant to this Article IX
shall at all times be administered for the exclusive purpose of
providing benefits to Participants and their beneficiaries based on an
evaluation of all relevant facts and circumstances by the Committee.
9.3. ADDITIONAL LOAN RULES. All loans shall comply with the
following additional terms and conditions:
(a) An application for a loan by a Participant, an eligible
beneficiary of a deceased Participant or an eligible alternate payee
shall be made by filing the Appropriate Form with the Committee on or
before such date prior to the Valuation Date as of which the loan is
to be effective as may be prescribed by the Committee.
(b) The entire unpaid balances of any loans made under this
Article IX and all interest due thereon, including all arrearages
thereon, shall, at the sole option of the Committee, immediately
become due and payable without further notice or demand, upon the
occurrence, with respect to the borrowing Participant, eligible
beneficiary of a deceased Participant or eligible alternate payee, as
the case may be, of any of the following events of default:
(i) any payment of principal or accrued interest on a loan
remains due and unpaid for a period of ten (10) calendar days
after the same becomes due and payable under the terms of that
loan;
(ii) the commencement of a proceeding in bankruptcy,
receivership or insolvency by or against the borrowing
Participant, eligible beneficiary of a deceased Participant or
eligible alternate payee, as the case may be, but only to the
extent then permitted under applicable federal law;
(iii) the termination of the employment of the borrowing
Participant with the Group for any reason;
(iv) the borrowing Participant, eligible beneficiary of a
deceased Participant or eligible alternate payee, as the case may
be, attempts to make an assignment for the benefit of creditors
of his interest in a Participant Account or of any other security
for his loan;
(v) a qualified domestic relations order (as such term is
then defined in Section 414(p) of the Code) with respect to the
borrowing Participant is received by the Committee; or
(vi) any loan proceeds are used, directly or indirectly, by
the borrowing Participant, eligible beneficiary of a deceased
Participant or eligible alternate payee, as the case may be, to
purchase or carry securities (as such term is then defined for
purposes of Regulation G of the Federal Reserve Board as
promulgated pursuant to Section 7 of the Securities and Exchange
Act of 1934).
(c) Any payments of principal or interest on a loan not paid when
due shall bear interest thereafter at the rate specified by the terms
of the loan. The payment and acceptance of any sum or sums at any
time on account of a loan after an event of default, or any failure to
act to enforce the rights granted hereunder upon an event of default,
shall not be a waiver of the right of acceleration set forth in
Subsection (b) above.
(d) If an event of default and an acceleration of the unpaid
balance of any loan and interest due thereon shall occur (as described
in Subsections (b) and (c) above), the Committee shall have the right
to direct the Trustee to pursue any remedies available to a creditor
at law or under the terms of that loan, including the right to execute
on the security for that loan, and to apply any amounts credited to
the Participant Account of the borrowing Participant, eligible
beneficiary of a deceased Participant or eligible alternate payee, as
the case may be, at the time of execution or at any time thereafter in
satisfaction of the unpaid balance of that loan and interest due
thereon; PROVIDED, HOWEVER, that the Committee shall not have the
right to direct the Trustee to execute on any amounts credited to a
borrowing Participant's Before-Tax Contribution Subaccount before the
date on which that Participant dies, becomes disabled, terminates his
employment with the Group or attains age fifty-nine and one half (59
1/2), whichever is first to occur.
(e) The period of repayment for each loan shall be arrived at by
mutual agreement between the Committee and the borrowing Participant,
eligible beneficiary of a deceased Participant or eligible alternate
payee, as the case may be, but such period shall not in any case
exceed five (5) years; PROVIDED, HOWEVER, that if the loan proceeds
are used by a borrowing Participant to acquire any dwelling unit which
within a reasonable time period is to be used (determined at the date
that the loan is made) as a principal residence by that borrowing
Participant, the term of the loan may not exceed seven (7) years.
(f) A Participant, eligible beneficiary of a deceased Participant
or eligible alternate payee with an outstanding loan under this
Article IX shall not be eligible for another loan until that borrowing
Participant, eligible beneficiary of a deceased Participant or
eligible alternate payee repays any outstanding loan.
(g) The installments constituting repayments of any outstanding
loan to a Participant under this Article IX shall be made through
regular payroll deductions from amounts otherwise payable to that
borrowing Participant by the Employers so as to assure that the loan
is amortized in level payments, made not less frequently than
quarterly, over the term of the loan; PROVIDED, HOWEVER, that if a
borrowing Participant is not receiving any Compensation from the
Employers during a period in which any loan is outstanding, that
borrowing Participant shall be required to make installment payments
equivalent in value and timing to the payments which would otherwise
have been deducted from his paychecks by his Employer. The
installments constituting monthly repayments of an outstanding loan to
an eligible beneficiary of a deceased Participant or to an eligible
alternate payee under this Article IX or to a borrowing Participant
who is not receiving any Compensation from which payroll deductions
can be made shall be made by personal check, money order or a
certified or cashier's check delivered to the Committee on or before
their respective due dates. Cash payments shall not be accepted.
(h) A Participant, eligible beneficiary of a deceased Participant
or eligible alternate payee with an outstanding loan under this Plan
shall be permitted to prepay in increments of five hundred dollars
($500), without penalty, all or any portion of the outstanding loan
balance and the accrued interest at any time.
(i) Each loan shall be evidenced by a promissory note or such
other documentation as may be required by the Committee, including but
not limited to an authorization from each borrowing Participant to
permit his Employer to effect repayment through regular payroll
deductions and the written consent of that borrowing Participant's
spouse, if any. The spouse's written consent, where applicable, shall
be witnessed by Plan representative or by a notary public and shall be
obtained in accordance with Section 417(a)(4) of the Code within the
ninety (90) calendar day period ending on the date the loan is
effective; such spousal consent shall specifically acknowledge the
restrictions on distribution as described in Subsection (j).
(j) No distribution shall be made to any Participant or former
Participant or to a spouse or other beneficiary of any deceased
Participant or to an alternate payee unless and until all unpaid loans
secured by any portion of the distributee's interest, including
accrued interest thereon, have been liquidated.
(k) The borrowing Participant, eligible beneficiary of a deceased
Participant or eligible alternate payee, as the case may be, shall
certify that the loan proceeds will not be used, directly or
indirectly, to purchase or carry securities (as such term is then
defined for purposes of Regulation G of the Federal Reserve Board as
promulgated pursuant to Section 7 of the Securities and Exchange Act
of 1934).
(l) Each loan shall have such additional terms as to application
fees, processing charges, default, prepayment and security as the
Committee, in its sole discretion, may determine to be appropriate in
accordance with the strict objective criteria set forth in the loan
rules adopted pursuant to this Article IX.
9.4. ACCOUNTING FOR LOANS. A Participant Loan Subaccount shall be
established as of the date a loan is made to a Participant, eligible
beneficiary of a deceased Participant or eligible alternate payee in
accordance with this Article IX, and an amount equal to the principal
amount of the loan shall be transferred from that Participant's, eligible
beneficiary's or eligible alternate payee's Before-Tax Contributions
Subaccount and the vested portion of his Company Matched Contributions
Subaccount to his Participant Loan Subaccount. The loan shall be treated
as an investment of the funds credited to the borrowing Participant's,
eligible beneficiary of a deceased Participant's or eligible alternate
payee's interest in his Before-Tax Contributions Subaccount and Company
Matched Contributions Subaccount. Cash equal to the amount of any loan
granted under this Article IX shall be obtained by liquidating investments
in each investment fund in which that Participant has a Before-Tax
Contributions Subaccount or Company Matched Contributions Subaccount first
from the vested portion of those subaccounts invested in Fund 1, second
from the vested portion of those subaccounts invested in Fund 5, third from
the vested portion of those subaccounts invested in Fund 2, fourth from the
vested portion of those subaccounts invested in Fund 3, fifth from the
vested portion of those subaccounts invested in Fund 6, sixth from the
vested portion of those subaccounts invested in Fund 4, seventh from the
vested portion of those subaccounts invested in Fund 8 and finally from the
vested portion of those subaccounts invested in Fund 7, all determined as
of the preceding Valuation Date. Repayments of principal and interest on a
borrowing Participant's, eligible beneficiary's or eligible alternate
payee's outstanding loan shall be credited to the borrower's Participant
Loan Subaccount and transferred from a Participant Loan Subaccount back to
that borrowing Participant's, eligible beneficiary of a deceased
Participant's or eligible alternate payee's interest in the Participant's
Before-Tax Contributions Subaccount or Company Matched Contributions
Subaccount and shall be invested in Fund 2.
9.5. TEMPORARY SUSPENSION OF LOANS. In order to facilitate the merger
of the DPMI Plan into this Plan, no loans shall be available under this
Plan to a Participant who participated in the DPMI Plan as of March 31,
1997 during the period beginning on or about March 15, 1997 and ending on
or about April 15, 1997.
<PAGE>
ARTICLE X
RETIREMENT
10.1. RETIREMENT DATE. The normal retirement date of a Participant
shall be the first calendar day of the month next following his sixty-fifth
(65th) birthday.
10.2. LATE RETIREMENT. Any Participant may, in accordance with the
Age Discrimination in Employment Act as now in effect or hereafter amended
and regulations promulgated thereunder and applicable state laws, continue
working for the Employers past age sixty-five (65) and retire at any time
thereafter; PROVIDED, HOWEVER, that the deferral of distribution of his
Participant Account beyond age sixty-five (65) shall be subject to
restrictions imposed by Section 14.5 and shall also be permitted only to
the extent then authorized by, and in compliance with, all requirements
then imposed under Section 2530.203-3 of the Department of Labor
Regulations which are incorporated herein by reference. Any Participant
working past age sixty-five (65) shall continue to have Employer
contributions made on his behalf under Section 5.1, Section 5.2 and Section
5.12 and shall be permitted to make After-Tax Contributions pursuant to
Section 5.11.
10.3. BENEFIT AT RETIREMENT. If any Participant retires pursuant to
Section 10.1 or Section 10.2, he shall be entitled to receive one hundred
percent (100%) of the value of his Participant Account as of his retirement
payable as soon as practicable after the first Valuation Date on or
immediately following his retirement date (or, subject to any restrictions
in Article XIV, any Valuation Date thereafter that the Participant may
elect). Distribution of retirement benefits shall be made in accordance
with Article XIV.
<PAGE>
ARTICLE XI
SEVERANCE
11.1. SEVERANCE BENEFITS. If any Participant's employment with the
Group is terminated because of Severance, he shall be entitled to receive
the vested portion of the value of his Participant Account as of his
Severance payable as soon as practicable after the first Valuation Date on
or immediately following his Severance (or, subject to any restrictions in
Article XIV, any Valuation Date thereafter that the Participant may elect).
No distribution to a Participant who is less than one hundred percent
(100%) vested in the value of his Profit-Sharing Contributions Subaccount
and Company Matched Contributions Subaccount shall be made prior to the end
of the computation period in which the Participant first incurs five (5)
consecutive One Year Breaks in Service unless the Participant files an
application with the Committee requesting a lump sum distribution of the
vested interest in his Profit-Sharing Contributions Subaccount and Company
Matched Contributions Subaccount and such distribution is actually made not
later than the close of the second Plan Year following the date of such
application. Distribution of Severance benefits shall be made in
accordance with Article XIV.
<PAGE>
ARTICLE XII
TOTAL DISABILITY
12.1. TOTAL DISABILITY BENEFITS. If the Committee determines that
any Participant has suffered a Total Disability, that Participant shall be
entitled to one hundred percent (100%) of the value of his Participant
Account as soon as practicable after the first Valuation Date on or
immediately following the date on which his employment with the Group is
terminated because he is determined by the Committee or by its designate to
have suffered a Total Disability (or, subject to any restrictions in
Article XIV, any Valuation Date thereafter that the Participant may elect).
Distribution of Total Disability benefits shall be made in accordance with
Article XIV.
<PAGE>
ARTICLE XIII
DEATH
13.1. DEATH BEFORE PAYMENT OF PLAN BENEFITS HAS BEEN MADE. If any
Participant dies before the payment of any benefits to which he is entitled
under the Plan has been made, the beneficiary designated by that
Participant pursuant to Section 13.2 shall be entitled to one hundred
percent (100%) of the value of his undistributed Participant Account as of
the date of his death payable as soon as practicable after the first
Valuation Date on or immediately following the date of his death; PROVIDED,
HOWEVER, that the beneficiary may elect in writing to defer payment of the
Participant's undistributed Participant Account for up to five (5) years
thereafter, subject to the restrictions of Article XIV. Distribution of
the value of his Participant Account shall be made in accordance with
Article XIV.
13.2. BENEFICIARY DESIGNATION. Each Participant shall designate a
beneficiary (along with contingent beneficiaries) to whom, in the event of
the death of that Participant, any benefit may become payable hereunder.
In the absence of a valid beneficiary designation by the Participant or in
the event that no designated beneficiary survives the Participant, such
benefits shall be paid to the Participant's Spouse, if living at the time
of the Participant's death, or if no such Spouse is then living, then to
the Participant's descendants, per stirpes, who shall be living at the time
of the Participant's death, or, if there are no such descendants then
living, then to the Participant's estate. The designation of beneficiary
shall be made, changed or revoked in writing in the form and manner
prescribed by the Committee, and shall not be effective until delivered by
the Participant to the Committee. In the event that a beneficiary does not
survive the Participant, the designation of such beneficiary shall be null
and void. The designation of a Spouse as beneficiary shall be null and
void if the Participant and such Spouse are divorced, unless the
Participant makes a valid beneficiary designation after the final date of
such divorce indicating that such former Spouse is to remain his
beneficiary, except as otherwise required by a qualified domestic relations
order. Any beneficiary designation (whether made before or after the
adoption of this Plan) shall be invalid and ineffective to the extent that
it is contrary to the provisions of Article XIV or a qualified domestic
relations order.
The most recent beneficiary designation made by a Participant while a
participant in the DPMI Plan shall remain in effect unless or until the
Participant revokes such beneficiary designation or unless such beneficiary
designation would otherwise be revoked according to the terms of this Plan.
<PAGE>
ARTICLE XIV
PAYMENT OF BENEFITS
14.1. STANDARD METHOD OF DISTRIBUTION UPON TERMINATION OF EMPLOYMENT
OR RETIREMENT. Unless the Participant elects otherwise in accordance with
Section 14.2(c), the standard method of distribution for an unmarried
Participant shall be a monthly pension commencing immediately payable for
the lifetime of such Participant. Unless the Participant and the Spouse to
whom he is married on the date that benefits hereunder commence elect
otherwise as provided in Section 14.2(c), the standard method of
distribution for a married Participant shall be in the form of a qualified
joint and survivor annuity commencing immediately. Such life annuity or
qualified joint and survivor annuity shall be provided by a nontransferable
annuity contract purchased by the Trustee with the lump sum value of the
vested portion of the Participant's Participant Account from an insurance
company (based on unisex purchase rates) approved by the Company. The life
annuity shall provide for payment of a level monthly amount for the
Participant's lifetime. The qualified joint and survivor annuity shall
provide for payment of a level monthly amount for the Participant's
lifetime and for continuing level monthly payments after his death equal to
fifty percent (50%) of such monthly amount for the remaining lifetime of
his Spouse. If a Participant dies before commencement of his benefits,
distribution of his benefits hereunder shall be subject to the provisions
of Section 14.6.
14.2. OPTIONAL METHODS OF DISTRIBUTIONS AND NOTICE REGARDING
QUALIFIED JOINT AND SURVIVOR ANNUITY.
(a) Subject to the provisions of Subsection (c) and to the
provisions of this Article XIV, a Participant (or, in the event of the
Participant's death, a beneficiary entitled to receive a distribution
under the Plan) may elect, as provided in Subsection (b) below, an
optional method of distribution of the value of the vested portion of
his Participant Account from among the following methods:
(1) a lump sum cash payment;
(2) installments determined in accordance with Section 14.8
over a period selected by the Participant (or his beneficiary)
not exceeding the maximum permissible period determined in
accordance with Section 14.5;
(3) level monthly payments under a nontransferable annuity
contract purchased by the Trustee with the lump sum value of such
vested interest (or the portion thereof being distributed in this
method) from an insurance company (based on unisex purchase
rates) as directed by the Committee payable:
(i) for the lifetime of the Participant (or if the
Participant has already died, for the beneficiary's
lifetime);
(ii) for the Participant's lifetime with a guaranteed
minimum number of payments not exceeding his life expectancy
at the annuity commencement date; or
(iii) for the Participant's lifetime with provisions for
continuing level monthly payments of a specified percentage
(not exceeding one hundred percent (100%)) of the amount of
such Participant's monthly payments for the lifetime of the
Participant's beneficiary; PROVIDED, HOWEVER, if the
beneficiary is other than the Participant's Spouse, the
present value of payments expected to be made to the
Participant must exceed fifty percent (50%) of the present
value of total payments expected to be made to the
Participant and his beneficiary; or
(4) any combination of the foregoing which in the aggregate
is equivalent to the lump sum value of such vested interest.
(b) Any election under Subsection (a) and the revocation or
change of such election shall be made in writing, in the form and
manner prescribed by the Committee. The period for making such
election shall end on the date that distribution of benefits to him
commence. Notwithstanding the foregoing, a Participant may only elect
an optional method of distribution pursuant to the rules and
conditions stated in the following Subsection (c).
(c) The following rules and conditions shall apply regarding
notice to Participants of the right to elect not to receive the
standard method of distribution and the requirement that a married
Participant's Spouse consent to any such election:
(1) Within thirty (30) days but no more than ninety (90)
days before benefits commence, the Employers shall provide a
Participant with a written explanation of (i) the terms and
conditions of the standard method of distribution, (ii) the
Participant's right to elect not to have benefits paid in the
form of the standard method of distribution and the effect of
such election, (iii) the right of the Participant's Spouse to
consent in writing to such election, and (iv) the Participant's
right to revoke an election and the effect of such revocation.
(2) A Participant may elect in writing, within the time
period commencing on the receipt of such election information and
ending on the date that the payment of his benefit hereunder is
scheduled to commence, not to have his benefits paid in the form
of a life annuity if he is unmarried or a qualified joint and
survivor annuity if he is married; PROVIDED, HOWEVER, that any
election to waive the standard method of distribution shall not
be effective if it is made more than ninety (90) days before the
date that the payment of his benefit under the Plan is scheduled
to commence, except to the extent permitted under the Code. Such
election must be in writing and must be consented to by the
Participant's Spouse if the Participant is married on the date of
distribution, unless the Participant establishes to the
satisfaction of the Committee that the consent cannot be obtained
because the Spouse cannot be located or because of such other
circumstances as permitted by the Code. Such consent by a Spouse
must be in writing, must be witnessed by a Plan representative or
by a notary public, and must be limited to a benefit for a
specific alternate beneficiary. Any consent by a Spouse (or
establishment that the consent of a Spouse may not be obtained)
shall be effective only with respect to such Spouse.
(3) Notwithstanding the foregoing, a Participant may elect
(with the consent of his Spouse) to waive any requirement that
the written explanation described in Paragraph (1) be provided at
least thirty (30) days before benefits commence if distribution
to the Participant commences more than seven (7) days after such
explanation is provided.
(d) A Participant may revoke any previous election under the
preceding Subsection (c) by a written instrument delivered to the
Committee at any time before the date that the payment of his benefit
hereunder is scheduled to commence. There shall be no limit on the
number of elections or revocations that can be made. A revocation of
a prior election may be made by a Participant without his Spouse's
consent, but any subsequent election will require a new consent from
the Participant's Spouse. Once a Spouse has consented to a
Participant's election, such Spouse's consent cannot be revoked unless
the Participant also revokes his election. For purposes of this
Subsection (d), a former Spouse will be treated as the Spouse to whom
the Participant is married on the date benefits hereunder commence to
the extent provided under a qualified domestic relations orders.
14.3. INCAPACITY. If any person who is entitled to receive any
benefits hereunder is, in the judgment of the Committee, legally,
physically or mentally incapable of personally receiving and receipting for
any distribution, the Committee shall instruct the Trustee to make
distribution to such other person or persons or to such institution or
institutions as in the judgment of the Committee shall then be maintaining
or have custody over such distributee.
14.4. IDENTITY OF PAYEE. Except as otherwise provided by ERISA, the
determination by the Committee as to the identity of the proper payee for
any payment and the amount properly payable shall be conclusive, and
payment in accordance with such determination shall, to the extent thereof,
constitute a complete discharge of all obligations under the Plan. The
Committee shall make reasonable inquiries regarding whether a Participant
who is to commence receiving retirement benefits is married and whether a
Participant who dies before commencement of his benefits has a surviving
Spouse. The Committee shall be entitled to rely upon a statement made by
the Participant regarding his marital status as long as such reliance is in
good faith. If after reasonable efforts to locate a Participant's
surviving Spouse or to determine whether a Participant is married, the
Committee determines that such Spouse cannot be located or that the
Participant is not married, then for all purposes under the Plan the
Participant shall be regarded as unmarried, except as otherwise required by
any applicable regulations under ERISA or the Code.
14.5. DEADLINE FOR PAYMENT OF BENEFITS. Notwithstanding anything
contained herein to the contrary, the payment of benefits to which a
Participant is entitled hereunder shall commence not later than the
sixtieth (60th) calendar day after the latest of the end of the Plan Year
in which:
(a) that Participant attains age sixty-five (65);
(b) occurs the tenth (10th) anniversary of the Plan Year in which
that Participant commenced his participation in the Plan; or
(c) that Participant terminates his employment with the Group;
PROVIDED, HOWEVER, that the payment of benefits to a Participant shall
commence not later than the April 1 immediately following the last calendar
day of that Participant's taxable year in which that Participant attains
age seventy and one half (70 1/2) regardless whether or not his employment
by the Group has been terminated; PROVIDED, FURTHER, that, for Plan Years
beginning on or after January 1, 1997, the payment of benefits to a
Participant who attains age seventy and one-half (70 1/2 ) shall not begin
until that Participant terminates employment with the Group, unless
otherwise required under the Code (including, but not limited to, Section
411(d)(6) of the Code).
A Participant's benefits shall be distributed, beginning not later
than the date required by the first sentence of this Section 14.5, over the
life expectancy of the Participant or over the life expectancy of such
Participant and a designated beneficiary, or over a period not extending
beyond the life expectancy of such Participant and a designated
beneficiary. If the distribution of a Participant's benefits has begun and
the Participant dies before his entire interest has been distributed to
him, the remaining portion of the Participant's benefits shall be
distributed at least as rapidly as under the method of distribution being
used under the preceding sentence as of the date of his death.
If a Participant dies prior to the commencement of the payment of
benefits, the Participant's benefits shall be distributed within the later
of:
(d) five (5) years after the date of such Participant; or
(e) over the life expectancy of a designated beneficiary or over
a period not extending beyond the life expectancy of the beneficiary;
PROVIDED, HOWEVER, that such distributions shall begin not later than
one year after the date of the Participant's death (or such later date
as the Code may prescribe).
If the designated beneficiary referred to in subsection (e) is the
surviving Spouse of the Participant, the date on which distributions are
required to begin under subsection (e) shall not be earlier than the date
on which the Participant would have attained age 70-1/2, and if the
surviving Spouse dies before the distributions to such Spouse begin, this
sentence shall be applied as if the surviving Spouse were the Participant.
14.6. DISTRIBUTION UPON DEATH PRIOR TO COMMENCEMENT OF BENEFITS.
Upon the death of a married Participant who dies before his benefits under
this Plan commence, fifty percent (50%) of his vested Participant Account
balance shall be applied toward the purchase of an annuity for the life of
his surviving Spouse (except to the extent the Spouse consents otherwise as
provided in this Section 14.6 or as provided in Section 14.9), and the
remaining fifty percent (50%) of that Participant's vested Participant
Account balance shall be distributed in a lump sum to the Participant's
beneficiary (who need not be the surviving Spouse) or in such optional form
as the Participant may elect. Upon the death of an unmarried Participant
who dies before his benefits under the Plan commence, his vested
Participant Account balance shall be distributed to his beneficiary in a
single lump sum or in such optional form as the Participant may elect. Any
annuity payable to a surviving Spouse shall commence on the earliest date
the Participant would have been able to elect to receive retirement
benefits under this Plan had the Participant lived, unless an earlier date
is elected by the surviving Spouse. Notwithstanding the foregoing, a
surviving Spouse shall have the right to elect, in lieu of the pre-
retirement survivor annuity death benefit otherwise payable to the
surviving Spouse, a different form of payment that is available under the
Plan with respect to the portion of the Participant Account that is payable
to the surviving Spouse, provided that such election is witnessed by a Plan
representative or by a notary public. A non-spouse beneficiary may elect a
different form of payment that is available under the Plan, other than a
lump sum. For purposes of this Section 14.6, a former Spouse will be
treated as the Spouse or surviving Spouse to the extent provided under a
qualified domestic relations order. Notwithstanding the foregoing, a
Spouse may consent in writing to a Participant's election to designate a
non-spouse beneficiary to receive the fifty percent (50%) of the
Participant's vested Participant Account balance otherwise payable to such
Spouse. The following rules and conditions shall apply regarding notice to
Participants of the right to such election and the requirement that the
Participant's Spouse consent to any such election:
(a) The Employers shall provide each Participant, within the
period beginning on the first day of the Plan Year in which the
Participant attains age thirty-two (32) and ending on the last day of
the Plan Year in which the Participant attains age thirty-five (35), a
written explanation of the pre-retirement death benefit in such terms
and in such manner as would be comparable to the explanation provided
with respect to the qualified joint and survivor annuity. If a
Participant first becomes a Participant after the first day of the
Plan Year in which he attained age thirty-two (32), the Employers
shall provide the notice required by this Section 14.6 not later than
the close of the third Plan Year following the first day of the first
Plan Year in which the individual is a Participant.
If the Participant terminates employment before age thirty-two
(32), notice must be provided at the time of termination or within one
year after termination. In any event, any required notice may be
provided at a later date to the extent that a later date is allowed by
the Code. In no event, however, shall the applicable period with
respect to which a Participant must be given notice as described in
this Section 14.6 expire prior to the end of a reasonable period after
Section 401(a)(11) of the Code applies to such Participant.
(b) A Participant may elect, at any time after attainment of age
thirty-five (35), not to be covered under the pre-retirement death
benefit; PROVIDED, HOWEVER, that such an election must be consented to
in writing by his Spouse. Any such written consent by a Spouse shall
acknowledge the effect of the election not to be covered under the
pre-retirement death benefit and must be witnessed by a Plan
representative or by a notary public. A revocation of a prior
election may be made by the Participant without the Spouse's consent.
The number of revocations shall not be limited. Any new election by
the Participant following revocation of a prior election shall require
a new consent from the Participant's Spouse.
A Participant may designate a non-spouse beneficiary to receive
the fifty percent (50%) of the Participant's vested Participant
Account balance otherwise payable to such Spouse, if such designation
is consented to in writing by the Spouse. Any such written consent by
a Spouse shall acknowledge the effect of the Participant's election to
designate a non-spouse beneficiary, must be witnessed by a Plan
representative or by a notary public and must be limited to a benefit
for a specific alternate beneficiary.
Any such written consent by a Spouse shall be effective only with
respect to such Spouse. A revocation of a prior election to designate
a non-spouse beneficiary may be made by a Participant without the
consent of the Spouse at any time before the commencement of benefits.
The number of revocations shall not be limited. Any new election by a
Participant following revocation of a prior election by a Participant
shall require a new consent from the Participant's Spouse. In any
event, spousal consent shall not be required if the Participant had
earlier established to the satisfaction of the Employer that the
consent could not be obtained because the Spouse could not be located
or because of other circumstances as the Code may prescribe. If, upon
a Participant's death, the Participant has executed a valid election
to designate a non-spouse beneficiary and the Participant's Spouse has
consented to such election pursuant to this Section 14.6, then the
surviving Spouse shall not be entitled to any death benefit pursuant
to this Section 14.6.
14.7. RESTRICTIONS ON DISTRIBUTIONS. Notwithstanding anything in the
Plan to the contrary, amounts attributable to Before-Tax Contributions
shall not be distributed earlier than upon one of the following events:
(a) an Employee's retirement, death, Total Disability or other
separation from service;
(b) the termination of the Plan without the establishment of a
successor plan;
(c) an Employee's attainment of age fifty-nine and one half (59
1/2);
(d) the sale or other disposition by the Employee's Employer to
an unrelated corporation, which does not continue to maintain the
Plan, of substantially all of the assets used in the Employer's trade
or business, but only with respect to those Employees who continue
employment with the acquiring corporation; or
(e) the sale or other disposition by the Group of its interest in
the Employee's Employer to an unrelated entity which does not continue
to maintain the Plan, but only with respect to those Employees who
continue employment with that Employer.
Payment of benefits shall be made in accordance with Section 401(c)(9)
of the Code, including the incidental death benefit requirements of
Treasury Regulations promulgated thereunder.
14.8. INSTALLMENT DISTRIBUTIONS. Where, in accordance with the
provisions of Section 14.2, all or part of any distribution is to be made
in installments, the Committee shall direct the Trustee to deposit cash of
the Trust Fund to provide for such installment payments in one or more
segregated savings accounts or certificates of deposit in banking or
savings institutions. Such accounts shall be credited with interest at the
interest rates applicable to such savings accounts or certificates of
deposit of each depository, and such interest shall be added to the amount
distributable. Such accounts shall be a segregated part of the Trust Fund
and shall be subject to all the provisions of the Plan and Trust Agreement,
except that no allocations of Employer contributions or Trust gain or loss
shall be made thereto. A Participant (or his beneficiary) may request
(subject to the consent of the Committee) that, instead of being deposited
in such segregated savings accounts or certificates of deposit, the amount
to provide for such installment payments shall continue to be held and
invested as an unsegregated part of the Trust Fund and that it shall be
included in the valuation of the Trust Fund and in the determination of the
balance of the Participant's Account for the purpose of allocation of Trust
gain or loss.
Subject to the restrictions of Section 14.5 of this Plan, if all or
part of a distribution is to be made in installments, the amount to be
distributed in each year shall equal the balance to the credit of the
Participant as of the first day of such year multiplied by a fraction, the
numerator of which shall be one, the denominator of which shall be the
number of years then remaining during which installments are to be made;
PROVIDED, HOWEVER, that a Participant may elect to have an amount
distributed in any year in excess of the minimum required distribution and
any such excess may be used as directed by the Participant to reduce the
minimum required distribution in any subsequent year; PROVIDED, FURTHER,
that the number of remaining years may be redetermined not more frequently
than annually; PROVIDED, FURTHER, that the present value of payments
expected to be made to the Participant must equal at least fifty percent
(50%) of the present value of payments expected to be made to the
Participant and any beneficiary.
If all or part of any distribution is being made in installments and
full payment of the installments has not been made, the Participant (or his
beneficiary) may request the Committee to change the method of distribution
from such installment method to a lump sum. A request by a married
Participant for a change in the method of distribution from installments to
a lump sum shall require the consent of the Participant's Spouse in a form
meeting the requirements of Section 14.2.
If a former Participant is reemployed by the Employer after five (5)
consecutive One Year Breaks in Service, any such installment distributions
to him shall, at the discretion of the Participant, be continued
notwithstanding such reemployment or discontinued and any balance restored
to his Account where it shall be separately accounted for. If a
Participant is reemployed before five (5) consecutive One Year Breaks in
Service, any such installment distributions to him shall be suspended until
it is determined whether such Participant intends to exercise his right to
repay the full amount of any installment already received pursuant to
Section 8.3. If such Participant repays such amount within the required
period, the balance held in segregated accounts for such Participant
pursuant to this Section 14.8 shall be restored to his Account as of such
date of repayment. If such Participant does not repay such amount within
the period specified in Section 8.3, installment distributions shall be
resumed following the end of such period.
14.9. DISCLAIMER BY SURVIVING SPOUSE OR OTHER BENEFICIARY. A
surviving Spouse or other beneficiary who is entitled to receive any
benefits under the provisions of this Plan may disclaim all or any portion
of such benefit by filing a written disclaimer with the Committee at any
time after the death of the Participant. Any such disclaimer shall be
irrevocable and shall be notarized or witnessed by a Plan representative.
In the event that such a disclaimer is received by the Committee prior to
the payment of all benefits under the Plan due such surviving Spouse or
other beneficiary, then notwithstanding any other provisions of the Plan,
any disclaimed benefits otherwise payable to the person filing such
disclaimer shall be paid to the person designated by the Participant to
receive such benefits in the event of such a disclaimer, or if the
Participant has made no such designation then to the person who would be
the Participant's beneficiary determined in accordance with the provisions
of Section 13.2 of the Plan, as if the disclaiming person had predeceased
the Participant.
14.10. DISTRIBUTION OF SMALL ACCOUNT(S). In the event the total
vested value of any Participant's Participant Account does not exceed three
thousand five hundred dollars ($3,500), payment of the entire vested
portion of the Participant's Participant Account shall be made in a single
sum cash settlement as soon as practicable after the Participant's
termination of employment. Any such payment shall be made to the
Participant is he is living, or to the Participant's beneficiary if the
Participant is deceased; PROVIDED, HOWEVER, that if a deceased Participant
has a surviving Spouse, such surviving Spouse shall be entitled to receive
such payment unless the Spouse has consented to the Participant's election
to designate a non-spouse beneficiary as provided in Section 14.6. If the
total vested value of a Participant's Participant Account is distributed in
a lump sum pursuant to this Section 14.10, then such distribution shall be
in full satisfaction of any amount otherwise due to the Participant or to
any other person under any other provisions of this Plan.
A distribution to a married Participant pursuant to this Section 14.10
shall not require the consent of the Participant's Spouse. Notwithstanding
the foregoing, no lump sum distribution of any remaining benefits may be
made to a married Participant (or Spouse if the Participant dies before
receiving his entire interest) under this Section 14.10 after the benefits
have already commenced, unless the Participant and his Spouse (or Spouse
only if the Participant has died) consent in writing to such distribution.
If the total vested value of the Participant's Account exceeds three
thousand five hundred dollars ($3,500), the Participant must consent to any
distribution from such Account, and consent of that Participant's Spouse
shall be required pursuant to Section 14.2 for any form other than a
qualified joint and survivor annuity.
14.11. SUSPENSION OF DISTRIBUTIONS. Notwithstanding anything in this
Article XIV to the contrary and in order to facilitate the merger of the
DPMI Plan into this Plan, no distributions shall be made during the period
beginning on or about March 15, 1997 and ending on or about April 15, 1997,
with respect to the account balances of those Participants who participated
in the DPMI Plan as of March 31, 1997.
<PAGE>
ARTICLE XV
CLAIMS
15.1. PROCEDURE. In order to provide for the payment of any benefits
to which a Participant or other person may be entitled under the Plan, the
Committee shall be given timely written notice of that Participant's
retirement, Total Disability, Severance or death and of any other event
upon which occurrence benefits may be payable under the Plan.
(a) Each written request for a Plan benefit (a "Claim") made by a
Participant, beneficiary or any other person (a "Claimant") shall be
filed with the Committee who shall, within ninety (90) calendar days
after its receipt thereof ("Claim Period"), either accept it or deny
it (wholly or partially) and within that time notify the Claimant in
writing of such acceptance or denial in accordance with Section 503 of
ERISA. The Claim Period may be extended for another ninety (90)
calendar day period if it is found that special circumstances require
an extension of time for processing. In such case, before the
expiration of the Claim Period, the Claimant shall be informed in
writing by the Committee of the reasons for such extension and the
date on which a final decision is expected.
(b) If a Claim is wholly or partially denied, the Claimant shall
be furnished by the Committee with a written notice setting forth in a
manner calculated to be understood by the Claimant:
(i) the specific reason(s) for denial;
(ii) specific reference(s) to pertinent Plan provision(s) on
which any denial is based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the Claim, if any, and an
explanation of why such material or information is necessary; and
(iv) an explanation of the Plan's Claim review procedures.
(c) If a Claimant does not receive written notification of
acceptance, denial or extension during the Claim Period or any
extension thereof, he may request review as if his Claim had been
entirely denied as of the expiration date of such Claim Period or
extension thereof.
(d) Upon denial, a Claimant is entitled, either in person or by
his duly authorized representative, to:
(i) request a review of the Claim by the Committee upon
written application for review made to the Committee; in the case
of a denial as to which written notice of denial has been given
to the Claimant, any such written request for review of the claim
shall be made within sixty (60) calendar days after receipt by
the Claimant of the written denial notice;
(ii) review pertinent documents relating to the denial; and
(iii) submit issues and comments in writing.
(e) The Committee shall make its decision with respect to a Claim
review promptly, but not later than sixty (60) calendar days after
receipt of the written review request in accordance with Section 503
of ERISA. Such sixty (60) calendar day period may be extended for
another period of sixty (60) calendar days if the Committee finds that
special circumstances require an extension of time for processing. In
such case, before the expiration of the initial sixty (60) calendar
day period, the Claimant shall be informed, in writing, of the reasons
for such extension by the Committee. The final decision of the
Committee shall be in writing, giving specific reasons for the
decision and making specific references to the pertinent Plan
provisions on which the final decision is based.
<PAGE>
ARTICLE XVI
ADMINISTRATION OF PLAN
16.1. ADMINISTRATION BY THE COMMITTEE. The Plan shall be
administered by the Committee. Administration of the Plan shall be the
sole responsibility of the Committee except to the extent that:
(a) authority to hold the Trust Fund and to invest and reinvest
the Trust Fund has been delegated to the Trustee in accordance with
Article XVII; or
(b) authority to act for the Committee has otherwise been
delegated by the Committee pursuant to Section 16.2.
The Committee, in its sole discretion, shall be authorized to
determine all questions as to the rights of Participants and their
beneficiaries under the Plan.
16.2. DELEGATION OF DUTIES. The Committee may appoint or designate
such agents as it may deem necessary for the effective exercise of the
Committee's duties and may delegate to such agents any powers and duties of
the Committee, both ministerial and discretionary, as is then permitted
under ERISA and as it may deem expedient or appropriate.
16.3. RECORDATION OF ACTIONS. All acts and determinations of the
Committee shall be duly recorded, and all such records, together with such
other documents as may be required under the Code or under ERISA or
otherwise necessary for the administration of the Plan, shall be preserved
for such retention period as is then required under the Code and under
ERISA.
16.4. DUTIES OF COMMITTEE. Other than the management of the Trust
Fund, with which the Trustee shall be charged, the Committee shall have
complete control of the administration of the Plan, with all powers
necessary to enable it properly to carry out its duties in that respect.
Not in limitation, but in amplification of the foregoing, the Committee
shall have the power to process all claims in accordance with Section 503
of ERISA and Article XV, to construe the Plan and to determine all
questions relating to the eligibility of Employees to participate in the
Plan, the amount of benefits to which any Participant or its beneficiary
may become entitled hereunder and the amount of contributions to the Trust
Fund which shall be made by the Employers. All disbursements by the
Trustee, except for the ordinary expenses of administration of the Trust
Fund, shall be made upon, and in accordance with, the written directions of
the Committee. Except as otherwise provided in Section 15.1, decisions of
the Committee upon all matters within the scope of its authority shall be
final and binding upon the Employers and upon each and every person who may
be or become interested in the Plan or who may claim any rights or benefits
hereunder and may be reversed by a court of competent jurisdiction only
upon a finding by the court that such determination was arbitrary and
capricious.
16.5. INDEMNIFICATION. To the fullest extent permitted by law, each
Committee member and any person to whom the duties and responsibilities of
the Committee have been delegated shall be free from all liability for his
acts and conduct in the administration of the Plan, and the Employers shall
indemnify and hold him harmless from the effects and consequences of his
acts and conduct in his official capacity to the fullest extent then
permitted under applicable law, except to the extent that such effects and
consequences flow from his own willful misconduct, fraud or lack of good
faith. The right of indemnity described in the preceding sentence shall be
conditioned upon (a) the timely receipt of notice by the Company of any
claim asserted against the individual, which notice, in the event of a
lawsuit shall be given within ten (10) days after receipt by the individual
of the complaint, and (b) the receipt by the Company of an offer from the
individual of an opportunity to participate in the settlement or defense of
such claim.
16.6. COMMUNICATIONS TO TRUSTEE. Such instructions and directions as
the Committee shall give to the Trustee from time to time or as may be
requested by the Trustee shall be in writing and, except as otherwise
provided by ERISA, the Trustee shall be protected fully in acting upon any
such written directions and instructions.
16.7. ADDITIONAL RIGHTS OF COMMITTEE. The Committee shall have the
right to engage accountants, legal counsel (who may, but need not, be
counsel to the Company, to the Group or to the Trustee) or pension
consultants, and to approve record forms and descriptive literature.
16.8. COMPLIANCE WITH LAW. The Committee shall exercise such
authority and responsibility as it deems appropriate in order to comply
with ERISA and with the Code relating to records of a Participant's Period
of Service, Years of Service, Hours of Service and Compensation,
contributions, notifications to Participants, annual reports to and
registration with the Internal Revenue Service and annual reports to the
Department of Labor.
16.9. WAIVER OF TIME DEADLINES. The Committee shall have the right
to waive any time deadlines required by the Plan which the Committee, in
its sole discretion and by applying uniform and nondiscriminatory
standards, believes would be desirable and in the best interests of the
Participants and of the Plan.
16.10. LIMITATIONS ON RESPONSIBILITIES OF FIDUCIARIES. No fiduciary
under this Plan shall have authority or responsibility to deal with matters
other than as delegated to it under this Plan, under the Trust Agreement,
or by operation of law. A fiduciary under this Plan shall not in any event
be liable for breach of fiduciary responsibility or obligation by another
fiduciary under this Plan if the responsibility or authority of the act or
omission deemed to be a breach was not within the scope of such fiduciary's
authority or delegated responsibility.
<PAGE>
ARTICLE XVII
DUTIES OF THE TRUSTEE
17.1. GENERAL PROVISIONS. The assets of the Trust Fund shall be held
by the Trustee appointed by the Committee from time to time.
17.2. TRUST AGREEMENT. The Company has entered into a Trust
Agreement with the Trustee under which the Trustee shall receive
contributions made by the Employers pursuant to the Plan and shall hold,
invest, reinvest and distribute the Trust Fund in accordance with the terms
and provisions of the Plan and of that Trust Agreement. The Committee may
modify any such Trust Agreement from time to time to accomplish the
purposes of the Plan without the consent of any other person; PROVIDED,
HOWEVER, that the duties, liabilities and powers of the Trustee shall not
be substantially increased without its consent and that any such
modification shall not cause or permit any part of the Trust Fund to be
diverted to purposes other than those expressly permitted by the Plan, by
the Code and by ERISA.
17.3. DELEGATION OF DUTIES. The Trustee and the Committee may by
mutual agreement arrange for the delegation by the Trustee to an Employer
or to the Committee of any of its functions other than the investment,
valuation, management and custody of assets, the voting with respect to any
securities and the purchase and sale or redemption of securities.
17.4. RECORDS. The Trustee shall keep full books of account in
accordance with written instructions received from the Committee and with
requirements then imposed under ERISA and under the Code and shall submit
to the Committee a semi-annual report which shall include a list of the
investments comprising the Trust Fund at the end of the period covered by
the report, showing the current fair market valuation placed on each item
on such list by the Trustee at the end of such period and the total of such
valuations, and which report shall also include a statement of purchases,
sales and any other investment changes and of income and disbursements
since the last preceding semi annual report. Copies of such semi-annual
reports shall be made available for inspection at the principal office of
the Company and at such other places as the Committee shall specify in
accordance with ERISA.
17.5. PARTICIPANT'S REPRESENTATIVES. The Trustee shall not be bound
to recognize the authority or agency of any party for a Participant or for
his beneficiary unless and until it shall receive documentary evidence
thereof in form and substance satisfactory to it and thereafter from time
to time, as the Trustee may require, further documentary evidence
disclosing the continuing status of any such agency relationship.
<PAGE>
ARTICLE XVIII
MISCELLANEOUS
18.1. PAYMENT OF EXPENSES. All administrative expenses of the Plan
(including expenses incurred by members of the Committee) and all fees and
retainers of the Plan's consultants, auditors and counsel (who may, but
need not, be counsel to the Company, to the Group or to the Trustee),
except for any premiums for individual fiduciary liability insurance on the
persons of the Committee members, shall be paid by the Trustee from the
Trust Fund; PROVIDED, HOWEVER, that the Employers may pay such expenses
directly (in addition to Employer contributions under the Plan).
18.2. FORMS. All forms required to be submitted under the Plan shall
be prepared by the Committee and submitted in accordance with its
directions.
18.3. NO RIGHT OF EMPLOYMENT. Neither the Plan nor any action taken
under it shall be construed as giving any Employee or any other person any
right, legal or equitable, under the Plan against the Company, against the
Group or against any shareholder, officer, director, agent or employee of
an Employer, except as specifically provided for in the Plan. Nothing in
the Plan shall be construed as giving any Employee the right to remain in
the employ of an Employer or to change the terms of his employment by his
Employer.
18.4. CONSTRUCTION. In the construction of the Plan, the masculine
includes the feminine and the singular includes the plural in all cases in
which such meanings are appropriate.
18.5. COPIES OF DOCUMENTS. Copies of the Plan and of the Trust
Agreement shall be made available by the Committee to Employees during
regular business hours at the Company's principal office and at such other
locations as the Committee may designate. No documents (at any time
published or distributed to any Employee, Participant, former Participant,
Spouse, beneficiary or any other person) which summarize and explain the
material provisions of the Plan shall be construed or interpreted in any
way as constituting the Plan, and in the event of any conflict between such
documents and the terms of the Plan, the terms of the Plan shall govern.
18.6. JURISDICTION. The Plan shall be construed and enforced in
accordance with the laws of Indiana, except as otherwise required by ERISA.
18.7. NONALIENATION OF BENEFITS. To the fullest extent permitted by
law, no benefits under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
garnishment or charge; and any action by way of anticipation, alienation,
selling, transferring, assigning, pledging, encumbering, garnisheeing or
charging the same shall be void and of no effect; and no such benefit shall
be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person entitled to such benefits.
The preceding sentence shall also apply to the creation, assignment or
recognition of a right to any benefits payable with respect to a
Participant pursuant to a domestic relations order unless such order is
determined by the Committee to be a qualified domestic relations order as
then defined in Section 414(p) of the Code. A domestic relations order
entered before January 1, 1989 (or January 1, 1985 in the case of an order
that relates to a Participant's interest in his Retirement Plan Subaccount)
shall not be treated as a qualified domestic relations order. Subject to
any applicable provisions of law to the contrary, if any Participant or if
any beneficiary under the Plan shall become bankrupt or shall attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, permit to
be garnished or charge any benefits to which he may be or become entitled
under the Plan, all rights of that Participant or of that beneficiary to
such benefits shall, in the sole discretion of the Committee, then cease
and terminate. In such event, the Committee shall instruct the Trustee to
hold or apply the benefit or any part thereof to or for that Participant or
for that beneficiary, Spouse, children or other dependents, or any of them,
in such manner and in such proportions as the Committee shall in its sole
discretion determine. Subject to any applicable provisions of law to the
contrary, it is declared to be the express purpose and intention of the
Plan that payments hereunder shall be made only at the times, in the
amounts and to the payees as specified in the Plan regardless of any
marital dissolution, bankruptcy or other legal proceedings to which such
payees may be a party.
18.8. NON-DIVERSION. Notwithstanding anything contained in the Plan
or in the separate Trust Agreement to the contrary, as now expressed or
hereafter amended, it shall be impossible for any part of the Trust Fund to
be used for, or diverted to, any purpose not for the exclusive benefit of
Participants or, if deceased, of their designated beneficiaries at any
time, either by the operation, amendment, revocation or termination of the
Plan; and no part of the Trust Fund shall be paid, distributed or made
available to the Employers at any time, except as expressly provided in the
Plan and then permitted under ERISA and under the Code.
18.9. EXTRA-ORDINARY EXPENSES. To the fullest extent then permitted
under the Code and under ERISA, any extra-ordinary expenses, including but
not limited to Trustee's fees and attorney's fees, incurred by the Plan as
the direct result of a benefit dispute, domestic relations order,
bankruptcy or other legal proceedings involving a Participant's benefits
under the Plan shall be set off from any benefit payments otherwise due
with respect to that Participant in such manner as the Committee deems
appropriate to protect the interests of the other Plan Participants and
their Spouses or other beneficiaries.
18.10. REHIRE AFTER 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. Loan repayments will be suspended under
this Plan as permitted under Section 414(u)(4) of the Code.
<PAGE>
ARTICLE XIX
AMENDMENT, TERMINATION OR MERGER
19.1. RIGHT TO AMEND OR TERMINATE. The Company, by action of its
general partner, reserves the right to alter, amend, modify, revoke or
terminate, in whole or in part, the Plan or to reduce, suspend or
completely discontinue contributions hereunder by executing a written
instrument evidencing such action and filing a copy thereof with the
Trustee; PROVIDED, HOWEVER, that the general partner of the Company may
delegate such authority to the Committee or such other persons or persons
as it may determine; PROVIDED, FURTHER, that if the Plan is terminated, in
whole or in part, the Committee shall cause the Trustee to segregate the
assets in the Trust Fund allocable to the Participants directly affected by
the partial or total termination or other action in the manner specified in
Section 19.2. The Committee shall then provide for the distribution of
such assets in accordance with the provisions of Section 19.2.
Notwithstanding the foregoing, no such alteration, amendment, modification,
revocation or termination, in whole or in part, of the Plan shall:
(a) cause any part of the Trust Fund to be used for or diverted
to any purpose other than for the exclusive benefit of Participants or
other persons entitled to the benefits under the Plan except as
expressly provided in the Plan and then permitted under ERISA and
under the Code;
(b) retroactively affect adversely the rights of any Participant
or his beneficiary to any benefits under the Plan, unless such
amendment is determined to be necessary or desirable to comply with
ERISA or with the Code;
(c) adversely affect the rights of any Participant whose
employment with the Employers has terminated, unless the effective
date of such amendment coincides with or precedes the date on which
the employment of that Participant by the Employers was terminated;
(d) change the vesting schedule in Section 8.2 or in Section 20.4
unless each Participant whose Period of Service was at least three (3)
years as of the effective date of such amendment is permitted to
elect, within sixty (60) calendar days after he is notified in writing
by the Committee of his rights under this subsection, to have his
vested interest determined without regard to such amendment;
(e) decrease a Participant Account balance or eliminate an
optional form of distribution; or
(f) decrease the rate of Employer contributions on behalf of a
Participant solely as the result of attainment of any age.
A certified copy of the resolution of the Company's board of directors
(or their delegate) making such amendment or terminating the Plan shall be
delivered to the Trustee, the Plan shall be amended in the manner (and
effective as of the date) set forth in such resolution, and the Employers,
Employees, Participants, beneficiaries, Trustee, Committee and all others
having any interest under the Plan shall be bound thereby.
19.2. DISTRIBUTION UPON TERMINATION. In the event of the
termination, in whole or in part, of the Plan without the establishment of
a successor plan or in the event of the permanent discontinuance of
contributions to the Plan, the Committee shall direct the Trustee to value
the assets in the Trust Fund as of the date of such partial or total
termination or permanent discontinuance. That portion of the assets in the
Trust Fund attributable to the Participants directly affected by the
partial or total termination or permanent discontinuance (except such part
thereof as is used for the payment of expenses) shall become nonforfeitable
and fully vested and shall be distributed as though all Participants
directly affected by the partial or total termination or permanent
discontinuance had retired on the date of such partial or total termination
or permanent discontinuance; PROVIDED, HOWEVER, that the written consent of
the Participant and his Spouse shall be required if the distributable
Participant Account balance then exceeds three thousand five hundred
dollars ($3,500); PROVIDED, FURTHER, that the Trust Fund shall not be
terminated if distribution of Before-Tax Contributions is then precluded
under the provisions of the Code or of ERISA because of the maintenance or
adoption of a successor plan. That portion of the assets in the Trust Fund
attributable to the Participants directly affected by the partial or total
termination or permanent discontinuance shall be that fractional share of
the assets (determined as of the date of the partial or total termination
or permanent discontinuance) which is expressed by a fraction, the
numerator of which is the aggregate present value of the Participant
Accounts of all Participants directly affected by the partial or total
termination or permanent discontinuance and the denominator of which is the
aggregate present value of the Participant Accounts of all Participants,
both present values and all Participant Account values to be determined as
of the date of the partial or total termination or permanent
discontinuance.
19.3. PLAN MERGER OR CONSOLIDATION. The Company expressly reserves
the right in its sole discretion, by action of its general partner, to
merge or to consolidate the Plan with, or to transfer the assets or
liabilities of the Plan to, any other similar tax qualified retirement plan
at any time, except that no such merger, consolidation or transfer shall be
authorized unless each Participant in the Plan would receive a benefit
immediately after the merger, consolidation or transfer (if the merged,
consolidated or transferred plan then terminated) equal to or greater than
the benefit to which he would have been entitled immediately before the
merger, consolidation or transfer (if the Plan then terminated). A
certified copy of the action taken by the Company's general partner shall
be delivered to the Trustee, and the Plan shall be merged or consolidated
as of the date specified in such action.
<PAGE>
ARTICLE XX
TEFRA TOP-HEAVY RULES
20.1. APPLICATION. The rules set forth in this Article XX shall be
applicable with respect to any Plan Year in which the Plan is determined to
be a Top-Heavy Plan; PROVIDED, HOWEVER, that the provisions of this Article
XX shall be applied only to the extent necessary to comply with Section 416
of the Code and in a manner consistent with all requirements then imposed
under Section 416 of the Code.
20.2. DETERMINATION. The Plan shall be considered a Top-Heavy Plan
with respect to any Plan Year if as of the last calendar day of the
immediately preceding Plan Year or, if the determination is to be made for
the Plan's initial Plan Year, the last calendar day of the initial Plan
Year (the "determination date"):
(a) the present value of the accrued benefits of key employees
(as such term is defined below) exceeds sixty percent (60%) of the
present value of the accrued benefits of all Plan Participants
(excluding former key employees (as such term is defined below));
PROVIDED, HOWEVER, that the accrued benefits of any Participant who
has not performed any services for the Group during a five (5) year
period ending on the determination date (as such term is defined
above) shall be disregarded; or
(b) the Plan is part of a required aggregation group (as such
term is defined below) and the required aggregation group is top-
heavy;
PROVIDED, HOWEVER, that the Plan shall not be considered a Top-Heavy Plan
with respect to any Plan Year in which the Plan is part of a required or
permissive aggregation group (as such term is defined below) which is not
top-heavy. For purposes of this Article XX, the term "key employee" shall
include for any Plan Year any Employee or former Employee who at any time
during the Plan Year or any of the four (4) preceding Plan Years is:
(c) an officer of a member of the Group whose Section 415
Compensation from the Group is greater than fifty percent (50%) of the
maximum dollar limitation under Section 415(b)(1)(A) of the Code in
effect for the calendar year in which the determination date (as such
term is defined above) falls;
(d) one (1) of the ten (10) Employees owning (or then considered
as owning within the meaning of Section 318 of the Code) the largest
interest in any member of the Group, whose ownership interest is at
least one half of one percent (0.5%) and whose Section 415
Compensation from the Group is equal to or greater than the maximum
dollar limitation under Section 415(c)(1)(A) of the Code in effect for
the calendar year in which the determination date (as such term is
defined above) falls; PROVIDED, HOWEVER, that if two (2) Employees
have the same ownership interest, the Employee whose Section 415
Compensation from the Group is greater shall be treated as having a
larger ownership interest;
(e) a five percent (5%) owner (determined without regard to
Sections 414(b), (c), (m) and (o) of the Code) of any member of the
Group; or
(f) a one percent (1%) owner (determined without regard to
Sections 414(b), (c), (m) and (o) of the Code) of any member of the
Group whose Section 415 Compensation from the Group is in excess of
one hundred and fifty thousand dollars ($150,000);
PROVIDED, HOWEVER, that the beneficiary of any deceased Employee or of any
deceased former Employee who was included as a key employee by reason of
this Section shall also be included as a key employee; PROVIDED, FURTHER,
that an Employee or former Employee shall only be included as a key
employee to the extent then required by Section 416(i) of the Code. For
purposes of this Section 20.2, the term "required aggregation group" shall
include:
(g) all tax qualified retirement plans maintained by the Group in
which a key employee (as such term is defined above) is a participant;
PROVIDED, HOWEVER, that the term "required aggregation group" shall
also include all tax qualified retirement plans previously maintained
by the Group but terminated within the five (5) year period ending on
the determination date (as such term is defined above) in which a key
employee (as such term is defined above) was a participant; and
(h) any other tax qualified retirement plans maintained by the
Group (including plans terminated within the last five (5) years)
which enable any tax qualified retirement plan described in Subsection
(g) above to meet the requirements of Section 401(a)(4) or of Section
410 of the Code.
For purposes of this Section 20.2, the term "permissive aggregation
group" shall include all tax qualified retirement plans (including plans
terminated within the last five (5) years) that are part of a required
aggregation group (as such term is defined above) and any other tax
qualified retirement plan or plans (including plans terminated within the
last five (5) years) maintained by the Group if such group will continue to
meet the requirements of Section 401(a)(4) and of Section 410 of the Code.
Solely for the purpose of determining if the Plan or any other tax
qualified retirement plan included in a required aggregation group of which
the Plan is a part is Top-Heavy (within the meaning of Section 416(g) of
the Code), the Accrued Benefit of any Employee other than a key employee
(within the meaning of Section 416(i)(1) of the Code) shall be determined
under:
(i) the method, if any, that uniformly applies for accrual
purposes under all tax qualified defined benefit pension plans
maintained by the Group; or
(j) if there is no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate then permitted under the
fractional accrual rule of Section 411(b)(1)(C) of the Code.
20.3. ACCRUED BENEFITS. For purposes of this Article XX, accrued
benefits with respect to any Plan Year shall be determined as of the
determination date (as such term is defined in Section 20.2) for that Plan
Year based on the Participant Account balances as of the most recent
Valuation Date within a consecutive twelve (12) month period ending on such
determination date; PROVIDED, HOWEVER, that such Participant Account
balances shall be adjusted to the extent then required by Section 416 of
the Code to increase the Participant Account balances by the amount of any
Employer contributions and of any rollovers (other than rollovers initiated
by a Participant from any tax qualified retirement plan maintained by an
unrelated employer) made and allocated after the Valuation Date but on or
before such determination date and by any distributions to a Participant
before the most recent Valuation Date during that Plan Year and the four
(4) preceding Plan Years to the extent then required by Section 416(g) of
the Code and to reduce the Participant Account balances by any rollovers
made on or before the Valuation Date which are initiated by a Participant
from any tax qualified retirement plan maintained by an unrelated employer.
20.4. VESTING PROVISIONS. Notwithstanding the provisions of Section
8.2, with respect to any Plan Year in which the Plan is determined to be a
Top-Heavy Plan, a Participant's vested percentage in his Company Matched
Contributions Subaccount and his Profit-Sharing Contributions Subaccount
shall not be less than the percentage determined in accordance with the
following table:
PERIOD OF SERVICE VESTED PERCENTAGE
less than two (2) years zero percent (0%)
at least two (2) years,
but less than three (3)
years twenty percent (20%)
at least three (3) years,
but less than four (4)
years forty percent (40%)
at least four (4) years,
but less than five (5)
years sixty percent (60%)
at least five (5) years,
but less than six (6)
years eighty percent (80%)
six (6) years or more one hundred percent (100%)
PROVIDED, HOWEVER, that if the Plan becomes a Top-Heavy Plan and
subsequently ceases to be such:
(a) except as otherwise provided in Section 19.1(d), the minimum
vesting percentage shown above shall continue to apply, but only with
respect to those Participants whose Period of Service was at least
three (3) years as of the last calendar day of the final Top-Heavy
Plan Year;
(b) the minimum vesting percentage shown above shall continue to
apply, but only with respect to the accrued benefits of all other
Participants as of the last calendar day of the final Top-Heavy Plan
Year; and
(c) the vesting schedule in Section 8.2 shall apply to any
accrued benefits of the Participants described in Subsection (b) above
which accrue after the last calendar day of the final Top-Heavy Plan
Year.
20.5. MINIMUM CONTRIBUTION. The minimum amount of Employer
contributions, including contributions made pursuant to Section 5.1, and
forfeitures, if then applicable, to be allocated to the Participant Account
of any Employee who is, or who is eligible to be, a Participant and who had
not separated from service with the Group as of the last calendar day of
the Plan Year (regardless of the number of Hours of Service completed by
each such individual) and who is not a key employee (as such term is
defined in Section 20.2), including any Employer contributions and
forfeitures, if applicable, allocated to that individual under any other
tax qualified defined contribution plans maintained by the Group, in any
Plan Year during which the Plan is a Top-Heavy Plan shall not be less than
three percent (3%) of that individual's Section 415 Compensation in that
Plan Year; PROVIDED, HOWEVER, that the percentage of Section 415
Compensation allocated to the Participant Account of any individual who is
not a key employee (as such term is defined in Section 20.2) under this
Section with respect to such Plan Year shall not exceed the highest
percentage of Section 415 Compensation allocated to the Participant Account
of any Participant who is a key employee (as such term is defined in
Section 20.2) in that Plan Year.
20.6. CODE SECTION 415 LIMITATIONS. With respect to any Plan Year in
which the Plan is a Top-Heavy Plan, Section 2.14 and Section 2.15 shall be
read by substituting the number one (1.00) for the number one and twenty-
five one hundredths (1.25) wherever it appears therein.
<PAGE>
ARTICLE XXI
TRANSFER OF ASSETS TO OR FROM OTHER PLANS
21.1. APPLICATION. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election under this
Article, a Distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the Distributee
in a Direct Rollover.
21.2. DEFINITIONS. For purposes of this Article, the following terms
shall have the following respective meanings:
(a) "Eligible Rollover Distribution" shall mean any distribution
of all or any portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution shall not include: (i)
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 (10) years or
more; (ii) any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and (iii) the portion of
any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(b) "Eligible Retirement Plan" shall mean 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; PROVIDED, HOWEVER,
in the case of an Eligible Rollover Distribution to a surviving
Spouse, an Eligible Retirement Plan shall mean only an individual
retirement account or individual retirement annuity.
(c) "Distributee" shall mean 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 an
alternate payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, shall be Distributees with regard to
the interest of the Spouse or former Spouse.
(d) "Direct Rollover" shall mean a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
21.3. DIRECT TRANSFERS FROM OTHER PLANS. The Committee may, in its
sole discretion, direct the Trustee to accept on behalf of any Employee
(regardless of whether he is a Participant) a direct transfer of that
Employee's entire interest in another retirement plan and trust that is
qualified under Sections 401(a) and 501(a) of the Code and that is
sponsored and maintained by a member of the Group or, to the extent
permitted under rules adopted by the Committee, in any other retirement
plan and trust that is qualified under Sections 401(a) and 501(a) of the
Code; PROVIDED, HOWEVER, that:
(a) that Employee was not at any time, an owner-employee under
the other qualified retirement plan and trust within the meaning of
Section 401(c)(1) of the Code;
(b) no portion of the amount transferred from the other qualified
retirement plan and trust is attributable to contributions made on
behalf of that Employee while he was a key employee in a top heavy
plan within the meaning of Section 416 of the Code;
(c) no portion of the amount transferred from the other qualified
retirement plan and trust is attributable to any prior transfers or
rollovers that were made by or on behalf of that Employee to that
plan;
(d) no portion of the amount transferred from the other qualified
retirement plan and trust is attributable to qualified voluntary
employee contributions made by that Employee to that plan within the
meaning of Section 219(e)(2) of the Code;
(e) the amount transferred from the other qualified retirement
plan and trust constitutes that Employee's entire interest in that
plan other than amounts excluded pursuant to Subsection (d) above;
(f) the trustee of the other qualified retirement plan and trust
provides information satisfactory to the Trustee and to the Committee
with respect to that portion of the amount transferred, if any, that
represents contributions made by that Employee to that plan that were
not deductible for federal income tax purposes; that portion of the
amount transferred, if any, that represents contributions made by that
Employee to that plan that were deductible for federal income tax
purposes; and that portion of the amount transferred, if any, that
represents that Employee's allocable share of any forfeitures and
employer contributions under that plan; and
(g) no portion of the amount transferred is required to be
distributed under Section 401(a)(9) of the Code.
To the extent required by Section 411(d)(6) of the Code, no early
retirement benefit, retirement-type subsidy or optional form of benefit
shall be eliminated with respect to an Employee's interest in another
retirement plan and trust that is directly transferred to this Plan.
21.4. ROLLOVER TRANSFERS. The Committee may, in its sole discretion,
direct the Trustee to accept from any Employee (regardless of whether he is
a Participant) a rollover type of distribution that Employee received from
another plan and trust that is qualified under Sections 401(a) and 501(a)
of the Code; PROVIDED, HOWEVER, that:
(a) that Employee was not an owner-employee under the other
qualified retirement plan and trust within the meaning of Section
401(c)(1) of the Code;
(b) no portion of the distribution from the other qualified
retirement plan and trust is attributable to contributions made on
behalf of that Employee while he was a key employee in a top heavy
plan within the meaning of Section 416 of the Code;
(c) the rollover is made to the Plan by that Employee no later
than the sixtieth (60th) calendar day after distribution was made to
that Employee from the other qualified retirement plan and trust;
(d) the distribution is an "eligible rollover distribution" as
defined in Section 402(c)(4) of the Code that is excludible from
income under Section 402(c)(1) of the Code;
(e) the amount rolled over to the Plan does not include any
amounts contributed by that Employee to the other qualified retirement
plan and trust; and
(f) no portion of the amount rolled over is required to be
distributed under Section 401(a)(9) of the Code.
Such a rollover transfer may also be made through an individual
retirement account qualified under Section 408 of the Code where that
individual retirement account was used as conduit from the prior plan, the
transfer is made in accordance with the rules provided at Subsections (a)
through (f) above and the transfer does not include any personal
contributions or earnings thereon which that Participant may have made to
that individual retirement account.
21.5. RULES WITH RESPECT TO PLAN-TO-PLAN TRANSFERS AND ROLLOVERS.
Amounts received by the Trustee in accordance with Sections 21.3 or 21.4
shall be maintained and administered subject to all the provisions of the
Plan; PROVIDED, HOWEVER, that:
(a) such amounts shall be fully vested and nonforfeitable at all
times;
(b) such amounts shall be invested in one of the investment funds
maintained pursuant to Section 2.41 in accordance with the investment
election made by the Participant as of the date the transfer
(rollover) is made or as subsequently changed in accordance with
Sections 6.2 and 6.3; and
(c) such amounts shall be subject to distribution in accordance
with Article XIV.
ARTICLE XXII
PARTICIPATION IN PLAN BY PARENT,
SUBSIDIARIES OR AFFILIATES
22.1. ADDITIONAL PARTICIPATION. Any subsidiary or affiliate of the
Company may, with the consent of the Committee, become a party to the Plan
by adopting the Plan for its Employees. Upon the filing with the Trustee
of documents evidencing the adoption of the Plan for its Employees and a
written instrument showing the consent of the Committee to participation by
such subsidiary or affiliate, it shall thereupon be included in the Plan as
an Employer and shall be bound by all the terms hereof as they relate to
its Employees. Any contributions provided for in the Plan and made by such
an Employer shall become a part of the Trust Fund and shall be held by the
Trustee subject to the terms and provisions of the Trust Agreement. Each
Subsidiary or affiliate that adopts this Plan shall be listed on EXHIBIT A,
which is attached hereto.
22.2. CESSATION OF PARTICIPATION. If an organization that has become
an Employer pursuant to the provisions of Section 22.1 shall cease to be a
subsidiary or affiliate of the Company, such organization shall taken be
deemed to have withdrawn from the Plan. In addition, any Employer may
voluntarily withdraw from the Plan by giving six (6) months' prior notice
in writing of intention to withdraw to the Committee (unless a shorter
notice shall be agreed to by the Committee).
Upon any such withdrawal by any such Employer, the Committee shall
determine that portion of the Trust Fund properly allocable to the
Participants or, if deceased, their spouses or other designated
beneficiaries (or estates) thereby affected, consistent with the provisions
of ERISA and of the Code. Subject to the provisions of ERISA and of the
Code, the Committee shall then instruct the Trustee to set aside from the
Trust Fund such securities and other property as it shall, with the
approval of the Committee, deem to be equal in value to the portion of the
Trust Fund so allocable to the withdrawing Employer. The Committee shall
direct the Trustee, in the sole discretion of the Committee but subject to
the provisions of ERISA and of the Code, either:
(a) to hold such assets so set aside and to apply the same for
the exclusive benefit of the Participants or, if deceased, their
spouses or other designated beneficiaries (or estates) so affected on
the same basis as if the Trust Fund had been terminated pursuant to
Section 19.2 upon the date of such withdrawal, or
(b) to deliver such assets to trustees to be selected by such
withdrawing Employer.
IN WITNESS WHEREOF, Simon Property Group, L.P. has caused this amended
and restated Plan to be executed as of the date indicated below to be
effective as of April 1, 1997 except as otherwise provided herein.
SIMON PROPERTY GROUP, L.P.
By
Date Its
<PAGE>
EXHIBIT A
Participating Employers in the Simon Property Group and Adopting ENTITIES
MATCHING SAVINGS PLAN
M.S. MANAGEMENT ASSOCIATES (INDIANA), INC.
M.S. MANAGEMENT ASSOCIATES, INC.
SIMON MOA MANAGEMENT COMPANY, INC.
SIMON PROPERTY GROUP
ADMINISTRATIVE SERVICES PARTNERSHIP, L.P.
GOLDEN RING MALL COMPANY LIMITED PARTNERSHIP
CHARLES MALL COMPANY LIMITED PARTNERSHIP
FORESTVILLE ASSOCIATES
SIMON PROPERTY GROUP (TEXAS), L.P.
SIMON PROPERTY GROUP (ILLINOIS), L.P.
NORTHWOODS DEVELOPMENT COMPANY
DEBARTOLO PROPERTIES MANAGEMENT, INC. (effective April 1, 1997)
JEFFERSON VALLEY MALL LIMITED PARTNERSHIP (effective April 1, 1997)
EAST TOWNE MALL COMPANY LIMITED PARTNERSHIP (effective April 1, 1997)
PENN ROSS JOINT VENTURE (effective April 1, 1997)
EXHIBIT 4.8
SEVENTH AMENDMENT TO THE
SIMON DEBARTOLO GROUP AND ADOPTING ENTITIES
MATCHING SAVINGS PLAN
(As Last Restated Effective April 1, 1997
and as Last Amended Effective December 1, 1997)
Pursuant to rights reserved under Section 19.1 of the Simon DeBartolo
Group and Adopting Entities Matching Savings Plan (as last restated
effective April 1, 1997, and as last amended effective December 1, 1997)
(the "Plan"), Simon DeBartolo Group, L.P., by action of its general
partner, Simon DeBartolo Group, Inc., amends the Plan, effective as of
September 24, 1998 as follows:
1. References to "Simon DeBartolo Group" shall be changed to "Simon
Property Group" where applicable, to reflect the change of the name of the
Company and Simon DeBartolo Group, Inc.
2. Section 2.18 of the Plan is amended and restated to provide in its
entirety as follows:
2.18. EMPLOYER means the Company, any related entities that have
adopted this Plan pursuant to Section 22.1 of this Plan, and their
successors in interest.
3. Section 2.28 of the Plan is amended and restated to provide in its
entirety as follows:
2.28. PERIOD OF SERVICE means the period, beginning on and after
January 1, 1994, commencing on the date a person first credited with
an Hour of Service for the Group and ending on the date a Period of
Severance begins, including any Approved Absence and also including
any Period of Separation of less than twelve (12) consecutive months.
The Period of Service of each Employee shall also include each full
and partial Year of Service earned by that Employee prior to January
1, 1994 under the method for crediting service provided in this Plan
for that period. This Section 2.28 (along with Section 8.2) is
intended to reflect a change, effective January 1, 1994, from the
general method of crediting vesting service (as described in Section
2530.200b-2 of the Department of Labor Regulations) to the elapsed
time method of crediting vesting service (as described in Section
2530.200b-9 of the Department of Labor Regulations). The Period of
Service and Years of Service of each Employee who was employed by
DPMI as of August 9, 1996 shall include service with DPMI both before
and after the date on which DPMI became a member of the Group. The
Period of Service and Years of Service of each Employee who was
employed by CPI immediately prior to becoming an Employee, shall
include his service with CPI.
4. A new Section 2.52 is added to the Plan to provide in its entirety as
follows:
2.52. CPI means Corporate Property Investors and its affiliates
and predecessors in interest (including Pembrook Management, Inc.).
5. A new Section 2.53 is added to the Plan to provide in its entirety as
follows:
2.53. CPI PLAN means the Corporate Property Investors Employee
401(k) Savings Plan, as amended from time to time.
6. A new Section 3.7 is added to the Plan to provide in its entirety as
follows:
3.7. TRANSITION RULE FOR CPI EMPLOYEES. Each Employee who was a
participant in the CPI Plan as of the date immediately preceding the
date his employment with an Employer commences, shall: (a) become a
Participant, with respect to the right to make Before-Tax
Contributions (pursuant to Section 4.1) and receive Company Matched
Contributions (pursuant to Section 5.2), on the date he complies with
Section 3.3; and (b) automatically become a Participant on the date
his employment with an Employer commences, without the need to comply
with Section 3.3, for every other purpose of the Plan, including the
right to receive a Profit-Sharing Contribution (pursuant to Section
5.12). Each Employee who was an employee of CPI as of the date
immediately preceding the date his employment with an Employer
commences, but was not eligible to participate in the CPI Plan as of
that date, shall be eligible to become a Participant in this Plan as
of the first Enrollment Date coincidental with or next following the
date on which he satisfies the requirements of Section 3.1 of this
Plan.
This Seventh Amendment has been executed this ________ day of
_____________, 1998.
SIMON PROPERTY GROUP, L.P.
By:SIMON PROPERTY GROUP, INC.,
its general partner
Signature
Printed Name
Title
Date
EXHIBIT 5
July 7, 1999
Simon Property Group, Inc.
SPG Realty Consultants, Inc.
115 West Washington
Indianapolis, Indiana 46204
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Simon Property
Group, Inc. and SPG Realty Consultants, Inc. (the "Registrants"), relating
to (1) up to 500,000 paired shares of the Common Stock, par value of $.0001
per share, of the Registrants ("Common Stock"), to be issued and sold under
the Simon Property Group and Adopting Entities Matching Savings Plan (the
"Plan") and (2) the interests in the Plan to be issued to those employees
of the Registrants and its affiliates who participate in the Plan
("Interests"). We note that the Registrants do not intend to issue Common
Stock to the Plan, which will, instead, acquire Common Stock on the open
market. In connection with your request, we have made such examination of
the corporate records and proceedings of the Registrants and the plan and
considered such questions of law and taken such further action as we deemed
necessary or appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that when the
Interests have been issued, as contemplated by the Plan as described in the
Registration statement, as the same may be amended, and when the steps set
forth in the next paragraph have been taken, the Interests will be legally
issued.
The steps to be taken which are referred to in the next preceding
paragraph consist of the following:
(1) compliance with the Securities Act of 1933, as amended, and
with the securities law of the State of Indiana, with respect to the
Common Stock and the issuance of the Interests under the Plan; and
(2) issuance of the Interests in accordance with the terms and
conditions set forth in the Plan and the Registration statement, as
amended from time to time.
The opinion is limited to the laws of the United States and the State
of Indiana. We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Sincerely yours,
BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports
dated February 17, 1999, included in Simon Property Group, Inc. and SPG
Realty Consultants, Inc.'s Form 10-K for the year ended December 31, 1998,
and to the incorporation by reference in this Registration Statement of our
report dated June 19, 1998, included in Simon DeBartolo Group and Adopting
Entities Matching Savings Plan's (renamed Simon Property Group and Adopting
Entities Matching Savings Plan) Form 11-K for the year ended December 31,
1997.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Indianapolis, Indiana
July 1, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Simon Property Group, Inc. and
Adopting Entities Matching Savings Plan of our report relating to SPG
Realty Consultants, Inc. (formerly known as Corporate Realty Consultants,
Inc.) dated June 30, 1998, with respect to the consolidated financial
statements included in the Annual Report (Form 10-K) of Simon Property
Group, Inc. and SPG Realty Consultants, Inc. for the year ended December
31, 1998.
/S/ ERNST & YOUNG LLP
New York, New York
July 1, 1999
