PART I
ITEM 1: BUSINESS
General
Winn-Dixie Stores, Inc., organized in Florida on December 26, 1928, is a
major food retailer with 1,159 stores in 13 southeastern and southwestern
states and the Bahamas Islands. According to published reports of sales at
June 29, 1994 the Company was the fifth largest in United States supermarket
sales.
All of the Company's subsidiaries except Bahamas Supermarkets, Limited are
wholly-owned. Except where the context indicates otherwise, the term
"Company" includes the parent company and all of its subsidiaries
collectively.
Financial information on industry segments and lines of business is
omitted because, apart from the principal business of operating retail
self-service food stores, the Company had no other lines of business or
industry segments.
Store Formats and Business Strategy
The business of the Company is the operation of a chain of retail
self-service food stores which sell groceries, meats, seafood, fresh produce,
deli/bakery, pharmaceuticals and general merchandise items. The Company's
stores offer broad lines of merchandise, including nationally advertised and
private label brands and unbranded merchandise (principally meats, seafood and
produce), and generally operate on the basis of competitive pricing. Food
items sold include dry groceries, dairy products, baked goods, meats, poultry
and fish, fresh fruit, vegetables, frozen foods and other items commonly
marketed by retail food stores. The Company's stores also sell many general
merchandise items, such as cigarettes, soaps, paper products, health and
cosmetic products, hardware, and numerous small household items. Some
locations (255) have pharmacies that fill prescriptions. Some locations (842)
have fresh seafood markets that sell fresh fish. At June 29, 1994, the
Company operated in the United States 1,145 retail stores of which 439 were
located in Florida, 129 in North Carolina, 126 in Georgia, 86 in South
Carolina, 84 in Alabama, 78 in Louisiana, 72 in Texas, 53 in Kentucky, 30 in
Virginia, 20 in Tennessee, 18 in Mississippi, 7 in Oklahoma and 3 in Indiana.
Such stores were operated under the names of "Winn-Dixie" (858), "Marketplace"
(286) and "Buddies" (1). In addition, the Company operated 14 stores in the
Bahamas Islands under the names "The City Meat Markets" (11) and "Winn-Dixie
Stores" (3).
Support and Other Services
The following table shows the locations of the Company's distribution
centers and its manufacturing and processing plants, as well as the principal
products produced in the plants:
ITEM 1: BUSINESS, continued
LOCATION FACILITIES
ALABAMA
Montgomery Distribution center; Plants: milk bottling and
frozen pizza
FLORIDA
Jacksonville Two Distribution centers; Plants: detergents;
paper bags; coffee, tea and spices
Madison Plant: meat processing
Miami Distribution center; Plant: milk bottling
Orlando Distribution center
Bartow Plant: egg processing
Plant City Plants: ice cream and milk bottling
Pompano Distribution center
Sarasota Distribution center
Tampa Distribution center
GEORGIA
Atlanta Distribution center
Fitzgerald Plants: jams, jellies, mayonnaise, salad
dressing, peanut butter and condiments; canned
and bottled carbonated beverages
Gainesville Plants: oleomargarine; natural cheese cutting
and wrapping, processed cheese and pimento
cheese
Valdosta Plants: crackers, cookies and snacks
KENTUCKY
Louisville Distribution center
LOUISIANA
New Orleans Distribution center
Hammond Distribution center; Plant: milk bottling
NORTH CAROLINA
Charlotte Distribution center
Raleigh Distribution center
High Point Plants: milk bottling and cultured products
SOUTH CAROLINA
Greenville Distribution center; Plants: milk bottling and
ice cream
TEXAS
Fort Worth Distribution center; Plant: milk bottling
BAHAMAS
Nassau Distribution center
ITEM 1: BUSINESS, continued
An insignificant portion of the production of the coffee, tea, detergent,
cheese, oleomargarine, egg, condiments, carbonated beverage and cookie plants
is sold to others.
Types of products produced by the Company for sale in its stores are
described above. Services provided by the Company such as check cashing are
incidental to the total business.
The Company has not publicly announced, or otherwise made public,
information about any new product or industry segment which would require
the investment of a material amount of the assets of the Company or which
otherwise is material.
Sources of available raw materials are factors which do not affect the
Company in any different manner than they affect other manufacturers and
processors of the goods identified.
Patents and trademarks owned by the Company are not of material
importance to its operations.
Seasonality does not materially affect the business of the Company.
However, due to the influx of winter residents to the Sunbelt, Florida in
particular, and increased purchases of food items for the Thanksgiving and
Christmas holiday seasons, there is a seasonal sales increase during the
period of November - April each fiscal year.
The Company and other food retailers have no unusual working capital
requirements.
The business of the Company is not dependent upon a single or a few
customers. The Company does not sell goods or services in an amount which
equals 10 percent or more of the Company's consolidated sales to any single
customer or group of customers under common control or to any affiliated group
of customers.
Backlog ordering is not a factor in the business of the Company.
No portion of the business of the Company is subject to renegotiation of
profits or termination of contracts or subcontracts at the election of any
government.
Marketing and Competition
In all areas in which the Company operates, the business is highly
competitive with local and national food chain stores as well as with
independent stores and markets. Many factors enter into the competition,
including price, quality of goods and services, product mix and convenience.
The retail food industry is extremely competitive. Each division faces
somewhat different competitive conditions. The following table lists the
major competitors for each division.
Division Major Competitors
Jacksonville Publix, Albertson's, Piggly Wiggly (Bruno), Food Lion
Tampa/Sarasota Publix, Kash N Karry, Albertson's, Food Lion
Montgomery Bruno, Delchamps, Walmart Supercenter
Miami/Pompano Publix, XTRA, Sedano's, Albertson's
Orlando Publix, Albertson's, Goodings, Food Lion
Greenville Food Lion, Bi-Lo, Super K
Raleigh Food Lion, Harris-Teeter, Kroger
Charlotte Food Lion, Harris-Teeter
Atlanta Kroger, Ingles, A&P, Cub, Publix
Louisville Kroger
New Orleans Delchamps, Schwegmans, National Tea, Albertson's
Fort Worth Kroger, Albertson's, Minyards, Food Lion, Randall's,
Walmart Supercenter
Bahamas Supervalu
Additionally, local chains and wholesaler-supported independents are well
represented in all regions.
Winn-Dixie is considered a major competitor in all geographic areas in
which it competes.
ITEM 1: BUSINESS, continued
The Company did not spend a material amount on Company-sponsored research
and development activities or on Company-sponsored research activities
relating to the development of new products, services or techniques, or the
improvement of existing products, services or techniques during any of the
years in the three-year period ended June 29, 1994.
Government Regulation
The Company's compliance with Federal, state and local provisions which
have been enacted or adopted regulating the discharge of materials into the
environment, or otherwise relating to the protection of the environment has
not had, and is not expected to have, a material affect on its capital
expenditures, earnings or competitive position.
Associates
At the end of fiscal 1994, the Company had 40,000 full-time and 72,000
part-time associates.
Bahamas
All sales are to customers within the United States and the Bahamas
Islands. The Company exports an insignificant amount of merchandise to its
subsidiaries in the Bahamas which operate 14 retail food stores as outlined
above. Retail sales in the Bahamas are not considered to be material.
ITEM 2: PROPERTIES
Stores
All of the retail stores operated by the Company are on premises occupied
on a rental basis. See "Note 9 of the Notes to Consolidated Financial
Statements", page F-14 included herein.
Support Properties
The warehousing and distribution centers are rented under leases due to
expire as follows: Greenville - 2002; Louisville - 2002; Tampa - 2017;
Miami - 2017; Raleigh - 2017; Montgomery - 2017; New Orleans -
2017; Sarasota - 2017; Jacksonville (Edgewood) - 2002; Fort Worth -
2016; Atlanta - 2002; Pompano - 2003; Charlotte - 2004; Orlando -
2005; Jacksonville (Commonwealth) - 2011 and Hammond - 2016. All of these
contain renewal options, which vary from lease to lease.
The Hialeah warehouse facility, the milk plant in Miami and the Deep
South plant in Orlando, Florida, are no longer in operation and have been
replaced with new facilities. These properties are now owned in fee by the
Company and are being held for sale.
The Company's Valdosta cracker and cookie bakery, Fort Worth dairy plant,
Madison meat processing plant, Plant City ice cream and milk bottling plant,
and Gainesville margarine and cheese processing and packaging plant are owned
in fee.
The Company's Greenville milk bottling and ice cream; Jacksonville
coffee, tea and spices processing, detergent and bag plants; Montgomery milk
bottling plant; and Hammond milk bottling plant are situated at the leased
warehousing and distribution center locations in those cities. The Bartow egg
processing plant, High Point milk bottling and cultured products plant,
Montgomery frozen pizza plant and the Fitzgerald jam, jellies, mayonnaise,
salad dressing, peanut butter, condiments and canned and bottled carbonated
beverage plant are rented under leases.
All of the above support properties are considered to be in excellent
condition.
ITEM 3: LEGAL PROCEEDINGS
There are pending against the Company various claims and lawsuits arising
in the normal course of business, including suits charging violations of
certain civil rights laws.
The U.S. Environmental Protection Agency has notified the Company that it
is one of the many potentially responsible parties (PRPs) for cleanup of two
designated Superfund sites located in Tampa, Florida, three such sites in
Jacksonville (2 related sites) and one site in Madison, Florida. The Company
may be a PRP for cleanup of one non-Superfund site in Tarrant County, Texas.
Although cleanup costs are believed to be substantial, accurate estimates will
not be available until studies have been completed at the sites.
The Company has entered into orders by consent with numerous other PRPs to
conduct studies and do cleanup for three of the Superfund sites and is
negotiating an agreement with PRPs who are under an order at another Superfund
site to determine the most cost-effective way to clean up such sites.
Although under federal statutes the Company is jointly and severally liable
for cleanup costs at each location, the Company's share of total costs is
estimated not to exceed $350,000 for four of the Superfund sites and the Texas
site.
The Company believes it is not a responsible party for cleanup of the
Madison, Florida, and Tarrant County, Texas, sites and has no estimate of
costs for those matters. Other than these two and the New Mexico site
mentioned below, these involve wastes the Company paid to be properly disposed
and were mishandled by disposal companies or public disposal sites.
At one of the Tampa sites, the Company is one of 14 parties named as
respondents in a Unilateral Administrative Order for Remedial Design and
Remedial Action under 47 U.S.C. Section 9606(a) relating to a disposal site
formerly operated by Hillsborough County, Florida. The parties are ordered to
operate, maintain and monitor a water cleaning system and perform Remedial
Design for the site. The costs to the Company are estimated at $150,000 in
fiscal year 1994 with substantial credits for this year, with additional
annual costs for an indefinite period thereafter.
The Company is also involved in the cleanup of a fuel tank leak at a New
Mexico site formerly owned by it. The cleanup costs are to be prorated with
others on the basis of the total time of ownership of the participants. The
Company's share is 15% of the total costs estimated to be less than $150,000,
with minimal annual monitoring costs thereafter.
It is the Company's policy to accrue and charge against earnings the
environmental cleanup costs when it is probable that a liability has been
incurred and an amount can be reasonably estimated, including evaluation of
the other PRPs' ability to pay. The Company believes its ultimate liability as
to these environmental matters will not necessitate significant capital
outlays, will not materially affect the annual earnings of the Company, nor
cause material changes in the Company's business. It is not possible to
quantify future environmental costs because many issues relate to actions by
third parties or changes in environmental regulation.
Although the amount of liability with respect to all other claims and
lawsuits cannot be ascertained, management is of the opinion that any
resulting liability will not have a material affect on the Company's
consolidated earnings or financial position.
ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the
quarter ended June 29, 1994.
Executive Officers of the Registrant
Set forth below is certain information concerning the executive officers
of the Company:
YEAR YEAR FIRST
AGE IN APPOINTED EMPLOYED
YEARS AT TO CURRENT BY
NAME 06-29-94 OFFICE HELD POSITION WINN-DIXIE
A. Dano Davis 49 Chairman of the Board and 1988 1968
Principal Executive Officer
James Kufeldt 56 President 1988 1961
C. H. McKellar 56 Executive Vice President 1988 1957
E. T. Walters 60 Senior Vice President 1989 1959
C. E. Winge 49 Senior Vice President 1988 1963
T. E. McDonald 57 Senior Vice President 1986 1955
H. E. Hess 54 Senior Vice President 1988 1958
W. E. Ripley, Jr. 48 Vice President, Secretary
and General Counsel 1991 1978
R. P. McCook 41 Financial Vice President and
Principal Financial Officer 1984 1984
L. H. May 49 Vice President 1989 1964
D. H. Bragin 50 Treasurer 1985 1961
R. J. Brocato 50 Vice President 1993 1963
W. C. Calkins 55 Vice President 1987 1958
J. W. Critchlow 47 Vice President 1988 1967
R. J. Ehster 53 Vice President 1983 1958
R. R. George 49 Vice President 1993 1966
D. G. Lafever 45 Vice President 1990 1966
H. E. Miller 62 Vice President 1984 1956
J. R. Pownall 57 Vice President 1986 1955
L. J. Sadlowski 53 Vice President 1983 1961
R. A. Sevin 51 Vice President 1987 1961
B. B. Tripp 57 Vice President 1987 1954
D. L. Whitford 46 Vice President 1991 1964
J. D. Bell, Vice President and Director of Services, passed away during
fiscal year 1994. Jim Bell had been an associate for 42 years. A.C. Webb was
elected Vice President and Director of Services.
M. A. Sellers, Director of Produce and Floral Operations, was elected Vice
President and Director of Produce and Floral Operations.
All of the officers listed above have been employed for the past five years
in either the same capacity as listed, or in a position with the Company which
was consistent in occupation with the present assignment.
Officers are elected annually by the Board of Directors and serve for a
one-year period or until their successors are elected. No officers have
employment contracts with the Company.
PART II
ITEM 5: MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
SHAREHOLDER MATTERS
The principal market on which the Company's common stock is traded is the
New York Stock Exchange. The number of record holders of the Company's common
stock as of August 15, 1994 was 39,226.
Information required by this Item concerning sales prices of the
Company's common stock and the frequency and amount of dividends is hereby
incorporated by reference to "Note 12 of the Notes to Consolidated Financial
Statements", page F-17 included herein.
ITEM 6: SELECTED FINANCIAL DATA
The information required by this Item is on page F-1 included herein.
ITEM 7: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The information required by this Item is on page F-2 included herein.
ITEM 8: FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Financial statements and supplementary data are as set forth in the
"Index to Consolidated Financial Statements, Supporting Schedules and
Supplemental Data" on page 13 included herein.
ITEM 9:CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There have been no disagreements on accounting and financial disclosure
between the Company and its auditors within the 24 months prior to June 29,
1994.
PART III
ITEM 10: DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
ITEM 11: EXECUTIVE COMPENSATION
ITEM 12: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
ITEM 13: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by these Items are incorporated herein by
reference to the Company's definitive proxy statement to be filed on or
before September 2, 1994 in connection with its Annual Meeting of
Shareholders.
PART IV
ITEM 14: EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
Financial Statements and Schedules:
(a) Exhibit and Financial Statements and Schedules
(1) Financial Statements:
See Index to Consolidated Financial Statements, Supporting
Schedules and Supplemental Data on page 13 included herein.
(2) Financial Statement Schedules:
See Index to Consolidated Financial Statements, Supporting
Schedules and Supplemental Data on page 13 included herein.
Exhibits:
Certain of the following exhibits which have heretofore been filed with
the Securities and Exchange Commission under the Securities Act of 1933 or the
Securities Exchange Act of 1934 and which are designated in prior filings as
noted below, are hereby incorporated by reference and made a part hereof:
<TABLE>
<CAPTION>
Exhibit Incorporated by
Number Description of Exhibit Reference From
<S> <C> <C>
3.1 Restated Articles of Incorporation as filed with Previously filed as Exhibit 3.1 to Form
the Secretary of State of Florida . 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
3.1.1 Articles of Amendment to Restated Articles of Previously filed as Exhibit 3.1.1 to Form
Incorporation as adopted October 7, 1992. 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
3.1.2 Amendment to Restated Articles of Incorporation Previously filed as Exhibit 3.1.2 to Form
as adopted October 7, 1992. 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
3.2 Restated By-Laws of the Registrant as amended
through June 22, 1994.
3.2.1 Amendment to By-Laws of the Registrant as
adopted by the Board of Directors of Registrant
on October 6, 1993.
3.2.2 Amendment to By-Laws of the Registrant as
adopted by the Board of Directors of Registrant
on June 22, 1994.
9.1 Agreement of Shareholders of D.D.I., Inc. Previously filed as Exhibit 9.1 to Form
(formerly Vadis Investments, Inc.) dated April 10-K for the year ended June 30, 1993,
19, 1989. which Exhibit is herein incorporated by
reference.*
10.1 Revised Stock Purchase Plan for Employees, as Previously filed as Exhibit 10.1 to Form
amended through October 7, 1992. 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
10.1.1 Amendment to Revised Stock Purchase Plan for Previously filed as Exhibit 10.1.1 to
Employees adopted October 7, 1992. Form 10-K for the year ended June 30,
1993, which Exhibit is herein
incorporated by reference.*
10.2 Annual Officer Incentive Compensation Plan as Previously filed as Exhibit 10.2 to Form
amended, effective June 17, 1991. 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
10.3 Long-term Officer Incentive Compensation Plan Previously filed as Exhibit 10.3 to Form
as amended, effective June 27, 1991. 10-K for the year ended June 30, 1993,
which Exhibit is herein incorporated by
reference.*
10.4 Employees' Profit Sharing Retirement Plan of
Winn-Dixie Stores, Inc., as amended and
restated effective as of January 1, 1993, as
amended through October 6, 1993.
10.4.1 Amendment to Employees' Profit Sharing
Retirement Plan of Winn-Dixie Stores, Inc., as
adopted October 6, 1993, effective January 1,
1993.
10.5 Key Employee Stock Option Plan effective Previously filed as Exhibit 10.5 to Form
January 24, 1990, as amended through October 10-K for the year ended June 30, 1993,
7, 1992. which Exhibit is herein incorporated by
reference.*
10.5.1 Amendment to Key Employee Stock Option Plan Previously filed as Exhibit 10.5.1 to
dated June 22, 1992. Form 10-K for the year ended June 30,
1993, which Exhibit is herein
incorporated by reference.*
10.6 Supplemental Retirement Plan dated July 1,
1994
11.1 Computation of Earnings Per Share.
22.1 Subsidiaries of Winn-Dixie Stores, Inc.
24.1 Consent of KPMG Peat Marwick.
* Incorporated herein by reference as indicated
</TABLE>
(b) Reports on Form 8-K:
The Company did not file any reports on Form 8-K during the quarter
ended June 29, 1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
WINN-DIXIE STORES, INC.
A. DANO DAVIS
By -------------------------
A. Dano Davis, Chairman
September 16, 1994
Date -----------------------
Pursuant to the requirements of the Securities Act of 1934 this report has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated.
A. DANO DAVIS Chairman (Principal September 16, 1994
- ----------------- executive officer) and
(A. Dano Davis) Director
J. KUFELDT President and Director September 16, 1994
- -----------------
(J. Kufeldt)
RICHARD P. MCCOOK Financial Vice President September 16, 1994
- ----------------- (Principal financial officer)
(Richard P. McCook)
D. H. BRAGIN Treasurer (Principal September 16, 1994
- ----------------- accounting officer)
(D. H. Bragin)
A. D. DAVIS Director September 16, 1994
- --------------------
(A. D. Davis)
ROBERT D. DAVIS Director September 16, 1994
- --------------------
(Robert D. Davis)
T. WAYNE DAVIS Director September 16,1994
- --------------------
(T. Wayne Davis)
SIGNATURES, continued
C. H. MCKELLAR Director September 16, 1994
- --------------------
(C. H. McKellar)
RADFORD D. LOVETT Director September 16, 1994
- --------------------
(Radford D. Lovett)
CHARLES P. STEPHENS Director September 16, 1994
- --------------------
(Charles P. Stephens)
Director September , 1994
- --------------------
(Armando M. Codina)
DAVID F. MILLER Director September 16, 1994
- --------------------
(David F. Miller)
CARLETON T. RIDER Director September 16, 1994
- --------------------
(Carleton T. Rider)
<PAGE>
WINN-DIXIE STORES, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Selected Financial Data F-1
Management's Discussion and Analysis of Financial Condition
and Results of Operations F-2
Consolidated Financial Statements and Supplemental Data:
Independent Auditors' Report F-4
Report of Management F-4
Consolidated Statements of Earnings, Years ended June 29, 1994,
June 30, 1993 and June 24, 1992 F-5
Consolidated Balance Sheets, June 29, 1994 and June 30, 1993 F-6
Consolidated Statements of Cash Flows, Years ended June 29, 1994,
June 30, 1993 and June 24, 1992 F-7
Consolidated Statements of Shareholders' Equity, Years ended
June 29, 1994, June 30, 1993 and June 24, 1992 F-8
Notes to the Consolidated Financial Statements F-9
Financial Statement Schedules:
Independent Auditors' Report on Financial Statement Schedules S-1
V Consolidated Property, Plant and Equipment, Years Ended
June 29, 1994, June 30, 1993 and June 24, 1992 S-2
VI Consolidated Accumulated Depreciation and Amortization of Property,
Plant and Equipment, Years ended June 29, 1994, June 30, 1993
and June 24, 1992 S-3
VII Consolidated Valuation and Qualifying Accounts, Years
ended June 29, 1994, June 30, 1993 and June 24, 1992 S-4
IX Short-Term Borrowings, Years ended June 29, 1994, June 30, 1993
and June 24, 1994 S-5
X Consolidated Supplementary Income Statement Information, Years
ended June 29, 1994, June 30, 1993 and June 24, 1992 S-6
All other schedules are omitted either because they are not applicable or
because information required therein is shown in the Financial Statements or
Notes thereto.
<PAGE>
<TABLE>
SELECTED FINANCIAL DATA
<CAPTION>
1994 1993* 1992 1991 1990
Dollars in millions except per share data
<S> <C> <C> <C> <C> <C>
Sales
Net sales $ 11,082 10,832 10,337 10,074 9,744
Percent increase 2.3 4.8 2.6 3.4 6.5
Average annual sales per store $ 9.6 9.4 8.7 8.3 8.0
Earnings Summary
Gross profit $ 2,534 2,446 2,360 2,261 2,127
Percent of sales 22.9 22.6 22.8 22.4 21.8
LIFO charge (credit) $ (2) 1 (11) 9 18
Operating and administrative expenses $ 2,270 2,197 2,137 2,100 2,005
Percent of sales 20.5 20.3 20.7 20.8 20.6
Earnings before income taxes and
cumulative effect of change
in accounting principle $ 348 364 328 259 224
Earnings before effect of change
in accounting principle $ 216 236 216 171 153
Per share $ 2.90 3.11 2.82 2.20 1.93
Net earnings $ 216 236 196 171 153
Per share $ 2.90 3.11 2.55 2.20 1.93
Percent of net earnings to:
Sales 2.0 2.2 1.9 1.7 1.6
Average equity 21.2 24.4 21.6 20.4 19.1
Dividends
Dividends paid $ 107.4 100.5 92.0 84.1 77.9
Percent of net earnings 49.7 42.5 46.9 49.2 51.1
Per share (present rate $156) $ 1.44 1.32 1.20 1.08 0.99
Common Stock (WIN)
Total shares outstanding (000,000) 74.2 75.0 76.9 77.1 78.3
NYSE-Stock price range
Common - High $ 67.75 79.75 44.63 41.25 34.06
Low $ 43.50 41.63 34.63 29.00 24.00
Financial Data
Cash flow information:
Net cash provided by
operating activities $ 436.3 213.0 338.3 190.8 316.2
Net cash used in investing activities $ 214.7 81.4 216.9 55.1 214.6
Net cash used in financing activities $ 212.4 128.7 109.2 135.8 125.2
Capital expenditures, net $ 277.7 194.8 164.5 154.7 114.1
Depreciation and amortization $ 157.4 141.1 126.9 113.4 118.1
Working capital $ 488.0 544.7 550.8 435.8 426.4
Current ratio 1.6 1.6 1.7 1.6 1.6
Total assets $ 2,147 2,063 1,977 1,817 1,733
Obligations under capital leases $ 85 87 90 97 83
Shareholders' equity $ 1,057 985 952 860 813
Book value per share $ 14.26 13.14 12.39 11.15 10.39
Stores
At year - end - In operation 1,159 1,151 1,189 1,207 1,217
Opened and acquired during year 60 40 35 46 42
Closed or sold during year 66 78 53 56 54
Remodeled or enlarged during year 87 73 65 54 33
New / remodeled / enlarged -
in last five years 535 475 464 481 514
Year - end retail square footage (000,000) 40.7 39.0 38.6 37.9 37.0
Average store size at year - end (000) 35.1 33.9 32.4 31.4 30.4
Other Year-end Data
Associates (000) 112 105 102 106 101
Shareholders accounts (000) 39.5 41.4 42.8 39.4 33.6
Shareholders per store 34 36 36 33 28
Taxes
Federal, state and local $ 261 255 233 207 186
Per share $ 3.50 3.35 3.04 2.65 2.35
* 53 Weeks
F-1
</TABLE>
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Results of Operations.
Sales for 1994 amounted to $11.1 billion, an increase of 2.3% over
1993, a 53 week year. On a comparable 52 week year basis, the sales
increase would have been 4.3%. The change in comparable store sales
amounted to 2.0%, 2.8% and 1.8% for each of the last three fiscal
years. Comparable store sales for 1994 reflect the softness in the
retail food industry due to a weak economy throughout the year and
increased competitive activity in our trade area. The Company
operated 1,159, 1,151 and 1,189 retail stores with 40.7 million, 39.0
million and 38.6 million square feet at the end of fiscal year 1994,
1993 and 1992, respectively.
In fiscal year 1994, the Company opened and acquired 60 stores
averaging 43,500 square feet, enlarged or remodeled 87 stores and
closed 66 stores, averaging 26,300 square feet.
As a percent of sales, gross profit margins were 22.9%, 22.6% and
22.8% in fiscal 1994, 1993 and 1992, respectively. The increase in
gross profit margins is a result of our computer-assisted merchandise
acquisition systems and our forward-buy purchasing programs.
Approximately 92% of the Company's inventories are valued under the
LIFO (last-in, first-out) method. The LIFO calculations resulted in a
$2.0 million pre-tax increase in gross profit in 1994, a pre-tax
decrease in gross profit of $0.5 million in 1993 and a pre-tax
increase in gross profit of $10.8 million in 1992.
Operating and administrative expenses, as a percent of sales, were
20.5%, 20.3% and 20.7% in fiscal 1994, 1993 and 1992, respectively.
Our major increases in operating and administrative expenses are
depreciation, payroll and occupancy costs.
Cash discounts and other income amounted to $98.1 million, $132.4
million and $119.4 million in 1994, 1993 and 1992, respectively.
Gains (losses) on the sales of securities and other assets amounted to
$(3.2) million in 1994, $4.5 million in 1993 and $3.8 million in 1992.
Investment income amounted to $4.0 million, $8.4 million and $10.0
million in fiscal 1994, 1993 and 1992, respectively. The decrease in
1994 was due to a reduction in financial income, including the
elimination of dividends from our Bahamas subsidiary.
Interest expense totaled $14.3 million, $18.1 million and $15.1
million in fiscal 1994, 1993 and 1992, respectively. Interest expense
primarily reflects a computation of interest on capital lease
obligations. The 1994 decrease in other interest expense is due to a
decrease in short-term borrowings.
Earnings before income taxes and cumulative effect of change in
accounting principle were $348.5 million, $363.7 million and
$328.0 million in fiscal 1994, 1993 and 1992, respectively. The
decrease in pre-tax earnings is primarily a result of the decrease in
cash discounts and other income. The effective income tax rates were
38.0%, 35.0% and 34.0% for fiscal 1994, 1993 and 1992, respectively.
Earnings before cumulative effect of change in accounting principle
were $216.1 million, or $2.90 per share in 1994, $236.4 million,
or $3.11 per share in 1993 and $216.4 million, or $2.82 per share in
1992.
In June 1992, we adopted the Financial Accounting Standards Board
(FASB) Statement Number 109, "Accounting for Income Taxes." This
change in accounting policy resulted in a non-cash charge to the net
earnings of the Company in the amount of $20.5 million, or $0.27 per
share in 1992.
Results of Operations (cont.)
Net earnings amounted to $216.1 million, or $2.90 per share for
1994, $236.4 million, or $3.11 per share for 1993 and $195.9 million,
or $2.55 per share for 1992. The LIFO calculations increased net
earnings by $1.1 million, or $0.01 per share in 1994, decreased
earnings by $0.3 million, or $0.00 per share for 1993 and increased
net earnings by $7.1 million, or $0.09 per share for 1992.
Liquidity and Capital Resources.
The Company's financial condition remains very sound and very
strong. Cash and cash equivalents and short-term investments amounted
to $31.5 million at year-end. Cash provided by operating activities
amounted to $436.3 million in 1994, $213.0 million in 1993 and $338.3
million in 1992.
Net capital expenditures totaled $277.7 million, compared to $194.8
million for the previous year. These expenditures were for new store
locations, store enlargements and remodelings, the expansion of a
warehouse facility and a new manufacturing facility. Total capital
investment in Company retail and support facilities, including
operating leases, is estimated to be $525 million in 1994 and
projected to be $600 million in 1995. The Company has no material
construction or purchase commitments outstanding as of June 29, 1994.
Working capital amounted to $488.0 million, $544.7 million and
$550.8 million for 1994, 1993 and 1992, respectively. Inventories on
a FIFO (first-in, first-out) basis increased $15.4 million, primarily
due to the increase in the number of stores and our store enlargement
program.
The Company has an authorized $200 million commercial paper
program. In support of these programs, or as an independent source of
funds, the Company also has $250 million of short-term lines of
credit. These lines of credit are available at any time during the
year and are renewable on an annual basis. There was $9.5 million
borrowed against the bank lines of credit at the end of 1994. There
was $80.0 million in commercial paper outstanding at the end of 1993.
Excluding capital lease obligations, the Company had no outstanding
long-term debt as of June 29, 1994 or June 30, 1993.
The Company's cash flow from operations and available credit
facilities are considered adequate to fund both the short-term and
long-term capital needs of the Company.
The Company has been notified as one of the many Potentially
Responsible Parties by the Environmental Protection Agency with
respect to the clean up of hazardous wastes at five Superfund sites
and two additional sites. The Company is in the process of
determining the potential liability and the most cost-effective way to
clean up such sites. The Company believes its ultimate liability as to
these environmental matters will not necessitate significant capital
outlays, will not materially affect the annual earnings of the
Company, nor cause material changes in the Company's business.
Impact of Inflation.
Inflation in food prices continues to be lower than the overall
increase in the Consumer Price Index. Winn-Dixie's primary costs,
inventory and labor, increase with inflation. Recovery of these costs
has to come from improved operating efficiencies and, to the extent
permitted by our competition, through improved gross profit margins.
INDEPENDENT AUDITORS' REPORT
The Shareholders and the Board of Directors
Winn-Dixie Stores, Inc.:
We have audited the accompanying consolidated balance sheets of
Winn-Dixie Stores, Inc. and subsidiaries as of June 29, 1994 and June
30, 1993, and the related consolidated statements of earnings,
shareholders' equity, and cash flows for each of the years in the
three-year period ended June 29, 1994. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the financial position
of Winn-Dixie Stores, Inc. and subsidiaries at June 29, 1994 and June
30, 1993, and the results of their operations and their cash flows for
each of the years in the three-year period ended June 29, 1994, in
conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Certified Public Accountants
Jacksonville, Florida
August 1, 1994
REPORT OF MANAGEMENT
The Company is responsible for the preparation, integrity and
objectivity of the consolidated financial statements and related
information appearing in the Annual Report. The consolidated
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and
include amounts that are based on management's best estimates and
judgments.
Management is also responsible for maintaining a system of internal
controls that provides reasonable assurance that the accounting
records properly reflect the transactions of the Company, that assets
are safeguarded and that the consolidated financial statements present
fairly the financial position and operating results. As part of the
Company's controls, the internal audit staff conducts examinations in
each of the retail and manufacturing divisions of the Company.
The Audit Committee of the Board of Directors, composed entirely of
outside directors, meets periodically to review the results of audit
reports and other accounting and financial reporting matters with the
independent certified public accountants and the internal auditors.
A. Dano Davis R. P McCook
Chairman of the Board Financial Vice President
and Principal Executive Officer and Principal Financial Officer
F-4
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF EARNINGS
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
1994 1993* 1992
Amounts in thousands except per share data
<S> <C> <C> <C>
Net sales $ 11,082,169 10,831,535 10,337,341
Cost of sales, including warehousing and
delivery expense 8,547,681 8,385,412 7,976,843
Gross profit on sales 2,534,488 2,446,123 2,360,498
Operating and administrative expenses 2,269,803 2,196,721 2,136,850
Operating income 264,685 249,402 223,648
Cash discounts and other income, net 98,085 132,398 119,390
362,770 381,800 343,038
Interest:
Interest on capital lease obligations 11,285 11,571 11,768
Other interest 2,986 6,560 3,291
Total interest 14,271 18,131 15,059
Earnings before income taxes and cumulative
effect of change in accounting principle 348,499 363,669 327,979
Income taxes 132,382 127,284 111,560
Earnings before cumulative effect of change in
accounting principle 216,117 236,385 216,419
Cumulative effect of change in
accounting principle for income taxes - - (20,485)
Net earnings $ 216,117 236,385 195,934
Earnings per share:
Earnings before cumulative effect of
change in accounting principle $ 2.90 3.11 2.82
Cumulative effect of change in
accounting principle for income taxes - - (0.27)
Net earnings $ 2.90 3.11 2.55
* 53 Weeks
See accompanying notes to consolidated financial statements.
</TABLE>
F - 5
<PAGE>
CONSOLIDATED BALANCE SHEETS
June 29, 1994 and June 30, 1993
1994 1993
Assets Amounts in thousands
Current Assets:
Cash and cash equivalents $ 31,451 22,302
Short - term investments - 85,482
31,451 107,784
Trade and other receivables, less allowance
for doubtful items of $834,000
($732,000 in 1993) 171,854 162,590
Associate stock loans 1,776 4,647
Merchandise inventories at lower of cost or
market less LIFO reserve of $205,172,000
($207,201,000 in 1993) 1,058,883 1,041,451
Prepaid expenses 97,220 96,728
Total current assets 1,361,184 1,413,200
Investments and other assets:
Cash surrender value of life insurance, net 25,094 10,053
Other assets 12,493 4,990
Total investments and other assets 37,587 15,043
Deferred income taxes 41,024 47,684
Net property, plant and equipment 706,779 586,633
$ 2,146,574 2,062,560
Liabilities and Shareholders' Equity
Current Liabilities:
Accounts payable $ 516,806 493,190
Short-term borrowings 9,500 80,000
Reserve for insurance claims and self-insurance 60,510 65,134
Accrued wages and salaries 68,238 66,821
Accrued rent 58,313 57,557
Accrued expenses 126,550 84,893
Current obligations under capital leases 3,462 2,989
Income taxes 29,787 17,962
Total current liabilities 873,166 868,546
Obligations under capital leases 85,374 87,153
Defined benefit plan 22,852 19,454
Reserve for insurance claims and self-insurance 105,417 100,169
Other liabilities 2,304 2,273
Shareholders' equity:
Common stock of $1 par value Authorized 100,000,000
shares; issued 74,176,356 shares in 1994 and
74,955,846 shares in 1993 74,176 74,956
Retained earnings 983,285 910,009
Total shareholders' equity 1,057,461 984,965
Commitments and contingent liabilities (Note 10)
$ 2,146,574 2,062,560
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
1994 1993* 1992
Amounts in thousands
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 216,117 236,385 195,934
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 157,392 141,136 126,884
Cumulative effect of a change in
accounting principle for income taxes - - 20,485
Deferred income taxes 4,414 10,406 (16,231)
Defined benefit plan 3,398 3,239 3,047
Reserve for insurance claims and self- insurance 624 (2,303) 9,260
Change in cash from:
Receivables (9,264) (45,567) (25,217)
Merchandise inventories (17,432) (80,673) (23,923)
Prepaid expenses 1,754 (19,394) (13,900)
Accounts payable 23,616 61,942 2,684
Income taxes 11,825 (27,956) 13,994
Other current accrued expenses 43,830 (64,258) 45,292
Net cash provided by operating activities 436,274 212,957 338,309
Cash flows from investing activities:
Purchases of property, plant and equipment, net (277,657) (194,786) (164,452)
Decrease (increase) in investments and other assets 62,938 113,397 (52,444)
Net cash used in investing activities (214,719) (81,389) (216,896)
Cash flows from financing activities:
Increase (decrease) in short-term borrowings (70,500) 80,000 -
Payments on capital lease obligations (3,122) (2,648) (3,010)
Purchase of common stock (39,993) (123,316) (32,122)
Proceeds of sales under associates' stock
purchase plan 2,871 6,691 18,146
Dividends paid (107,384) (100,518) (91,989)
Other 5,722 11,059 (203)
Net cash used in financing activities (212,406) (128,732) (109,178)
Increase in cash and cash equivalents 9,149 2,836 12,235
Cash and cash equivalents at the beginning of the year 22,302 19,466 7,231
Cash and cash equivalents at end of year $ 31,451 22,302 19,466
Supplemental cash flow information:
Interest paid $ 15,366 14,546 12,017
Interest and dividends received $ 4,059 15,258 14,002
Income taxes paid $ 115,788 138,576 114,221
* 53 Weeks
See accompanying notes to consolidated financial statements.
</TABLE>
F-7
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
1994 1993* 1992
Amounts in thousands
<S> <C> <C> <C>
Common stock:
Beginning of year $ 74,956 76,851 77,129
Add par value of shares issued for associate stock
purchase plan and management incentive plan 19 97 587
Deduct par value of common stock acquired 799 1,992 865
End of year 74,176 74,956 76,851
Retained earnings:
Beginning of year 910,009 875,328 782,897
Net earnings 216,117 236,385 195,934
Deduct excess of cost over par value of common
stock acquired 39,194 121,324 31,257
Deduct cash dividends on common stock of $1.44,
$1.32 and $1.20 per share in 1994, 1993 and 1992,
respectively 107,384 100,518 91,989
Consolidation of Bahamas subsidiary - 17,509 -
Add excess of cost over par value of shares issued for
associate stock purchase plan and management
incentive plan 3,792 2,697 19,743
Deduct other 55 68 -
End of year 983,285 910,009 875,328
Total shareholders' equity $ 1,057,461 984,965 952,179
* 53 Weeks
See accompanying notes to consolidated financial statements.
</TABLE>
F-8
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1.Summary of Significant Accounting Policies.
(a) Fiscal Year: The fiscal year ends on the last Wednesday in June.
The fiscal year ended 1994 comprised 52 weeks, fiscal year 1993
comprised 53 weeks and fiscal year 1992 comprised 52 weeks.
(b) Basis of Consolidation: The consolidated financial statements
include the accounts of Winn-Dixie Stores, Inc. and its
subsidiaries which operate as a major food retailer in the
southeastern and southwestern United States and the Bahamas
Islands. Effective June 30, 1993, the Company consolidated its
Bahamas statements of earnings in accordance with generally
accepted accounting principles. This investment had previously
been accounted for using the cost method. The retroactive
consolidation of the Bahamas operating results did not have a
significant impact on the statements of earnings for all years
presented. Accordingly, the 1993 and prior statements of earnings
have not been restated and the previously unrecorded earnings have
been recorded directly to retained earnings.
(c) Cash and Cash Equivalents: Cash equivalents consist of highly
liquid investments with a maturity of three months or less when
purchased. Cash and cash equivalents are stated at cost plus
accrued interest, which approximates market.
(d) Short-Term Investments: Short-term investments consist of highly
liquid investments with a maturity of more than three months when
purchased. The Company uses these short-term investments in its
cash management program. Short-term investments are stated at
cost plus accrued interest, which approximates market.
(e) Inventories: Inventories are stated at the lower of cost or
market. The "dollar value" last-in, first-out (LIFO) method is
used to determine the cost of approximately 92% of inventories
consisting primarily of merchandise in stores and distribution
warehouses. Manufacturing and produce inventories are valued at
the lower of first-in, first-out (FIFO) cost or market. Elements
of cost included in manufacturing inventories consist of material,
direct labor and plant overhead.
(f) Fair Value of Financial Instruments: The carrying amount of the
following financial instruments approximates fair value because of
their short-term maturity: cash and cash equivalents; short-term
investments; trade and other receivables; short-term borrowings;
accounts payable and other accruals. See note 6 (b) for
information on interest rate swap agreements.
(g) Income Taxes: In the fourth quarter of 1992, the Company adopted
Statement of Financial Accounting Standards Number 109,
"Accounting for Income Taxes" (Statement No. 109), which requires
a change from the deferred method to the asset and liability
method of accounting for income taxes. Under the asset and
liability method, deferred tax assets and liabilities are
recognized for the estimated future tax consequences attributable
to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases.
Deferred tax assets and liabilities are measured using the enacted
tax rates in effect for the year in which those temporary
differences are expected to be recovered or settled. The
cumulative effect of the change in method of accounting has been
reported in the 1992 consolidated statement of earnings.
(h) Self-insurance: Self-insurance reserves are established for
automobile and general liability, workers' compensation, and
property loss costs based on claims filed and claims incurred but
not reported, with a maximum per occurrence of $2,000,000 for
automobile and general liability, $1,000,000 for workers'
compensation, $500,000 for property loss, other than windstorm and
flood, and $5,000,000 for damage due to windstorm and flood. The
Company is insured for insurance costs in excess of these limits.
(i) Depreciation and Amortization: Depreciation of plant and
equipment, which is stated at historical cost, is provided over
the estimated useful lives by the straight-line method or by
methods that produce results similar to the straight-line method.
Amortization of improvements to leased premises is provided
principally by the straight-line method over the periods of the
leases or the estimated useful lives of the improvements,
whichever is less.
(j) Store Opening Costs: The costs of opening new stores are charged
to earnings in the year incurred.
(k) Earnings Per Share: The number of shares used in the calculation
for 1994, 1993 and 1992 amounted to 74,644,036, 76,119,152 and
76,805,335, respectively, which is the weighted average number of
shares of common stock outstanding during each year.
2.Accounts Receivable.
Accounts receivable at year-end were as follows:
1994 1993
Amounts in thousands
Trade and other receivables $52,797 69,222
Construction advances 119,891 94,100
172,688 163,322
Less: Allowance for doubtful items 834 732
$ 171,854 162,590
3.Inventories.
At June 29, 1994, inventories valued by the LIFO method would have been
$205,172,000 higher ($207,201,000 higher at June 30, 1993) if they were
stated at the lower of FIFO cost or market. If the FIFO method
inventory valuation had been used for the year ended June 29, 1994,
reported net earnings would have been $1,088,000 or $0.01 per share
lower ($326,000 or $0.00 per share higher in 1993 and $7,113,000 or
$0.09 per share lower in 1992).
4.Property, Plant and Equipment.
Property, plant and equipment consists of the following:
1994 1993
Amounts in thousands
Land $ 2,724 2,733
Buildings 23,949 25,825
Furniture, fixtures, machinery and equipment 1,537,928 1,431,596
Transportation equipment 104,914 100,045
Improvements to leased premises 267,333 230,494
Construction in progress 45,329 32,770
1,982,177 1,823,463
Less: Accumulated depreciation and amortization 1,342,474 1,305,756
639,703 517,707
Leased property under capital leaes, less
accumulated amortization of
$41,429,000 ($39,697,000 in 1993) 67,076 68,926
Net property, plant and equipment $ 706,779 586,633
The Company had non-cash additions to leased property of $10.3 million,
$1.4 million and $2.9 million for 1994, 1993 and 1992, respectively.
5.Income Taxes.
As discussed in Note 1(g), the Company adopted Statement No. 109 as of
June 27, 1991. The cumulative effect of this change in accounting for
income taxes of $20,485,000 was determined as of June 27, 1991 and is
reported separately in the consolidated statement of earnings for the
year ended June 24, 1992. The cumulative effect of applying Statement
No. 109 reduced earnings for 1992, which resulted from reducing the net
deferred tax assets previously recorded for decreases in the historical
tax rates. This accounting change had no impact on the cash flows of
the Company. The accounting change did not have a significant impact on
the 1992 provision for income taxes.
The provision for income taxes consisted of:
Current Deferred Total
Amounts in thousands
1994
Federal $ 108,163 (217) 107,946
State 19,805 4,631 24,436
$ 127,968 4,414 132,382
1993
Federal $ 104,006 7,808 111,814
State 12,872 2,598 15,470
$ 116,878 10,406 127,284
1992
Federal $ 119,006 (16,602) 102,404
State 8,785 371 9,156
$ 127,791 (16,231) 111,560
The following reconciles the above provision to the Federal
statutory income tax rate:
1994 1993 1992
Federal statutory income tax rate 35.0 % 34.0 34.0
State and local income taxes, net of
federal income tax benefits 3.8 2.9 2.4
Other tax credits (1.1) (0.6) (1.8)
Other, net 0.3 (1.3) (0.6)
38.0 % 35.0 34.0
The retroactive increase in the federal corporate income tax rate from
34% to 35%, enacted on August 10, 1993 and effective on January 1,
1993, resulted in additional income tax expense in fiscal 1994. This
increase in income tax expense was offset by an increase in prepaid
income taxes resulting from the federal corporate income tax rate
increase as required by Statement of Financial Accounting Standards
No. 109, "Accounting for Income Taxes."
The tax effects of temporary differences that give rise to significant portions
of the deferred tax assets and deferred liabilities at June 29, 1994,
June 30, 1993 and June 24, 1992 are presented below:
1994 1993 1992
Amounts in thousands
Deferred tax assets:
Reserve for insurance claims and self-insurance $ 61,766 62,264 64,060
Estimated loss on assets 372 - 5,097
Reserve for vacant store leases 11,248 8,971 10,996
Unearned promotional allowance 3,909 7,608 3,325
Reserve for accrued vacations 8,021 8,133 7,701
State net operating loss carryforwards 6,683 10,190 12,652
Excess of tax over book depreciation 9,283 9,406 9,475
Excess of book over tax rent expense 902 3,814 5,345
Excess of book over tax retirement expense 7,127 6,202 5,318
Uniform capitalization of inventory 4,418 4,080 4,160
Other, net 13,034 12,369 13,323
Total gross deferred tax assets 126,763 133,037 141,452
Less: Valuation allowance 6,325 6,406 6,403
Net deferred tax assets 120,438 126,631 135,049
Deferred tax liabilities:
Excess of book over tax depreciation (8,811) (6,879) (6,694)
Bahamas subsidiary foreign earnings (9,375) (8,967) -
Other, net (4,753) (8,872) (7,069)
Total gross deferred tax liabilities (22,939) (24,718) (13,763)
Net deferred tax assets $ 97,499 101,913 121,286
As discussed in Note 1 (b), the Company consolidated its Bahamas operations
effective June 30, 1993. The previously unrecorded earnings (net of deferred
income tax liability of $8,967,000) were recorded directly to retained earnings.
The valuation allowance for deferred tax assets as of June 27, 1991
was $6,932,000.
Current deferred income taxes of $56,475,000 and $54,229,000 for 1994 and 1993,
respectively, are included in the prepaid expenses in the accompanying
consolidated balance sheets.
The Company believes the results of future operations will generate sufficient
taxable income to realize the deferred tax assets.
6.Financing.
(a) Credit Arrangements: The Company has available a $200 million
Commercial Paper Program. As of June 29, 1994, there were no amounts
outstanding as compared to $80.0 million outstanding on June 30, 1993.
The Company also has short-term lines of credit totaling $250 million.
The lines of credit are available when needed during the year and are
renewable on an annual basis. The Company is not required to maintain
compensating bank balances in connection with these lines of credit.
As of June 29, 1994 there was $9.5 million outstanding under these
bank lines of credit. On June 30, 1993, there was no amount
outstanding under these bank lines of credit.
(b) Interest Rate Swap: The Company has entered into interest rate swap
agreements to reduce the impact of changes in rental payments which
are indexed to interest rate changes. At June 29, 1994, the Company
had outstanding two interest rate swap agreements, having a notional
principal amount of $50 million each, with an investment bank. These
agreements effectively change the Company's exposure on its leased
real estate with floating rental payments to fixed rental payments
based on an 8.0% interest rate. The interest rate swap agreements
mature in June, 1996 and June, 1998. The Company is exposed to
credit loss in the event of nonperformance by the other party to
these interest rate swap agreements. However, the Company does not
anticipate nonperformance by the counterpart.
Since current short-term interest rates are significantly below the
8% rate of these contracts at June 29, 1994, the estimated negative
value of these swaps was approximately $6.6 million.
7.Common Stock.
The Company has a stock purchase plan in effect for associates. Under the
terms of the Plan, the Company may grant options to associates to purchase
shares of the Company's common stock at a price at least 85% of the fair
market value at the date of grant. During fiscal year 1992, 556,224
shares of common stock were sold to associates at an aggregate price of
$19,189,728. There are 868,110 shares of the Company's common stock
available for the grant of options under the Plan.
8.Stock Options.
Under the Company's Key Employee Stock Option Plan adopted by the Board of
Directors on January 4, 1990 and approved by the shareholders on October
3, 1990, options to acquire up to 300,000 shares of common stock may be
granted to key employees at market. On January 24, 1990, options for
206,000 shares were granted at an exercise price of $28.50 per share. Of
the options granted, 103,000 became exercisable on June 26, 1991 and
103,000 became exercisable on June 24, 1992. Options under this plan
expire on December 31, 1996.
On October 7, 1992, the shareholders approved an amendment to the
Company's Key Employee Stock Option Plan to increase the number of shares
of common stock available for issuance to 500,000 shares. Under this plan
adopted by the Board of Directors on June 22, 1992, options to acquire
113,000 shares of common stock were granted to key employees at an
exercise price of $42.125 per share. Of the options granted, 56,500
became exercisable on June 30, 1993. The remaining 56,500 became
exercisable on June 29, 1994. Options under this plan expire on December
31, 1998.
On June 22, 1994, the Board of Directors, subject to shareholders
approval, adopted an amendment to the Company's Key Employee Stock Option
Plan to increase the number of shares of common stock available for
issuance to 1,000,000 shares. Under this plan, options to acquire 233,000
shares at an exercise price of $44.875 per share were granted to key
employees. Of the options granted, 116,500 shares are not exercisable
before June 28, 1995 and the remaining 116,500 shares are not exercisable
before June 27, 1996, if earned. These options expire on January 15,
2001.
Changes in options under these plans during the years ended June 29, 1994,
June 30, 1993 and June 24, 1992 were as follows:
Number of Option Price
Shares Per Share
Outstanding - June 26, 1991 206,000 $28.500
Granted -
Exercised -
Canceled -
Outstanding - June 24, 1992 206,000 $28.500
Granted 113,000 $42.125
Exercised (74,000) $28.500
Canceled -
Outstanding - June 30, 1993 245,000 $28.500-42.125
Granted 233,000 $44.875
Exercised -
Canceled -
Outstanding - June 29, 1994 478,000 $28.500-44.875
Exercisble - June 29, 1994 245,000 $28.500-44.875
Shares available for additional grant 448,000
9. Leases.
(a) Leasing Arrangements: There were 1,353 leases in effect on store
locations and other properties at June 29, 1994. Of these 1,353
leases, 70 store leases and 3 warehouse and manufacturing facility
leases are classified as capital leases. Substantially all store
leases will expire during the next twenty years and the warehouse
and manufacturing facility leases will expire during the next thirty
years. However, in the normal course of business, it is expected
that these leases will be renewed or replaced by leases on other
properties.
The rental payments on substantially all store leases are based on a
minimum rental plus a contingent rental which is based on a per-
centage of the store's sales in excess of stipulated amounts. Most
of the Company's leases contain renewal options for five-year
periods at fixed rentals.
(b) Leases: The following is an analysis of the leased property under
capital leases by major classes:
Asset balances at
June 29, 1994 June 30, 1993
Amounts in thousands
Store facilities $ 82,844 80,265
Warehouses and manufacturing facilities 25,661 28,358
108,505 108,623
Less: Accumulated amortization 41,429 39,697
$ 67,076 68,926
The following is a schedule by year of future minimum lease
payments under capital and operating leases, together with the
present value of the net minimum lease payments as of June 29,
1994:
Capital Operating
Amounts in thousands
Fiscal Year:
1995 $ 15,230 200,868
1996 15,088 195,906
1997 14,719 191,798
1998 14,162 186,976
1999 13,711 181,838
Later years 129,514 1,540,703
Total minimum lease payments 202,424 2,498,089
Less: Amount representing estimated
taxes, maintenance and insurance
costs included in total minimum
lease payments 5,714
Net minimum lease payments 196,710
Less: Amount representing interest 107,874
Present value of net minimum lease payments $ 88,836
Rental payments under operating leases including, where
applicable, real estate taxes and other expenses are as follows:
1994 1993 1992
Amounts in thousands
Minimum rentals $ 190,830 187,055 179,655
Contingent rentals 3,352 4,282 4,257
$ 194,182 191,337 183,912
10. Commitments and Contingent Liabilities.
(a) Associate Benefit Programs: The Company has noncontributory,
trusteed profit-sharing retirement programs which are in effect for
eligible associates and may be amended or terminated at any time.
Charges to earnings for contributions to the programs amounted to
$54,212,000, $54,985,000 and $49,989,000 in 1994, 1993 and 1992,
respectively.
In addition to providing profit sharing benefits, the Company makes
group insurance available to early retirees from the time they
retire until age 65 when they qualify for Medicare/Medicaid.
Currently, the early retiree group constitutes 251 associates.
This group of retirees bear the entire costs of this plan, which is
maintained totally separate from the Company's regular group
insurance plan. The Company reserves the right to modify these
benefits.
(b) Defined Benefit Plan: The Company has a Management Security Plan
(MSP), which is a non-qualified defined benefit plan providing
disability, death and retirement benefits to 588 qualified
associates of the Company. Total MSP cost charged to operations was
$4,557,000, $3,992,000 and $3,868,000 in 1994, 1993 and 1992,
respectively. The projected benefit obligation at June 29, 1994 was
approximately $30,076,000. The effective discount rate used in
determining the net periodic MSP cost was 8.0% for 1994, 1993 and
1992.
Life insurance policies, which are not considered as MSP assets for
liability accrual computations, were purchased to fund the MSP pay-
ments. These insurance policies are shown on the balance sheet at
their cash surrender values, net of policy loans aggregating
$137,640,000 and $130,296,000 at June 29, 1994 and June 30, 1993,
respectively.
The Company holds life insurance on a broad-based group of qualified
associates. These insurance policies are shown on the balance sheet
at their cash surrender value, net of policy loans aggregating
$216,591,000 at June 29, 1994.
(c) Litigation: There are pending against the Company various claims
and lawsuits arising in the normal course of business, including
suits charging violations of certain civil rights laws.
The U.S. Environmental Protection Agency has notified the Company
that it is one of the many potentially responsible parties (PRPs)
for cleanup of two designated Superfund sites located in Tampa,
Florida, three such sites in Jacksonville (2 related sites) and one
site in Madison, Florida. The Company may be a PRP for cleanup of
one non-Superfund site in Tarrant County, Texas. Although cleanup
costs are believed to be substantial, accurate estimates will not
be available until studies have been completed at the sites.
The Company has entered into orders by consent with numerous other
PRPs to conduct studies and do cleanup for three of the
Superfund sites and is negotiating an agreement with PRPs who are
under an order at another Superfund site to determine the most
cost-effective way to clean up such sites. Although under federal
statutes the Company is jointly and severally liable for cleanup
costs at each location, the Company's share of total costs is
estimated not to exceed $350,000 for four of the Superfund sites
and the Texas site. The Company believes it is not a responsible
party for cleanup of the Madison, Florida, and Tarrant County,
Texas, sites and has no estimate of costs for those matters. Other
than these two and the New Mexico site mentioned below, these
involve wastes the Company paid to be properly disposed, and were
mishandled by disposal companies or public disposal sites.
At one of the Tampa sites, the Company is one of 14 parties named
as respondents in a Unilateral Administrative Order for Remedial
Design and Remedial Action under 47 U.S.C. Section 9606(a) relating
to a disposal site formerly operated by Hillsborough County,
Florida. The parties are ordered to operate, maintain and monitor
a water cleaning system and perform Remedial Design for the site.
The costs to the Company are estimated at $150,000 in fiscal year
1994 with substantial credits for this year, with additional annual
costs for an indefinite period thereafter.
The Company is also involved in the cleanup of a fuel tank leak at
a New Mexico site formerly owned by it. The cleanup costs are to
be prorated with others on the basis of the total time of ownership
of the participants. The Company's share is 15% of the total costs
estimated to be less than $150,000, with minimal annual monitoring
costs thereafter.
It is the Company's policy to accrue and charge against earnings,
the environmental cleanup costs when it is probable that a
liability has been incurred and an amount can be reasonably
estimated, including evaluation of the other PRPs' ability to pay.
The Company believes its ultimate liability as to these
environmental matters will not necessitate significant capital
outlays, will not materially affect the annual earnings of the
Company, nor cause material changes in the Company's business. It
is not possible to quantify future environmental costs because many
issues relate to actions by third parties or changes in
environmental regulation.
Although the amount of liability with respect to all other claims
and lawsuits cannot be ascertained, management is of the opinion
that any resulting liability will not have a material affect on
the Company's consolidated earnings or financial position.
11. Related Party Transactions.
The Company is essentially self-insured for purposes of employee group
life, medical, accident and sickness insurance, with The American
Heritage Life Insurance Company, a related party, providing
administrative services and expenses for medical and accident claims.
The American Heritage Life Insurance Company also financed the
development and expansion of certain retail stores. Total payments
aggregating $15,109,000, $34,108,000 and $23,329,000 were made in
1994, 1993 and 1992, respectively.
12. Quarterly Results of Operations (Unaudited).
<TABLE>
<CAPTION>
The following is a summary of the unaudited quarterly results of operations for the years ended June
29, 1994, June 30, 1993 and June 24, 1992
Quarters Ended
Sept. 22 Jan. 12 April 6 June 29
1994 (12 Weeks) (16 Weeks) (12 Weeks) (12 Weeks)
Dollars in thousands except per share data
<S> <C> <C> <C> <C>
Net sales $ 2,464,440 3,380,986 2,651,491 2,585,252
Gross profit on sales $ 556,085 766,461 603,914 608,028
Net earnings $ 35,951 63,781 52,032 64,353
Earnings per share $ 0.48 0.85 0.70 0.87
Net LIFO charge (credit) $ 1,690 2,253 1,690 (6,721)
Net LIFO charge (credit) per share $ 0.02 0.03 0.02 (0.08)
Dividends per share $ 0.24 0.48 0.36 0.36
Market price range $67.75-56.00 60.38-49.00 58.38-48.25 52.25-43.50
</TABLE>
<TABLE>
<CAPTION>
Quarters Ended
Sept. 16 Jan. 6 March 31 June 30
1993 (12 Weeks) (16 Weeks) (12 Weeks) (13 Weeks)
Dollars in thousands except per share data
<S> <C> <C> <C> <C>
Net sales $ 2,392,129 3,244,672 2,504,214 2,690,520
Gross profit on sales $ 531,506 726,066 566,615 621,936
Net earnings $ 33,377 63,031 57,199 82,778
Earnings per share $ 0.44 0.82 0.75 1.10
Net LIFO charge (credit) $ 1,688 2,405 1,688 (5,455)
Net LIFO charge (credit) per share $ 0.02 0.03 0.02 (0.07)
Dividends per share $ 0.22 0.44 0.33 0.33
Market price range $58.63 - 41.63 79.50 - 57.50 79.75 - 66.75 67.38 - 52.75
</TABLE>
<TABLE>
<CAPTION>
Quarters Ended
Sept. 18 Jan. 8 April 1 June 24
1992 (12 Weeks) (16 Weeks) (12 Weeks) (12 Weeks)
Dollars in thousands except per share data
<S> <C> <C> <C> <C>
Net sales $ 2,333,880 3,159,289 2,433,041 2,411,131
Gross profit on sales $ 515,675 700,884 556,205 587,734
Earnings before income taxes and
cumulative effect of a change
in accounting principle $ 40,385 81,535 81,678 124,381
Cumulative effect of a change in
accounting principle $ 20,485 - - -
Net earnings $ 6,169 53,813 53,908 82,044
Earnings per share:
Earnings before cumulative
effect of a change
in accounting principle $ 0.35 0.70 0.70 1.07
Cumulative effect of a change in
accounting principle $ (0.27) - - -
Net earnings $ 0.08 0.70 0.70 1.07
Net LIFO charge (credit) $ 3,688 4,750 2,500 (18,051)
Net LIFO charge (credit) per share $ 0.05 0.06 0.04 (0.24)
Dividends per share $ 0.20 0.40 0.30 0.30
Market price range $39.38 - 34.63 39.88 - 35.50 44.63 - 35.75 44.63 - 40.00
</TABLE>
As discussed in Note 1 (g), the Company adopted Statement No. 109. The first
quarter results have been restated to reflect the cumulative effect of
this change in accounting principle.
During 1994, 1993 and 1992, the fourth quarter results reflect a change from
the estimate of inflation used in the calculation of LIFO inventory to the
actual rate experienced by the Company of 1.0% to 0.1%, 1.0% to 0.1% and 2.3%
to (0.6)%, respectively.
<TABLE>
<CAPTION>
Fourth Quarter Results of Operations
June 29, 1994 June 30, 1993 June 24, 1992
(12 Weeks) (13 Weeks) (12 Weeks)
Amounts in thousands
<S> <C> <C> <C>
Net sales $ 2,585,252 2,690,520 2,411,131
Cost of sales 1,977,224 2,068,584 1,823,397
Gross profit on sales 608,028 621,936 587,734
Operating and administrative expenses 522,057 523,780 499,290
Operating income 85,971 98,156 88,444
Cash discounts and other income, net 19,166 32,774 38,682
Interest expense (1,411) (3,579) (2,745)
Earnings before income taxes 103,726 127,351 124,381
Income taxes 39,373 44,573 42,337
Net earnings $ 64,353 82,778 82,044
</TABLE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
ON FINANCIAL STATEMENT SCHEDULES
The Shareholders and Board of Directors
Winn-Dixie Stores, Inc.:
Under date of August 1, 1994, we reported on the consolidated balance sheets of
Winn-Dixie Stores, Inc. and subsidiaries as of June 29, 1994 and June 30, 1993,
and the related consolidated statements of earnings, shareholders' equity,
and cash flows for each of the years in the three-year period ended June 29,
1994, as contained in the annual report on Form 10-K for the year 1994. In
connection with our audits of the aforementioned consolidated financial
statements, we also audited the related financial statement schedules as listed
in the accompanying index on page 13 of the annual report on Form 10-K for
the year 1994. These financial statement schedules are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statement schedules based on our audits.
In our opinion, the related financial statement schedules, when considered in
relation to the basic consolidated financial statements taken as a whole,
present fairly, in all material respects, the information set forth therein.
KPMG Peat Marwick LLP
Certified Public Accountants
Jacksonville, Florida
August 1, 1994
S-1
<PAGE>
<TABLE>
<CAPTION>
Schedule V
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Consolidated Property, Plant and Equipment
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
(Amounts in thousands)
Balance at Additions Deductions Balance at
beginning charged to Retirements end
Classification of year purchases or sales Other of year
<S> <C> <C> <C> <C> <C>
Year ended June 29, 1994:
Land $ 2,733 - 9 - 2,724
Buildings 25,825 41 1,917 - 23,949
Furniture, fixtures, machinery and equipment 1,431,596 210,797 104,465 - 1,537,928
Transportation equipment 100,045 10,499 5,630 - 104,914
Improvements to leased premises 230,494 50,260 13,421 - 267,333
Construction in progress 32,770 12,559 - - 45,329
$ 1,823,463 284,156 125,442 - 1,982,177
Leased property under capital leases $ 108,623 10,296 10,414 - 108,505
Year ended June 30, 1993:
Land $ 1,897 836 - - 2,733
Buildings 20,234 5,591 - - 25,825
Furniture, fixtures, machinery and equipment 1,348,083 157,604 85,227 (11,136) 1,431,596
Transportation equipment 93,699 9,914 4,226 (658) 100,045
Improvements to leased premises 212,522 33,536 17,175 (1,611) 230,494
Construction in progress 39,635 - 6,865 - 32,770
$ 1,716,070 207,481 113,493 (13,405) 1,823,463
Leased property under capital leases $ 113,440 1,363 6,180 - 108,623
Year ended June 24, 1992:
Land $ 1,821 76 - - 1,897
Buildings 19,130 1,130 26 - 20,234
Furniture, fixtures, machinery and equipment 1,276,901 120,156 48,974 - 1,348,083
Transportation equipment 89,977 8,928 5,206 - 93,699
Improvements to leased premises 190,518 31,767 9,763 - 212,522
Construction in progress 33,084 6,551 - - 39,635
$ 1,611,431 168,608 63,969 - 1,716,070
Leased property under capital leases $ 117,410 2,863 6,833 - 113,440
</TABLE>
S-2
<PAGE>
<TABLE>
<CAPTION>
Schedule VI
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Consolidated Accumulated Depreciation and Amortization of Property, Plant and Equipment
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
(Amounts in thousands)
Balance at Additions Deductions Balance at
beginning charged to Retirement end
Classification of year income or sales Other of year
<S> <C> <C> <C> <C> <C>
Year ended June 29, 1994:
Buildings $ 10,833 801 1,375 - 10,259
Furniture, fixtures, machinery and equipment 1,085,612 122,604 100,233 - 1,107,983
Transportation equipment 87,121 8,780 5,451 - 90,450
Improvements to leased premises 122,190 23,475 11,883 - 133,782
$ 1,305,756 155,660 118,942 - 1,342,474
Leased property under capital leases $ 39,697 1,732 - - 41,429
Year ended June 30, 1993:
Buildings $ 10,081 752 - - 10,833
Furniture, fixtures, machinery and equipment 1,052,132 106,940 82,004 (8,544) 1,085,612
Transportation equipment 82,327 8,382 4,093 (505) 87,121
Improvements to leased premises 115,880 20,491 14,701 (520) 122,190
$ 1,260,420 136,565 100,798 (9,569) 1,305,756
Leased property under capital leases $ 39,972 4,571 4,846 - 39,697
Year ended June 24, 1992:
Buildings $ 9,426 655 - - 10,081
Furniture, fixtures, machinery and equipment 1,004,495 94,751 47,114 - 1,052,132
Transportation equipment 80,061 7,333 5,067 - 82,327
Improvements to leased premises 104,204 19,319 7,643 - 115,880
$ 1,198,186 122,058 59,824 - 1,260,420
Leased property under capital leases $ 36,915 4,826 1,769 - 39,972
</TABLE>
S-3
<PAGE>
<TABLE>
<CAPTION>
WINN-DIXIE STORES, INC. AND SUBSIDIARIES Schedule VIII
Consolidated Valuation and Qualifying Accounts
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
(Amounts in thousands)
Balance at Additions Deductions Balance at
beginning charged to from end
Description of year Income reserves of year
Year ended June 29, 1994:
<S> <C> <C> <C> <C>
Reserves deducted from assets to which they apply:
Allowance for doubtful receivables $ 732 12,126 12,024 834
Reserves not deducted from assets:
Reserves for insurance claims and self-insurance:
-Current $ 65,134 77,488 82,112 60,510
-Noncurrent 100,169 5,248 - 105,417
$ 165,303 82,736 82,112 165,927
Year ended June 30, 1993:
Reserves deducted from assets to which they apply:
Allowance for doubtful receivables $ 613 9,631 9,512 732
Reserves not deducted from assets:
Reserves for insurance claims and self-insurance:
-Current $ 61,641 96,507 93,014 65,134
-Noncurrent 105,965 - 5,796 100,169
$ 167,606 96,507 98,810 165,303
Year ended June 24, 1992:
Reserves deducted from assets to which they apply:
Allowance for doubtful receivables $ 912 10,507 10,806 613
Reserves not deducted from assets:
Reserves for insurance claims and self-insurance:
-Current $ 77,737 69,930 86,026 61,641
-Noncurrent 80,609 25,356 - 105,965
$ 158,346 95,286 86,026 167,606
</TABLE>
S-4
<PAGE>
<TABLE>
<CAPTION>
Schedule IX
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Short-Term Borrowings
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
(Amounts in thousands)
Balance at Weighted Maximum amount Average amount Weighted average
Category of aggregate end of average outstanding outstanding interest rate
short-term borrowings year interest rate during year during year during year (A)
<S> <C> <C> <C> <C> <C>
Year ended June 29, 1994:
Bank lines of credit $ 9,500 4.43 % $ 35,500 $ 3,000 3.46 %
Commercial paper $ - - 140,000 87,000 3.35
Year ended June 30, 1993:
Bank lines of credit $ - - % $ 40,500 $ 2,900 3.47 %
Commercial paper $ 80,000 3.26 180,000 59,200 3.40
Year ended June 24, 1992:
Bank lines of credit $ - - % $ 42,000 $ 6,600 5.30 %
Commercial paper $ - - 30,000 1,800 4.55
(A) Weighted average based on
number of days debt outstanding
</TABLE>
S-5
<PAGE>
Revised 6/22/94
BY-LAWS
OF
WINN-DIXIE STORES, INC.
* * * * * * * * * * * *
ARTICLE I.
Offices
Section 1. Registered Office and Principal Office: The
registered office and principal office of the Corporation shall
be located at 5050 Edgewood Court, in the City of Jacksonville,
County of Duval, and State of Florida.
Section 2. Registered Agent: The registered agent of the
Corporation shall be located at the registered office of the
Corporation in the State of Florida and shall be designated by
resolution of the Board of Directors.
Section 3. Other Offices: The Corporation may have other
offices, either within or outside of the State of Florida, at
such place or places as the Board of Directors may from time to
time designate or the business of the Corporation may require.
ARTICLE II.
Seal
Section 1. The corporate seal shall be circular in form and
shall have inscribed thereon the name of the Corporation, the
year of its incorporation (1928) and the words "Corporate Seal,
Florida."
Section 2. The Secretary shall be the custodian of the Seal
and shall affix the same to all writings and documents requiring
the Seal of the Company as authorized by the Board of Directors.
ARTICLE III.
Meetings of Stockholders
Section 1. Place: All meetings of the stockholders shall
be held at the principal office of the Corporation in the City of
Jacksonville, County of Duval and State of Florida, or at such
other place, within or without the State of Florida, as may be
designated by the Board of Directors and stated in the notice of
meeting.
Section 2. Annual Meeting: The annual meeting of
stockholders shall be held at 9:00 o'clock A.M. on the first
Wednesday in October each year, or at such other time and on such
other date as the Board of Directors may determine, for the
election of Directors and for the transaction of such other
business as may be brought before the meeting.
Any general business pertaining to the affairs of the
Corporation may be transacted at the Annual Meeting without
special notice.
The directors elected at the annual meeting shall be elected
by plurality vote of the stockholders entitled to vote and
present or duly represented at such meeting.
Section 3. Special Meetings: Special meetings of the
stockholders may be called at any time by the Chairman of the
Board, or by the Board of Directors. The Corporation shall hold
a special meeting of stockholders if the holders of not less than
thirty percent (30%) of all votes entitled to vote on any issue
proposed to be considered at the proposed special meeting shall
sign, date and deliver to the Corporation's Secretary one or more
written demands for the meeting describing the purpose or
purposes for which it is to be held. Only business within the
purpose or purposes described in the special meeting notice may
be conducted at a special stockholders' meeting.
Section 4. Notice: The Secretary shall notify stockholders
of the date, time and place of the Annual Meeting no fewer than
ten (10) or more than sixty (60) days before the meeting date,
and shall send each holder of record of stock entitled to vote at
such meeting, at the stockholder's address as it appears in the
Corporation's current record of stockholders, a notice of such
annual meeting, by mail postage prepaid, stating the time and
place of such meeting. A similar notice shall be given by the
Secretary of all special meetings, and in addition to the
requirements for notice of annual meeting, the notice for special
meetings shall include a description of the purpose or purposes
for which the meeting is called; PROVIDED, HOWEVER, that any
action taken at an annual or special meeting of stockholders may
be taken without a meeting, without prior notice, and without a
vote, if (i) the action is taken by the holders of outstanding
stock entitled to vote thereon having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting, (ii) the approving stockholders shall sign a
written consent authorizing such action and deliver such consent
to the Corporation as provided in Section 607.0704, Florida
Business Corporation Act, and (iii) within ten (10) days after
such authorization by written consent is obtained, notice shall
be given those stockholders who have not consented in writing
pursuant to provisions of Section 607.0704(3) of the Florida
Business Corporation Act.
Section 5. Waiver of Notice: A stockholder may waive
notice of any meeting before or after the date and time stated in
the notice. The waiver must be in writing, signed by the
stockholder and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A stockholder's
attendance, in person or by proxy, at a meeting (i) waives
objection to lack of notice or defective notice of the meeting,
unless the stockholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, or
(ii) waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes described
in the meeting notice, unless the stockholder objects to
considering the matter when it is presented.
Section 6. Quorum: The holders of a majority of the issued
and outstanding shares of Capital Stock of the Company entitled
to vote at the meeting, represented in person or by proxy, shall
constitute a quorum for the transaction of business at all
meetings of the stockholders except as may be otherwise provided
by law or the Articles of Incorporation. The holders of a
majority of shares represented, and who would be entitled to vote
at a meeting if a quorum were present, where a quorum is not
present, may adjourn such meeting from time to time.
Once a share is represented for any purpose at the meeting,
it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new
record date is set for the adjourned meeting.
Section 7. Proxies: Any stockholder entitled to vote at
any meeting of stockholders may be represented and vote at such
meeting by proxy duly authorized by written appointment signed by
such stockholder or duly authorized attorney-in-fact. An
executed telegram or cablegram appearing to have been transmitted
by such person, or a photographic, photostatic or equivalent
reproduction of an appointment form, is a sufficient appointment
form. An appointment by proxy is valid for 11 months from date
of execution unless a longer date is expressly provided in the
appointment form.
Section 8. Voting of Shares: Unless otherwise provided in
the Articles of Incorporation or these By-Laws, each outstanding
share entitled to vote shall be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders. If a
quorum exists, action on a matter is approved if the votes cast
by the stockholders entitled to vote favoring the action exceeds
the votes cast opposing the action, unless a greater vote is
required by Law, the Articles of Incorporation or these By-Laws.
If prior to the voting for the election of directors, demand
shall be made by or on behalf of any shares entitled to vote at
such meeting, the election of directors shall be by ballot.
Section 9. Voting Lists: The Secretary shall prepare, at
least ten (10) days before each meeting of stockholders, an
alphabetical list of the stockholders entitled to notice of the
meeting, which shall show the address of and the number of shares
held by each stockholder. Any stockholder, his attorney or
agent, on written demand as provided by statute may inspect the
list during regular business hours at his expense during the
period it is available for inspection. The list shall be open
for examination of any stockholder, or his attorney or agent, at
the place where the meeting is to be held for ten (10) days prior
to such meeting and shall be kept available for inspection by any
stockholder at any time during the meeting.
ARTICLE IV.
Directors
Section 1. Powers: All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, the Board of
Directors.
Section 2. Classification of Board and Number of Directors:
The Board of Directors shall consist of twelve (12) members who
shall be divided into three classes, with the number of directors
in each class to be as nearly equal as possible. At each annual
meeting of stockholders, one class of directors shall be elected
for three-year terms and until their successors shall be duly
elected and shall qualify. The number of directors shall be
fixed by the Board of Directors.
Section 3. Term of Office: Any Director may be elected to
serve for one or more years (not exceeding three years) and until
his successor is chosen and qualified.
Section 4. Vacancies: Any vacancies in the Board of
Directors shall be filled in accordance with the provisions of
Article NINTH of the Articles of Incorporation. An increase in
the number of Directors shall create vacancies for the purpose of
this section.
Section 5. Removal: The Board of Directors or any
individual director may be removed from office only in accordance
with the provisions of Article NINTH of the Articles of
Incorporation.
Section 6. Meetings: The Board of Directors shall meet
immediately after the Annual Meeting of Stockholders at the same
place as the Annual Meeting of Stockholders.
Regular meetings of the Board of Directors may be held
without notice of the date, time, place or purpose of the
meeting.
Special meetings of the Board of Directors may be called by
the Chairman of the Board or by the President, and shall be
called by the Chairman of the Board or Secretary upon the written
request of not less than three (3) Directors. Notice of special
meetings may be communicated in person or by mail to each
Director at least three (3) days in advance, or by telephone,
telegraph, teletype or other form of electronic communication to
each Director at least twenty-four (24) hours in advance of the
meeting. Such notice shall specify the time and place of
meeting.
Any or all Directors may participate in a regular or special
meeting by, or conduct the meeting through the use of, any means
of communication by which all Directors participating may
simultaneously hear each other during the meeting.
Section 7. Place of Meetings: Until otherwise prescribed,
the regular meetings of the Board of Directors shall be held in
the City of Jacksonville, Florida, at the office of the Company
or at such other place as may be agreed upon by the Board. The
Board of Directors may hold Special Meetings and may have one or
more offices and may keep the books of the Corporation (except
such books as are required by Law to be kept within the State of
Florida) either within or outside of the State of Florida, at
such place or places as it may from time to time determine.
Section 8. Quorum: Unless the Articles of Incorporation or
these By-Laws provide otherwise, a majority of the number of
Directors fixed by the By-Laws shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
ARTICLE V.
Officers
Section 1. Election: The officers of the Corporation shall
be a Chairman of the Board of Directors, a President, an
Executive Vice President, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board of
Directors, one or more Vice Chairmen of the Board of Directors,
one or more Senior Vice Presidents, one or more Vice Presidents,
one or more Assistant Secretaries and one or more Assistant
Treasurers as may from time to time be elected by the Board of
Directors. None of these officers, except the President, the
Chairman of the Board of Directors, and the Vice Chairman or Vice
Chairmen of the Board of Directors, need be a Director. The
officers shall be elected by the Board of Directors at the first
meeting of the Board after each Annual Meeting.
Section 2. Hold Two Offices: Any officer may hold more
than one office, except that the Chairman of the Board of
Directors and the President shall not be the Secretary or an
Assistant Secretary of the Corporation; but no officer shall
execute, acknowledge or verify any instrument in more than one
capacity, if such instrument be required by law or these By-Laws
to be executed, acknowledged or verified by any two or more
officers.
Section 3. Term of Office: The officers shall hold office
for one year and until their successors are chosen and qualify.
Any vacancy occurring among the officers shall be filled by the
Board of Directors, but the person so elected to fill the vacancy
shall hold office only until the first meeting of the Board of
Directors after the next Annual Meeting of stockholders and until
his successor is chosen and qualifies.
Section 4. Agents: The Board of Directors may appoint such
agents as it may deem necessary, who shall hold their offices for
such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of
Directors.
Section 5. Removal: Any officer chosen by the Board of
Directors may be removed with or without cause at any time by the
affirmative vote of a majority of the Board of Directors.
Section 6. Voting Shares in Other Corporations: The
Corporation may vote any and all shares held by it in any other
corporation by such officer, agent or proxy as the Board of
Directors may appoint, or, in default of any such appointment, by
the Chairman of the Board or the President.
ARTICLE VI.
The Chairman and Vice Chairmen
of the Board of Directors
Section 1. The Chairman of the Board of Directors:
(a) Duties and Responsibilities: The Chairman of the
Board of Directors shall be the Principal Executive Officer of
the Corporation, and shall have general management and control of
the business and affairs of the Corporation. Except where by law
the signature of the President is required, the Chairman of the
Board shall possess the same powers as the President to sign all
certificates, contracts and other instruments of the Corporation
which may be authorized by the Board of Directors. The Chairman,
if present, shall preside at all meetings of the stockholders and
the Board of Directors, and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
The Chairman shall perform such other duties as may be prescribed
by the Board of Directors.
(b) Annual Reports: The Chairman of the Board of
Directors or the President shall, annually, make a full report to
the stockholders, at the annual meeting of stockholders, of the
condition of the Company, its resources, liabilities, loans,
profits and general financial condition, which report shall be
for the fiscal year ending on the last Wednesday in the month of
June of each year before such annual meeting.
Section 2. Vice Chairmen of the Board of Directors:
The Vice Chairman of the Board of Directors, if there shall
be such an officer, shall, if present, preside at all meetings of
the Board of Directors at which the Chairman of the Board of
Directors shall not be present. If two Vice Chairmen of the
Board of Directors are elected, the one designated by the Board
of Directors shall preside at meetings of the Board of Directors
in the absence of the Chairman. The Vice Chairman or Vice
Chairmen of the Board of Directors shall have such other powers
and perform such other duties as may be prescribed for them by
the Board of Directors or the By-Laws.
ARTICLE VII.
The President
The President shall have active supervision and direction of
operations of the business and affairs of the Corporation. The
President shall sign or countersign all bonds, mortgages,
certificates, contracts or other instruments in behalf of the
Corporation as authorized by the Board of Directors, and shall
perform any and all other duties as are incident to the office of
the President or as may be required by the Board of Directors.
The President shall have general supervision and direction of all
the other officers, employees and agents of the Corporation.
ARTICLE VIII.
The Executive Vice President,
Senior Vice Presidents and Vice Presidents
Section 1. The Executive Vice President shall, in the
absence or disability of the President, perform the duties and
exercise the powers of the President, and shall perform such
other duties as the Board of Directors shall prescribe.
Section 2. Senior Vice Presidents, if any such officers
shall have been elected, shall in the absence of the President
and Executive Vice President, in the order designated by the
President or, failing such designation, by the Board of
Directors, perform the duties and exercise the powers of the
President. Senior Vice Presidents and other Vice Presidents
shall have such powers and perform such duties as may be assigned
to them from time to time by the Board of Directors or the
President.
ARTICLE IX.
The Treasurer
Section 1. Chief Accounting Officer: The Treasurer shall
be the Chief Accounting Officer of the Corporation.
Section 2. Accounting Supervision: The Treasurer shall
have general supervision of and responsibility for all accounting
matters affecting the Corporation and shall perform such other
duties as may be prescribed by the Board of Directors or by the
President.
Section 3. Custody of Funds: The Treasurer shall have the
custody of the corporate funds and securities, and shall keep
full and accurate account of receipts and disbursements in books
belonging to the Corporation. He shall deposit all moneys and
other valuables in the name and to the credit of the Corporation
in such depositaries as may be designated by the Board of
Directors.
Section 4. Disbursements: The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements. He
shall render to the President and Directors at the regular
meetings of the Board of Directors, or whenever they may request
it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
Section 5. Bond: He shall give the Corporation a bond if
required by the Board of Directors, in a sum and with one or more
sureties satisfactory to the Board of Directors, for the faithful
performance of the duties of his office and for the restoration
to the Corporation in case of his death, resignation, retirement
or removal from office of all books, papers, vouchers,
securities, moneys and other property of whatever kind in his
possession or under his control belonging to the Corporation.
ARTICLE X.
The Secretary
The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and shall record
all votes and the minutes of all proceedings in a book to be kept
for that purpose and shall perform like duties for the standing
committees when required. He shall give or cause to be given
notice of all meetings of the stockholders and of the Board of
Directors, and he shall perform such other duties as may be
prescribed by the Board of Directors, Chairman of the Board or
the President.
ARTICLE XI.
Assistant Treasurers and Assistant Secretaries
The Assistant Treasurers and Assistant Secretaries shall
perform such duties as may be prescribed hereunder, or by the
Board of Directors, or by the President.
In the absence or disability of the Treasurer, his duties
may be performed by any Assistant Treasurer.
In the absence or disability of the Secretary, his duties
may be performed by any Assistant Secretary.
ARTICLE XII.
Duties of Officers may be Delegated
In case of the absence or disability of any officer of the
Corporation, or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors, by majority vote,
may delegate for the time being the powers or duties or any of
them of such officer to any other officer or to any Director or
to any other person.
ARTICLE XIII.
Indemnification
Section 1. The Corporation shall indemnify to the fullest
extent permitted by Law any person who was or is a party to any
proceeding (other than an action by, or in the right of, the
Corporation) by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against liability incurred in
connection with such proceeding, including any appeal thereof, if
he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, or
conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. The Corporation shall indemnify to the fullest
extent permitted by Law any person, who was or is a party to any
proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee, or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses and
amounts paid in settlement not exceeding, in the judgment of the
Board of Directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding,
including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best
interests of the Corporation, except that no indemnification
shall be made under this subsection in respect of any claim,
issue, or matter as to which such person shall have been adjudged
to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall
deem proper.
Section 3. To the extent that a director, officer,
employee, or agent of the Corporation has been successful on the
merits or otherwise in defense of any proceeding referred to in
Section 1 or Section 2, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses actually
and reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Section 1 or Section
2, unless pursuant to a determination by a court, shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 1 or
Section 2. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if
obtainable, by majority vote of a committee duly designated by
the Board of Directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel:
(i) Selected by the Board of Directors prescribed in
paragraph (a) or the committee prescribed in paragraph (b); or
(ii) If a quorum of the directors cannot be obtained
for paragraph (a) and the committee cannot be designated under
paragraph (b), selected by majority vote of the full Board of
Directors (in which directors who are parties may participate; or
(d) By the stockholders by a majority vote of a quorum
consisting of stockholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of stockholders who were not parties to such proceeding.
Section 5. Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner
as the determination that indemnification is permissible.
However, if the determination of permissibility is made by
independent legal counsel, persons specified by Section 4(c)
shall evaluate the reasonableness of expenses and may authorize
indemnification.
Section 6. Expenses incurred by an officer or director in
defending a civil or criminal proceeding may be paid by the
Corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if he is ultimately
found not to be entitled to indemnification by the Corporation
pursuant to this section. Expenses incurred by other employees
and agents may be paid in advance upon such terms or conditions
that the Board of Directors deems appropriate.
Section 7. The indemnification and advancement of expenses
provided pursuant to this section are not exclusive, and the
Corporation may make any other or further indemnification or
advancement of expenses of any of its directors, officers,
employees, or agents, under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. However, indemnification or
advancement of expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other
final adjudication establishes that his actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his
conduct was unlawful;
(b) A transaction from which the director, officer,
employee, or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which
the liability provisions of Section 607.0834, Florida Statutes,
are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the Corporation in a proceeding by or in the right
of the Corporation to procure a judgment in its favor or in a
proceeding by or in the right of a stockholder.
Section 8. Indemnification and advancement of expenses as
provided in this section shall continue as, unless otherwise
provided when authorized or ratified, to a person who has ceased
to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a
person, unless otherwise provided when authorized or ratified.
Section 9. For purposes of this Article, the term
"corporation" includes, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent)) absorbed in a consolidation or merger, so that any
person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a
constituent corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust,
or other enterprise, is in the same position under this section
with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
Section 10. For purposes of this Article:
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including
those for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and expenses
actually and reasonably incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending,
or completed action, suit, or other type of proceeding, whether
civil, criminal, administrative, or investigative and whether
formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or agent
of the Corporation that imposes duties on such persons, including
duties relating to an employee benefit plan and its participants
or beneficiaries; and
(g) The term "not opposed to the best interest of the
Corporation" describes the actions of a person who acts in good
faith and in a manner he reasonably believes to be in the best
interests of the participants and beneficiaries of an employee
benefit plan.
Section 11. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability
under the provisions of this Article.
Section 12. The foregoing indemnifications shall not be
deemed exclusive of any other rights to which any director,
officer, employee or agent may be entitled under any by-law,
agreement, vote of stockholders or as a matter of law or
otherwise.
ARTICLE XIV.
Certificates of Stock
The Certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and
certify the number of shares owned by the holder and shall be
signed by the President or a Vice President and by the Secretary
or an Assistant Secretary or an Assistant Treasurer of the
Corporation and sealed with the Seal of the Corporation.
ARTICLE XV.
Transfers of Stock
The shares of stock shall be transferable on the books of
the Corporation by the person named in the Certificate or by
attorney, lawfully constituted in writing, upon surrender of the
certificate thereof.
The Board of Directors shall have power and authority to
make all such rules and regulations as it shall deem expedient
concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation or scrip certificates for
such stock.
The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock
certificates and/or scrip certificates to bear the signature of
any such transfer agent and/or of any such registrar of the
transfers.
ARTICLE XVI.
Record Date
The Board of Directors may fix a future date as the
record date for determining the stockholders entitled to notice
of a stockholders' meeting, to demand a special meeting, to vote
or to take any other action. Such record date may not be more
than seventy (70) days before the meeting or action requiring a
determination of stockholders. A determination of stockholders
entitled to notice of or to vote at a stockholders' meeting is
effective for any adjournment of the meeting unless the Board of
Directors fixes a new record date for the adjourned meeting,
which it must do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting.
If no record date is fixed by the Board of directors for
the determination of stockholders entitled to notice of or to
vote at a meeting of stockholders, the close of business on the
day before the first notice of the meeting is delivered to
stockholders shall be the record date for such determination of
stockholders.
The Board of Directors may fix a date as the record date
for determining stockholders entitled to a distribution or share
dividend. If no record date is fixed by the Board of Directors
for such determination, it is the date the Board of Directors
authorizes the distribution or share dividend.
ARTICLE XVII.
Registered Stockholders
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as expressly provided by
the Laws of Florida.
ARTICLE XVIII.
Lost Certificates
Any person claiming a certificate of stock to be lost or
destroyed shall make an affidavit or affirmation of that fact and
verify the same in such manner as the Board of Directors may
require, and shall if the Board of Directors so requires, give
the Corporation, its transfer agents, registrars and/or other
agents a bond of indemnity in form and with one or more sureties
satisfactory to the Board of Directors before a new certificate
may be issued of the same tenor and for the same number of shares
as the one alleged to have been lost or destroyed.
ARTICLE XIX.
Inspection of Books
The Board of Directors shall determine from time to time
whether, and if allowed, when and under what conditions and
regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the stockholders. No
stockholder shall have any right to inspect any book or document
of the Corporation except as such right may be conferred by the
laws of the State of Florida or as may be authorized by the Board
of Directors or the stockholders.
ARTICLE XX.
Checks, Etc.
All checks, drafts, acceptances, notes and other orders,
demands or instruments in respect of the payment of money shall
be signed or endorsed in behalf of the Corporation by such
officer or officers or by such agent or agents as the Board of
Directors may from time to time designate.
ARTICLE XXI.
Fiscal Year
The fiscal year of the Corporation shall end on the last
Wednesday in the month of June of each year.
ARTICLE XXII.
Dividends
Dividends upon the capital stock of the Corporation may
be declared at the discretion of the Board of Directors, at any
regular or special meeting, subject to the provisions of the
Articles of Incorporation and the Laws of the State of Florida.
ARTICLE XXIII.
Notices
Section 1. How Given: Notice required to be given by
the Articles of Incorporation or by these By-Laws is effective
when mailed postage prepaid and correctly addressed to the
stockholder, officer or director, as the case may be, at such
address as appears on the current records of the Corporation.
Section 2. Waiver of Notice: Notice of a meeting of the
Board of Directors need not be given to any Director who signs a
waiver of notice either before or after the meeting. Attendance
of a Director at a meeting shall constitute a waiver of notice of
such meeting, except when the Director states at the beginning of
the meeting or promptly upon arrival, any objection to the
transaction of business because the meeting is not lawfully
called or convened.
ARTICLE XXIV.
Amendments
Unless otherwise provided in the Articles of
Incorporation, these By-Laws may be altered, amended or repealed
by the affirmative vote of a majority of the holders of Stock
issued and outstanding and entitled to vote at any regular or
special meeting of the stockholders, or by the affirmative vote
of a majority of the Board of Directors at any regular or special
meeting, if notice of the proposed alteration, amendment or
repeal be contained in the notice of the meeting.
<PAGE>
CERTIFIED
R E S O L U T I O N
AMEND BY-LAWS OF COMPANY
Board of Directors of Winn-Dixie Stores, Inc.
October 6, 1993
WHEREAS, under Article XXIV of the By-Laws of the Corporation,
the By-Laws may be amended by a majority vote of the Board of
Directors at any regular meeting, if notice of the proposed
amendment is contained in the notice of the meeting; and
WHEREAS, all of the members of the Board of Directors have
received notice of the meeting of the Board of Directors being
held on Wednesday, October 6, 1993, as provided under Sub-Section
1, Article XXIII (Notices) of the By-Laws of the Company;
NOW THEREFORE, BE IT RESOLVED, that the first sentence of Section
2 of Article IV (Directors) of the By-Laws of this Corporation
shall be and the same is hereby amended by deleting it in its
entirety and substituting in lieu thereof a new first sentence of
Section 2 of Article IV reading as follows:
"The Board of Directors shall consist of eleven (11) members
who shall be divided into three classes, with the number of
directors in each class to be as nearly equal as possible."
AND FURTHER RESOLVED, that any and all previous resolutions in
conflict herewith are hereby rescinded.
AND FURTHER RESOLVED, that the Secretary of the Corporation shall
be and he is hereby authorized and directed to take such action
as shall be necessary or desirable to give effect to the above
amendment to the By-Laws of the Corporation and properly to
certify the same.
* * * * * * * * * * * * * *
I, Wayne E. Ripley, Jr., Secretary of Winn-Dixie Stores,
Inc., a Florida Corporation, do hereby certify that the foregoing
is a true, correct and complete copy of resolution adopted by the
Board of Directors of Winn-Dixie Stores, Inc., at the Annual
Meeting of the Board, duly called and legally held on October 6,
1993, at Jacksonville, Florida, that the meeting was attended by
a quorum of the Board; and that the resolution is entered upon
the regular minute book of the Corporation and is now in full
force and effect.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of the Corporation, at Jacksonville, Florida,
this 6th day of October, 1993.
_________________________
Wayne E. Ripley, Jr.
(CORPORATE SEAL)
<PAGE>
RESOLUTION
TO AMEND SUB-SECTION (2) OF ARTICLE IV (DIRECTORS) OF
THE BY-LAWS OF THE CORPORATION TO INCREASE THE NUMBER OF
DIRECTORS FROM ELEVEN TO TWELVE
Board of Directors of Winn-Dixie Stores, Inc.
June 22, 1994
WHEREAS, under Article XXIV of the By-Laws of the Corporation,
the By-Laws may be amended by a majority vote of the Board of
Directors at any regular meeting, if notice of the proposed
amendment is contained in the notice of the meeting; and
WHEREAS, all the members of the Board of Directors have waived
notice of the meeting of the Board of Directors held on
Wednesday, June 22, 1994, as provided under Sub-Section (2),
Article XXIII (Notices) of the By-Laws of the Corporation,
NOW THEREFORE, BE IT RESOLVED, that Sub-Section (2) of Article IV
(Directors) of the By-Laws of this Corporation shall be and the
same is hereby amended by deleting the first sentence thereof in
its entirety and by substituting a new first sentence of Sub-
Section (2) of Article IV, reading as follows:
"The Board of Directors shall consist of twelve (12)
members who
shall be divided into three classes, with the number of
directors
in each class to be as nearly equal as possible."
AND FURTHER RESOLVED, that the Secretary of the Corporation shall
be and he is hereby authorized and directed to take such action
as shall be necessary or desirable to give effect to the above
amendment to the By-Laws of the Corporation and properly to
certify the same.
* * * * * * * * * * * * * * * * * * * * * *
I, Wayne E. Ripley, Jr., Secretary of Winn-Dixie Stores,
Inc., a Florida corporation, do hereby certify that the foregoing
is a true, correct and complete copy of resolutions adopted by
the Board of Directors of Winn-Dixie Stores, Inc., at the regular
quarterly meeting of the Board duly called and legally held at
Jacksonville, Florida, on Wednesday, June 22, 1994; that the
meeting was attended by a quorum of the Board; and that the
resolutions are entered upon the regular minute book of the
corporation and are now in full force and effect.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of the corporation at Jacksonville, Florida,
this 22nd day of June, 1994.
______________________________
Wayne E. Ripley, Jr., Secretary
(CORPORATE SEAL)
<PAGE>
_________________________________________________________________
WINN-DIXIE STORES, INC.
PROFIT SHARING/401(K) PLAN
_________________________________________________________________
Amended and Restated
Effective as of January 1, 1993, as
Amended through October 6, 1993
ARTICLE I
Definitions
1. Account Value: The value of a Participant's Employer
Contributions Account, Before-Tax Contributions Account and/or
Matching Contributions Account, as the case may be, determined as
of any Valuation Date.
2. Actual Deferral Percentage: The ratio (expressed as a
percentage) of Before-Tax Contributions, Qualified Employer
Deferral Contributions and as the Administrator deems necessary
Matching Contributions on behalf of the Eligible Participant for
the Plan Year to the Eligible Participant's Deferral Compensation
for the Plan Year.
3. Administrative Committee: The committee appointed pursuant to
the provisions of Section A. of Article IX hereof.
4. Affiliate: Any corporation (other than the Company) which is
a member of a "controlled group of corporations" (as that term is
defined in IRC 414(b) of which the Company is a member, and any
trade or business under "common control" (as that term is defined
in IRC 414(c)) with the Company or any organization which is a
member of the same affiliated service group (as that term is
defined in IRC 414(m)) with the Company.
5. Alternate Payee: The spouse, former spouse, child or other
dependent of a Participant who is recognized by a domestic
relations order as having right to receive all, or a portion of,
the benefits payable under the Plan to the Participant.
6. Amendment Effective Date: July 1, 1989, except as otherwise
provided herein.
7. Annual Defined Contribution Addition: Effective July 1, 1987,
for each Participant, for any Limitation Year, the sum of:
(a) contributions made by any Controlled Group Member
allocable with respect to such Participant under any Defined
Contribution Plans;
(b) contributions made by such Participant to any
Defined Contribution Plans; and
(c) forfeitures allocable with respect to such
Participant under any Defined Contribution Plans.
A reinstatement of forfeitures upon a Participant's reemployment
shall not be included in the Annual Defined Contribution Addition.
8. Average Actual Deferral Percentage: The average (expressed as
a percentage) of the Actual Deferral Percentages of the Eligible
Participants as a group.
9. Average Contribution Percentage: The average (expressed as a
percentage) of the Contribution Percentages of the Eligible
Participants in a group.
10. Before-Tax Contributions: The contributions made by an
Employer on behalf of a Participant pursuant to the Participant's
election to reduce his Compensation as described in Section A,
Article V hereof.
11. Before-Tax Contributions Account: The account established
pursuant to Section A of Article VI to which such Participant's
Before-Tax Contributions are allocated.
12. Beneficiary: Any person designated by a Participant to receive
any payments of benefits due after his death, or in the absence of
a valid designation, the person entitled to receive such payment
pursuant to the terms of the Plan.
13. Benefit Accounts: A Participant's Before-Tax Contributions
Account, Matching Contributions Account and Employer Contributions
Account.
14. Board: The Board of the Company and any person empowered by
the Company's certificate of incorporation or bylaws to exercise
the powers of the Board with respect to the Plan.
15. Company: Winn-Dixie Stores, Inc. or any successor thereto.
16. Compensation: All compensation paid by the Company or a
Participating Affiliate to a Participant while an Eligible Employee
(except bonuses determined by the Employer to be extraordinary or
special) which is reportable on his Form W-2 and compensation which
is not currently includible in the Participant's gross income by
reason of the application of IRC 125 or 402(a)(8). In no
instance shall the Compensation of any Participant for any Plan
Year considered under this Plan exceed $200,000 (as indexed by the
IRS at the same time and manner as IRC 415(d)).
17. Contribution Percentage: The ratio (expressed as a
percentage), of the Matching Contributions under the Plan on behalf
of the Eligible Participant for the Plan Year and, as the
Administrator deems necessary, Before-Tax Contributions, to the
Eligible Participant's Deferral Compensation for the Plan Year
(whether or not the Employee was a Participant for the entire Plan
Year). For purposes of computing the Contribution Percentages, an
Employee who would be a Participant but for the failure to make
Before-Tax Contributions shall be treated as a Participant on whose
behalf no Before-Tax Contributions are made.
18. Controlled Group Member: Any corporation during the time it is
a member of a "controlled group of corporations" (as that term is
defined in IRC 414(b) as modified by IRC 415(h)) of which the
Company is a member, any trade or business during the time it is
under "common control" (as that term is defined in IRC 414(c) as
modified by 414(h)) with the Company and any organization which
is a member of the same affiliated service group (as that term is
defined in IRC 414(m)) with the Company.
19. Deferral Compensation: Compensation paid by the Company or a
Participating Affiliate to the Participant during the taxable year
end with or within the Plan Year which is required to be reported
as wages on the Participant's Form W-2 and compensation which is
not currently includible in the Participant's gross income by
reason of the application of IRC 125 or 402(a)(8). In no
instance shall the Compensation of any Participant for any Plan
Year considered under this Plan exceed $200,000 (as indexed by the
IRS at the same time and manner as under IRC 415(d)).
20. Defined Benefit Plan: Any defined benefit plan qualified under
IRC 401, maintained at any time by a corporation which is, or at
any time was, a Controlled Group Member (regardless of whether such
corporation was a Controlled Group Member at such time) with the
Company.
21. Defined Contribution Plan: Any defined contribution plan,
qualified under IRC 401, maintained at any time by a corporation
which is, or at any time was, a Controlled Group Member (regardless
of whether such corporation was a Controlled Group Member at such
time).
22. Determination Date: For any Plan Year, the last day of the
preceding Plan Year.
23. Disability: A physical or mental condition which would
permanently prevent the Participant from performing satisfactorily
the duties then assigned to him or other duties his Employer is
willing to assign to him. The final determination of whether a
Participant has a disability shall be made in the discretion of the
Administrative Committee. Such decision shall be final and binding
on all parties hereto.
24. Disability Retirement: Termination of Employment of a
Participant who has incurred a Disability.
25. Effective Date: July 1, 1976.
26. Early Retirement: Termination of Employment of Participant at
or after a Participant's 55th birthday but prior to Participant's
65th birthday.
27. Eligible Elective Participants: Any Employee who is otherwise
authorized under the terms of the Plan to have Before-Tax
Contributions or Qualified Employer Deferral Contribution allocated
to his Benefit Accounts for a Plan Year.
28. Eligible Employee: Effective July 1, 1988, every Employee of
an Employer; provided however,
(a) any Employer may, by corporate action, designate a
class of its Employees which will be considered Eligible Employees.
(b) an Employee who is duly represented by the
collective bargaining agent of a bargaining unit shall be an
Eligible Employee only, if and when, the Employees of such
bargaining unit are eligible to become Plan Participants pursuant
to the terms of a collective bargaining agreement, and
(c) an Employee of a foreign subsidiary which is an
Employer shall be an Eligible Employee only if he is a citizen of
the United States and such foreign subsidiary subject to an
agreement entered into under IRC 3121(1).
29. Eligible Participant: Any employee of the Company or an
Affiliate who is otherwise authorized under the terms of the Plan
to have Employer Contributions or Matching Contributions allocated
to his account for the Plan Year.
30. Employee: Any person employed by the Company or an Affiliate.
31. Employer: The Company and each Affiliate which elects to adopt
the Plan for its Employees pursuant to Section G of Article XII.
32. Employer Contributions: Contributions to the Plan by an
Employer, not conditional upon Before-Tax Contributions, pursuant
to Section B of Article V.
33. Employer Contributions Account: The account established
pursuant to Section A of Article VI to which each Participant's
Employer Contributions are allocated.
34. Employment: The period of time as an Employee.
35. Entry Date: Each July 1 and January 1 on or after the
Amendment Effective Date.
36. ERISA: The Employee Retirement Income Security Act of 1974, as
Amended.
37. Family Member: An individual described in IRC 414(q)(6)(B).
38. Fiscal Year: The business period used by the Employer for
federal income tax purposes.
39. Fund: The assets held in the Trust.
40. Highly Compensated Employee: An employee described in IRC
414(q).
41. Hour of Service:
(a) Each hour for which an Employee is paid, or entitled
to payment, by the Company or an Affiliate for the performance of
duties for the Company or an Affiliate;
(b) Each hour which would have been credited if the
payment represented by a back pay award, regardless of mitigation
of damages, had been made in the period to which the award
pertains;
(c) Each hour (up to a maximum of 501 hours on account
of any single continuous period) for which an Employee is directly
or indirectly paid, or entitled to such payment, by the Company or
an Affiliate for reasons (such as vacation, sickness or other leave
of absence or layoff) other than for the performance of duties for
the Company or an Affiliate, which hours shall be determined and
credited pursuant to the rules prescribed by 29 C.F.R. 2530.200b-
2(b) and (c).
(d) Each hour for which an Employee is required to be
given credit by applicable Federal law other than ERISA; and
(e) Each hour for which an individual considered an
Employee for purposes of this Plan under IRC 414(n) is considered
paid by the Company or an Affiliate.
(f) Each hour, for any purpose under the Plan, which the
Board in a uniform and nondiscriminatory manner shall determine.
No hour shall be credited under more than one Subparagraph of
this Paragraph. The Administrative Committee may choose, in its
sole discretion, to credit one or more groups of full-time salaried
employees for whom records are not maintained with 10, 45, 90, 95
or 190 Hours of Service for each day, week, biweekly period, semi-
monthly period or month, respectively, for which each member of
such group would be entitled to credit for one Hour of Service
under Subparagraph (a), (c), (d) or (e) of this Paragraph.
42. Investment Fund: One of the investment funds selected by the
Administrative Committee in which the assets of the Trust are
invested.
43. Investment Manager: Any person serving as an investment
manager under appointment by the Administrative Committee.
44. IRC: Internal Revenue Code of 1986, as amended.
45. Leased Employee: Any person who is not an Employee of the
Company and provides services to the Company if:
a) such services are provided pursuant to an agreement
between the Company and any other person;
b) such person has performed such services for the
Company on a substantially full-time basis for a period of at least
one year; and
c) such services are of a type historically performed in
the business field of the Company, by Employees.
46. Life Expectancy: The period of years and fraction thereof of
Member's life expectancy or a joint life expectancy of a Member and
his Beneficiary as determined under Tables V and VI of Treasury
Regulations 1.72-9, respectively.
47. Limitation Compensation: All compensation actually paid or
made available to a Participant by a Controlled Group Member during
a Limitation Year, including income from sources without the United
States otherwise excluded from gross income under IRC 911, but
excluding deferred compensation, stock options and other
distributions which receive special tax benefit.
48. Limitation Year: The Plan Year.
49. Matching Contributions: Contributions to the Plan by an
Employer on behalf of a Participant, conditioned on the making of
Before-Tax Contributions, pursuant to Section C of Article V.
50. Matching Contributions Account: The account established
pursuant to Section A of Article VI to which each Participant's
Matching Contributions are allocated.
51. Member: A Participant, or former Participant for whom the
final determination of benefits due him under the Plan has not been
made.
52. Named Fiduciary: A "named fiduciary" as that term is defined
in ERISA 402(a)(2).
53. Non-Highly Compensated Employee: An Employee who is neither a
Highly Compensated Employee nor a Family Member.
54. Normal Retirement: Termination of Employment of a Participant
at or after a Participant's 65th birthday.
55. Normal Retirement Age: A Participant's 65th birthday.
56. One Year Break in Service:
(a) A Plan Year during which a person has not completed
more than 500 Hours of Service as an Employee.
(b) For purposes of determining whether a One Year Break
in Service has occurred, a Participant who is absent from work:
(i) by reason of the Participant's pregnancy;
(ii) by reason of the birth of the Participant's
child;
(iii) by reason of the placement of a
child with the Participant in
connection with the
Participant's adoption of that
child; or
(iv) for purposes of caring for such child for a
period beginning immediately following such
birth or placement,
shall receive the Hours of Service which otherwise would normally
have been credited to the Participant but for the absence. If the
number of Hours of Service normally credited cannot be determined,
eight Hours of Service shall be credited per day of absence. The
total Hours of Service credited for this purpose shall not exceed
501 hours of any one pregnancy or placement. These hours of
service shall be credited during the Plan Year in which the absence
begins if a Participant would be prevented from incurring a One
Year Break in Service in such Year because of such credit;
otherwise, they shall be credited in the immediately following Plan
Year.
(c) Subparagraph (b) shall apply only if the Participant
furnishes to the Administrative Committee the information it
decides is needed to establish both that the absence was for the
reasons set forth above and the number of days for which there was
such an absence.
57. Participant: A person who has commenced but not terminated
participation in the Plan pursuant to the provisions of Article II
hereof.
58. Participating Affiliate: Any affiliate which adopts, and has
not terminated participation in or withdrawn from, the Plan in the
manner provided herein.
59. Plan: Winn-Dixie Stores, Inc. Profit Sharing/401(k) Plan, as
it may be amended from time to time.
60. Plan Year: Any twelve consecutive month period ending on June
30 during any part of which the Plan is in effect.
61. Qualified Employer Deferral Contribution Account: the account
established pursuant to Section A. of Article VI to which each
Participant's Qualified Employer Deferral Contributions are
allocated.
62. Qualified Employer Deferral Contributions: Contribution made,
without a Participant's election to defer, by an Employer and
allocated to the Participant's Qualified Employer Deferral
Contributions Account.
63. Surviving Spouse: The person married to a Participant on the
date of the Participant's death.
64. Qualified Domestic Relations Order: A domestic relations order
which meets the requirements for a qualified domestic relations
order as established under the IRC Section 414(p) and the Treasury
Regulations issued thereunder.
65. Trust: The trust to which contributions are made to fund the
Plan.
66. Trustee: Any person serving as a trustee under appointment by
the Administrative Committee.
67. Valuation Date: The last day of the Plan Year and any other
day of the Plan Year as may be necessary for the proper
administration of the Plan.
68. Year of Employment: The period, defined in Article II hereof,
for computation of eligibility to become a Participant.
69. Year of Service: The period, defined in Article IV hereof, for
computation of the minimum vesting percentage for the Matching
Contributions Account and the vesting percentage for the Employer
Contributions Account.
ARTICLE II
Participation
A. Admission as a Participant
1. Each Eligible Employee on July 1, 1989 who was a
Participant on June 30, 1989 shall be a Participant on July 1,
1989.
2. An Employee who is not a Participant under paragraph 1,
shall become a Participant on the first Entry Date on which the
Employee:
(a) is an Eligible Employee;
(b) has credit for not less than one Year of Employment;
and
(c) has attained age 21.
3. A former Employee who has ceased to be a Participant and
who again becomes an Employee with credit for at least one Year of
Employment shall become a Participant on the first day of the first
payroll period which follows the day on which the former Employee
again becomes an Eligible Employee.
B. Rules for Crediting Years of Employment
Years of Employment shall be determined under the following
rules:
1. An Employee shall be credited with one Year of Employment:
(a) on the anniversary of the first day on which he has
an Hour of Service, if he has at least 1,000 Hours of Service in
that twelve months; and
(b) on the last day of each Plan Year which begins after
the first day on which he has an Hour of Service, if he has at
least 1,000 Hours of Service in that period.
2. The Years of Employment prior to a One Year Break in
Service of an Employee with no vested rights to a benefit derived
from contributions by the Company shall not be counted if the
number of his consecutive One Year Breaks in Service equals or
exceeds the greater of 5 or his number of Years of Employment
(which number of Years of Service shall not include any years
previously disregarded under this rule) before such period of
consecutive One Year Breaks in Service.
3. A former Employee who resumes Employment with no Years of
Employment to his credit shall be treated as a new Employee.
4. The Years of Employment credited to an Employee who was a
participant in the Plan on June 30, 1989 shall be no less on July
1, 1989 than they were on June 30, 1989.
C. Termination of Participation
A Participant shall cease to be a Participant upon his
termination of Employment with an Employer; thereafter, he shall be
a Member until the final determination of benefits due to him under
the Plan is made.
ARTICLE III
Amounts and Payment of Benefits
A. Distribution Upon Normal or Disability Retirement, Death, Etc.
This Section A shall apply upon a Member's termination of
Employment due to Normal or Disability Retirement, or due to death,
a closing of an entire store, plant, facility or warehouse, or the
elimination of a complete shift, or department, in a plant facility
or warehouse.
1. If the Member's total Benefit Accounts value is not more
than $3,500 (on the Valuation Date determined below) or if more
than $3,500, but the Member elects immediate distribution, the
Member's Benefit Accounts shall be valued as of the Valuation Date
coincident with or next following such termination of Employment,
plus any amounts credited to his Benefit Accounts subsequent to
such valuation and distributed pursuant to Section D of this
Article.
2. If the Member's total Benefit Accounts value is more than
$3,500 (on the Valuation Date coincident with or first following
his termination of employment) and the Member does not elect
immediate distribution, the Member's Benefit Accounts shall be
valued as of the Valuation Date coincident with or first following
the date the Member attains age 70-1/2 (or such earlier age as
elected by the Member) or, if later, terminates employment, and
distributed pursuant to Section D of this Article.
3. The election to take immediate distribution shall be made
in the time period and manner as established by the Administrative
Committee.
4. A Member who does not elect to take immediate distribution
may elect to have his Benefit Accounts valued and distributed as of
any future Valuation Date coincident with or first following the
date the Member attains any age younger than 70-1/2. Such election
shall be made in the time and manner as established by the
Administrative Committee. The distribution shall be made in the
form selected pursuant to Section D of this Article.
B. Distribution Upon Other Termination of Employment After Full
Vesting
This Section shall apply upon a Member's termination of
Employment with full vesting in all his Benefit Accounts under
circumstances other than under Section A of this Article.
1. If the Member's total Benefit Accounts value is not more
than $3,500 (on the Valuation Date determined below) or if more
than $3,500, but the member elects immediate distribution, his
Benefit Accounts shall be valued as of the Valuation Date
coincident with or next preceding his termination of Employment,
plus any amounts credited to his Benefit Accounts thereafter, and
distributed pursuant to Section D of this Article.
2. If the Member's total Benefit Accounts value is more than
$3,500 (on the Valuation Date determined in paragraph 1 above) and
the Member does not elect immediate distribution, the Member's
Benefit Accounts shall be valued as of the Valuation Date
coincident with or first following the date the Member attains age
70-1/2 (or such earlier date as elected by the Member) and
distributed pursuant to Section D of this Article.
3. The election to take immediate distribution shall be made
in the time period and manner as established by the Administrative
Committee.
4. A Member who does not elect to take immediate distribution
may elect to have his Benefit Accounts valued and distributed as of
any future Valuation Date coincident with or first following the
date the Member attains any age younger than 70-1/2. Such election
shall be made in the time period and manner as established by the
Administrative Committee. The distribution shall be made in the
form elected under Section D of this Article.
C. Distribution Upon Nonvested Termination of Employment
This Section shall apply upon a Member's termination of
Employment with less than full vesting in all his Benefit Accounts
under circumstances other than under Section A of this
Article.
1. If the vested portion of the value of Member's total
Benefit Accounts is not more than $3,500 (on the Valuation Date
determined below) or, if more than $3,500, but the Member elects
immediate distribution, the vested portion of his Benefit Accounts
shall be valued as of the Valuation Date coincident with or next
preceding his termination of employment, plus the vested portion of
any amounts credited to his Benefit Accounts thereafter, and
distributed pursuant to Section D of this Article.
2. If the vested portion of the value of the Member's total
benefit Accounts is more than $3,500 (on the Valuation Date
determined in paragraph 1 above) and the Member does not elect
immediate distribution, the vested portion of the Member's Benefit
Accounts shall be valued as of the Valuation Date coincident with
or first following the date the Member attains age 70-1/2 (or such
earlier date as elected by the Member) and distributed pursuant to
Section D of this Article.
3. The election to take immediate distribution shall be made
in the time period and manner as established by the Administrative
Committee.
4. A Member who does not elect to take immediate distribution
may elect to have his Benefit Accounts valued and distributed as of
any future Valuation Date coincident with or first following the
date the Member attains any age younger than 70-1/2. Such election
shall be made in the time period and manner as established by the
Administrative Committee. The distribution shall be made in the
form elected under Section D of this Article.
D. Method of Distributions
1. Members whose vested Benefit Accounts value is not more
than $3,500 shall receive their benefits distribution as a single
lump sum payment. Lump sum payments shall be distributed as soon
as practicable after the Valuation Date determined for distribution
(or, if later, Employment termination date).
2. A Member (or the Beneficiary of a deceased Member) with
vested Benefit Accounts valued at more than $3,500 shall elect
benefit distributions:
(a) in a lump sum (and distributed at the time set forth
in paragraph 1 of this Section); or
(b) in monthly, quarterly, semi-annual, or annual
installments payable in substantially equal amounts continuing over
a period certain not exceeding the Member's Life Expectancy, or the
Life Expectancy of the Member and his Beneficiary. Amounts payable
in installments shall continue to be adjusted and updated for
investment gains and losses pursuant to Section D, Article VI. A
Member may elect to adjust the timing and amount of installment
payments in the manner established by the Administrative Committee;
provided, however, any new form or amount of distribution shall be
consistent with the limitations on distributions set forth in this
Plan. Any such additional payment will cause an adjustment in the
regular installment payment amount. Installment payments shall
immediately cease for any Member re-employed by the Company except
for those Members who have attained age 70 1/2 and who are subject to
receiving minimum required distribution payments.
(c) a terminated Member with a vested Benefit Account
valued at more than $3,500 may elect a partial distribution from
his account at any time and in any amount.
(d) notwithstanding subsections (a), (b) and (c) if
distributions begin before the Member reaches age 70 1/2, the Member
may elect to receive benefit distributions in the form of
installments payable in any amount until the Member reaches age 70 1/2
at which time the Member shall elect benefit distributions in the
manner described in clauses (a) or (b) of this Section D(2) as
required by Internal Revenue Code Section 401(a)(9). The Member
may elect to receive an amount greater than the minimum required
distribution amount.
3. If the Beneficiary is not the Member's spouse, to comply
with the incidental benefit requirement that the present value of
benefits payable to the Member, determined at the time the
installments commence, shall be at least 50% of installments to be
paid, the following limitation shall apply to payments under this
Section. The joint life expectancy of the Member and his
Beneficiary shall not exceed twice the life expectancy of Member.
4. All benefit payments shall be in cash except payments to
Members who terminated Employment after age 65 who elect to receive
their distribution from the Company Stock Fund in whole shares and
cash for fractional shares.
E. Limitation on Commencement of Benefits
1. In no event shall a Member begin to receive his benefits
later than the 60th day after the close of the Plan Year in which
the latest of the following events occurs:
(a) The attainment by the Member of Normal Retirement
Age;
(b) The tenth anniversary of the year in which the
Member commenced participation;
(c) The Member's termination of Employment; or
(d) The date elected, as permitted herein, by the
Member.
2. If the amount of benefits payable within such 60-day period
cannot be determined within such period, then a payment,
retroactive to such 60th day, shall be made no later than 60 days
after the earliest date on which the amount of such benefits can be
determined.
3. If a distribution of benefits has commenced before the
Member's death, the remaining interest will be distributed at least
as rapidly as under the method of distribution being used as of the
date of the Participant's death.
4. Any distribution which had not begun before the Member's
death shall comply with the following:
(a) Any portion of the Member's account balance not
payable to a Beneficiary designated by the Member will be
distributed within five years after such Member's death.
(b) Any portion of the Member's account balance that is
payable to a Beneficiary designated by the Member will be
distributed over the life of such Beneficiary, commencing not later
than one year after the Member's death (or if the Beneficiary is
the Member's Surviving Spouse, commencing not later than the date
on which the Member would have attained age 70-1/2).
F. Age 70 1/2 Benefit Commencement
1. Notwithstanding any provision of this Plan to the contrary,
a distribution shall begin to a Member not later than the April 1
of the calendar year following the year in which the Member attains
age 70 1/2.
2. The distribution to a Member who remains an Employee shall
be distributed over a period not exceeding the Life Expectancy of
such Member or the Life Expectancy of such Member and a designated
Beneficiary. Life Expectancy shall be redetermined each year in
accordance with procedures established by the Administrative
Committee.
3. If the Beneficiary is not the Member's spouse, the joint
life expectancy of the Member and his Beneficiary shall not exceed
the period determined under the table set forth in Proposed
Treasury Regulations 1.401(a)(9)-2, Q&A 4, or successor
regulations.
4. If a Member who is being paid pursuant to this Section
terminates Employment, his benefits shall be determined for
distribution and paid pursuant to Section A hereof but in no
instance less rapidly than required under this Section.
G. Beneficiaries
1. A Participant may designate in writing one or more
Beneficiaries to whom amounts due after his death shall be paid.
In the event a Participant fails to make such a designation, or in
the event that no designated Beneficiary survives the Participant,
any amounts due after his death shall be paid to his Surviving
Spouse, or if there is no Surviving Spouse, to the legal
representative of his estate. No Beneficiary shall have any right
to benefits under the Plan unless he shall survive the Participant.
2. Any designation of a Beneficiary must be filed with the
Administrative Committee in order to be effective. Any such
designation of a Beneficiary may be revoked by filing a later
designation or an instrument of revocation with the Administrative
Committee.
3. If a Participant has a Surviving Spouse on the date of his
death, a beneficiary designation of someone other than the
Surviving Spouse shall be effective if, and only if, a spouse
consent is in effect pursuant to paragraph 4 of this Section. If
a Participant has a Surviving Spouse on his date of death and no
spouse consent is in effect, Plan benefits will be paid to the
Surviving Spouse, regardless of any other beneficiary designation.
This paragraph only applies to Participants who have credit for at
least One Hour of Service for services performed or for a leave of
absence on or after August 23, 1984, and to Participant's with
unforfeitable benefits on that date who have credit for at least 10
Years of Vesting Credit.
4. A spouse consent is in effect if the Surviving Spouse
executes and files with the Administrative Committee a consent to
the Participant's beneficiary designation acknowledging the effect
of such designation and the Surviving Spouse signature is witnessed
by a Plan representative or a notary public.
H. Special Rules for Members and Beneficiaries Who Cannot be
Located
Each Member, or Beneficiary thereof, entitled to benefits under
the Plan has the responsibility to advise the Administrative
Committee, in writing, of his current address. Any communication,
statement, or notice addressed to such person at his latest
reported address will be binding on him for all purposes of the
Plan and neither the Administrative Committee, the Employees or
Trustees shall be obligated to search for or ascertain his
whereabouts. If the Administrative Committee is unable to locate
a Member or Beneficiary on or after a one year break in service,
such Member or Beneficiary's Benefit Accounts shall be treated as
a forfeiture pursuant to the provisions of Article VI, Section C.
However, if the Member or Beneficiary claims his benefit at a later
date prior to the Plan termination, the balance of his Benefit
Accounts in the amount as of the date forfeited will once again be
payable to him.
I. Withholding Taxes
The Trustee may withhold from any payment hereunder any taxes
required to be withheld under applicable local, state or federal
laws.
J. Hardship Withdrawals
1. A Participant may make a hardship withdrawal of the portion
of his Before-Tax Contribution Account which consists of his Before
Tax Contribution (but not earnings thereon) as of the Valuation
Date immediately preceding the date of withdrawal. [Hardship
withdrawals are subject to the spousal consent requirements in IRC
401(a)(ii) and 417 and Section G above.]
2. A hardship withdrawal shall only be permitted if the
Participant has an immediate and heavy financial need and other
resources are not reasonably available to meet the need as
determined in accordance with Treasury Regulations Section
1.401(k)-1.
3. Hardships shall be limited to:
(a) Medical expenses (described in IRC 213(d))
incurred by the Participant, his spouse or dependent (within the
meaning of IRC 152).
(b) Purchase (excluding mortgage payments) of a
principal residence of the Participant.
(c) Payment of tuition fees for the next semester or
quarter of post-secondary education for the Participant, spouse,
child or dependent (within the meaning of IRC 152).
(d) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(e) Such other facts and circumstances as determined by
the Secretary of the Treasury.
4. The distribution shall be limited to only the amount
necessary to satisfy the immediate and heavy financial need in
excess of other reasonably available financial resources as
determined under Treasury Regulations 1.401(k)(d)(2)(iii).
5. If a Participant makes a hardship withdrawal:
(a) he shall not be permitted to again make a Before-Tax
Contribution (or contributions to other plans as provided in the
regulations) until the first day which is at least 12 months after
receipt of the withdrawal, and
(b) he shall not make Before-Tax contributions for his
taxable year immediately following the taxable year of the
withdrawal in excess of the IRC 402(g) limit for such taxable
year less the amount of such Participant's Before-Tax contributions
for the taxable year of the withdrawal.
6. The Participant will provide with his application for
withdrawal representation that he has satisfied the requirements of
this Section.
K. Forfeitures
The non-vested portion of the Employer Contributions Account
and Matching Contributions Account of a Member who has terminated
Employment shall be forfeited as of the date the vested portion of
the Account is distributed or after a Member has incurred five (5)
consecutive One Year Break(s) in Service. To the extent not
utilized to restore other forfeitures pursuant to Section L of this
Article, such forfeitures shall be allocated pursuant to Section C
of Article VI hereof. A member who was 0% vested in his Employer
Contributions Account and/or Matching Contributions Account shall
be deemed to have received a distribution of his vested portion of
such accounts on his date of Employment termination.
L. Restoration of Forfeitures
1. If a Member who has forfeited a portion of his Employer
Contributions Account and/or Matching Contributions Account
pursuant to Section K of this Article resumes Employment prior to
the last day of Plan Year in which he incurs five consecutive One
Year Breaks in Service, the forfeited portion shall be restored
under the following conditions.
a) If the vested portion of the Member's Benefit
Accounts has not been distributed, any forfeitures shall be
restored to his Benefit Account from which such amount was
forfeited in the same amount as forfeited as soon as possible
following such Reemployment.
b) If the vested portion of the Member's Benefit Account
has been distributed, he shall have the right, while an Employee,
to recontribute the full amount distributed to him. His right to
recontribute shall terminate after the Member has incurred five
consecutive One Year Breaks in Service following the distribution.
In the event of such recontribution, as of the Valuation Date
coincident with or next following such recontribution, the Account
Value of his Accounts shall be restored to 100% of their value on
the date as of which such Participant's benefits were determined
for distribution. All recontributions must be in one lump sum.
2. Forfeitures shall be restored from other forfeitures
occurring during the Plan Year of reemployment. To the extent
forfeitures are insufficient to make such restoration, it shall be
made from the net income of the Fund or, if necessary, from a
special contribution from the Member's Employer.
M. Distribution to Alternate Payee Under a QDRO
The Alternate Payee under a Qualified Domestic Relations Order
shall be entitled to elect to receive a distribution as of the
Valuation Date coincident with or next following the establishment
of the Alternate Payee's benefits accounts pursuant to paragraph 4,
Section A of Article VI. If the Alternate Payee does not elect to
take a distribution of benefits prior to the date the Alternate
Payee is age 62, distribution of benefits shall be made as of the
Valuation Date coincident with or next following the date the
Alternate Payee attains age 62.
<PAGE>
ARTICLE IV
Vesting
A. Vesting Percentage
1. A Member shall be fully vested at all times in the Account
Value of his Before-Tax Contributions Account.
2. The vesting percentage of a Member in the Account Value of
his Employer Contributions Account and Matching Contributions
Account shall be 100% if such Participant's Employment is
terminated:
(a) on or after his 65th birthday;
(b) due to death;
(c) due to a Disability; or
(d) as a result of;
(i) the closing of an entire store, plant
facility, or warehouse; or
(ii) the elimination of a complete shift, or
department, in a plant facility or warehouse.
3. For any Member whose Employment is terminated for reasons
other than as set forth in paragraph 2 of this Section, the vesting
percentage in the Account Value of his Matching Contributions
Account and Employer Contributions Account shall be the percentage
determined under subparagraphs (a) and (b) below:
(a) The vesting percentage in the Matching Contributions
Account shall be determined under the following schedule:
Completed Years Vesting
of Service Percentage
1 20%
2 40%
3 60%
4 80%
5 or more 100%
Notwithstanding the above schedule, Member shall not have a vesting
percentage in his Matching Contribution Account less than is
determined below:
Years of Vesting
Service Percentage
0 - 2 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
(b) The vesting percentage in the Employer Contributions
Account shall be determined under the following schedule:
Years of Vesting
Service Percentage
0 - 2 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
B. Rules for Crediting Years of Service
Years of Service shall be determined under the following rules.
1. An Employee shall be credited with one Year of Service for:
(a) Years of Service credited under the Plan prior to
July 1, 1989 under the terms of the Plan as in effect prior to such
date;
(b) Any Plan Year beginning on or after July 1, 1989
during which an Employee completes at least 1,000 Hours of Service.
Such Year of Service shall be credited as of the last day of the
Plan Year or, if earlier, as of the day on which such Employee
terminates his Employment;
(c) The Plan Year in which the Employee becomes a
Participant if
(i) an Employee's eligibility computation period
overlaps two vesting computation periods,
(ii) such Employee completes at least 1,000 Hours
of Service during the eligibility computation
period, and
(iii) such Employee fails to complete
at least 1,000 Hours of Service
in either of the overlapped
vesting computation periods;
(d) Any "Year of Service" credited to the Employee under
the Employees' Profit Sharing Retirement Plan of D. D. I., Inc., on
the date the Employee becomes a Participant under this Plan; and
(e) No credit shall be granted under more than one
subparagraph of this Paragraph for the same Year of Service.
2. The Years of Service prior to a One Year Break in Service
of an Employee with no vested rights to a benefit derived from
contributions by the Company (other than Before-Tax Contributions)
shall not be counted if the number of his consecutive One Year
Breaks in Service equals or exceeds the greater of 5 or his number
of Years of Vesting Service (which number of Years of Service shall
not include any years previously disregarded under this rule)
before such period of consecutive One Year Breaks in Service.
3. The Years of Service subsequent to a One Year Break in
Service of an Employee who has terminated Employment shall not be
counted, on and after the last day of the Plan Year in which he has
such five consecutive One Year Breaks in Service, in computing the
vesting percentage applicable to the Account Value of his Employer
Contributions Account derived from contributions accrued prior to
such One Year Break in Service.
ARTICLE V
Contributions
A. Before-Tax Contributions
1. Each Participant may elect to reduce his Compensation by an
amount equal to 1, 2, 3, 4, or 5% of the Compensation paid to him
each payday.
2. The amount by which his Compensation is reduced shall be
contributed on his behalf as a Before-Tax Contribution to the Plan
pursuant to paragraph 1, Section B of Article VI. Such election
shall be made in a time and manner as established by the
Administrative Committee.
3. The initial Participant Before-Tax Contribution election
must be made effective as of the last day of the first pay period
immediately after the Participant becomes eligible to participate.
(a) Subsequent Participant Before-Tax Contribution
elections can be made effective as of any subsequent date in the
manner provided by the Administrative Committee.
(b) Participants may elect to increase or decrease
Before-Tax Contributions as of any subsequent date in accord with
rules provided by the Administrative Committee from time to time.
(c) All elections to make Before-Tax Contributions shall
be effective only as to Compensation not earned as of the effective
dates of such elections.
4. A Participant may elect to cease Before-Tax Contributions
as of the first day of any future payroll period as of a time and
in the manner as established by the Administrative Committee.
(a) Such election shall be made in a time and manner as
established by the Administrative Committee.
(b) A Participant who elects to cease making Before-Tax
Contributions may again make Before-Tax Contributions at any time
in the manner established by the Administrative Committee.
5. Effective for the 1987 calendar year, no Participant may
make Before-Tax Contributions in any calendar year in excess of
$7,000 (or such greater amounts as adjusted for cost of living
pursuant to IRC 402(g)(5)) to all plans with provisions complying
with IRC 401(k) or 403(b) and other plans providing for elective
deferrals within the meaning of IRC 401(g).
(a) If Before-Tax Contributions are made to more than
one plan and are in excess of $7,000 (or greater amount under IRC
402(g)(5)) for any calendar year, the individual shall notify the
Administrative Committee of the amount of excess Before-Tax
Contributions which are attributable to the Plan by no later than
the March 1 following such calendar year. If such notice is
provided before the applicable March 1, the Administrative
Committee shall direct the Trustee to distribute to the Participant
such amount of excess before the April 15 following such March 1.
(b) If the Before-Tax Contributions under the Plan in
any calendar year exceed $7,000 (or such greater amount under IRC
402(g)(5)) and the Participant has not notified the
Administrative Committee by the March 1 following such calendar
year of the allocation of excess contributions, or such allocation
does not reduce the Before-Tax Contributions to the Plan to not
more than $7,000 (or such other amount under IRC 402(g)(5)), the
Administrative Committee shall direct the Trustee to distribute the
excess amount to the Participant by no later than the April 15
following such calendar year.
(c) For the 1987 calendar year, if Before Tax
Contributions under the Plan or a combination of plans exceed the
$7,000 limitation, such excess shall be held in the Plan and
distributed only in accordance with the Plan's distribution rules
set forth in Article III hereof.
B. Employer Contributions
With respect to each Plan Year, each Employer may contribute to
the Trust an amount as an Employer Contribution to be allocated to
Participants eligible pursuant to paragraph 2, Section B, Article
VI. Such contribution shall be made in cash or in kind, as
determined by the Board in its sole discretion.
1. Employer Contributions by each Employer with respect to
each Plan Year shall be made no later than the time prescribed by
law for such Employer to obtain a Federal income tax deduction for
the Plan Year for which such contribution is made.
2. Such Employer Contributions shall be allocated to
Participant's Employer Contributions Accounts.
3. In no event shall an Employer make an Employer Contribution
for any Fiscal Year which is greater than the maximum amount
deductible from income under the applicable IRC provisions.
C. Matching Contributions
With respect to each week, each Employer shall make a Matching
Contribution on behalf of each Participant eligible pursuant to
paragraph 3, Section B of Article VI, in the amount of 50% of such
Participant's Before-Tax Contribution for such week.
1. Matching Contributions shall be paid by each Employer to
the Trustee as soon as practical after the end of every week.
2. Such Matching Contributions shall be allocated to
Participants' Matching Contribution Accounts as of the end of the
applicable week.
ARTICLE VI
Accounts and Allocations
A. Accounts
1. Each Participant shall have a Before-Tax Contributions
Account to which Before-Tax Contributions made on his behalf shall
be allocated.
2. Each Participant shall have an Employer Contributions
Account to which his share of Employer Contributions shall be
allocated.
3. Each Participant shall have a Matching Contributions
Account to which his share of Matching Contributions shall be
allocated.
4. An Alternate Payee under a Qualified Domestic Relations
Order shall have an account established with his/her share of the
Participant's account as provided under the Qualified Domestic
Relations Order.
5. Each applicable Participant shall have a Qualified Employer
Deferral Contributions Account to which Qualified Employer Deferral
Contributions made on his behalf shall be allocated.
B. Allocation of Contributions
1. Before-Tax Contributions made on behalf of each Participant
shall be paid by each Employer to the Trustee as soon as practical
after the end of every pay period and allocated to such
Participant's Before-Tax Contribution Account.
2. The Employer Contribution for such Plan Year shall be
allocated as soon as practicable after receipt to the Employer
Contributions Account of all Participants who, for such Plan Year:
(a) were actively employed by the Employer on the last
day of such Plan Year;
(b) were actively employed during such Plan Year, but
(i) retired on or after their Normal Retirement
Dates;
(ii) died;
(iii) incurred a Disability, or
(iv) terminated employment because of either
(I) the closing of an entire store, plant,
facility, or warehouse, or
(II) the elimination of a complete shift, or
department, in a store, plant, facility or
warehouse.
The Employer Contribution shall be allocated to each Participant
eligible for a contribution in the ratio of such Participant's
Compensation from his Employer during the Plan Year bears to the
total Compensation during such Plan Year of all Participants of his
Employer eligible to share in such contribution.
3. The Matching Contribution shall be allocated to the
Matching Contribution Account of each Participant equal to 50% of
the Before-Tax Contribution made on his behalf.
C. Allocation of Forfeitures
1. Forfeitures of Employer Contributions for each Plan Year
shall be aggregated and, regardless of whether their particular
Employer makes Employer Contributions in a Plan Year, all
Participants who otherwise would have been eligible to receive an
allocation of Employer Contributions shall receive an allocation of
forfeitures. In a Plan Year in which no Employer Contributions are
made to the Plan, forfeitures will be allocated to Participants who
otherwise would have been eligible to receive an allocation of
Employer Contributions. Such forfeitures occurring during any Plan
Year shall be allocated to the Employer Account of each Participant
eligible for an Employer Contribution pursuant to paragraph 2,
Section B of Article VI.
2. Forfeitures from Matching Contribution Accounts of a Member
occurring during any Plan Year shall be used to reduce future
Matching Contributions from the Employer of that Member.
D. Valuation of Accounts
As of each Valuation Date, the Administrative Committee, with
the assistance of the Trustee, shall allocate earnings and losses
to each Member's accounts pursuant to Section C of Article VII.
E. Limitations on Allocations
1. If a Participant's Annual Defined Contribution Additions in
any Limitation Year exceeds the lesser of:
(a) $30,000 or, if greater, one-fourth of the defined
benefit dollar limitation set forth in IRC 415(b)(1), as in
effect for the Limitation Year; or
(b) 25 percent of the Limitation Compensation of the
Participant for such Limitation Year;
then such additional sum shall be reduced to an amount not in
excess of the above limitations by making the adjustments with
respect to such Limitation Year, to the extent necessary.
2. If in any Limitation Year a Participant's Annual Addition
exceeds the limitation determined under paragraph 1 of this
Section, such excess shall not be allocated to his accounts in any
Defined Contribution Plan but shall be handled in the following
manner and order until such excess is eliminated--
(a) his portion of the allocation of Matching
Contributions or any part thereof shall be placed in a suspense
account and used to reduce contributions by his Employer for the
next following Limitation Year;
(b) his portion of the allocation of Before-Tax
Contributions or any part thereof shall be refunded to him;
(c) his portion of the allocation of Employer
Contributions or any part thereof shall be allocated to the
Employer Contributions Accounts of other Participants who are not
initially affected by the limitation determined under paragraph 1
above until the limitations of this section are reached with
respect to each Participant; and
(d) if, after such allocation, such excess is still not
thereby completely eliminated, the amount of such excess shall be
placed in a suspense account (with earnings on such amount) which
shall be allocated in the next Limitation Year until the
limitations of this section are reached, and in each subsequent
Limitation Year until no amount of such excess remains unallocated;
such excess unallocated amount shall be released from the suspense
account on a first-in-first-out basis.
All allocations under this paragraph shall be made on the basis
described in this Article either for the current Limitation Year
or, if applicable, for the Limitation Year in which such amount is
released from the suspense account.
The above reductions shall be applied to this Plan first, and
thereafter to any other Defined Contribution Plan.
3. In addition to the limitations of Paragraph 1 of this
Section, if a Participant has participation in any Defined Benefit
Plan at any time and the sum of the Participant's defined benefit
fraction (determined pursuant to IRC 415(e)(2)) and defined
contribution fraction (determined pursuant to IRC 415(e)(3))
would exceed 1.0, then the reductions provided in such Defined
Benefit Plan shall be made. For purposes of this paragraph, "1.0"
shall be substituted for "1.25" in IRC 415(e)(2)(b) and (3)(B)
for purposes of determining the Participant's defined benefit
fraction and defined contribution fraction, respectively.
F. Limitation on Matching Contributions
1. Effective July 1, 1987, the Average Contribution Percentage
for Eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Contribution Percentage
for Eligible Participants who are Non-Highly Compensated Employees
for the Plan Year multiplied by
(a) 1.25; or
(b) 2, provided that the Average Contribution Percentage
for Eligible Participants who are Highly Compensated Employees does
not exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees by more than
two (2) percentage points or such lesser amount as the Secretary of
the Treasury shall prescribe to prevent the multiple use of this
alternative limitation with respect to any Highly Compensated
Employee.
2. If one or more Highly Compensated Employees participate in
both a cash or deferred arrangement and a plan subject to the
Average Contribution Percentage test maintained by the Employer and
the sum of the Average Deferral Percentage and the Actual
Contribution Percentage of those Highly Compensated Employees
subject to either or both tests exceeds the Aggregate Limit, then
the Average Contribution Percentage of those Highly Compensated
Employees who also participate in a cash or deferred arrangement
shall be reduced (beginning with such Highly Compensated Employee
whose Average Compensation Percentage is the highest) so that the
limit is not exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage amount is reduced shall be
treated as an excess aggregate contribution. The Average Deferral
Percentage and the Average Contribution Percentage of the Highly
Compensated Employees shall be determined after any corrections
required to meet the Average Actual Deferral Percentage and the
Average Contribution Percentage tests. Multiple use does not occur
if either the Average Actual Deferral Percentage or Average
Contribution Percentage of the Highly Compensated Employees does
not exceed 1.25 multiplied by the Average Actual Deferral
Percentage and Average Contribution Percentage of the Non-Highly
Compensated Employees.
3. For purposes of this Section F, the Contribution Percentage
for any Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to receive Matching
Contributions allocated to his account under two or more plans
described in IRC 401(a) that are maintained by a Controlled Group
Member shall be determined as if all such contributions were made
under each plan. If a Highly Compensated Employee participates in
two or more cash or deferred arrangements that have different plan
years, all cash or deferred arrangements ending with or within the
same calendar year shall be treated as a single arrangement.
4. In the event that this Plan satisfies the requirements of
IRC 401(m), 401(a) or 410(b) only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements
of such IRC sections only if aggregated with this Plan, then this
Section F shall be applied by determining the Contribution
Percentages of Eligible Participants as if such plans were a single
plan. For plan years beginning after December 1, 1989, plans may
be aggregated in order to satisfy IRC 401(m) only if they have
the same plan year.
5. For purposes of determining the Contribution Percentage of
a Participant who is a five-percent owner or one of the ten most
Highly Compensated Employees, the Contribution Percentage amounts
and Compensation of such Participant shall include the Contribution
Percentage amounts and Compensation of Family Members, and such
Family Members shall be disregarded in determining the Contribution
Percentage for Participants who are Non-Highly Compensated
Employees and who are Highly Compensated Employees.
6. For purposes of determining the Contribution Percentage
test, Matching Contributions will be considered made for a Plan
Year if made no later than the end of the 12-month period beginning
on the day after the close of the Plan Year.
7. The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Contribution Percentage
test and the amount of Employer Matching Contributions used in such
test.
8. For purposes of this Section F, "Aggregate Limit" shall
mean the sum of (i) 125 percent of the greater of the Average
Deferral Percentage of the Non-Highly Compensated Employees for the
Plan Year or the Average Contribution Percentage of Non-Highly
Compensated Employees under the Plan subject to IRC 401(m) for
the Plan Year beginning with or within the Plan Year of the cash or
deferred arrangement, and (ii) the lesser of 200% or two plus the
lesser of such Average Deferral Percentage or Average Contribution
Percentage. "Lesser" shall be substituted for "greater" in "(i)"
above, and "greater" substituted for "lesser" after "two plus the"
in "(ii)" if it would result in a larger Aggregate
Limit.
9. The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
10. Notwithstanding any other provision of the Plan, Excess
Aggregate Contributions plus any income and minus any loss
allocable thereto shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of each Plan
Year to accounts of those Participants to which such Excess
Aggregate Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions shall be allocated to Participants
who are subject to the family member aggregation rules or IRC
414(q)(6) in the same manner prescribed by the Regulations. If
such Excess Aggregate Contributions are distributed more than two
and one-half months after the last day of the Plan Year in which
such amounts arose, a ten (10) percent excise tax shall be imposed
on the Employer maintaining the Plan with respect to those amounts.
Excess Aggregate Contributions shall be treated as Annual Additions
under the Plan. For purposes of this Section F, "Excess Aggregate
Contributions" shall mean, with respect to any Plan Year, the
excess of (i) the aggregate contribution percentage amounts taken
into account and computing the numerator of the contribution
percentage actually made on behalf of Highly Compensated Employees
for such Plan Year, over (ii) the maximum contribution percentage
amounts permitted by the Average Contribution Percentage test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their contribution percentages
beginning with the highest of such percentages). [Reductions to
comply with the limitations under this Section shall be done in the
manner established by the Administrative Committee.]
G. Limitation on Before-Tax Contributions
1. Effective July 1, 1987, the Average Actual Deferral
Percentage for Eligible Elective Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the
Average Actual Deferral Percentage for Eligible Elective
Participants who are Non-Highly Compensated Employees for the Plan
Year multiplied by:
(a) 1.25; or
(b) 2, provided that the Average Actual Deferral
Percentage for Eligible Elective Participants who are Highly
Compensated Employees does not exceed the Average Actual Deferral
Percentage for Eligible Elective Participants who are Non-Highly
Compensated Employees by more than two percentage points or such
lesser amount as the Secretary of the Treasury shall prescribe to
prevent the multiple use of this alternative limitation with
respect to Highly Compensated Employees. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements
ending with or within the same calendar years shall be treated as
a single arrangement.
2. In the event that this Plan satisfies the requirements of
IRC 401(k), 401(a)(4) or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such IRC sections only if aggregated with this
Plan, then this Section shall be applied by determining the Average
Actual Deferral Percentage of Employees as if all such plans were
a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy IRC 401(k) only if
they have the same Plan Year.
3. For purposes of this Section G, the Actual Deferral
Percentage for any Eligible Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have Before-Tax
Contributions or Qualified Employer Deferral Contributions
allocated to his account under two or more plans or arrangements
described in IRC 401(k) that are maintained by a Controlled Group
Member shall be determined as if all such Before-Tax Contributions
and Qualified Employer Deferral Contribution were made under a
single arrangement.
4. For purposes of determining the Actual Deferral Percentage
of a Participant who is a 5 percent owner or one of the ten most
Highly Compensated Employees, the Before-Tax Contributions,
Qualified Employer Deferral Contributions and Compensation of such
Participant shall include the Before-Tax Contributions, Qualified
Employer Deferral Contributions and Compensation for the Plan Year
of Family Members, and such Family Members shall be disregarded in
determining the Actual Deferral Percentage both for Participants
who are Non-Highly Compensated Employees and for Participants who
are Highly Compensated Employees.
5. For purposes of determining the Average Actual Deferral
Percentage test, Before-Tax Contributions and Qualified Employer
Deferral Contributions must be made before the last day of the
twelve-month period immediately following the Plan Year to which
such contributions relate.
6. The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Actual Deferral Percentage
test and the amount of Before-Tax Contributions or Qualified
Employer Deferral Contributions, or both, used in such test.
7. The determination and treatment of the Before-Tax
Contributions, Qualified Employer Deferral Contributions and Actual
Deferral Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.
8. To the extent necessary to conform to the limitation of
this Section, the Administrative Committee shall reduce the Before-
Tax Contributions made by the Highly Compensated Employees in the
following manner:
(a) the Before-Tax Contributions of each Highly
Compensated Employee who elected 5% shall be reduced to 4%,
(b) next, if necessary, from 4% to 3% for the same
group. This process shall continue until the limits of this
Section are met.
9. Notwithstanding any other provision of the Plan, "excess
contributions", plus any income and minus any loss allocable
thereto, shall be distributed no later than the last day of each
Plan Year to Participants to whose accounts such excess
contributions were allocated for the preceding Plan Year. If such
excess amounts are distributed more than two and one-half months
after the last day of the Plan Year in which such excess amounts
arose, a ten percent (10%) excise tax will be imposed on the
Employer. Such distributions shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees. Excess
contributions shall be allocated to Participants who are subject to
the family member aggregation rules of IRC 414(g)(6) in the
manner prescribed by the Treasury Regulations. Excess
contributions (including the amounts recharacterized) shall be
treated as Annual Additions.
Excess contributions shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable
to excess contributions is the sum of:
(a) income or loss allocable to the Participant's
Before-Tax Contributions Account (and, if applicable, the Qualified
Employer Deferral Contribution account) for the Plan Year
multiplied by a fraction, the numerator of which is such
Participant's excess contributions for the year, and the
denominator is the Participant's account balance attributable to
Before-Tax Contributions (and Qualified Employer Deferral
Contributions if such contributions are included in the Average
Actual Deferral Percentage test) without regard to any income or
loss occurring during such Plan Year; and
(b) ten percent (10%) of the amount determined under (a)
and multiplied by the number of whole calendar months between the
end of the Plan Year and the date of distribution, counting the
month of distribution if distribution occurs after the fifteenth
day of such month.
Excess contributions shall be distributed from the
Participant's Before-Tax Contribution Account in proportion to the
Participant's Before-Tax Contributions for the Plan Year. Excess
contributions shall be distributed from the Participant's
Qualified Employer Deferral Contribution account only to the extent
that such excess contributions exceed the balance in the
Participant's Before-Tax Contributions account. For purposes of
this Section G, "excess contributions" shall mean, with respect to
any Plan Year, the excess of: (a) the aggregate amount of Employer
Contributions actually taken into account in computing the Average
Actual Deferral Percentage of Highly Compensated Employees for such
Plan Year, over (b) the maximum amount of such contributions
permitted by the Average Actual Deferral Percentage test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the Average Actual Deferral
Percentages, beginning with the highest of such percentages).
ARTICLE VII
Investment Fund
A. Investment Fund
The Fund shall consist of the funds in the Investment Fund, in
each of which funds each Member who has any interest therein shall
have an undivided proportionate interest. Each Member's undivided
proportionate interest in each fund in the Investment Fund shall be
measured by the ratio that the portion of his Benefit Account
invested in such fund bears to the total portions of all Benefit
Accounts of all Members invested in such fund as of the date that
such interest is being determined.
1. Investment Elections and Transfers
(a) Each Participant may elect to have the Employer
Contributions made on his behalf invested in funds in the
Investment Fund from time to time selected and provided by the
Administrative Committee. Such Election shall be made by each
Participant in the manner determined by the Administrative
Committee upon becoming a Participant and may be changed as
determined by the Administrative Committee by uniform rules from
time to time adopted. In the event that a Participant elects to
change the proportion of future Employer Contributions, the
existing assets in his Employer Contributions Account may also be
transferred as of that same date so as to be allocated among the
Investment Funds in the same proportion as future Employer
Contributions are to be allocated or may remain as previously
allocated according to the Member's instructions.
(b) Each Participant may make a separate election in the
same manner as described above which will apply to his combined
Matching and Before-Tax Contributions.
2. Transfer of Assets
The Administrative Committee shall direct the Trustee to
transfer moneys or other property from the appropriate Investment
Fund to another Investment Fund as may be necessary to carry out
the aggregate transfer transactions after the Administrative
Committee has caused the necessary entries to be made in the
Participant's Benefit Accounts in the Investment Funds and has
reconciled offsetting transfer elections, in accordance with
uniform rules therefor established by the Administrative Committee.
B. Valuation and Allocation of Expenses
As of each Valuation Date, the Trustee shall determine the fair
market value of the Trust Fund after first deducting any expenses
which have not been paid by the Employers. Unless paid by the
Employers, and subject to such limitations as may be imposed by
ERISA or other applicable law, all costs and expenses incurred in
connection with the general administration of the Plan and the
Trust shall be chargeable to the Trust Fund.
C. Allocation of Earnings and Losses
As of each Valuation Date, the Administrative Committee, with
the assistance of the Trustee, before crediting the Benefit
Accounts with Contributions and Forfeitures for that Fiscal Year,
shall (a) allocate the net earnings and gains or losses of the
Investment Fund since the preceding Valuation Date to each Member's
Benefit Accounts in the same proportion that the market value of
his account in such fund bears to the total market value of all
Member's Benefit Accounts in such fund. For purposes of this
section, the Administrative Committee shall adopt uniform rules
which conform to applicable law and generally accepted accounting
practices.
ARTICLE VIII
Fiduciaries
A. Named Fiduciaries
The Administrative Committee shall be the Named Fiduciary of
the Plan with authority to control and manage the operation and
administration of the Plan, to manage and control Plan assets and
to select the Trustee, the Investment Funds and the Investment
Manager. The Administrative Committee shall also be the
"Administrator" and the "Plan Administrator" with respect to the
Plan, as those terms are defined in ERISA 3(16)(A) and in IRC
414(g), respectively.
B. Employment of Advisors
A Named Fiduciary, and any fiduciary named by a Named
Fiduciary, may employ one or more persons to render advice with
regard to any responsibility of such Named Fiduciary or fiduciary
under the Plan.
C. Multiple Fiduciary Capacities
Any named Fiduciary and any other fiduciary may serve in more
than one fiduciary capacity with respect to the Plan.
D. Indemnification
To the extent not prohibited by state or federal law, the
Company and Affiliates shall indemnify and save harmless any Named
Fiduciary or any employee or director of the Company or an
Affiliate, from all claims for liability, loss or damage (including
payment of expenses in connection with defense against any such
claim) which result from any exercise or failure to exercise any
responsibilities with respect to the Plan, other than willful
misconduct or willful failure to act.
ARTICLE IX
Plan Administration
A. The Administrative Committee
1. The Board shall appoint a committee to be known as the
"Administrative Committee" whose members shall serve at the
pleasure of the Board. The Administrative Committee shall be
composed of not less than three, nor more than seven, persons (the
majority of whom shall be Participants).
2. All of the reasonable expenses of the Administrative
Committee shall be paid from the Trust unless paid by an Employer.
Directors or Employees of the Company or an Affiliate shall receive
no compensation for their services rendered to or as members of the
Administrative Committee if such directors or Employees receive
compensation as full time Employees or directors of the Company or
an Affiliate. Any other member of the Administrative Committee may
receive compensation for services as a member, to be paid from the
Trust to the extent not paid by the Employers.
3. The Administrative Committee shall act by a majority of its
members at the time in office who are eligible to vote on any
particular matter, and such action may be taken either by a vote at
a meeting or alternatively, by unanimous written consent. The
Administrative Committee may authorize in writing any person to
execute any document or documents on its behalf, and any interested
person, upon receipt of notice of such authorization directed to
it, may thereafter accept and rely upon any document executed by
such authorized person until the Administrative Committee shall
deliver to such interested person a written revocation of such
authorization.
4. A member of the Administrative Committee who is also a
Participant shall not vote or act upon any matter relating
specifically to himself.
B. Powers, Duties, etc. of the Administrative Committee
1. The Administrative Committee shall have the power and
discretion to construe the Plan and to determine all questions of
fact that may arise thereunder, and any such construction or
determination shall be conclusively binding upon all persons
interested in the Plan. The Administrative Committee shall
establish and carry out a funding policy and method consistent with
the objectives of the Plan and the requirements of ERISA.
2. Subject to the terms of the Plan, the Administrative
Committee shall determine the time and manner in which all
elections authorized by the Plan shall be made or revoked.
3. All applications of the Funds for purposes of payment of
benefits or expenses of the Plan shall be made by the Trustee only
at the direction of the Administrative Committee.
4. The Administrative Committee shall have power to make and
deal with any investment of the Trust in any manner consistent with
the Plan which it deems advisable.
5. The Administrative Committee shall have all the rights,
powers, duties and obligations granted or imposed upon it elsewhere
in the Plan.
6. The Administrative Committee shall exercise all of its
responsibilities hereunder in a uniform and nondiscriminatory
manner.
C. Investment Managers
The Administrative Committee may, by an instrument in writing,
appoint one or more persons (each of whom is hereinafter referred
to as an "Investment Manager"), as adviser to the Administrative
Committee in respect of investment and may, subject to any
restrictions upon investment imposed upon the Administrative
Committee by any regulation of the Treasury Department relating to
the qualified status of the Trust as tax exempt, or by ERISA,
delegate to an Investment Manager from time to time the power to
manage, acquire and dispose of or to direct the Trustee to manage,
acquire and dispose of any Plan assets. Each person so appointed
shall be an investment adviser registered under the Investment
Advisers Act of 1940, a bank as defined in that Act, or an
insurance company qualified to manage, acquire, or dispose of any
asset of the Plan under the laws of more than one state. Each
Investment Manager shall acknowledge in writing that it is a
fiduciary with respect to the Plan. Such appointment and
delegation shall be upon such terms and conditions as the
Administrative Committee shall approve, and the Administrative
Committee may enter into an agreement with each Investment Manager
specifying the duties and compensation of such Investment Manager
and the other terms and conditions under which such Investment
Manager shall be retained. The Administrative Committee shall not
be liable for any act or omission of any Investment Manager, and
shall not be liable for following the advice of any Investment
Manager, with respect to any duties delegated to any Investment
Manager. The Administrative Committee may, at any time, terminate
the appointment of any Investment Manager.
D. The Trustee
The Administrative Committee shall, by an instrument in
writing, appoint one or more persons (each of whom is hereinafter
referred to as a "Trustee") to serve as trustee of all or a
portion of the Trust. Each Trustee shall be subject to direction
by the Administrative Committee or an Investment Manager and shall
have no discretion with respect to management and control of Plan
assets, except to the extent that the instrument appointing such
Trustee provides that such Trustee shall have power to manage and
control Plan assets. Each Trustee shall accept its appointment by
an instrument in writing. The Administrative Committee shall enter
into an Agreement with each Trustee specifying the duties and
compensation of such Trustee and the other terms and conditions
under which such Trustee shall serve. The Administrative Committee
shall not be liable for any act or omission of any Trustee with
respect to any duties delegated to any Trustee.
E. Compensation
Each Investment Manager and Trustee shall be paid such
reasonable compensation, in addition to their expense, as shall
from time to time be agreed upon by the Administrative Committee
and each Investment Manager or Trustee, as the case may be. No
individual who receives compensation as a full-time employee of the
Company or an Affiliate may receive compensation, other than
reimbursement for reasonable expenses, as an Investment Manager or
Trustee.
F. Investment in Qualifying Employer Property
All or any portion of the Trust may be held in the form of
qualifying employer real property and qualifying employer
securities as those terms are defined in ERISA 407(d)(4) and {
407(d)(5), respectively.
G. Delegation of Responsibility
The Administrative Committee may designate persons, including
persons other than Named Fiduciaries, to carry out the
responsibilities of the Administrative Committee provided for
hereunder. The Administrative Committee shall not be liable for
any act or omission of a person so designated.
H. Claims Procedure
1. If any claim for benefits under the Plan is wholly or
partially denied, the claimant shall be given notice in writing
within a reasonable period of time after receipt of the claim by
the Plan (not to exceed 90 days after receipt of the claim, or if
special circumstances require an extension of time, written notice
of the extension shall be furnished to the claimant and an
additional 90 days will be considered reasonable) by registered or
certified mail of such denial, written in a manner calculated to be
understood by the claimant, setting forth the following
information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on
which the denial is based;
(c) a description of any additional material or
information necessary for the claimant to perfect
the claim and an explanation of why such material
or information is necessary; and
(d) an explanation of the Plan's claim review
procedure.
2. The claimant also shall be advised that he or his duly
authorized representative may request a review by the Plan
Administrator of the decision denying the claim by filing with the
Plan Administrator, within 60 days after such notice has been
received by the claimant, a written request for such review, and
that he may review pertinent documents, and submit issues and
comments in writing within the same 60-day period. If such request
is so filed, such review shall be made by the Plan Administrator
within 60 days after receipt of such request, unless special
circumstances require an extension of time for processing, in which
case the claimant shall be so notified and a decision shall be
rendered as soon as possible, but not later than 120 days after
receipt of the request for review.
3. The claimant shall be given written notice of the decision
resulting from such review, which notice shall include specific
reasons for the decision, written in a manner calculated to be
understood by the claimant, and specific references to the
pertinent Plan provisions on which the decision is based.
ARTICLE X
Amendment
The Board shall have the right at any time to amend the Plan in
whole or in part, by an instrument in writing, effective
retroactively or otherwise, provided, however, that no amendment
shall:
1. authorize any part of the Trust to be used for, or diverted
to, purposes other than for the exclusive benefit of Participants
or their Beneficiaries (excepting only such amounts as may revert
to or become the property of the Company or a Participating
Affiliate as provided in Section A of Article XII hereof);
2. decrease the accrued benefits of any Participant or his
Beneficiary under the Plan (excepting only such amounts as may
revert to or become the property of the Company or a Participating
Affiliate as provided in Section A of Article XII hereof);
3. reduce the vesting percentage of any Participant;
4. change the vesting schedule, unless each Participant having
not less than three Years of Service is permitted to elect, within
a reasonable period specified by the Administrative Committee after
the adoption of such amendment, to have his vesting percentage
computed without regard to such amendment; or
5. eliminate an option form of benefit within the meaning of
IRC 411(d)(6).
<PAGE>
ARTICLE XI
Discontinuance of Contributions and Termination of the Plan
A. Right of the Company to Terminate the Plan or Discontinue
Contributions
The Company has established the Plan as a permanent plan with
the bona fide intention and expectation that from year to year it
will be able to and will deem it advisable to continue it in effect
and to make contributions as herein provided. However, the Company
reserves the right to terminate the Plan by an instrument in
writing delivered to the Administrative Committee.
B. Determination of Date of Complete or Partial Termination or
Complete Discontinuance of Contributions
The date of complete or partial termination of the Plan, or
complete discontinuance of contributions under the Plan, shall be
established by the Administrative Committee in accordance with the
directions of the Board (if then in existence) and in accordance
with applicable law.
C. Effect of Complete or Partial Termination or Complete
Discontinuance of Contributions
1. As of the date of partial termination of the Plan:
(a) The accrued benefit of each affected Participant shall
be nonforfeitable; and
(b) no further contributions or allocations of forfeitures
shall be made after such date with respect to each affected
Participant.
2. As of the date of complete termination of the Plan, or the
complete discontinuance of contributions under the Plan:
(a) the accrued benefit of each Participant who is employed
on the date of such complete termination of the Plan or such
complete discontinuance of contributions under the Plan shall be
nonforfeitable;
(b) no further contributions or allocations of forfeitures
shall be made after such date; and
(c) no Employee shall become a Participant after such date.
3. All of the other provisions of the Plan shall remain in
effect unless otherwise amended.
ARTICLE XII
Miscellaneous Provisions
A. Exclusive Benefit of Participants
All contributions made by an Employer are conditional upon
qualification of the Plan under IRC 401(a) and upon deductibility
under IRC 404.
Notwithstanding anything in the Plan to the contrary, it shall
be prohibited at any time for any part of the Fund (other than such
part as is required to pay taxes and administration expenses) to be
used for, or diverted to, purposes other than for the exclusive
benefit of the Participants or their Beneficiaries, except that
upon the direction of the Administrative Committee (a) any
contribution made by an Employer by a mistake of fact shall be
returned to an Employer within one year after the payment of the
contribution; (b) any contribution shall be returned to the
Employer within one year after the denial of initial qualification
of the Plan under IRC 401(a), if the application for initial
qualification determination is filed by the due date of the
Employer's return for the taxable year in which the Plan is
adopted; (c) any contribution shall be returned to the extent
disallowed as a deduction under IRC 404 within one year after the
disallowance of the deduction; and (d) any contribution which would
otherwise be an excess contribution (as defined in Code 4979(c))
may be returned to the extent necessary as a correcting
distribution to avoid payment of an excise tax on such excess
contributions.
B. Plan Not a Contract of Employment
The Plan is not a contract of employment, and the terms of
Employment of any Employee shall not be affected in any way by the
Plan or related instruments except as specifically provided
therein.
C. Source of Benefits
Benefits under the Plan shall be paid or provided for solely
from the Trust, and the Employers assume no liability therefor.
D. Benefits Not Assignable
Benefits provided under the Plan may not be assigned or
alienated except to the extent provided in a Qualified Domestic
Relations Order and except upon withdrawal pursuant to Section J of
Article III hereof or as otherwise provided by regulations or
rulings issued by the Treasury Department.
E. Benefits Payable to Minors, Incompetents and Others
In the event any benefit is payable to a minor or an
incompetent or to a person otherwise under a legal disability, or
who, in the sole discretion of the Administrative Committee, is by
reason of advanced age, illness or other physical or mental
incapacity incapable of handling and disposing of his property, or
otherwise is in such position or condition that the Administrative
Committee believes that he could not utilize the benefit for his
support or welfare, the Administrative Committee shall have
discretion to apply the whole or any part of such benefit directly
to the care, comfort, maintenance, support, education or use of
such person, or pay the whole or any part of such benefit to the
parent of such person, the guardian, committee, conservator or
other legal representative, wherever appointed, of such person, the
person with whom such person is residing, or to any other person
having the care and control of such person. The receipt by any
such person to whom any such payment on behalf of any Participant
or Beneficiary is made shall be a sufficient discharge therefor.
F. Merger
The merger or consolidation of the Company with any other
person, or the transfer of the assets of the Company to any other
person, or the merger of the Plan with any other plan shall not
constitute a termination of the Plan.
The Plan may not merge or consolidate with, or transfer any
assets or liabilities to, any other plan, unless each Participant
would (if the Plan then terminated) receive a benefit immediately
after the merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if the
Plan had then terminated).
G. Participation in the Plan by an Affiliate
1. By appropriate corporate action, any Affiliate may adopt
the Plan. Such Affiliate shall determine the classes of its
Employees who shall be Eligible Employees.
2. By appropriate corporate action, a Participating Affiliate
may terminate its participation in the Plan and at any time may
redetermine which classes of its Employees shall be Eligible
Employees.
3. By appropriate corporation action, a Participating
Affiliate may withdraw from the Plan and the Trust. Such
withdrawal shall be deemed an adoption by such Participating
Affiliate of a plan and trust identical to the Plan and the Trust,
except that all references to the Company shall be deemed to refer
to such Participating Affiliate. At such time and in such manner
as the Company directs, the assets of the Trust allocable to
Employees of such Participating Affiliate shall be transferred to
the Trust deemed adopted by such Participating Affiliate.
4. A Participating Affiliate shall have no power with respect
to the Plan except as specifically provided herein.
H. Expenses
All expenses of the Plan and the Trust shall be paid from the
Trust unless paid by an Employer.
I. Benefits Under Other Plans
The benefits of a Participant who terminates participation
under other plans shall be determined under the provisions of such
plans, whichever is applicable.
J. Controlling Law
The Plan is intended to qualify under IRC 401(a) and comply
with ERISA and its terms shall be interpreted accordingly.
Otherwise, the laws of the State of Florida shall control the
interpretation and performance of the terms of the Plan.
K. No Age Limit
A Participant will not be excluded from participation under the
Plan on account of the attainment of a specified age, other than by
reason of attaining age 21, nor will benefit accruals or
allocations to a Participant's account be reduced or discontinued
on account of attainment of a specified age.
ARTICLE XIII
Top-Heavy Provisions
This Article shall become effective in any Plan Year in which
the Plan is considered to be a Top-Heavy Plan as determined in
Section A of this Article.
A. Determination of Top-Heavy Status
1. The Plan will be considered a Top-Heavy Plan for any Plan
Year if as of the Valuation Date which is on the Determination
Date, the aggregate of the accounts of Key Employees under the Plan
exceeds 60 percent of the aggregate of the accounts for all
Participants unless the Plan is part of a required or permissive
aggregation group which is not top heavy.
2. The Plan will be considered a Top-Heavy Plan for the Plan
Year if on the Determination Date the Plan is part of a required
aggregation group and the required aggregation group is top heavy.
3. For purposes of this Article, required aggregation group
means each plan of the company and affiliates in which a Key
Employee is a Participant and each other plan of the company and
affiliates which enables any plan, in which a Key Employee
participates, to meet the requirements of IRC 401(a)(4) or 410.
4. For purposes of this Article, permissive aggregation group
consists of plans of the company that are required to be aggregated
and one or more other plans that satisfy the requirements of IRC
401(a)(4) and 410 when considered together with the required
aggregate group.
5. For purposes of this Article, if a Participant has not
received any compensation from the Employer or any Affiliate
maintaining the Plan at any time during the five-year period ending
on the Determination Date, the account balance of such Participant
shall not be considered.
6. For purposes of this Article, the amount of the account of
any Participant shall be increased by the aggregate distributions
made with respect to such Participant under the Plan during the
five-year period ending on the Determination Date. This shall
include distributions under any terminated plan, which, if it had
not been terminated, would have been required to be included in an
aggregation group.
7. If any Participant is a non-Key Employee for any Plan Year,
but such Participant was a Key Employee for any prior Plan Year,
such Participant's account balance shall not be taken into account
for purposes of determining top-heavy status under this Article.
8. For purposes of this Article, Key Employee is determined
pursuant to IRC 416(i).
9. Solely for determining if the Plan will be considered a
Top-Heavy Plan, the aggregate of the accounts of the non-Key
Employees shall be determined under (a) the method, if any, that
uniformly applies for accrual purposes under all plans maintained
by the Company and Affiliates, or (b) if there is not such method,
as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the functional accrual rate of IRC
411(b)(1)(C).
B. Minimum Benefits
For each Plan Year in which the Plan is top heavy, each non-Key
Employee Participant eligible for a contribution or other non-Key
Employees required to be included pursuant to IRC 416(c)(2),
shall receive a minimum contribution (including forfeitures) of the
lesser of 3% of Compensation or the highest percent contributed
under the Plan for any Key Employee for such Plan Year. Non-Key
Employees who are eligible to be Participants but are not because
they did not make Regular Contributions shall receive the minimum
contribution in any Plan Year in which one is required under this
Article. Account balances attributable to required minimum
contributions under this Article shall not be forfeited due to the
withdrawal of a non-Key Employee of his Regular Contributions.
Neither Before-Tax Contributions nor Matching Contributions may be
taken into account for the purpose of satisfying the minimum
contribution requirements of this Section B."
C. Maximum Compensation
For any Plan Year in which the Plan is top heavy, the
compensation limitation of IRC 416(d) shall apply. Compensation
for this purpose is the same as defined under IRC 415.
D. Minimum Vesting
1. For any Plan Year in which the Plan is top heavy, the
following vesting schedule shall be applied to the extent such
schedule provides a higher vesting percentage than the vesting
schedule under Section A of Article IV:
Completed Years Vesting
of Service Percentage
1 or less 0%
2 20%
3 40%
4 60%
5 80%
6 100%
2. For any Plan Year in which the Plan is not top heavy after
a Plan year in which the Plan is top heavy, the vesting schedule
under Section A of Article IV shall apply; provided, however, that
the vesting percent of a Participant shall never be lower than the
percent obtained under this Schedule during a Top-Heavy Year and a
Participant with at least three years of Vesting Service during a
Top-Heavy Plan Year shall have the Vesting Schedule of this Section
apply.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed in its name by its proper officers and its
corporate seal to be hereto affixed this _______ day of
________________, 1992, effective as of July 1, 1989.
WINN-DIXIE STORES, INC.
By:_______________________________
Its President
Attest:___________________________
Its Secretary
(CORPORATE SEAL)
<PAGE>
R E S O L U T I O N
AMENDMENT OF THE EMPLOYEES PROFIT SHARING RETIREMENT PLAN
OF WINN-DIXIE STORES, INC.
(AS RESTATED AND EFFECTIVE AS OF
(JULY 1, 1989 AND AS AMENDED THROUGH SEPTEMBER 14, 1992)
WHEREAS, WINN-DIXIE STORES, INC. (the "Company") maintains the Employees'
Profit Sharing Retirement Plan of Winn-Dixie Stores, Inc. (the "Plan") for
the exclusive benefit of the Company's eligible employees; and
WHEREAS, the Company has reserved the right to amend such Plan pursuant to
Article X of the Plan document; and
WHEREAS, the Company wishes to amend the Plan in order to comply with
changes in the statutory laws and regulations promulgated and adopted
pursuant to such laws. In particular, the changes to the Plan are made to
comply with the actual operation of the Plan and to accommodate changes in
administration resulting from the January 1, 1993 change in trustee and
recordkeeper.
NOW, THEREFORE, pursuant to Article 10.1 of the Plan, and in the exercise of
the authority delegated to the officers of the company by resolutions
adopted on January 21, 1987, the Plan be and it hereby is amended,
effective as of January 1, 1993, except as otherwise provided below, in the
following particulars:
1. Article I, Definitions shall be amended by deleting paragraph 3.
which appears on page 1 and in place thereof substituting the
following:
"3. Administrative Committee: The committee appointed
pursuant to the provisions of Section A. of Article IX
hereof."
2. Article I, Definitions shall be amended by deleting paragraph 42.
which appears on page 6 and in place thereof substituting the
following:
"42.Investment Fund: One of the investment funds selected by
the Administrative Committee in which the assets of the Trust
are invested."
3. Article I, Definitions shall be amended by deleting paragraph 59.
and in place thereof substituting the following:
"59.Plan: Winn-Dixie Stores, Inc. Profit Sharing/401(k)
Plan, as it may be amended from time to time."
4. Article I, Definitions, shall be amended by adding the following
new paragraph as follows:
"61. Qualified Employer Deferral Contribution Account: the
account established pursuant to Section A., of Article VI to
which each Participant's Qualified Employer Deferral
Contributions are allocated."
5. Article I, Definitions existing paragraph 61. shall be amended to
read:
"62.Qualified Employer Deferral Contributions: Contribution
made, without a Participant's election to defer, by an
Employer and allocated to the Participant's Qualified
Employer Deferral Contributions Account."
6. Article I, Definitions, shall be amended by renumbering the
existing paragraphs: 62. Surviving Spouse shall be renumbered to
"63."; the present paragraph 63. Qualified Domestic Relations
Order shall be renumbered to "64."; the present paragraph 64.
Trust shall be renumbered to paragraph "65."; the present paragraph
65. Trustee shall be renumbered to "66." and the present paragraph
66. shall be renumbered to "67.".
7. Article I, Definitions, existing renumbered paragraph 67. shall be
amended to read as follows:
"67.Valuation Date: The last day of the Plan Year and, any other day
of the Plan Year as may be necessary for the proper administration of
the Plan."
8. Article I, Definitions, existing paragraph 67. Year of 401(k)
Participation shall be amended by deleting the entirety of such
paragraph.
9. Article III, Section J., Hardship Withdrawals, shall be amended by
deleting the last sentence of paragraph 1. in its entirety.
10. Article III, Section J., Hardship Withdrawals, paragraph 5.(a)
shall be deleted and in place thereof shall be substituted the
following:
"(a) he shall not be permitted to again make a Before-Tax
Contribution (or contributions to other plans as provided in
the regulations) until the first day which is at least 12
months after receipt of the withdrawal, and ".
11. Article III, Section K., Forfeitures, shall be amended by deleting
the first sentence of such Article and in place thereof shall be
substituted the following sentence:
"The non-vested portion of the Employer Contributions Account
and Matching Contributions Account of a Member who has
terminated Employment shall be forfeited as of the date the
vested portion is distributed."
12. Article III, Section L., Restoration of Forfeitures, paragraph
1.a) shall be deleted and in place thereof shall be substituted
the following:
"a) If the vested portion of the Member's Benefit Accounts
has not been distributed, any forfeitures shall be restored
to his Benefit Account from which such amount was forfeited
in the same amount as forfeited as soon as possible following
such Reemployment."
13. Article IV, Vesting, shall be amended by altering Section A.
Vesting Percentage at paragraph 3.(a) by changing the title of
the first schedule which appears therein from "Years of 401(k)
Participation" to read "Completed Years of Service".
In addition, Article IV, Vesting, shall be amended by deleting in
its entirety Section B. Rules for Crediting Years of 401(k)
Participation.
Article IV, Vesting, shall be further amended by amending the
present Section C. Rules for Crediting Years of Service to read:
"B. Rules for Crediting Years of Service".
14. Article V, Contributions, shall be amended by deleting paragraph
3. of Section A. Before-Tax Contributions and in place thereof
substituting the following:
"3. The initial Participant Before-Tax Contribution election
must be made effective as of the last day of the first pay
period immediately after the Participant becomes eligible to
participate.
(a) Subsequent Participant Before-Tax Contribution elections
can be made effective as of any subsequent date in the
manner provided by the Administrative Committee.
(b) Participants may elect to increase or decrease
Before-Tax Contributions as of any subsequent date in
accord with rules provided by the Administrative
Committee from time to time.
(c) All elections to make Before-Tax Contributions shall be
effective only as to Compensation not earned as of the
effective dates of such elections."
15. Article V, Contributions, shall be amended by deleting the first
sentence of the present paragraph 4. of Section A. Before-Tax
Contributions and in place thereof shall be substituted the
following:
"4. A Participant may elect in writing to cease Before-Tax
Contributions as of the first day of any future payroll
period as of a time and in the manner as established by the
Administrative Committee."
16. Article V, Contributions, shall be amended by deleting the present
paragraph 2. of Section C. Matching Contributions and substituting
in place thereof the following:
"2. Such Matching Contributions shall be allocated to
Participants' Matching Contribution Accounts as soon as
practicable after receipt from each Employer."
17. Article VI, Accounts and Allocations, shall be amended by adding a
new paragraph 5. to Section A. Accounts, as follows:
"5. Each applicable Participant shall have a Qualified
Employer Deferral Contributions Account to which Qualified
Employer Deferral Contributions made on his behalf shall be
allocated."
18. Article VI, Accounts and Allocations, Section B. Allocation of
Contributions shall be modified by deleting the initial phrase of
paragraph 2. and in place thereof inserting the following:
"2. The Employer Contribution for such Plan Year shall be
allocated as soon as practicable after receipt to the
Employer Contributions Account of all Participants who, for
such Plan Year:"
19. Article VII, Investment Fund, shall be amended by amending Section
A. Investment Fund by deleting from the first line the words
"Except as provided in Article XIV;" and changing the letter "t"
to "T" in the following word "the".
Section A., paragraph 1. Investment Elections and Transfers,
paragraphs (a) and (b) shall be amended to read as follows:
"(a)Each Participant may elect to have the Employer
Contributions made on his behalf invested in funds in the
Investment Fund from time to time selected and provided by
the Administrative Committee. Such election shall be made by
filing an election form with the Plan Administrator selected
by the Administrative Committee upon becoming a Participant
and may be changed as determined by the Administrative
Committee by uniform rules from time to time adopted. In the
event that a Participant elects in this manner to change the
proportion of future Employer Contributions, the existing
assets in his Employer Contributions Account may also be
transferred as of that same date so as to be allocated among
the Investment Funds in the same proportion as future
Employer Contributions are to be allocated or may remain as
previously allocated according to the Member's instructions.
(b) Each Participant may make a separate election in the same
manner as described above which will apply to his combined
Matching and Before-Tax Contributions."
Article VII, Section C., Allocation of Earnings and Losses, shall
be amended to read as follows:
"C.As of each Valuation Date, the Administrative Committee, with
the assistance of the Trustee, before crediting
the Benefit Accounts with Contributions and Forfeitures for
that Fiscal Year, shall (a) allocate the net earnings and
gains or losses of the Investment Fund since the preceding
Valuation Date to each Member's Benefit Accounts in the same
proportion that the market value of his account in such fund
bears to the total market value of all Member's Benefit
Accounts in such fund. For purposes of this section, the
Administrative Committee shall adopt uniform rules which
conform to applicable law and generally accepted accounting
practices."
20. Article XIV, Special Provisions Relating to Former Employees of
Dixie-Home Stores and to the Special Trust Fund, shall be deleted
in its entirety.
<PAGE>
WINN-DIXIE STORES, INC.
SUPPLEMENTAL RETIREMENT PLAN
Effective Date: July 1, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
I - Definitions and Construction . . . . . . . . . . . . . . I-1
II - Participation . . . . . . . . . . . . . . . . . . . . . . II-1
III - Account Credits and Allocations of Income or Loss . . . . III-1
IV - Deemed Investment of Funds. . . . . . . . . . . . . . . . IV-1
V - Determination of Vested Interest and Forfeitures . . . . V-1
VI - In-Service Distributions . . . . . . . . . . . . . . . . VI-1
VII - Termination Benefits . . . . . . . . . . . . . . . . . . VII-1
VIII- Administration of the Plan . . ...... . . . . . . . . . . VIII-1
IX - Administration of Funds . . . . . . . . . . . . . . . . . IX-1
X - Nature of the Plan. . . . . . . . . . . . . . . . . . . . X-1
XI - Adopting Entities . . . . . . . . . . . . . . . . . . . . XI-1
XII - Miscellaneous . . . . . . . . . . . . . . . . . . . . . . XII-1
<PAGE>
WINN-DIXIE STORES, INC.
SUPPLEMENTAL RETIREMENT PLAN
W I T N E S S E T H :
WHEREAS, WINN-DIXIE STORES, INC., desiring to aid certain of its employees
in making more adequate provision for their retirement, has decided to adopt
the following WINN-DIXIE STORES, INC. SUPPLEMENTAL RETIREMENT PLAN (the
"Plan");
NOW THEREFORE, the Plan is hereby adopted as follows, effective as of
July 1, 1994:
I.
Definitions and Construction
1.1 Definitions. The capitalized words or terms used in the Plan and which
are not otherwise defined herein shall have the same meanings as such words or
terms have in the Profit Sharing/401(k) Plan, as the same may be amended from
time to time. Where the following words and phrases appear in the Plan, they
shall have the respective meanings set forth below, unless their context
clearly indicates to the contrary.
(1) Account(s): A Member's Company Account and/or Deferral Account,
including the amounts credited thereto.
(2) Affiliates: The Company's "Affiliates," as such term is defined under
the Profit Sharing/401(k) Plan.
(3) Code: The Internal Revenue Code of 1986, as amended.
(4) Committee: The administrative committee appointed by the Directors to
administer the Plan.
(5) Company: Winn-Dixie Stores, Inc. and any other adopting entity which
adopts the Plan pursuant to the provisions of Article XI, jointly and
severally.
(6) Company Account: An individual account for each Member to which is
credited the Company Deferrals made on his behalf pursuant to Section
3.2 and which is credited (or debited) for such account's allocation of
net income (or net loss) as provided in Section 3.3.
(7) Company Deferrals: Deferrals made by the Company on a Member's behalf
pursuant to Section 3.2.
(8) Compensation: Amounts equal to a Member's "Compensation," as such term
is defined under the Profit Sharing/401(k) Plan, including amounts a
Member could have received in cash in lieu of Member Deferrals pursuant
to Section 3.1, and without regard to the maximum dollar limitation of
section 401(a)(17) of the Code.
(9) Deferral Account: An individual account for each Member to which is
credited his Member Deferrals pursuant to Section 3.1 and which is
credited (or debited) for such account's allocation of net income (or
net loss) as provided in Section 3.3.
(10) Directors: The Board of Directors of Winn-Dixie Stores, Inc.
(11) Disability: A Member's "Disability," as such term is defined under the
Profit Sharing/401(k) Plan.
(12) Effective Date: July 1, 1994.
(13) Election Date: The first day of each Plan Year.
(14) Funds: The investment funds designated from time to time for the
deemed investment of Accounts pursuant to Article IV.
(15) Member: Each individual who is eligible for participation in the Plan
and who has become a Member pursuant to Article II.
(16) Member Deferrals: Deferrals made by a Member pursuant to Section 3.1.
(17) Plan: The Winn-Dixie Stores, Inc. Supplemental Retirement Plan, as
amended from time to time.
(18) Plan Year: The twelve-consecutive month period commencing July 1 of
each year.
(19) Profit Sharing/401(k) Plan: The Winn-Dixie Stores, Inc. Profit
Sharing/401(k) Plan, as amended from time to time.
(20) Retirement Date. The date upon which such Member has attained sixty-
five years of age.
(21) Trust: The trust, if any, established under the Trust Agreement.
(22) Trust Agreement: The agreement, if any, entered into between the
Company and the Trustee pursuant to Article X.
(23) Trust Fund: The funds and properties, if any, held pursuant to the
provisions of the Trust Agreement, together with all income, profits
and increments thereto.
(24) Trustee: The trustee or trustees appointed by the Directors who are
qualified and acting under the Trust Agreement at any time.
(25) Valuation Dates: The last business day of each calendar month and any
other interim Valuation Date determined by the Committee on a
nondiscriminatory basis.
(26) Vested Interest: The portion of a Member's Accounts which, pursuant to
the Plan, is nonforfeitable.
1.2 Number and Gender. Wherever appropriate herein, words used in the
singular shall be considered to include the plural and words used in the plural
shall be considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine gender.
1.3 Headings. The headings of Articles and Sections herein are included
solely for convenience, and if there is any conflict between such headings and
the text of the Plan, the text shall control.
II.
Participation
2.1 Eligibility.
(a) Any employee of the Company as of July 1, 1994 who, with respect
to the "Plan Year" ending June 30, 1994 under the Profit Sharing/401(k) Plan,
(1) was a "Member," (2) was a "Highly Compensated Employee" and (3) elected a
5% contribution rate for "Before-Tax Contributions" for such entire "Plan Year"
shall be eligible to become a Member of the Plan for the Plan Year commencing
July 1, 1994 by electing to make Member Deferrals pursuant to Section 3.1(a)
of the Plan.
(b) Any employee of the Company who, with respect to a "Plan Year"
under the Profit Sharing/401(k) Plan, (1) is a "Member," (2) is a "Highly
Compensated Employee" and (3) elects a 5% contribution rate for "Before-Tax
Contributions" for such entire "Plan Year" shall be eligible to become a Member
of the Plan for such Plan Year by electing to make Member Deferrals pursuant
to Section 3.1(b) of the Plan.
(c) Any employee of the Company who was a "Highly Compensated
Employee" as of the last day of any Plan Year under the Profit Sharing/401(k)
Plan shall be eligible to become a Member of the Plan for the Plan Year next
following such last day by electing to make Member Deferrals pursuant to
Section 3.1(c) of the Plan.
(d) Any employee of the Company who, with respect to a "Plan Year"
under the Profit Sharing/401(k) Plan, (1) is a "Member," (2) is a "Highly
Compensated Employee" and (3) elects a 5% contribution rate for "Before-Tax
Contributions" for such entire "Plan Year" shall become a Member of the Plan
for the Plan Year with respect to Company Deferrals pursuant to Section 3.2(b).
2.2 Participation.
(a) Prior to each Election Date, the Committee shall notify those
employees of the Company who are determined by the Committee to be eligible to
initially become Members pursuant to Section 2.1(a), (b) or (c) as of such
Election Date. Any such eligible employee may become a Member on such Election
Date by executing and filing with the Committee, prior to such Election Date,
the Member Deferral election prescribed by the Committee for the Plan Year
beginning on such date.
(b) Any employee of the Company who is eligible to become a Member for
a Plan Year pursuant to Section 2.1(d) shall automatically become a Member as
of the Election Date of such Plan Year.
(c) Notwithstanding any provision herein to the contrary, an
individual who has become a Member of the Plan shall cease to be entitled to
make Member Deferrals hereunder or receive Company Deferrals hereunder
effective as of any date designated by the Committee. Any such Committee
action shall be communicated to the affected individual prior to the effective
date of such action. Any such individual may again become entitled to make
Member Deferrals hereunder and receive Company Deferrals hereunder beginning
on any subsequent Election Date selected by the Committee in its sole
discretion.
III.
Account Credits and Allocations of Income or Loss
3.1 Member Deferrals.
(a) A Member meeting the eligibility requirements of Section 2.1(a)
may elect to defer a portion of his Compensation for the Plan Year commencing
July 1, 1994 equal to the reduction in his "Before-Tax Contributions" under the
Profit Sharing/401(k) Plan for the "Plan Year" ending June 30, 1994 as a result
of the limitations contained in section 401(a)(17), 401(k)(3), 402(g) and/or
415 of the Code.
(b) A Member meeting the eligibility requirements of Section 2.1(b)
may elect to defer a portion of his Compensation for a Plan Year equal to the
reduction in his "Before-Tax Contributions" under the Profit Sharing/401(k)
Plan for such "Plan Year" as a result of the limitations contained in section
401(a)(17), 401(k)(3), 402(g) and/or 415 of the Code.
(c) A Member meeting the eligibility requirements of Section 2.1(c)
may elect to defer an integral percentage of from 1% to 25% of his Compensation
for a Plan Year.
(d) Compensation for a Plan Year not so deferred by such election
pursuant to this Section shall be received by such Member in cash. A Member's
election to defer an amount of his Compensation pursuant to this Section shall
be made by executing and delivering a Compensation deferral election pursuant
to which the Member authorizes the Company to reduce his Compensation in the
elected amount and the Company, in consideration thereof, agrees to credit an
equal amount to such Member's Deferral Account maintained under the Plan.
Compensation deferrals made by a Member shall be credited to such Member's
Deferral Account as of a date determined in accordance with procedures
established from time to time by the Committee; provided, however, that such
deferrals shall be credited to the Member's Deferral Account no later than 30
days after the date upon which the Compensation deferred would have been
received by such Member in cash if he had not elected to defer such amount
pursuant to this Section 3.1. The reduction in a Member's Compensation for a
Plan Year pursuant to his Compensation deferral election shall be effected by
Compensation reductions within such Plan Year following the effective date of
such election.
(e) A Member's Compensation deferral election shall become effective
as of the Election Date which is on or after the date the election is executed
by the Member and filed with the Company. A Member's Compensation deferral
election shall remain in force and effect for the entire Plan Year to which
such election relates. A Member's Compensation deferral election pursuant to
Section 3.1(b) and Section 3.1(c) shall remain in force and effect for each
subsequent Plan Year (following his initial year of participation in the Plan)
for which he satisfies the eligibility requirements set forth in Section 2.1,
unless and until such election is changed or revoked by such Member prior to
the Election Date of a subsequent Plan Year to which such change or revocation
relates.
(f) A Member who has made a Compensation deferral election pursuant to
Section 3.1(c) may change his election, as of the Election Date of any
subsequent Plan Year, by executing and delivering to the Company a new
Compensation deferral election prior to such Election Date and within the time
period prescribed by the Committee.
(g) A Member who has made a Compensation deferral election pursuant
Section 3.1(b) or Section 3.1(c) may cancel his election, as of the Election
Date of any subsequent Plan Year, by executing and delivering to the Company
the form prescribed by the Committee prior to such Election Date and within the
time period prescribed by the Committee. A Member who so cancels his
Compensation deferral election may again make a new Compensation deferral
election for a subsequent Plan Year, if he satisfies the eligibility
requirements set forth in Section 2.1, by executing and delivering to the
Company a new Compensation deferral election prior to the Election Date of such
Plan Year and within the time period prescribed by the Committee.
(h) A Member's Compensation deferral election shall indicate the
applicable form of payment, as provided in Section 7.3, for the Compensation
deferred thereunder and the net income (or net loss) allocated with respect
thereto.
(i) As of any date selected, the Company may credit the Accounts of an
individual who is a Member on such date with such amount, if any, as the
Company shall determine in its sole discretion. Such credits may be made on
behalf of some of such Members but not others, and such credits may vary in
amount among such individual Members.
3.2 Company Deferrals.
(a) For each calendar month, the Company shall credit a Member's
Company Account with an amount which equals 50% of the contributions made
pursuant to Section 3.1(a) and/or Section 3.1(b) on behalf of such Member
during such month.
(b) As of the last day of each Plan Year in which the "Matching
Contributions" for the "Plan Year" under the Profit Sharing/401(k) Plan on
behalf of a Member are limited as a result of the limitations contained in
section 401(m)(2) and/or section 415, the Company shall credit such Member's
Company Account with an amount equal to the reduction in such Member's share
of such "Matching Contributions" to the Profit Sharing/401(k) Plan as a result
solely of the application of such limitations.
(c) As of the last day of each Plan Year in which the "Employer
Contributions" for the "Plan Year" under the Profit Sharing/401(k) Plan on
behalf of a Member are limited as a result of the limitations contained in
section 401(a)(17) and/or section 415, the Company shall credit a special
subaccount within such Member's Company Account with an amount equal to the
reduction in such Member's share of such "Employer Contributions" to the Profit
Sharing/401(k) Plan as a result solely of the application of such limitations.
3.3 Allocation of Net Income or Loss and Changes in Value Among Accounts.
(a) As of each Valuation Date, the Committee shall determine the net
income (or net loss) of each Fund for the period elapsed since the next
preceding Valuation Date. The net income (or net loss) of each Fund since the
next preceding Valuation Date shall be ascertained by the Committee in such
manner as it deems appropriate, based upon the net asset value of each such
Fund as of the applicable Valuation Date, which may include expenses of
administering the Fund, the Trust and the Plan.
(b) For purposes of allocations of net income (or net loss), each
Member's Accounts shall be divided into subaccounts to reflect such Member's
deemed investment designation in a particular Fund or Funds pursuant to Article
IV. As of each Valuation Date, the net income (or net loss) of each Fund,
separately and respectively, shall be allocated among the corresponding
subaccounts of the Members who had such corresponding subaccounts invested in
such Funds since the next preceding Valuation Date.
(c) So long as there is any balance in any Account, such Account shall
continue to receive allocations pursuant to this Section.
IV.
Deemed Investment of Funds
Each Member shall designate, in accordance with the procedures established
from time to time by the Committee, the manner in which the amounts allocated
to his Accounts shall be deemed to be invested from among the Funds made
available from time to time for such purpose by the Committee. Such Member may
designate one of such Funds for the deemed investment of all the amounts
allocated to his Accounts or he may split the deemed investment of the amounts
allocated to his Accounts between such Funds in such increments as the
Committee may prescribe. If a Member fails to make a proper designation, then
his Accounts shall be deemed to be invested in the Fund or Funds designated by
the Committee from time to time in a uniform and nondiscriminatory manner.
A Member may change his deemed investment designation for future amounts to
be allocated to his Accounts. Any such change shall be made in accordance with
the procedures established by the Committee, and the frequency of such changes
may be limited by the Committee.
A Member may elect to convert his deemed investment designation with respect
to the amounts already allocated to his Accounts. Any such conversion shall
be made in accordance with the procedures established by the Committee, and the
frequency of such conversions may be limited by the Committee.
V.
Determination of Vested Interest and Forfeitures
5.1 Deferral Account. A Member shall have a 100% Vested Interest in his
Deferral Account at all times.
5.2 Company Account. A Member shall have a Vested Interest in his Company
Account (other than the portion attributable to the special subaccount referred
to in Section 3.2(c)) equal to his "Vesting Percentage" in his "Matching
Contributions Account" under the Profit Sharing/401(k) Plan. A Member shall
have a Vested Interest in the portion of his Company Account attributable to
the special subaccount referred to in Section 3.2(c) equal to his "Vesting
Percentage" in his "Employer Contributions Account" under the Profit
Sharing/401(k) Plan. A Member shall have a 100% Vested Interest in his Company
Account upon his termination of employment with the Company and its Affiliates
after attainment of his Retirement Date or by reason of death or Disability.
Further, a Member shall have a 100% Vested Interest in his Company Account upon
his termination of employment with the Company and its Affiliates as a result
of the closing of an entire store, plant facility or warehouse, or the
elimination of a complete shift, or department, in a plant facility or
warehouse.
5.3 Forfeitures. A Member who terminates employment with the Company and
its Affiliates with a Vested Interest in his Company Account that is less than
100% shall forfeit to the Company the nonvested portion of such Account as of
the date of such termination.
VI.
In-Service Distributions
In-service distributions shall not be permitted under the Plan. Members
shall not be permitted to make withdrawals from the Plan prior to termination
of employment with the Company and its Affiliates. Members shall not, at any
time, be permitted to borrow from the Trust Fund. Following termination of
employment with the Company and its Affiliates, the amounts credited to a
Member's Accounts shall be payable to such Member in accordance with the
provisions of Article VII.
VII.
Termination Benefits
7.1 Amount of Benefit. Upon termination of employment of a Member with the
Company and its Affiliates for any reason, the Member, or, in the event of the
death of the Member while employed by the Company, the Member's designated
beneficiary, shall be entitled to a benefit equal in value to the Member's
Vested Interest in the balance in his Accounts as of the Valuation Date next
preceding the date the payment of such benefit is to commence pursuant to
Section 7.2.
7.2 Time of Payment. Payment of a Member's benefit under Section 7.1 shall
commence as soon as administratively practicable after the Valuation Date
coincident with or next succeeding the date the Member terminates his
employment with the Company and its Affiliates.
7.3 Alternative Forms of Benefit Payments. A Member's benefit under
Section 7.1 shall be paid in one of the following forms irrevocably elected by
such Member in writing on the form prescribed by the Committee on or before the
date he becomes a Member of the Plan:
(1) A single lump sum, cash payment; or
(2) Annual installment payments for a term certain of either 5 or 10
years payable to the Member or, in the event of such Member's death prior to
the end of such term certain, to his designated beneficiary as provided in
Section 7.4.
In the event such Member fails to timely elect the form in which his benefit
payments are to be made, such benefit payments shall be in the form of annual
installment payments for a term certain of 10 years payable to such Member or,
in the event of such Member's death prior to the end of such term certain, to
his designated beneficiary as provided in Section 7.4. If a Member dies prior
to the date the payment of his benefit begins and if the Member failed to
timely elect the form in which his benefit payments are to be made, then
benefit payments shall be made to the Member's designated beneficiary in the
form described in the preceding sentence. If a Member dies prior to the date
the payment of his benefit begins and if the Member did timely elect the form
in which his benefit payments are to be made, then benefit payments shall be
made to the Member's designated beneficiary in the form elected by the Member.
7.4 Designation of Beneficiaries.
(a) Each Member shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death.
Each such designation shall be made by executing the beneficiary designation
form prescribed by the Committee and filing same with the Committee. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
(b) If no such designation is on file with the Committee at the time
of the death of the Member or such designation is not effective for any reason
as determined by the Committee, then the designated beneficiary or
beneficiaries to receive such benefit shall be as follows:
(1) If a Member leaves a surviving spouse, his benefit shall be
paid to such surviving spouse;
(2) If a Member leaves no surviving spouse, his benefit shall be
paid to such Member's executor or administrator, or to his heirs at law if
there if no administration of such Member's estate.
7.5 Accelerated Pay-Out of Certain Benefits. Notwithstanding any provision
in Section 7.3 to the contrary, if a Member's benefit payments are to be paid
in a form other than a single lump sum, cash payment and (1) if the aggregate
amount to be paid with respect to such Member in the form of a single lump sum,
cash payment is less than $10,000, then such Member's benefit shall
automatically be paid in a single lump sum, cash payment, or (2) if the
aggregate amount to be paid with respect to such Member in any particular
calendar year is less than $10,000, then the Committee may, in its sole
discretion, elect to cause the entire remaining Account balance with respect
to such Member to be paid in a single lump sum, cash payment.
7.6 Payment of Benefits. To the extent the Trust Fund has sufficient
assets, the Trustee shall pay benefits to Members or their beneficiaries,
except to the extent the Company pays the benefits directly and provides
adequate evidence of such payment to the Trustee. To the extent the Trustee
does not or cannot pay benefits out of the Trust Fund, the benefits shall be
paid by the Company. Any benefit payments made to a Member or for his benefit
pursuant to any provision of the Plan shall be debited to such Member's
Accounts. All benefit payments shall be made in cash to the fullest extent
practicable.
7.7 Unclaimed Benefits. In the case of a benefit payable on behalf of a
Member, if the Committee is unable to locate the Member or beneficiary to whom
such benefit is payable, upon the Committee's determination thereof, such
benefit shall be forfeited to the Company. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Member or beneficiary to whom such
benefit is payable makes a valid claim for such benefit within two years of
such forfeiture, such forfeited benefit shall be restored to the Plan by the
Company (unadjusted by any net income (or net loss) for the period commencing
with such forfeiture and ending with such restoration).
VIII.
Administration of the Plan
8.1 Appointment of Committee. The general administration of the Plan shall
be vested in the Committee which shall be appointed by the Directors and shall
consist of one or more persons. Any individual, whether or not an employee of
the Company, is eligible to become a member of the Committee.
8.2 Term, Vacancies, Resignation, and Removal. Each member of the
Committee shall serve until he resigns, dies, or is removed by the Directors.
At any time during his term of office, a member of the Committee may resign by
giving written notice to the Directors and the Committee, such resignation to
become effective upon the appointment of a substitute member or, if earlier,
the lapse of thirty days after such notice is given as herein provided. At any
time during his term of office, and for any reason, a member of the Committee
may be removed by the Directors with or without cause, and the Directors may
in their discretion fill any vacancy that may result therefrom. Any member of
the Committee who is an employee of the Company shall automatically cease to
be a member of the Committee as of the date he ceases to be employed by the
Company and its Affiliates.
8.3 Self-Interest of Members. No member of the Committee shall have any
right to vote or decide upon any matter relating solely to himself under the
Plan or to vote in any case in which his individual right to claim any benefit
under the Plan is particularly involved. In any case in which a Committee
member is so disqualified to act and the remaining members cannot agree, the
Directors shall appoint a temporary substitute member to exercise all the
powers of the disqualified member concerning the matter in which he is
disqualified.
8.4 Committee Powers and Duties. The Committee shall supervise the
administration and enforcement of the Plan according to the terms and
provisions hereof and shall have all powers necessary to accomplish these
purposes, including, but not by way of limitation, the right, power, authority,
and duty:
(a) To make rules, regulations, and bylaws for the administration of
the Plan that are not inconsistent with the terms and provisions hereof, and
to enforce the terms of the Plan and the rules and regulations promulgated
thereunder by the Committee;
(b) To construe in its discretion all terms, provisions, conditions,
and limitations of the Plan;
(c) To correct any defect or to supply any omission or to reconcile
any inconsistency that may appear in the Plan in such manner and to such
extent as it shall deem in its discretion expedient to effectuate the
purposes of the Plan;
(d) To employ and compensate such accountants, attorneys, investment
advisors, and other agents, employees, and independent contractors as the
Committee may deem necessary or advisable for the proper and efficient
administration of the Plan;
(e) To determine in its discretion all questions relating to
eligibility;
(f) To determine whether and when there has been a termination of a
Member's employment with the Company and its Affiliates, and the reason for
such termination;
(g) To make a determination in its discretion as to the right of any
person to a benefit under the Plan and to prescribe procedures to be
followed by distributees in obtaining benefits hereunder;
(h) To receive and review reports from the Trustee as to the financial
condition of the Trust Fund, including its receipts and disbursements; and
(i) To establish or designate Funds as investment options as provided
in Article IV.
8.5 Claims Review. In any case in which a claim for Plan benefits of a
Member or beneficiary is denied or modified, the Committee shall furnish
written notice to the claimant within ninety days (or within 180 days if
additional information requested by the Committee necessitates an extension of
the ninety-day period), which notice shall:
(a) State the specific reason or reasons for the denial or
modification;
(b) Provide specific reference to pertinent Plan provisions on which
the denial or modification is based;
(c) Provide a description of any additional material or information
necessary for the Member, his beneficiary, or representative to perfect the
claim and an explanation of why such material or information is necessary;
and
(d) Explain the Plan's claim review procedure as contained herein.
In the event a claim for Plan benefits is denied or modified, if the Member,
his beneficiary, or a representative of such Member or beneficiary desires to
have such denial or modification reviewed, he must, within sixty days following
receipt of the notice of such denial or modification, submit a written request
for review by the Committee of its initial decision. In connection with such
request, the Member, his beneficiary, or the representative of such Member or
beneficiary may review any pertinent documents upon which such denial or
modification was based and may submit issues and comments in writing. Within
sixty days following such request for review the Committee shall, after
providing a full and fair review, render its final decision in writing to the
Member, his beneficiary or the representative of such Member or beneficiary
stating specific reasons for such decision and making specific references to
pertinent Plan provisions upon which the decision is based. If special
circumstances require an extension of such sixty-day period, the Committee's
decision shall be rendered as soon as possible, but not later than 120 days
after receipt of the request for review. If an extension of time for review
is required, written notice of the extension shall be furnished to the Member,
beneficiary, or the representative of such Member or beneficiary prior to the
commencement of the extension period.
8.6 Company to Supply Information. The Company shall supply full and
timely information to the Committee, including, but not limited to, information
relating to each Member's Compensation, age, retirement, death, or other cause
of termination of employment and such other pertinent facts as the Committee
may require. The Company shall advise the Trustee of such of the foregoing
facts as are deemed necessary for the Trustee to carry out the Trustee's duties
under the Plan and the Trust Agreement. When making a determination in
connection with the Plan, the Committee shall be entitled to rely upon the
aforesaid information furnished by the Company.
8.7 Indemnity. To the extent permitted by applicable law, the Company
shall indemnify and save harmless the Directors and each member of the
Committee against any and all expenses, liabilities and claims (including legal
fees incurred to defend against such liabilities and claims) arising out of
their discharge in good faith of responsibilities under or incident to the
Plan. Expenses and liabilities arising out of willful misconduct shall not be
covered under this indemnity. This indemnity shall not preclude such further
indemnities as may be available under insurance purchased by the Company or
provided by the Company under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, as such indemnities are permitted under
applicable law.
IX.
Administration of Funds
9.1 Payment of Expenses. All expenses incident to the administration of
the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, and expenses of the Committee, may be paid by the Company and, if not
paid by the Company, shall be paid by the Trustee from the Trust Fund, if any.
9.2 Trust Fund Property. All income, profits, recoveries, contributions,
forfeitures and any and all moneys, securities and properties of any kind at
any time received or held by the Trustee, if any, shall be held for investment
purposes as a commingled Trust Fund pursuant to the terms of the Trust
Agreement. The Committee shall maintain one or more Accounts in the name of
each Member, but the maintenance of an Account designated as the Account of a
Member shall not mean that such Member shall have a greater or lesser interest
than that due him by operation of the Plan and shall not be considered as
segregating any funds or property from any other funds or property contained
in the commingled fund. No Member shall have any title to any specific asset
in the Trust Fund, if any.
X.
Nature of the Plan
The Company intends and desires by the adoption of the Plan to recognize the
value to the Company of the past and present services of employees covered by
the Plan and to encourage and assure their continued service with the Company
by making more adequate provision for their future retirement security. The
establishment of the Plan is, in part, made necessary by certain benefit
limitations which are imposed on the Profit Sharing/401(k) Plan by the Code.
The Plan is intended to constitute an unfunded, unsecured plan of deferred
compensation for a select group of management or highly compensated employees
of the Company. Plan benefits herein provided are to be paid out of the
Company's general assets. Nevertheless, subject to the terms hereof and of the
Trust Agreement, the Company may transfer money or other property to the
Trustee and the Trustee shall pay Plan benefits to Members and their
beneficiaries out of the Trust Fund. To the extent the Company transfers
assets to the Trustee pursuant to the Trust Agreement, the Committee may, but
need not, establish procedures for the Trustee to invest the Trust Fund in
accordance with each Member's designated deemed investments pursuant to Arti-
cle IV respecting the portion of the Trust Fund assets equal to such Member's
Account(s).
The Directors, in their sole discretion, may establish the Trust and enter
into the Trust Agreement. The Company may adopt the Trust for purposes of the
Plan. In such event, the Company shall remain the owner of all assets in the
Trust Fund and the assets shall be subject to the claims of Company creditors
if the Company ever becomes insolvent. For purposes hereof, the Company shall
be considered "insolvent" if (a) the Company is unable to pay its debts as they
become due, or (b) the Company is subject to a pending proceeding as a debtor
under the United Sates Bankruptcy Code (or any successor federal statute). The
chief executive officer of the Company and its Board of Directors shall have
the duty to inform the Trustee in writing if the Company becomes insolvent.
Such notice given under the preceding sentence by any party shall satisfy all
of the parties' duty to give notice. When so informed, the Trustee shall
suspend payments to the Members and hold the assets for the benefit of the
Company's general creditors. No Member or beneficiary shall have any preferred
claim to, or any beneficial ownership interest in, any assets of the Trust
Fund.
XI.
Adopting Entities
It is contemplated that other corporations, associations, partnerships or
proprietorships may adopt this Plan and thereby become the Company. Any such
entity, whether or not presently existing, may become a party hereto by
appropriate action of its officers without the need for approval of its board
of directors or noncorporate counterpart or of the Directors; provided,
however, that such entity must be an Affiliate. The provisions of the Plan
shall apply separately and equally to each Company and its employees in the
same manner as is expressly provided for Winn-Dixie Stores, Inc. and its
employees, except that the power to appoint or otherwise affect the Committee
or the Trustee and the power to amend or terminate the Plan or amend the Trust
Agreement shall be exercised by the Directors alone. Transfer of employment
among Companies and Affiliates shall not be considered a termination of
employment hereunder. Any Company may, by appropriate action of its officers
without the need for approval of its board of directors or noncorporate
counterpart or the Directors, terminate its participation in the Plan.
Moreover, the Directors may, in their discretion, terminate a Company's Plan
participation at any time.
XII.
Miscellaneous
12.1 Not Contract of Employment. The adoption and maintenance of the Plan
shall not be deemed to be a contract between the Company and any person or to
be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of
the Company or to restrict the right of the Company to discharge any person at
any time nor shall the Plan be deemed to give the Company the right to require
any person to remain in the employ of the Company or to restrict any person's
right to terminate his employment at any time.
12.2 Alienation of Interest Forbidden. The interest of a Member or his
beneficiary or beneficiaries hereunder may not be sold, transferred, assigned,
or encumbered in any manner, either voluntarily or involuntarily, and any
attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber,
or charge the same shall be null and void; neither shall the benefits hereunder
be liable for or subject to the debts, contracts, liabilities, engagements or
torts of any person to whom such benefits or funds are payable, nor shall they
be an asset in bankruptcy or subject to garnishment, attachment or other legal
or equitable proceedings.
12.3 Withholding. All Compensation deferrals and payments provided for
hereunder shall be subject to applicable withholding and other deductions as
shall be required of the Company under any applicable local, state or federal
law.
12.4 Amendment and Termination. The Directors may from time to time, in
their discretion, amend, in whole or in part, any or all of the provisions of
the Plan; provided, however, that no amendment may be made that would impair
the rights of a Member with respect to amounts already allocated to his
Accounts. The Directors may terminate the Plan at any time. In the event that
the Plan is terminated, the balance in a Member's Accounts shall be paid to
such Member or his designated beneficiary in the manner specified by the
Committee, which may include the payment of a single lump sum, cash payment in
full satisfaction of all of such Member's or beneficiary's benefits hereunder.
12.5 Severability. If any provision of this Plan shall be held illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining provisions hereof; instead, each provision shall be fully severable
and the Plan shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
12.6 Governing Laws. All provisions of the Plan shall be construed in
accordance with the laws of Florida except to the extent preempted by federal
law.
EXECUTED this ______ day of ______________________, 1994
WINN-DIXIE STORES, INC.
By:
Name:
Title:
<PAGE>
Exhibit 11.1
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Computation of Earnings Per Share
Years ended June 29, 1994, June 30, 1993 and June 24, 1992
(Dollars in thousands e xcept per share data)
June 29, June 30, June 24,
1994 1993 1992
Average number of shares of
common stock outstanding 74,644,036 76,119,152 76,805,335
Net earnings $ 216,117 236,385 195,934
Earnings per share $ 2.90 3.11 2.55
<PAGE>
Exhibit 22.1
WINN-DIXIE STORES, INC.
SUBSIDIARIES OF REGISTRANT
The Registrant (Winn-Dixie Stores, Inc.) has no parents.
The following list includes all of the subsidiaries of the Registrant
except twelve wholly-owned inactive domestic subsidiaries of the Registrant
and/or its subsidiaries.
All of the subsidiaries listed below are included in the Consolidated
Financial Statements. The Consolidated Financial Statements also include the
twelve presently inactive domestic subsidiaries mentioned above.
Each of the following subsidiaries is owned by the Registrant except that
two subsidiaries, the names of which are indented, are owned by the subsidiary
named immediately above each indention. All subsidiaries are wholly-owned exce
for Bahamas Supermarkets Limited, which is owned approximately 78% by W-D
(Bahamas) Limited.
Subsidiary State of Incorporation
Astor Products, Inc. Florida
Deep South Products, Inc. Florida
Dixie Packers, Inc. Florida
Fairway Food Stores, Inc. Florida
First Northern Supply, Inc. Delaware
Second Northern Supply, Inc. Delaware
Third Northern Supply, Inc. Delaware
Monterey Canning Co. California
Save Rite Foods, Inc. Florida
Sunbelt Products, Inc. Florida
Superior Food Company Florida
W-D (Bahamas) Limited Bahamas Islands
Bahamas Supermarkets Limited Bahamas Islands
The City Meat Markets Limited Bahamas Islands
Winn-Dixie Atlanta, Inc. Florida
Winn-Dixie Charlotte,Inc. Florida
Winn-Dixie Greenville,Inc. Florida
Winn-Dixie Louisiana, Inc. Florida
Winn-Dixie Louisville,Inc. Florida
Winn-Dixie Montgomery,Inc. Kentucky
Winn-Dixie Raleigh, Inc. Florida
Winn-Dixie Texas, Inc. Texas
<PAGE>
Exhibit 24.1
INDEPENDENT AUDITORS' CONSENT
The Shareholders and the Board of Directors
Winn-Dixie Stores, Inc.:
We consent to the incorporation by reference in the Registration Statements Nos.
33-42278 and 33-50039 on Form S-8 of Winn-Dixie Stores, Inc. of our reports
dated August 1, 1994, relating to the consolidated balance sheets of Winn-Dixie
Stores, Inc. and subsidiaries as of June 29, 1994 and June 30, 1993, and the
related consolidated statements of earnings, shareholders' equity, and cash
flows and related financial statement schedules for each of the years in the
three-year period ended June 29, 1994, which reports appear in the June 29, 1994
annual report on Form 10-K of Winn-Dixie Stores, Inc.
Certified Public Accountants
Jacksonville, Florida
September 16, 1994
<PAGE>
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<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-29-1994
<PERIOD-END> JUN-29-1994
<CASH> 31,451,000
<SECURITIES> 0
<RECEIVABLES> 173,630,000
<ALLOWANCES> 0
<INVENTORY> 1,058,883,000
<CURRENT-ASSETS> 1,361,184,000
<PP&E> 706,779,000
<DEPRECIATION> 0
<TOTAL-ASSETS> 2,146,574,000
<CURRENT-LIABILITIES> 873,166,000
<BONDS> 0
<COMMON> 74,176,356
0
0
<OTHER-SE> 983,285,000
<TOTAL-LIABILITY-AND-EQUITY> 2,146,574,000
<SALES> 11,082,169,000
<TOTAL-REVENUES> 11,180,254,000
<CGS> 8,547,681,000
<TOTAL-COSTS> 10,817,484,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,271,000
<INCOME-PRETAX> 348,499,000
<INCOME-TAX> 132,382,000
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 216,117,000
<EPS-PRIMARY> 2.90
<EPS-DILUTED> 0
</TABLE>
