As filed with the Securities and
Exchange Commission on May 24, 1996.
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Wyle Electronics
(Exact name of registrant as specified in its charter)
___________________
California 95-1779998
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15370 Barranca Parkway, Irvine, California 92718
(Address of principal executive offices)
WYLE ELECTRONICS 401(K) PLAN
(Full title of the plan)
Stephen D. Natcher, Esq.
Senior Vice President - Administration, General Counsel and Secretary
15370 Barranca Parkway, Irvine, California 92718
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service:
(714) 753-9953
___________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- -----------------------------------------------------------------------------
Common Stock, 200,000<F1>,<F2> $43.00<F3> $8,600,000.00<F3> $2,966.00<F3>
without par shares
value
Interests in the Plan (1)
- -----------------------------------------------------------------------------
<FN>
<F1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, pursuant
to Rule 416(c) under the Securities Act of 1933, an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein
and an additional indeterminate number of shares which by
reason of certain events specified in the Plan may become
subject to the Plan.
<F2> Each share is accompanied by a common share purchase
right pursuant to the Registrant's Amended and Restated
Rights Agreement, dated February 23, 1995, with Chemical
Bank, as Rights Agent.
<F3> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on May 20, 1996, as
reported on the New York Stock Exchange and published in
The Western Edition of The Wall Street Journal.
</FN>
</TABLE>
=============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to optionees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Act"). Such documents need not be filed with the
Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Act. These documents,
which include the statement of availability required by Item
2 of Form S-8, and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Form S-8
(Part II hereof), taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and
Exchange Commission by Wyle Electronics (the "Company") and
the Wyle Electronics 401(k) Plan (the "Plan") are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1995;
(b) Quarterly Report on Form 10-Q for the Company's
quarterly period ended March 31, 1996; and
(c) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A
filed on October 27, 1989, and any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company or by
the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into the prospectus
and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, without par value, (the
"Common Stock") is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is
omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of the Common
Stock registered hereby is passed on for the Company by
Stephen D. Natcher, Senior Vice President - Administration,
General Counsel and Secretary of the Company. Mr. Natcher is
compensated by the Company, the holder of options to acquire
shares of Common Stock, and a Plan participant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation contain a
provision which eliminates the liability of directors for
monetary damages to the fullest extent permissible under
California law. The General Corporation Law of California
(the "Law") (i) authorizes the elimination of liability of
directors for monetary damages in an action brought by a
shareholder in the right of the Company (referred to herein as
a "derivative action") or by the Company for breach of a
director's duties to the Company and its shareholders and
(ii) authorizes the Company to indemnify directors and
officers for monetary damages for all acts or omissions
committed by them in their respective capacities; provided,
however, that liability is not limited nor may indemnification
be provided for (a) acts or omissions that involve intentional
misconduct or knowing and culpable violation of law, (b) for
acts or omissions that a director or officer believes to be
contrary to the best interests of the Company or its
shareholders or that involve the absence of good faith on the
part of a director or officer seeking indemnification, (c) for
any transaction from which a director or officer derives an
improper personal benefit, (d) for acts or omissions that show
a reckless disregard for the director's or officer's duty to
the Company or its shareholders in circumstances in which such
person was aware, or should have been aware, in the ordinary
course of performing his duties, of a risk of serious injury
to the Company or its shareholders, (e) for acts or omissions
that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's or officer's duty
to the Company or its shareholders, and (f) for liabilities
arising under Section 310 (contracts in which a director has
a material financial interest) and 316 (certain unlawful
dividends, distributions, loans and guarantees) of the Law.
In addition, the Company may not indemnify directors and
officers in circumstances in which indemnification is
expressly prohibited by Section 317 of the Law.
The bylaws of the Company provide that the Company has
the power to indemnify directors and officers to the fullest
extent permitted under California law and the Company's
Articles of Incorporation. The Company has entered into
indemnification agreements with its directors and executive
officers which require that the Company indemnify such
directors and executive officers in all cases to the fullest
extent permitted by applicable provisions of the Law. The
Company also maintains a directors' and officers' liability
insurance policy insuring directors and executive officers of
the Company for covered losses as defined in the policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that
are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any
liability under the Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix,
State of Arizona, on May 20, 1996.
By: __/s/ Ralph L. Ozorkiewicz__
Ralph L. Ozorkiewicz
Its: President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Stephen D. Natcher, his true and lawful attorney-
in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, each acting alone, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
__/s/ Charles M. Clough__ Chairman of the Board May 20, 1996
Charles M. Clough of Directors
__/s/ Ralph L. Ozorkiewicz__ President, Chief Executive May 20, 1996
Ralph L. Ozorkiewicz Officer and Director
(Principal Executive
Officer)
_/s/ R. Van Ness Holland, Jr._ Executive Vice-President May 20, 1996
R. Van Ness Holland, Jr. - Finance, Treasurer
and Chief Financial Officer
(Principal Financial and
Accounting Officer)
__/s/ Michael R. Corboy__ Director* May 20, 1996
Michael R. Corboy
__/s/ Theodore M. Freedman__ Director May 20, 1996
Theodore M. Freedman
__/s/ Jack S. Kilby__ Director May 20, 1996
Jack S. Kilby
__/s/ Edward Sanders__ Director* May 20, 1996
Edward Sanders
__/s/ Stanley A. Wainer__ Director May 20, 1996
Stanley A. Wainer
__/s/ Kirk West__ Director* May 20, 1996
Kirk West
__/s/ Frank S. Wyle__ Director May 20, 1996
Frank S. Wyle
___________________________________________
*Member of Executive Compensation Committee
</TABLE>
<PAGE>
THE PLAN. Pursuant to the requirements of the
Securities Act of 1933, the trustee has duly caused this
Registration Statement to be signed on behalf of the Plan by
the undersigned, thereunto duly authorized, in the City of
Seattle, State of Washington on May 22, 1996.
WYLE ELECTRONICS 401(K) PLAN
By: Northwestern Trust Investors
Advisory Company, a
Washington Trust Company, as
Trustee
By: /s/ Gerry O. Kelley
Its: Senior Trust Officer
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Wyle Electronics 401(k) Plan.
4.2 Trust Agreement for Wyle Electronics
401(k) Plan.
5.1 Opinion of Company Counsel as to the legality
of the securities being registered
(opinion re legality).
5.2 Opinion of O'Melveny & Myers as to compliance
under the Employee Retirement Income Security
Act of 1974.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Company Counsel (included in Exhibit
5.1).
23.3 Consent of O'Melveny & Myers (included in
Exhibit 5.2).
24. Power of Attorney (included in this
Registration Statement under "Signatures").
<PAGE>
WYLE ELECTRONICS
401(k) PLAN
<PAGE>
WYLE ELECTRONICS 401(K) PLAN
INDEX
Page
ARTICLE I TITLE AND DEFINITIONS . . . . . . . . . . . . . . . 3
1.1 - Title . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 - Definitions . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II PARTICIPATION. . . . . . . . . . . . . . . . . . . 25
2.1 - Eligibility Requirements. . . . . . . . . . . . . . 25
2.2 - Participation.. . . . . . . . . . . . . . . . . . . 25
2.3 - Reemployment. . . . . . . . . . . . . . . . . . . . 25
2.4 - Designation of Beneficiary. . . . . . . . . . . . . 26
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 28
3.1 - Discretionary Company Contributions . . . . . . . . 28
3.2 - Compensation Deferrals. . . . . . . . . . . . . . . 29
3.3 - Voluntary Employee Contributions. . . . . . . . . 31
3.4 - Employer Matching Contributions.. . . . . . . . . . 32
3.6 - Section 402(g) Limit on Compensation Deferrals. . . 34
3.7 - Section 401(k) Limitations on Compensation
Deferrals. . . . . . . . . . . . . . . . . . . . . 36
3.8 - Section 401(m) Limitations on Voluntary Employee
Contributions and Employer Matching
Contributions. . . . . . . . . . . . . . . . . . . 41
3.9 - Investment Funds. . . . . . . . . . . . . . . . . . 47
3.10 - Valuation of Accounts. . . . . . . . . . . . . . . 48
3.11 - Rule 16b-3 Provisions. . . . . . . . . . . . . . . 50
3.12 - Section 404(c) Provisions. . . . . . . . . . . . . 51
ARTICLE IV LIMITATION ON ANNUAL ADDITIONS . . . . . . . . . . 54
ARTICLE V VESTING. . . . . . . . . . . . . . . . . . . . . . 55
5.1 - Fully Vested Accounts . . . . . . . . . . . . . . . 55
5.2 - Company Contribution Account. . . . . . . . . . . . 55
ARTICLE VI DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . 59
6.1 - Distribution of Benefits. . . . . . . . . . . . . . 59
6.2 - Hardship Withdrawals from Compensation. . . . . . . 61
6.3 - Qualified Domestic Relations Orders.. . . . . . . . 64
6.4 - Inability to Locate Participant.. . . . . . . . . . 64
6.5 - Limitations on Distributions. . . . . . . . . . . . 65
6.6 - Direct Rollovers. . . . . . . . . . . . . . . . . . 67
ARTICLE VII THE COMMITTEE . . . . . . . . . . . . . . . . . 70
7.1 - Members . . . . . . . . . . . . . . . . . . . . . . 70
7.2 - Committee Action. . . . . . . . . . . . . . . . . . 70
7.3 - Rights and Duties.. . . . . . . . . . . . . . . . . 71
7.4 - Procedure for Establishing Funding
Policy -- Transmittal of Information . . . . . . . 77
7.5 - Other Information.. . . . . . . . . . . . . . . . . 77
7.6 - Compensation, Bonding, Expenses and Indemnity . . . 78
7.7 - Manner of Administering.. . . . . . . . . . . . . . 79
7.8 - Duty of Care. . . . . . . . . . . . . . . . . . . . 80
7.9 - Committee Report. . . . . . . . . . . . . . . . . . 80
ARTICLE VIII AMENDMENT AND TERMINATION. . . . . . . . . . . . 81
8.1 - Amendments. . . . . . . . . . . . . . . . . . . . . 81
8.2 - Discontinuance of Plan. . . . . . . . . . . . . . . 82
8.3 - Failure to Contribute. . . . . . . . . . . . . . . 83
8.4 - Plan Merger or Consolidation; Transfer of Plan
Assets . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 85
9.1 - Contributions Not Recoverable . . . . . . . . . . . 85
9.2 - Limitation on Participant's Rights. . . . . . . . . 86
9.3 - Receipt or Release. . . . . . . . . . . . . . . . . 87
9.4 - Alienation. . . . . . . . . . . . . . . . . . . . . 87
9.5 - Persons Under Incapacity. . . . . . . . . . . . . . 88
9.6 - Governing Law.. . . . . . . . . . . . . . . . . . . 89
9.7 - Headings, etc. Not Part of Plan.. . . . . . . . . . 89
9.8 - Masculine Gender Includes Feminine and Neuter . . . 90
9.9 - Instruments in Counterparts.. . . . . . . . . . . . 90
9.10 - Reorganization of Company. . . . . . . . . . . . . 90
9.11 - Loans to Participants. . . . . . . . . . . . . . . 90
9.12 - Top-Heavy Plan Requirements. . . . . . . . . . . . 95
APPENDIX A ANNUAL ADDITION LIMITS . . . . . . . . . . . . . . .A-1
APPENDIX B TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . .B-1
APPENDIX C SPECIAL DISTRIBUTION RULES . . . . . . . . . . . . .C-1
<PAGE>
WYLE ELECTRONICS 401(K) PLAN
This Plan is adopted effective the first day of July,
1996 by Wyle Electronics, a California corporation, hereinafter
sometimes called the "Company." This Plan is a restatement and
continuation of the Wyle Electronics Capital Accumulation Plan,
which was established effective July 1, 1985. This Plan is
considered to be the same plan as the Wyle Electronics Capital
Accumulation Plan.
The Company desires to encourage loyalty, efficiency,
continuity of service and productivity of its Employees. In
order to accomplish these purposes, the Company herein
establishes this Plan to provide incentives and security for its
Employees and their beneficiaries. The Trust created pursuant to
this Plan (incorporated herein by this reference) and its assets
shall not be used for, or diverted to, purposes other than the
exclusive benefit of Participants or their beneficiaries, as
prescribed in Section 401(a) of the Internal Revenue Code of
1986, as amended.
It is also intended that this Plan constitute an
accident and health plan so that amounts distributed on account
of disability are excluded from income under Section 105(c) of
the Internal Revenue Code to the extent provided by law.
<PAGE>
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title.
This Plan is intended to be a profit sharing plan and
shall be known as the Wyle Electronics 401(k) Plan. Contributions
may be made to this Plan without regard to the current or
accumulated profits of the Company.
1.2 - Definitions.
Whenever the following terms are used in this Plan,
with the first letter capitalized, they shall have the meanings
specified below.
"Account" or "Accounts" shall mean Company
Contributions Accounts, Voluntary Employee Contributions
Accounts, Compensation Deferral Accounts, Employer Matching
Contributions Accounts and Rollover Accounts.
"Anniversary Date" shall mean the last day of each Plan
Year.
"Approved Absence" means a leave of absence (without
pay) granted to an Employee under the Company's established leave
policy.
"Beneficiary" or "Beneficiaries" shall mean the person
or persons, including a trustee, personal representative or other
fiduciary, last designated in writing by a Participant in
accordance with the provisions of Section 2.4 to receive the
benefits specified hereunder in the event of the Participant's
death. If there is no valid Beneficiary designation in effect
that complies with the provisions of Section 2.4, or if there is
no surviving designated Beneficiary, then the Participant's
surviving spouse shall be the Beneficiary. If there is no
surviving spouse to receive any benefits payable in accordance
with the preceding sentence, the duly appointed and currently
acting personal representative of the Participant's estate (which
shall include either the Participant's probate estate or living
trust) shall be the Beneficiary. In any case where there is no
such personal representative of the Participant's estate duly
appointed and acting in that capacity within 90 days after the
Participant's death (or such extended period as the Committee
determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after
the Participant's death), then Beneficiary or Beneficiaries shall
mean the person or persons who can verify by affidavit or court
order to the satisfaction of the Committee that they are legally
entitled to receive the benefits specified hereunder.
In the event any amount is payable under the Plan to a
minor, payment shall not be made to the minor, but instead shall
be paid (i) to that person's then living parent(s) to act as
custodian, (ii) if that person's parents are then divorced, and
one parent is the sole custodial parent, to such custodial
parent, or (iii) if no parent of that person is then living, to a
custodian selected by the Committee to hold the funds for the
minor under the Uniform Transfers or Gifts to Minors Act in
effect in the jurisdiction in which the minor resides. If no
parent is living and the Committee decides not to select another
custodian to hold the funds for the minor, then payment shall be
made to the duly appointed and currently acting guardian of the
estate for the minor or, if no guardian of the estate for the
minor is duly appointed and currently acting within 60 days after
the date the amount becomes payable, payment shall be deposited
with the court having jurisdiction over the estate of the minor.
"Board of Directors" and "Board" shall mean the Board
of Directors of Wyle Electronics.
"Break in Employment" shall mean any termination of
Employment by reason of resignation, discharge, retirement,
Disability or death.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" shall mean the Committee appointed pursuant
to the provisions of this Plan.
"Company" shall mean Wyle Electronics, a California
corporation, any predecessor corporation, or any successor corpo-
ration resulting from merger, consolidation, or transfer of
assets substantially as a whole which shall expressly agree in
writing to continue this Plan and, where the context so warrants,
any Participating Affiliate.
"Company Contributions" shall mean an amount
contributed to this Plan by the Company or by a Participating
Affiliate in accordance with Section 3.1.
"Company Contributions Account" shall mean the Account
maintained by the Committee for each Participant that is credited
with payments to the Plan by the Company and any Participating
Affiliate in accordance with Section 3.1 on behalf of such
Employee, together with the allocations thereto as required by
the Plan.
"Company Stock" shall mean the common stock of Wyle
Electronics.
"Compensation" shall mean the salary, wage or
commission paid to the Employee, including overtime pay, vacation
pay and bonuses, exclusive of expenses, subsistence allowance or
any other extra payments in a Plan Year. Bonuses paid at the
election of the Employee in the form of restricted stock is
included as Compensation as such restricted stock becomes vested.
Other grants of restricted stock are not included as
Compensation. Compensation for those personnel who are
compensated on a commission basis and who are required to pay
their own expenses from such commissions shall be an amount equal
to the total commissions paid or accrued to such personnel.
Notwithstanding the foregoing, the maximum amount of an
Employee's Compensation which shall be taken into account under
the Plan for any Plan Year ("Maximum Compensation Limitation")
shall be (a) $200,000 for Plan Years beginning on or after
January 1, 1989, and (b) $150,000 for Plan Years beginning on or
after January 1, 1994, such limitation adjusted at the same time
and in the same manner as under Sections 401(a)(17) and 415(d) of
the Code. For any Plan Year of fewer than twelve months, the
Maximum Compensation Limitation shall be reduced to the amount
obtained by multiplying such limitation by a fraction having a
numerator equal to the number of months in the Plan Year and a
denominator equal to twelve.
For purposes of the Maximum Compensation Limitation
referred to above, the Compensation of any Participant who is
either a 5% owner (as defined in Section 416(i)(1) of the Code),
or one of the ten most highly paid Highly Compensated Employees
during the Plan Year ("First Participant") shall be aggregated
with the Compensation of any Participant who has not attained age
19 and is a lineal descendant of the First Participant and any
Participant who is the spouse of the First Participant. In any
case in which such aggregation would produce Compensation in
excess of the Maximum Compensation Limitation, the amount of the
First Participant's Compensation that is considered under the
Plan shall be reduced until the Maximum Compensation Limitation
is met.
"Compensation Deferrals" shall mean an amount
contributed to this Plan by the Company in lieu of being paid to
a Participant as salary or wages. Compensation Deferrals shall
be made under salary reduction arrangements between each
Participant and the Company with respect to salary or wages not
yet paid or otherwise available to the Participant as of the date
of the Participant's election under the arrangement. Section 3.2
contains the provisions under which Compensation Deferrals may be
made.
"Compensation Deferral Account" shall mean the Account
maintained by the Committee for each Participant that is to be
credited with Company payments to the Plan attributable to the
Participant's Compensation Deferrals that are credited to this
Account in accordance with Section 3.2, together with the
allocations thereto as required by the Plan.
"Disability" shall mean that a Participant is disabled
due to sickness or injury which qualifies the Participant for
disability payments under the Company's long term disability
plan. A Participant shall be considered totally and permanently
disabled on the date he qualifies for such long term disability
payments.
"Effective Date" shall mean July 1, 1985, which was the
original effective date of the Plan. This restatement is
effective July 1, 1996.
"Eligible Employee" shall mean any Employee of the
Company; except that there shall be excluded all leased employees
described in Section 414(n) of the Code, those Employees covered
by a collective bargaining agreement between the Company and any
collective bargaining representative if retirement benefits were
the subject of good faith bargaining between such representative
and the Company, unless the Employee is a member of a group of
employees to whom this Plan has been extended by such a
collective bargaining agreement, and Employees who are
nonresident aliens and receive no United States source income.
"Employee" shall mean every person employed by the
Company, or a Related Company, including any leased employee
described in Section 414(n) of the Code and any other individual
required to be treated as employed by the Company or a Related
Company under Section 414(o) of the Code.
"Employment Commencement Date" means the date on which
the Employee first completes an Hour of Service.
"Employer Matching Contribution" shall mean an amount
contributed to this Plan by the Company or by a Participating
Affiliate in accordance with Section 3.4.
"Employer Matching Contributions Account" shall mean
the Account maintained for a Participant that is credited with
payments to the Plan by the Company and any Participating
Affiliate in accordance with Section 3.4 on behalf of such
Participant, together with the allocations thereto as required by
the Plan.
"Employment" shall mean that period of actual service
to the Company or a Related Company as an Employee following an
Employee's date of employment, or his most recent date of
reemployment, whichever is later. It shall also include the
following period or periods of absence from actual service if the
Employee was in the service of the Company or a Related Company
on the day prior to such a period:
(a) Service in the Armed Forces of the United
States or the Public Health Service of the United States as
a result of which such Employee is entitled to reemployment
rights from the Company pursuant to the provisions of
Section 2021 et seq. of Title 38 of the United States Code,
provided that the Employee returns to work within the time
period specified in such provisions.
(b) Leaves of absence granted (either before or
after the absence) by the Company in accordance with
nondiscriminatory policies for any purpose, including, but
not limited to, sickness or accident, or for the convenience
of the Company, and vacation periods and temporary layoffs
for lack of work.
"Entry Date" shall mean the first day of each calendar
quarter.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Fiduciary" shall mean all persons defined in Section
3(21) of ERISA associated in any manner with the control,
management, operation, and administration of the Plan or the
assets of the Plan, and such term shall be construed as including
the term "Named Fiduciary" with respect to those Fiduciaries
named in the Plan or who are identified as Fiduciaries pursuant
to procedures specified in the Plan.
"Highly Compensated Employee" shall mean
(a) Any Employee who performs services for the
Company or any Related Company during the "determination
year" and who, during the "look-back year" (1) was a 5%
owner of the Company or any Related Company; (2) received
compensation from the Company or any Related company in
excess of $75,000 (as adjusted pursuant to Section 415(d) of
the Code); (3) received compensation from the Company or any
Related Company in excess of $50,000 (as adjusted pursuant
to Section 415(d) of the Code) and was a member of the "top-
paid group" for such year; or (4) was an officer of the
Company or any Related Company and received compensation
during such year that is greater than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code;
(b) Any Employee who performs services for the
Company or any Related Company during the determination year
and who, with respect to the determination year, is either
described in (a)(1) above or is both one of the 100
Employees who received the most compensation from the
Company or any Related Company during the determination year
and is described in (a)(2), (a)(3) or (a)(4); or
(c) Any Employee who separated from service (or
was deemed to have separated) prior to the determination
year, performs no services for the Company or any Related
Company during the determination year, and met the
description in (a) or (b) above for either the separation
year or any determination year ending on or after the
Employee's 55th birthday.
(d) If no officer of the Company or any Related
Company has compensation in excess of 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code
during a determination year or a look-back year, the highest
paid officer for such year shall be treated as a Highly
Compensated Employee.
(e) If an Employee is, during a determination
year or look-back year, a "family member" of either a 5%
owner who is an Employee or of a Highly Compensated Employee
in the group consisting of the 10 most highly compensated
Employees ranked on the basis of compensation paid by the
Company or any Related Company during the determination year
or the look-back year, then the family member and 5% owner
or top-ten Highly Compensated Employee shall be treated as a
single Employee, and their compensation and contributions or
benefits under this Plan shall be aggregated. Except as
otherwise provided under Section 401(a)(17) of the Code,
"family member' includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the
spouses of such lineal ascendants and descendants.
(f) The "determination year" shall be the Plan
Year for which compliance is being tested, and the "look-
back year" shall be the calendar year ending with the
determination year in accordance with Treas. Regs. Section
1.414(q)-1T,Q&A 14(b).
(g) The top-paid group for a determination year
or a look-back year shall consist of the top 20% of
Employees ranked on the basis of compensation received
during the year excluding Employees described in Section
414(q)(8) of the Code and Treasury Regulations thereunder.
The number of Employees treated as officers shall be limited
to 50 (or, if less, the greater of 3 Employees or 10% of the
Employees). For purposes of this definition of "Highly
Compensated Employee", "compensation" means compensation
within the meaning of Section 415(c)(3) of the Code, but
including elective or salary reduction contributions to a
cafeteria plan, cash or deferred arrangement or tax-
sheltered annuity.
"Hour of Service" shall mean an hour (a) for which an
Employee is paid, or entitled to payment, for the performance of
duties for the Company or a Related Company; (b) for which the
Employee is paid or entitled to payment by the Company or a
Related Company on account of a period during which no duties are
performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty, or
leave of absence; or (c) for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Company or a Related Company.
The following additional rules shall apply in
calculating Hours of Service: (1) no more than 501 Hours of
Service are required to be credited to an Employee on account of
any single period during which the Employee performs no duties;
(2) an hour for which an Employee is directly or indirectly paid,
or entitled to payment, on account of a period during which no
duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable worker's
compensation, unemployment compensation, or disability insurance
laws; (3) Hours of Service are not required to be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee; (4) a
payment shall be deemed to be made by or due from a Company or a
Related Company regardless of whether such payment is made by or
due from the Company or a Related Company directly, or indirectly
through, among others, a trust fund, or insurer, to which the
Company or a Related Company contributes or pays premiums and
regardless of whether contributions made or due to the trust
fund, insurer, or other entity are for the benefit of particular
Employees or on behalf of a group of Employees in the aggregate;
(5) no more than one Hour of Service shall be credited with
respect to any hour of time; (6) an "Hour of Service" shall
include any hour for which an Employee is entitled to payment by
a "leasing organization" (as described in Section 414(n)(2) of
the Code) for the performance of duties for the Company or a
Related Company.
The definition of "Hour of Service" set forth herein
shall also be construed in accordance with, and shall include any
additional periods of service, that may be required by
regulations promulgated by the United States Department of Labor.
The hour of service rules stated in the Department of Labor
Regulations Section 2530.200b-2(b) and -2(c) are herein
incorporated by reference.
"Investment Fund" shall mean one of the funds
established by the Committee for the investment of the assets of
the Plan pursuant to Section 3.9.
"Investment Manager" shall mean a Fiduciary designated
by the Committee under this Plan to whom has been delegated the
responsibility and authority to manage, acquire or dispose of
Plan assets (a) who (1) is registered as an investment adviser
under the Investment Advisers Act of 1940; (2) is a bank, as
defined in that Act; or (3) is an insurance company qualified to
perform investment advisory services under the laws of more than
one state; and (b) who has acknowledged in writing that he is a
Fiduciary with respect to the management, acquisition, and
control of Plan assets.
"Normal Retirement Age" shall mean a Participant's 65th
birthday or, if later, the date the Participant completes five
Years of Service.
"One-Year Break in Service Year" shall mean a 12
consecutive month period beginning on an Employee's Severance
from Service Date and ending on the first anniversary of such
date, provided that the Employee does not perform an Hour of
Service for the Company or a Related Company.
"Participant" shall mean any Employee who becomes
eligible for participation in accordance with the provisions of
this Plan.
"Participating Affiliate" shall mean any Related
Company which, with the approval of the Committee, elects to
participate in this Plan. By electing to participate in this
Plan, a Participating Affiliate agrees to be bound by any Plan or
Trust amendment adopted by resolution of the Board of Directors,
by the written instrument of any person to whom the Board of
Directors has delegated its authority to adopt the amendment or
by any other method of amendment permitted under the Plan. If a
Participating Affiliate ceases to be a Related Company, except by
merger with its parent, the employment of each Employee of the
Participating Affiliate shall be deemed to have terminated for
purposes of this Plan, except to any extent any such Employee is
required by law to continue to be treated under the Plan as an
Employee of the Company.
"Period of Service" means a period of service
commencing on the Employee's Employment Commencement Date or
Reemployment Commencement Date, whichever is applicable, and
ending on the Severance from Service Date. A Participant's
Period of Service shall also include the following period or
periods of absence from service if the Employee was in the
service of the Company or a Related Company on the day prior to
such a period:
(i) Service in the Armed Forces of the United
States or the Public Health Service of the United
States as a result of which such Employee is entitled
to reemployment rights from the Company pursuant to the
provisions of Section 459 of Title 50 of the United
States Code, provided that the Employee returns to work
within the time period specified in Section 459.
(ii) Approved Absences granted (either before
or after the absence) by the Company in accordance
with nondiscriminatory policies for any purpose,
including, but not limited to, sickness or
accident, or for the convenience of the Company,
and vacation periods and temporary layoffs for
lack of work.
In determining a Participant's Period of Service:
(1) If an Employee severs from service by reason of a
quit, retirement or discharge, and the Employee then
performs an Hour of service within 12 months of such
Severance from Service Date, such Period of Severance shall
be treated as a Period of Service; and
(2) If an Employee severs from service by reason of a
quit, retirement or discharge, during an absence form
service of 12 months or less for any reason other than a
quit, retirement or discharge, and then performs an Hour of
Service within 12 months of the date on which the Employee
was first absent from service, such Period of Severance
shall be treated as a Period of Service; and
(3) Subject to the break in service rules of the Plan,
all non-successive Periods of Service shall be aggregated.
(4) For purposes of computing vesting and eligibility
service, a Period of Service shall include service with a
Related Company.
(5) The period commencing on the day after the first
anniversary of an Employee's absence from service by reason
of a Maternity or Paternity Leave, as defined herein, and
ending on the second anniversary of such absence from
service, shall not be included in an Employee's Period of
Service.
"Period of Severance" means the period of time
commencing on an Employee's Severance from Service Date and
ending on his Reemployment Commencement Date.
"Plan" shall mean the Wyle Electronics 401(k) Plan set
forth herein, now in effect or hereafter amended.
"Plan Year" shall mean the twelve-consecutive month
period ending on December 31. The Plan Year shall be the
limitation year for purposes of Section 415 of the Code.
"Reemployment Commencement Date" means the first date,
following a Period of Severance which is not required to be taken
into account under such definition, on which the Employee
performs an Hour of Service.
"Rollover Account" shall mean the Account maintained
for a Participant that is credited with the amount, if any,
received by the Plan in accordance with Section 3.5 as a rollover
contribution, as defined in Section 402(a)(5) of the Code,
together with the allocations thereto as required by the Plan.
"Severance from Service" or "Severance from Service
Date" shall mean the date of occurrence of the earlier of:
(1) The date on which an Employee quits, retires,
is discharged or dies, or
(2) The first anniversary of the first date of a
period in which an Employee remains absent from service
(with or without pay) with the Company for reason other
than a quit, retirement, discharge, death or an
Approved Absence.
Notwithstanding the above, in the event a Participant is
absent from service beyond the first anniversary of the first
date of such absence, and the absence is a Maternity or Paternity
Leave as described below, the Severance from Service Date is the
second anniversary of the first date of such absence. A
Maternity or Paternity Leave is an absence from service which
occurs for any of the following reasons:
(1) The pregnancy of the participant;
(2) The birth of a child of the Participant;
(3) The placement of a child with the Participant
in connection with the adoption of such child by the
Participant, or
(4) The Participant's caring for his or her child
for a period immediately following the child's birth.
"Trust" shall mean the trust which is established to
hold and invest contributions under this Plan.
"Trustee" (or "Trustees," if more than one is appointed
and acting) shall mean the trustee or trustees, whether original
or successor, appointed under the Trust.
"Voluntary Employee Contributions" shall mean the
after-tax contributions transferred to the Plan from the Wyle
Laboratories Retirement Plan effective February 1, 1991. No
further Voluntary Employee Contributions are allowed.
"Voluntary Employee Contributions Account" shall mean
the Account maintained for a Participant that is credited with
Voluntary Employee Contributions, together with the allocations
thereto as required by the Plan.
"Year of Service" shall mean a 365 day Period of
Service. For the purpose of vesting an Employee shall be
credited with a number of Year of Service equal to the Employee's
Period of Service divided by 365. Any remaining Period of
Service less than 365 days shall be disregarded.
In computing the Years of Service rendered to the
Company for purposes of vesting, the Participant's total Period
of Service with the Company shall be taken into account except as
provided in Section 5.2.
<PAGE>
ARTICLE II
PARTICIPATION
2.1 - Eligibility Requirements.
Each Eligible Employee who was a Participant on July 1,
1996, shall remain a Participant. Each other Eligible Employee
shall become a Participant in the Plan on the Entry Date
coinciding with or next following his completion of a three month
Period of Service if he is an Eligible Employee on that date.
2.2 - Participation.
Participation of a Participant shall commence as of the
date specified in Section 2.1 and shall continue during the
Participant's Employment with the Company and until the
occurrence of a Break in Employment.
2.3 - Reemployment.
(a) An Employee who has met the eligibility
requirements described herein but who incurs a Break in
Employment prior to becoming a Participant and is later
reemployed as an Eligible Employee shall become a Participant as
of the later of (1) the Entry Date following the date he met the
eligibility requirements described herein or (2) the date of
reemployment.
(b) A Participant who incurs a Break in Employment and
is later reemployed as an Eligible Employee shall resume
participation immediately upon his reemployment.
2.4 - Designation of Beneficiary.
Upon forms provided by the Committee, each Employee who
becomes a Participant shall designate in writing the Beneficiary
or Beneficiaries whom such Employee desires to receive any
benefits payable under this Plan in the event of such Employee's
death. A Participant may from time to time change his designated
Beneficiary or Beneficiaries without the consent of such
Beneficiary or Beneficiaries by filing a new designation in
writing with the Committee. However, if a married Participant
wishes to designate a person other than his spouse as
Beneficiary, such designation shall be consented to in writing by
the spouse, which consent shall acknowledge the effect of the
designation and be witnessed by a Plan representative or a notary
public. The Participant may change any election designating a
Beneficiary or Beneficiaries without any requirement of further
spousal consent if the spouse's consent so provides.
Notwithstanding the foregoing, spousal consent shall be
unnecessary if it is established (to the satisfaction of a Plan
representative) that there is no spouse or that the required
consent cannot be obtained because the spouse cannot be located,
or because of other circumstances prescribed by Treasury
Regulations. The Company, the Committee and the Trustee may rely
upon his designation of Beneficiary or Beneficiaries last filed
in accordance with the terms of this Plan. Upon the dissolution
of marriage of a Participant, any designation of the
Participant's former spouse as a Beneficiary shall be treated as
though the Participant's former spouse had predeceased the
Participant, unless (i) the Participant executes another
Beneficiary designation that complies with this Section 2.4 and
that clearly names such former spouse as a Beneficiary, or (ii) a
court order presented to the Committee prior to distribution on
behalf of the Participant explicitly requires the Participant to
continue to maintain the former spouse as the Beneficiary. In
any case in which the Participant's former spouse is treated
under the Participant's Beneficiary designation as having
predeceased the Participant, no heirs or other beneficiaries of
the former spouse shall receive benefits from the Plan as a
Beneficiary of the Participant except as provided otherwise in
the Participant's Beneficiary designation.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 - Discretionary Company Contributions.
(a) Permissible Amount of Company Contributions.
The Company and each Participating Affiliate shall
contribute to the Trust for each Plan Year, beginning with the
first Plan Year, such amounts as the Board of Directors shall
determine in its sole discretion. Notwithstanding the foregoing,
contributions under this Section shall be subject to the
limitations of this Section 3.1 and Section 4.1.
(b) In no event shall the aggregate contribution for
any Plan Year made by the Company and any Participating
Affiliates under Sections 3.1, 3.2 and 3.4, and under any other
profit sharing or stock bonus plan(s) maintained by the Company
or a Participating Affiliate, exceed 15% of the Compensation paid
or accrued to all Participants, plus the amount of any "unused
pre-87 limitation carryforwards" available under Section
404(a)(3)(A) of the Code. The Compensation taken into account
for purposes of the preceding sentence shall be Compensation paid
or accrued during the Company's taxable year ending with or
within the Plan Year to which the Company contribution relates.
(c) Allocation of Company Contributions.
As of each Anniversary Date, there shall be allocated
from the Company contribution under Section 3.1(a) for the Plan
Year to the Company Contribution Account of each Participant who
is a Participant on the Anniversary Date, an amount equal to that
portion of the total allocable amount that the Participant's
Compensation bears to the total Compensation of all such
Participants.
3.2 - Compensation Deferrals.
(a) Election to Defer.
Subject to the limitations in Sections 3.1, 3.6, 3.7
and 4.1, each Participant may elect Compensation Deferrals, in
writing in the manner prescribed by the Committee, in whole
percentages from 1% to 15% of the Participant's Compensation for
each payroll period. The Participant's compensation shall be
reduced by the amount of his Compensation Deferrals, which shall
be credited to the Participant's Compensation Deferral Account,
and shall be made in accordance with rules established by the
Committee.
(b) Change in Percentage or Suspension of Compensation
Deferrals.
A Participant's Compensation Deferral percentage will
remain in effect, notwithstanding any change in Compensation,
until the Participant elects to change the percentage. A
Participant may elect at any time to suspend, change or resume
Compensation Deferrals, provided he makes an election in the
manner prescribed by the Committee. After the Committee receives
a Participant's election to suspend, change or resume
Compensation Deferrals, such election shall be effective on the
first day of the payroll period for which the suspension, change
or resumption is administratively feasible.
(c) Status of Compensation Deferrals.
To make Compensation Deferrals under this Section, the
Company will reduce the Participant's compensation in the amount
authorized by the Participant and make a contribution to the
Trustee equal to such reduction as of the earliest date on which
such amount can reasonably be segregated from the Company's
general assets, not to exceed 90 days from the date on which such
amount would otherwise have been payable to the Participant in
cash, or as of such earlier date as may be required by
regulations issued pursuant to ERISA. Compensation Deferrals
constitute Company contributions under the Plan and are intended
to qualify as elective contributions under Code Section 401(k).
(d) General Limitations on Compensation
Deferrals.
As of the last day of the Plan Year, the Committee
shall determine the amount of Compensation Deferrals in excess of
those permitted under Section 3.7 of the Plan, and any excess
shall be distributed to the Participant responsible for the
excess Compensation Deferral in accordance with the Code,
Treasury Regulations and Section 3.7(d).
3.3 - Voluntary Employee Contributions.
The Voluntary Employee Contributions transferred to
this Plan shall be credited to the Participant's Voluntary
Employee Contributions Account. The only such contributions are
those transferred from the Wyle Laboratories Retirement Plan
effective February 1, 1991. No other Voluntary Employee
Contributions are allowed.
3.4 - Employer Matching Contributions.
(a) Amount of Employer Matching Contribution.
Subject to the limitations of Section 3.1, 3.8 and 4.1,
for each payroll period the Company shall make an Employer
Matching Contribution to the Plan equal to 50% of the
Compensation Deferrals for the payroll period of each Participant
(reduced by certain forfeitures as provided in Section 5.2(d));
provided that the maximum Employer Matching Contribution made on
behalf of any Participant shall not exceed 3% of such
Participant's Compensation during such payroll period. The
Company shall pay to the Trustee the Employer Matching
Contribution for any Plan Year within the time prescribed by law,
including extensions of time, for the filing of the Company's
federal income tax return for the Company's taxable year ending
with or within the Plan Year to which the contribution relates.
(b) Allocation of Employer Matching
Contributions.
The Employer Matching Contributions for any payroll
period shall be allocated to the Employer Matching Contributions
Account maintained for the Participant on behalf of whom the
contribution under Section 3.4(a) was made.
3.5 - Rollover Contributions.
(a) An Eligible Employee, regardless of whether he has
satisfied the participation requirements of Section 2.1 who, as a
result of a termination of employment, disability or attainment
of age 59-1/2, has received a distribution from a plan which
meets the requirements of Section 401(a) of the Code may, in
accordance with procedures approved by the Committee, transfer
the distribution received from the other plan to the Trust;
provided that the distribution is eligible for rollover treatment
and exclusion from the gross income of the Participant in
accordance with Section 402(a)(5) of the Code.
(b) The Committee shall develop such procedures, and
may require such information from an Employee desiring to make
such a transfer, as it deems necessary or desirable to determine
that the proposed transfer will meet the requirements of this
Section. Upon approval by the Committee, the amount transferred
shall be deposited in the Trust and shall be credited to an
account which shall be referred to as the "Rollover Account."
Such account shall be 100% vested in the Employee and shall share
in income allocations as provided in the Plan, but shall not
share in Company contribution allocations. Upon termination of
employment, the total amount of the Employee's Rollover Account
shall be distributed in accordance with Article VI.
(c) Upon such transfer by an Eligible Employee who has
not yet completed the participation requirements of Section 2.1,
his Rollover Account shall represent his sole interest in the
Plan until he becomes a Participant.
3.6 - Section 402(g) Limit on Compensation Deferrals.
(a) Compensation Deferrals made on behalf of any
Participant under this Plan and all other plans (which are
described in Section 3.6(c)) maintained by the Company or a
Related Company shall not exceed the limitation under Code
Section 402(g)(1) for the taxable year of the Participant, as
adjusted annually under Section 402(g)(5) of the Code, and shall
be effective as of January 1 of each calendar year.
(b) In the event that the dollar limitation provided
for in Section 3.6(a) is exceeded, the Participant is deemed to
have requested a distribution of the excess amount by the first
March 1 following the close of the Participant's taxable year,
and the Committee shall distribute such excess amount, and any
income allocable to such amount, to the Participant by April
15th. In determining the excess amount distributable with
respect to a Participant's taxable year, excess Compensation
Deferrals previously distributed or redesignated as after-tax
contributions for the Plan Year beginning with or within such
taxable year shall reduce the amount otherwise distributable
under this Paragraph (b).
(c) In the event that a Participant is also a
participant in (1) another qualified cash or deferred arrangement
as defined in Section 401(k) of the Code, (2) a simplified
employee pension, as defined in Section 408(k) of the Code, or
(3) a salary reduction arrangement, within the meaning of Section
3121(a)(5)(D) of the Code, and the elective deferrals, as defined
in Section 402(g)(3) of the Code, made under such other
arrangement(s) and this Plan cumulatively exceed the dollar limit
under Section 3.6(a) for such Participant's taxable year, the
Participant may, not later than March 1 following the close of
his taxable year, notify the Committee in writing of such excess
and request that the Compensation Deferrals made on his behalf
under this Plan be reduced by an amount specified by the
Participant. The Committee may then determine to distribute such
excess in the same manner as provided in Section 3.6(b).
3.7 - Section 401(k) Limitations on Compensation Deferrals.
(a) The Committee will estimate, as soon as practical
before the close of the Plan Year and at such other times as the
Committee in its discretion determines, the extent, if any, to
which Compensation Deferral treatment under Section 401(k) of the
Code may not be available to any Participant or class of
Participants. In accordance with any such estimate, the
Committee may modify the limits in Section 3.2(a), or set initial
or interim limits, for Compensation Deferrals relating to any
Participant or class of Participants. These rules may include
provisions authorizing the suspension or reduction of
Compensation Deferrals above a specified dollar amount or
percentage of Compensation.
(b) For each Plan Year, an actual deferral percentage
will be determined for each Participant equal to the ratio of the
total amount of the Participant's Compensation Deferrals
allocated under Section 3.2(a) for the Plan Year divided by the
Participant's Compensation in the Plan Year. For purposes of
this Section 3.7, "Compensation" shall meet the requirements of
Section 414(s) of the Code and Treasury Regulations. In the case
of family members treated as a single Highly Compensated Employee
under Paragraph (3) of the definition of "Highly Compensated
Employee" in Section 1.2, in accordance with the family
aggregation rules of Section 414(q)(6) of the Code, the actual
deferral percentage shall be determined by combining the
Compensation Deferrals and Compensation of all eligible family
members. Except to the extent taken into account in the
preceding sentence, the Compensation Deferrals and Compensation
of such family members shall be disregarded for purposes of
determining the actual deferral percentages for the group of non-
Highly Compensated Employees under this Section 3.7. An Em-
ployee's Compensation taken into account for this purpose shall
be limited to Compensation received during the Plan Year while
the Employee is a Participant. Except as otherwise provided in
this Section 3.7(b), with respect to Participants who have made
no Compensation Deferrals under this Plan, such actual deferral
percentage will be zero.
(c) The average of the actual deferral percentages for
Highly Compensated Employees ("High Average") when compared with
the average of the actual deferral percentages for non-Highly
Compensated Employees ("Low Average") must meet one of the
following requirements:
(1) The High Average is no greater than 1.25 times the
Low Average; or
(2) The High Average is no greater than two times the
Low Average, and the High Average is no greater than the Low
Average plus two percentage points.
(d) If, at the end of a Plan Year, a Participant or
class of Participants has excess Compensation Deferrals, then the
Committee may elect, at its discretion, to pursue any of the
following courses of action or any combination thereof:
(1) Excess Compensation Deferrals, and any earnings
attributable thereto through the end of the Plan Year, may
be distributed to the Participant within the 2-1/2 month
period following the close of the Plan Year to which the
excess Compensation Deferrals relate to the extent feasible,
but in all events no later than 12 months after the close of
such Plan Year.
(2) The Company, in its discretion, may make a
contribution to the Plan, which will be allocated as a fixed
dollar amount among the Accounts of some or all non-Highly
Compensated Employees (as determined by the Company) who
have met the requirements of Section 2.1. Such
contributions shall be fully (100%) vested at all times, and
shall be subject to the withdrawal restrictions which are
applicable to Compensation Deferrals. Such contributions
shall be considered "Qualified Non-Elective Contributions"
under applicable Treasury Regulations.
Any such excess Compensation Deferrals distributed from the Plan
with respect to a Participant for a Plan Year shall be reduced by
any amount previously distributed to such Participant under
Section 3.6(b) for the Participant's taxable year ending with or
within such Plan Year.
(e) The amount of the excess Compensation Deferrals
will be determined by the Committee by reducing the actual
deferral percentage of the Highly Compensated Employee(s) with
the highest actual deferral percentage to the extent required to
enable the Plan to meet the limits in (c) above or to cause the
actual deferral percentage of such Highly Compensated Employee(s)
to equal the actual deferral percentage of the Highly Compensated
Employee(s) with the next-highest actual deferral percentage.
The process in the preceding sentence shall be repeated until the
Plan satisfies the limits in (c) above. In the case of family
members subject to the family aggregation rules of Section
414(q)(6) of the Code, excess Compensation Deferrals will be
allocated among family members in proportion to the Compensation
Deferrals of each family member that have been combined under
Section 3.7(b) above. The earnings attributable to excess
Compensation Deferrals will be determined in accordance with
Treasury Regulations. The Committee will not be liable to any
Participant (or his Beneficiary, if applicable) for any losses
caused by inaccurately estimating or calculating the amount of
any Participant's excess Compensation Deferrals and earnings
attributable to the Compensation Deferrals.
(f) If the Committee determines that an amount to be
deferred pursuant to the election provided in Section 3.2 would
cause Company contributions under this and any other tax-
qualified retirement plan maintained by any Company to exceed the
applicable deduction limitations contained in Section 404 of the
Code, or to exceed the maximum Annual Addition determined in
accordance with Article IV, the Committee may treat such amount
in accordance with the rules in Section 3.7(d)(2) hereof.
(g) In the discretion of the Committee, the tests
described in this section may be applied by aggregating the Plan
with any other defined contribution plans permitted under the
Code. For purposes of determining whether the Plan satisfies the
requirements of this Section 3.6, all Compensation Deferrals and
Elective Contributions under any other Plan maintained by the
Company which is aggregated with this Plan for purposes of
Section 401(a) or 410(b) of the Code (other than Section
410(b)(2)(A)(ii)) are to be treated as made under a single plan.
Furthermore, if two or more plans are permissively aggregated for
purposes of the test described in this section, the aggregated
plans must also satisfy Code Sections 401(a)(4) and 410(b) as
though they were a single plan.
3.8 - Section 401(m) Limitations on Voluntary Employee
Contributions and Employer Matching Contributions.
(a) The Committee will estimate, as soon as practical,
before the close of the Plan Year and at such other times as the
Committee in its discretion determines, the extent, if any, to
which Employer Matching Contributions may not be available to any
Participant or class of Participants under Code Section 401(m).
In accordance with any such estimate, the Committee may modify
the limits in Section 3.3 and/or percentages in Section 3.4 or
set initial or interim limits or percentages, for Employer
Matching Contributions relating to any Participant or class of
Participants. After determining the amount of excess
Compensation Deferrals, if any, under subsections 3.7(a) and (b),
the Committee shall determine the aggregate contribution
percentage under (b) below.
(b) For each Plan Year, a contribution percentage will
be determined for each Participant equal to the ratio of the
total amount of the Participant's Employer Matching Contributions
allocated under Sections 3.3 and 3.4 for the Plan Year divided by
the Participant's Compensation in the Plan Year. For purposes of
this Section 3.8, "Compensation" shall meet the requirements of
Section 414(s) of the Code and Treasury Regulations. For
purposes of this Section 3.8, the Company, in its sole
discretion, may treat all or any part of its Compensation
Deferrals as Employer Matching Contributions to the extent
permitted by Treasury Regulations. If Compensation Deferrals are
treated as Employer Matching Contributions, the Plan must satisfy
Section 3.7(b) both by counting such amounts as Compensation
Deferrals and by excluding such amounts as Compensation
Deferrals. In the case of family members treated as a single
Highly Compensated Employee under Paragraph (e) of the definition
of "Highly Compensated Employee" in Section 1.2, in accordance
with the family aggregation rules of Section 414(q)(6) of the
Code, the contribution percentage shall be determined by
combining the Employer Matching Contributions and Compensation of
all eligible family members. Except to the extent taken into
account in the preceding sentence, the Employer Matching
Contributions, Compensation and all amounts treated as Employer
Matching Contributions of such family members shall be
disregarded for purposes of determining the average of the
contribution percentages for the group of non-Highly Compensated
Employees under this Section 3.8. An Employee's Compensation
taken into account for this purpose shall be limited to
Compensation received during the Plan Year while the Employee is
a Participant. Except as otherwise provided in this Section
3.8(b), with respect to Participants for whom there were no
Employer Matching Contributions under this Plan, such
contribution percentage will be zero.
(c) The average of the contribution percentages for
Highly Compensated Employees ("High Average") when compared with
the average of the contribution percentages for non-Highly
Compensated Employees ("Low Average") must meet one of the
following requirements:
(1) The High Average is no greater than 1.25 times the
Low Average; or
(2) The High Average is no greater than two times the
Low Average, and the High Average is no greater than the Low
Average plus two percentage points.
(d) If, at the end of a Plan Year, a Participant or a
class of Participants has excess contributions, then the
Committee may elect, at its discretion, to pursue any of the
following courses of action or any combination thereof:
(1) Excess Employer Matching Contributions (and any
earnings attributable thereto through the end of the Plan
Year) attributable to excess Compensation Deferrals under
Section 3.6 or 3.7 may be forfeited.
(2) Excess Employer Matching Contributions (and any
earnings attributable thereto through the end of the Plan
Year) that are not vested may be forfeited.
(3) Excess Employer Matching Contributions (and any
earnings attributable to such excess amounts through the end
of the Plan Year will be distributed to the Participant
within the 2-1/2 month period following the close of the
Plan Year to the extent feasible, and in all events no later
than 12 months after the close of Plan Year.
(4) Notwithstanding the foregoing, the conditions in
this paragraph (4) must be met if there are Employer
Matching Contributions allocated to a Participant which are
attributable to excess Compensation Deferrals under Section
3.6 or 3.7. In such case, such Employer Matching
Contributions shall not be allocated to the Account of any
Participant who had excess Employer Matching Contributions
in such Plan Year. In addition, Employer Matching
Contributions remaining in the Plan allocated to the
Participant after satisfying Section 3.8 cannot exceed the
amount which may be allocated under Section 3.4 when taking
into account only those Compensation Deferrals remaining in
the Plan after satisfying Sections 3.6, 3.7 and 3.8. Any
such excess Employer Matching Contributions (and earnings
attributable thereto) must be forfeited or distributed
pursuant to paragraphs (1), (2) or (3) above.
(e) The amount of excess Employer Matching
Contributions shall be determined by the Committee by reducing
the contribution percentage of the Highly Compensated Employee(s)
with the highest contribution percentage to the extent required
to enable the Plan to meet the limits in (c) above or to cause
the contribution percentage of such Employee(s) to equal the
contribution percentage of the Highly Compensated Employee(s)
with the next-highest contribution percentage. The process in
the preceding sentence shall be repeated until the Plan satisfies
the limits in (c) above. In the case of family members subject
to the family aggregation rules of Section 414(q)(6) of the Code,
excess contributions will be allocated among family members in
proportion to the Employer Matching Contributions of each family
member that have been combined under Section 3.8(b) above. The
earnings attributable to excess contributions will be determined
in accordance with Treasury Regulations. The Committee will not
be liable to any Participant (or to his Beneficiary, if
applicable) for any losses caused by inaccurately estimating or
calculating the amount of any Participant's excess contributions
and earnings attributable to the contributions.
(f) The tests of Sections 3.7(c) and 3.8(c) shall be
met in accordance with the prohibition against the multiple use
of the alternative limitation under Code Section 401(m)(9). For
purposes of determining whether the Plan satisfies the
requirements of this Section, all Compensation Deferrals and
Matching Contributions under any other Plan maintained by he
Company which is aggregated with this Plan for purposes of
Section 401(a) or 410(b) of the Code (other than Section
410(b)(2)(A)(ii)) are to be treated as made under a single plan.
Furthermore, if two or more plans are permissively aggregated for
purposes of the test described in this section, the aggregated
plans must also satisfy Code Sections 401(A)(4) and 410(b) as
thought they were a single plan. If it is necessary to make
corrections concerning the prohibition against the multiple use
of the alternative limitation under Code Section 401(m)(9), the
correction shall be made first by reducing and refunding after-
tax employee contributions to Highly Compensated Employees who
made such contributions (if any), and second, if necessary, by
reducing and refunding the Compensation Deferrals of Highly
Compensated Employees. All Highly Compensated Employees shall be
subject to such correction.
3.9 - Investment Funds.
(a) Separate Investment Funds shall be established and
maintained by the Committee under this Plan. Pursuant to Section
7.3(b), the Committee shall determine number of Investment Funds
and the Committee, the Trustee or the Investment Manager shall
determine the investments to be made under the Investment Funds.
One Investment Fund shall be a Company Stock Fund, which is a
pool of assets maintained by the Trustee, invested exclusively in
Company Stock (except for cash or cash equivalents pending
distribution or investment). Any cash dividends on Company Stock
in the Company Stock Fund shall be reinvested in Company Stock.
(b) Pursuant to rules established by the Committee and
subject to the provisions of this Section, each Participant shall
have the right and obligation to designate in which of the
Investment Funds his Accounts will be invested, and to change
such designation. The designation shall be on such forms as are
established by the Committee or pursuant to such other methods
(including telephonic transfers if authorized by the Committee).
The Committee shall describe to the Participants the investments
to be made under each Investment Fund in such detail as the
Committee deems appropriate in its sole discretion. Up to 100%
of the Trust assets may be invested in Company Stock; the amount
of Trust assets that may be invested in Company Stock will be the
amount selected by the Participants to be so invested. If a
Participant does not make an election with respect to the
investment of his Accounts, they will be invested in the fund
selected by the Committee as announced to Participants.
(c) Participant loans made pursuant to this Plan shall
not be included in any of the Investment Funds. Instead, for any
Participant who takes such a loan, such loan shall be considered
an investment of his Accounts. Such Participant's Accounts shall
be credited with the investment gain or loss attributable to such
loan. The Committee may establish other rules, regulations, and
procedures regarding the Investment Funds as it deems appropriate
in its sole discretion.
3.10 - Valuation of Accounts.
(a) The value of the Accounts invested in the
Investment Funds shall be established on each business day by the
Trustee or the applicable Investment Manager, and investment
gains and losses shall be allocated to such Accounts according to
the investment elections of Participants.
(b) Notwithstanding anything to the contrary herein,
if the Committee determines that an alternative method of
allocating earnings and losses would better serve the interests
of Participants and Beneficiaries or could be more readily
implemented, the Committee may substitute such alternative;
provided that any such alternative method must result in Plan
earnings being allocated on the general basis of Account
balances.
(c) Amounts vested in the Company Stock Fund shall be
invested in Company Stock. Each Participant's Account shall be
credited with a number of whole and fractional shares of Company
Stock as can be purchased with the amount that such Participant
has designated should be invested in the Company Stock Fund. Any
residual amount of cash which cannot be invested in Company Stock
shall remain in the Company Stock Fund to be invested in Company
Stock when a sufficient amount of cash has been accumulated to
purchase such Company Stock. Cash dividends received on the
Company Stock shall be appropriately credited to each
Participant's Company Stock Account. Stock dividends and stock
splits on the Company Stock should be credited to the Company
Stock Account to the extent of the number of shares allocable to
each Participant.
(d) Full and fractional shares of Company Stock
allocated to a Participant's Accounts will be voted by the
Trustee according to the Participant's instructions. The Trustee
will not vote shares of stock allocated to Participant's Accounts
for which instructions are not received from Participants.
Shareholder rights with respect to Company Stock, other than
voting rights, which can be exercised by Participants may be
passed through to Participants and exercised in a similar manner
to voting rights or will be exercised in such other manner as is
legally required. However, where the circumstances (such as the
lack of time or the lack of liquid funds to satisfy a requirement
to pay for additional shares of stock) make it impractical to
pass such rights through to Participants and no other specific
legal requirement exists, the rights will be exercised (or sold)
by the Trustee in a manner that the Trustee deems prudent under
the circumstances and otherwise consistent with the fiduciary
standards of ERISA.
3.11 - Rule 16b-3 Provisions.
The Committee may take such action or implement such
measures and further limitations on elections under the Plan as
it deems necessary or desirable in order to insure that the Plan
complies with 17 C.F.R. 240.16b-3, promulgated under Section 16
of the Securities and Exchange Act of 1934, and that transactions
by Participants not subject to Section 16 not be subject to
avoidable liability under, and that transactions are exempt from,
Section 16b. Such Committee measures and limitations may
include, but are in no way limited to, prohibiting certain
Participants from designating the Company Stock Fund for the
investment of all or any portion of their Accounts. Neither the
Company, the Committee, nor the Plan shall have any liability to
any Participant in the event that any Participant has any
liability under Section 16 due to any transaction under the Plan.
3.12 - Section 404(c) Provisions.
(a) This Plan is intended to constitute a plan
described in Section 404(c) of ERISA, and the regulations
thereunder. As a result, with respect to elections described in
this Plan and any other exercise of control by a Participant or
his or her Beneficiary over assets in the Participant's Accounts,
such Participant or Beneficiary shall be solely responsible for
such actions and neither the Trustee, the Committee, the Company,
an Investment Manager nor any other person or entity which is
otherwise a Fiduciary shall be liable for any loss or liability
which results from such Participant's or Beneficiary's exercise
of control.
(b) The Committee shall provide to each Participant or
his or her Beneficiary the information described in Section
2530.404b-1(b)(2)(i)(B)(1) of the Department of Labor
Regulations. Upon request by a Participant or his or her
Beneficiary, the Committee shall provide the information
described in Section 2530.404b-1(b)(2)(i)(B)(2) of the Department
of Labor Regulations.
(c) The Committee shall take such actions and
establish such procedures as it deems necessary to ensure the
confidentiality of information relating to the purchase, sale,
and holding of Company Stock, and the exercise of voting, tender
and similar rights with respect to such stock by a Participant or
his or her Beneficiary. Notwithstanding the foregoing, such
information may be disclosed to the extent necessary to comply
with applicable state and federal laws.
(d) In the event of a tender or exchange offer with
respect to the Company, or in the event of a contested election
with respect to the Board of Directors, the Company shall, at its
own expense, appoint an independent Fiduciary to carry out the
Committee's administrative functions with respect to the Company
Stock Fund. Such independent Fiduciary shall not be an
"affiliate" of the Company as such term is defined in Section
2530.404b-1(e)(3) of the Department of Labor Regulations.
(e) The Committee may take such other actions or
implement such other procedures as it deems necessary or
desirable in order that the Plan comply with Section 404(c)
ERISA.
<PAGE>
ARTICLE IV
LIMITATION ON ANNUAL ADDITIONS
Notwithstanding anything else contained herein, the
Annual Additions, to all the Accounts of a Participant shall not
exceed the lesser of $30,000 (or, if greater, 1/4 of the defined
benefit dollar limitation in effect under Section 415(b)(1) of
the Code for the limitation year) or 25% of the Participant's
Section 415 Compensation from the Company and all Related
Companies during the Plan Year, in accordance with the provisions
of Appendix A attached hereto.
<PAGE>
ARTICLE V
VESTING
5.1 - Fully Vested Accounts.
A Participant's Compensation Deferral Account,
Voluntary Employee Contributions Account and Rollover Account
shall be 100% vested and nonforfeitable.
5.2 - Company Contribution Account.
(a) The interest of each Participant in his Company
Contribution Account and Employer Matching Contributions Account
shall vest and become nonforfeitable up to a maximum of 100% as
follows:
(1) A Participant shall become 100% vested if, while
an Employee, he attains his Normal Retirement Age, incurs a
Disability, or dies; or
(2) A Participant who first performed an Hour of
service after June 30, 1994, shall become vested in
accordance with the following schedule:
Years of
Vesting Service Percentage Vested
less than 3 0%
3 25%
4 50%
5 or more 100%
(3) A Participant who first performed an Hour of
Service on or before June 30, 1994 was or became fully
vested in his Company Contribution Account and Employer
Matching Contributions Account on or before July 1, 1996.
(b) If a Participant incurs an uninterrupted five-year
Period of Severance before he has a vested interest in his
Company Contribution Account and employer Matching Contributions
Account under this Article V, in determining his Years of Service
under this Section 5.2, all Years of Service earned before the
Period of Severance shall be forfeited.
(c) If a Participant incurs an uninterrupted five-year
Period of Severance and is subsequently reemployed, no Year of
Service after such Period of Severance shall be taken into
account in determining the vested percentage in a Participant's
Company Contributions Account and Employer Matching Contributions
Account accrued up to any such Period of Severance.
(d) When a Participant ceases to participate and
receives distribution of his Company Contributions Account or
Employer Matching Contributions Account, such portion of his
Company Contributions Account or Employer Matching Contributions
Account as is not vested shall be immediately forfeited. For
purposes of the preceding sentence, a Participant who ceases to
participate in the Plan and whose nonforfeitable percentage in
his Company Contributions Account or Employer Matching
Contributions Account is zero, shall be deemed to have received a
complete distribution of the nonforfeitable portion of his
Company Contributions Account or Employer Matching Contributions
Account. Forfeitures may first be applied to pay administrative
expenses under the Plan which would otherwise be paid by the
Company. Forfeitures not used to pay administrative expenses
under the Plan shall be applied to reduce the earliest Company
Contribution made after the forfeitures are determined.
Forfeitures shall be determined at least once during each taxable
year of the Company. Upon their application to reduce Company
Contributions, such forfeitures shall be deemed to be Company
Contributions. If a former Participant who has suffered a
forfeiture on account of his termination of participation in
accordance with this subsection (d) is reemployed as an Employee
by the Company before incurring an uninterrupted five-year Period
of Severance and repays to the Plan all money distributed from
his Company Contributions Account and Employer Matching
Contributions Account prior to 60 months after such reemployment,
any amounts so forfeited (unadjusted for any increase or decrease
in the value of Trust assets subsequent to the Anniversary Date
on which the forfeiture occurred) shall be reinstated to the
Participant's Company Contributions Account or Employer Matching
Contributions Account, as the case may be within a reasonable
time after such repayment. Such reinstatement shall be made from
forfeitures of Participants occurring during the Plan Year in
which such reinstatement occurs to the extent such forfeitures
are attributable to contributions by the same Company (or a
Company that is a Related Company to that Company) and earnings
on such contributions; provided, however, if such forfeitures are
not sufficient to provide such reinstatement, the reinstatement
shall be made from the current year's contribution by that
Company to the Plan.
<PAGE>
ARTICLE VI
DISTRIBUTIONS
6.1 - Distribution of Benefits.
(a) Benefits shall become distributable to a
Participant or his Beneficiary (in the case of death) upon a
Break in Employment.
(b) The amount of the benefits distributable to a
Participant upon a Break in Employment shall be the amount
credited to such Participant's Company Contributions Account and
Employer Matching Contributions Account as of the date on which
the amount representing the distribution is liquidated from the
Investment Funds pending distribution, multiplied by the
percentage of his vested interest determined under Section 5.2
plus the amount credited to such Participant's Voluntary Employee
Contributions Account, Compensation Deferral Account and Rollover
Account as of the date on which the amount representing the
distribution is liquidated from the Investment Funds pending
distribution. The value of the amount distributed from the
portion of the Participant Accounts held in the Company stock
Fund shall be the next proceeds at the sale of the Company Stock
liquidated pending distribution, plus cash for any fractional
share which is not liquidated.
(c) Distribution shall be in the form of a cash lump
sum. However, a Participant may elect that the portion of his
Accounts invested in the Company Stock Fund be distributed in
whole shares of Company Stock, with cash for fractional shares.
Notwithstanding the foregoing distribution to an individual who
was a Participant on or before June 30, 1996 shall be governed by
Appendix C.
(d) If the nonforfeitable balance in the Participant's
Accounts exceeds $3,500, distribution shall be made upon a Break
in Employment as soon as practicable after the Participant
consents to a distribution of the nonforfeitable balance of his
Accounts in writing. If the Participant does not consent,
distribution shall be made as soon as practicable following the
later of the Break in Employment or attainment of Normal
Retirement Age. An explanation of the Participant's right to
defer distribution of the nonforfeitable balance of his Accounts
shall be provided to the Participant no less than 30 and no more
than 90 days before the date such distribution is to be made
(consistent with such regulations as the Secretary of the
Treasury may prescribe).
(e) If a terminating Participant consents to immediate
distribution, the nonvested portion of his Accounts shall be
forfeited and his rights with respect to the forfeited portion
shall be governed by Section 5.2(d).
(f) If the nonforfeitable balance of a terminating
Participant's Accounts is a distribution to which Sections
401(a)(11) and 417 of the Code do not apply, such distribution
may commence less than 30 days after the notice described in
subsection (d) is given, provided that: (1) the Committee
clearly informs the Participant that the Participant has the
right to a period of at least 30 days after receiving the notice
to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution
option), and (2) the Participant, after receiving the notice,
affirmatively elects an immediate distribution.
6.2 - Hardship Withdrawals from Compensation
Deferral Accounts and Rollover Accounts.
(a) Subject to the approval of the Committee and
guidelines promulgated by the Committee, withdrawals from the
Participant's Compensation Deferral Account and Rollover Account
may be permitted to meet a financial hardship resulting from:
(1) Uninsured medical expenses previously incurred by
the Participant, or the Participant's spouse or dependent or
necessary to obtain such medical care;
(2) The purchase (excluding mortgage payments) of a
principal residence of the Participant;
(3) The payment of tuition for the next 12 months of
post-secondary education for the Participant, or the
Participant's spouse, children or dependents;
(4) The prevention of eviction of the Participant from
his principal residence, or foreclosure on the mortgage of
the Participant's principal residence; and
(5) Any other event described in Treasury Regulations
or rulings as an immediate and heavy financial need and
approved by the Company as a reason for permitting
distribution under this section.
The Committee shall determine, in a non-discriminatory manner,
whether a Participant has a financial hardship. A distribution
may be made under this section only if such distribution does not
exceed the amount required to meet the immediate financial need
created by the hardship (including taxes or penalties reasonably
anticipated from the distribution) and is not reasonably
available from other resources of the Participant.
(b) The withdrawal amount shall not in any event
exceed the value of the Participant's Compensation Deferral
Account as of the Valuation Date immediately following the
Committee's acceptance of the Participant's written application
for a hardship withdrawal. In addition, except as provided
otherwise in the following sentence, the withdrawal amount shall
not exceed the value of the Participant's Compensation Deferrals
to such Accounts, less previous withdrawals and excluding
earnings. Notwithstanding the foregoing, any distribution under
this section may include earnings accrued to the Participant's
Compensation Deferral Account prior to 1989. Payment of the
withdrawal shall be in a single sum no later than the end of the
month following the date on which the withdrawal is approved by
the Committee.
(c) A Participant shall not be permitted to make any
withdrawals from his Compensation Deferral Account or Rollover
Account pursuant to this section until he has obtained all
distributions, other than hardship distributions, and all non-
taxable loans currently available under all qualified profit
sharing and retirement plans maintained by the Company or a
Related Company.
(d) The Participant's request for a withdrawal shall
include his written statement that the need cannot be relieved:
(i) through reimbursement or compensation by insurance or
otherwise; (ii) by reasonable liquidation of the Participant's
assets, to the extent such liquidation would not itself cause
immediate and heavy financial need; (iii) by cessation of
Compensation Deferrals under the Plan; or (iv) by other
distributions or nontaxable loans currently available from plans
maintained by the Company or a Related Company, or by borrowing
from commercial sources on reasonable commercial terms. If the
individual seeking a withdrawal was a Participant on or before
June 30, 1996, the request for withdrawal shall be subject to the
election and spousal consent procedures set forth in Appendix C.
6.3 - Qualified Domestic Relations Orders.
Subject to the procedures established by the Committee
under Section 9.4(b), benefits may be paid from the
nonforfeitable balance of a Participant's Accounts in accordance
with a qualified domestic relations order as defined in Section
414(p) of the Code without regard to whether the Participant has
attained the "earliest retirement age," as defined in Section
414(p) of the Code.
6.4 - Inability to Locate Participant.
In the case of any distribution of an account under
this Plan, if the Committee is unable to make such payment
within three years after payment is due a Participant or
Beneficiary because it cannot locate such Participant or
Beneficiary, the Trustee shall direct that such amount shall be
forfeited and shall be reallocated (as of the Anniversary Date
coincident with or next succeeding the expiration of the
aforesaid time limit) to the remaining Participants' Company
Contribution Accounts, as in the case of amounts forfeited for
any other reason and the assets of this Plan shall be relieved of
the liability for such payment. If, after such forfeiture, the
Participant or Beneficiary later claims such benefit, such
account shall be reinstated from forfeitures of Participants in
this Plan occurring during the Plan Year in which such
reinstatement occurs; provided, however, that if such forfeitures
are not sufficient to provide such reinstatement, an additional
Company contribution shall be made for the Plan Year in which
reinstatement occurs to cover such reinstatement. Establishment
of an account through such reinstatement shall not be deemed an
"annual addition" under Section 415 of the Code or Article IV of
the Plan.
6.5 - Limitations on Distributions.
(a) When benefits become distributable, the Committee
shall direct the Trustee to distribute the amount described above
promptly, the payment of such benefits to commence,
notwithstanding anything to the contrary contained herein, no
later than 60 days following the close of the later of the Plan
Year in which (1) a Participant reaches Normal Retirement Age,
(2) the Participant incurs a Break in Employment, or (3) occurs
the 10th anniversary of the year in which the Participant
commenced participation in the Plan (unless the amount of the
Participant's benefit has not been calculated by that date or the
Participant cannot be located, in which case distribution shall
begin no later than 60 days after the payment can be calculated
or the Participant located).
(b) Notwithstanding anything to the contrary contained
herein, the distribution options under the Plan shall comply with
Section 401(a)(9) of the Code and regulations promulgated
thereunder, which are hereby incorporated by this reference as a
part of the Plan. Accordingly, unless otherwise permitted by
law, the entire interest of each Participant shall be distributed
in a single lump sum, by April 1 of the calendar year following
the calendar year in which the Participant reaches age 70-1/2.
Except as provided by law, a Participant who reached age 70-1/2
before January 1, 1988 and who was not a five percent owner of
the Company at any time during the Plan Year ending with or
within the calendar year in which the Participant attains age 66-
1/2 or thereafter, is not required to receive distribution of his
interest until he separates from service. If a Participant
continues employment past the required beginning date described
above, additional distributions shall be made annually to reflect
additional accruals in accordance with Treasury Regulations. If
a Participant subject to this subsection (d) was a Participant on
or before June 30, 1996, distributions required by Code Section
401(a)(9) may be made, at the Participant's election, in an
appropriate manner set forth in Appendix C, subject to the
spousal consent requirements.
6.6 - Direct Rollovers.
(a) This Section applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan
to the contrary that would otherwise limit a Distributee's
election under this Section, if a Distributee will receive an
Eligible Rollover Distribution of at least $200, the Distributee
may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover; provided,
however, that a Distributee may not elect to have an Eligible
Rollover Distribution of less than $500 paid directly to an
Eligible Retirement Plan unless the Distributee elects to have
his or her entire Eligible Rollover Distribution paid directly to
the Eligible Retirement Plan.
(b) Definitions.
(1) An "Eligible Rollover Distribution" is any
distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
Distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities); and any other type of distribution
which the Internal Revenue Service announces (pursuant to
regulation, notice or otherwise) is not an Eligible Rollover
Distribution.
(2) An "Eligible Retirement Plan" is an individual
retirement account described in Section 408(a) of the Code,
an individual retirement annuity described Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the Surviving Spouse, an Eligible Retirement
Plan is an individual retirement account or individual
retirement annuity.
(3) A "Distributee" includes an Employee or former
Employee. In addition, the Employee's or former Employee's
Surviving Spouse and the Employee's or former Employee's
Spouse or former Spouse who is the alternate payee under a
qualified domestic relations order, as defined in Section
414(p) of the Code, are Distributees with regard to the
interest of the Spouse or former Spouse.
(4) A "Direct Rollover" is a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
<PAGE>
ARTICLE VII
THE COMMITTEE
7.1 - Members.
A committee (hereinafter referred to as the
"Committee") shall be appointed by, and shall serve at the
pleasure of, the Board. The number of members comprising the
Committee shall be determined by the Board which may from time to
time vary the number of members. A member of the Committee may
resign by delivering a written notice of resignation to the
Board. The Board may remove any member by delivering a certified
copy of its resolution of removal to such member. Vacancies in
the membership of the Committee shall be filed promptly by the
Board.
7.2 - Committee Action.
The Board shall choose a Chairman for the Committee and
the Committee shall choose a Secretary. The Secretary shall
keep minutes of the Committee's proceedings and all records and
documents pertaining to the Committee's administration of the
Plan. Any action of the Committee shall be taken pursuant to the
vote or written consent of a majority of its members present, and
such action shall constitute the action of the Committee and be
binding upon the same as if all members had joined therein. A
member of the Committee shall not vote or act upon any matter
which relates solely to himself as a Participant. The Chairman
or any other member or members of the Committee designated by the
Chairman may execute any certificate or other written direction
on behalf of the Committee. The Trustee or any third person
dealing with the Committee may conclusively rely upon any
certificate or other written direction so signed.
7.3 - Rights and Duties.
(a) The Company shall be the Plan Administrator (as
defined in Section 3(16)(A) of ERISA.) The Company delegates
its duties under the Plan to the Committee. The Committee shall
act as the Fiduciary with respect to control and management of
the Plan for purposes of ERISA on behalf of the Participants and
their Beneficiaries, shall enforce the Plan in accordance with
its terms, shall be charged with the general administration of
the Plan, and shall have all powers necessary to accomplish its
purposes, including, but not by way of limitation, the following:
(1) To determine all questions relating to the
eligibility of Employees to participate;
(2) To construe and interpret the terms and provisions
of this Plan;
(3) To compute, certify to, and direct the Trustee
with regard to the amount and kind of benefits payable to
Participants and their Beneficiaries;
(4) To authorize all disbursements by the Trustee from
the Trust;
(5) To maintain all records that may be necessary for
the administration of the Plan other than those maintained
by the Trustee;
(6) To provide for the disclosure of all information
and the filing or provision of all reports and statements to
Participants, Beneficiaries or governmental agencies as
shall be required by ERISA or other law, other than those
prepared and filed by the Trustee;
(7) To make and publish such rules for the regulation
of the Plan as are not inconsistent with the terms hereof;
(8) To appoint a plan administrator or, any other
agent, and to delegate to them or to the Trustee such powers
and duties in connection with the administration of the Plan
as the Committee may from time to time prescribe, and to
designate each such administrator or agent as Fiduciary with
regard to matters delegated to him; and
(9) To establish claims procedures consistent with
regulations of the Secretary of Labor for presentation of
claims by Participants and Beneficiaries for Plan benefits,
consideration of such claims, review of claim denials and
issuance of a decision on review. Such claims procedures
shall at a minimum consist of the following:
(A) The Committee shall notify Participants and,
where appropriate, Beneficiaries of their right to
claim benefits under the claims procedures, shall make
forms available for filing of such claims, and shall
provide the name of the person or persons with whom
such claims should be filed.
(B) The Committee shall establish procedures for
action upon claims initially made and the communication
of a decision to the claimant promptly and, in any
event, not later than 90 days after the claim is
received by the Committee, unless special circumstances
require an extension of time for processing the claim.
If an extension is required, notice of the extension
shall be furnished the claimant prior to the end of the
initial 90-day period, which notice shall indicate the
reasons for the extension and the expected decision
date. The extension shall not exceed 90 days. The
claim may be deemed by the claimant to have been denied
for purposes of further review described below in the
event a decision is not furnished to the claimant
within the period described in the three preceding
sentences. Every claim for benefits which is denied
shall be denied by written notice setting forth in a
manner calculated to be understood by the claimant
(i) the specific reason or reasons for the denial,
(ii) specific reference to any provisions of this Plan
on which denial is based, (iii) description of any
additional material or information necessary for the
claimant to perfect his claim with an explanation of
why such material or information is necessary, and
(iv) an explanation of the procedure for further
reviewing the denial of the claim under the Plan.
(C) The Committee shall establish a procedure for
review of claim denials, such review to be undertaken
by the Committee. The review given after denial of any
claim shall be a full and fair review with the claimant
or his duly authorized representative having 60 days
after receipt of denial of his claim to request such
review, the right to review all pertinent documents and
the right to submit issues and comments in writing.
(D) The Committee shall establish a procedure for
issuance of a decision by the Committee not later than
60 days after receipt of a request for review from a
claimant unless special circumstances, such as the need
to hold a hearing, require a longer period of time, in
which case a decision shall be rendered as soon as
possible but not later than 120 days after receipt of
the claimant's request for review. The decision on
review shall be in writing and shall include specific
reasons for the decision written in a manner calculated
to be understood by the claimant with specific
reference to any provisions of this Plan on which the
decision is based.
(b) With respect to management or control of
investments, the Committee shall have the power to direct the
Trustee in writing with respect to the investment of the Trust
assets or any part thereof. Where investment authority,
management and control of Trust assets have been delegated to the
Trustee by the Committee, the Trustee shall be the Fiduciary with
respect to the investment, management and control of the Trust
assets contributed by the Company and Participants with full
discretion in the exercise of such investment, management and
control. Except as otherwise provided by law, the Committee may
appoint one or more Investment Manager(s), as defined in Section
1.2 of the Plan, to invest the Trust assets or any part thereof.
Where investment authority, management, and control of Trust
assets is not specifically delegated to the Trustee, the Trustee
shall be subject to the direction of the Committee or the
Investment Manager(s) appointed by the Committee, if any, regard-
ing the investment, management and control of such assets, and in
such case the Committee, or the Investment Manager(s), as the
case may be, shall be the Fiduciary with respect to the
investment, management and control of such assets.
(c) Each Fiduciary under the Plan and Trust shall be
solely responsible for its own acts or omissions. Except to the
extent required by ERISA or the Code, no Fiduciary shall have the
duty to question whether any other Fiduciary is fulfilling any or
all of the responsibilities imposed upon such other Fiduciary by
ERISA or by any regulations or rulings issued thereunder. No
Fiduciary shall have any liability for a breach of fiduciary
responsibility of another Fiduciary with respect to the Plan or
Trust unless he knowingly participates in such breach, knowingly
undertakes to conceal such breach, has actual knowledge of such
breach and fails to take reasonable remedial action to remedy
said breach or, through his negligence in performing his own
specific fiduciary responsibilities, has enabled such other
Fiduciary to commit a breach of the latter's fiduciary
responsibilities.
7.4 - Procedure for Establishing Funding Policy --
Transmittal of Information.
In order to enable the Committee to establish a funding
policy and perform its other functions under the Plan, the
Company shall supply full and timely information to the Committee
on all matters relating to the Compensation, employment,
retirement, death, or the cause for termination of employment of
each Participant and such other pertinent facts as may be
required. The Committee shall advise the Trustee and the
Investment Manager, as appropriate, of such of the foregoing
facts as may be pertinent to the duties of the Trustee and
Investment Manager under the Plan.
7.5 - Other Information.
To enable the Committee to perform its functions, the
Company shall supply full and timely information to the
Committee on all matters relating to the compensation of all
Participants, their employment, retirement, death or other cause
for termination of employment, and such other pertinent facts as
the Committee may require; and the Committee shall advise the
Trustee of such of the foregoing facts as may be pertinent to the
Trustee's duties under the Plan.
7.6 - Compensation, Bonding, Expenses and Indemnity.
(a) The members of the Committee shall serve without
compensation for their services hereunder.
(b) Members of the Committee and any delegates shall
be bonded to the extent required by Section 412(a) of ERISA and
the regulations thereunder. Bond premiums and all expenses of
the Committee or of any delegate who is an employee of the
Company shall be paid by the Company and the Company shall
furnish the Committee and any such delegate with such clerical
and other assistance as is necessary in the performance of their
duties.
(c) The Committee is authorized at the expense of the
Company to employ such legal counsel as it may deem advisable to
assist in the performance of its duties hereunder. Expenses and
fees in connection with the administration of the Plan and the
Trust shall be paid from the Trust assets to the fullest extent
permitted by law, unless the Company determines otherwise.
(d) To the extent permitted by applicable state law,
the Company shall indemnify and save harmless the Committee and
each member thereof, the Board of Directors and any delegate of
the Committee who is an employee of the Company against any and
all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their
discharge in good faith of responsibilities under or incident to
the Plan, other than expenses and liabilities arising out of
willful misconduct. 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 by-law,
agreement or otherwise, as such indemnities are permitted under
state law. Payments with respect to any indemnity and payment of
any expenses and fees under this Section shall be made only from
assets of the Company and shall not be made directly or
indirectly from Trust assets.
7.7 - Manner of Administering.
The Committee shall have full discretion to construe
and interpret the terms and provisions of this Plan, which
interpretation or construction shall be final and binding on all
parties, including but not limited to the Company and any
Participant or Beneficiary, except as otherwise provided by law.
The Committee shall administer such terms and provisions in a
uniform and nondiscriminatory manner and in full accordance with
any and all laws applicable to the Plan.
7.8 - Duty of Care.
In the exercise of the powers and duties of the
Committee as Plan Administrator and Fiduciary with respect to
the investment, management and control of the Plan, each member
of the Committee shall use the care, prudence, and diligence
under the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with
like aims.
7.9 - Committee Report.
The Committee shall keep the Board of Directors
apprised of the investment results of the Plan and shall report
any other information necessary to fully inform the Board of
Directors of the status and operation of the Plan and Trust.
<PAGE>
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 - Amendments.
The Company shall have the right to amend or modify the
Plan by resolution of the Board of Directors and to amend or
cancel any amendments. Furthermore, the Committee has the
authority to adopt any amendment to the Plan which is necessary
to maintain the qualification and tax exempt status of the Plan
under the Code, and any other amendments to the Plan which do not
have the effect of increasing the liability of the Company in a
manner which would cause a significant detriment to the Company.
Any amendment shall be stated in an instrument in writing,
executed in the same manner as the Plan. Except as may be re-
quired to permit the Plan and Trust to meet the requirements for
qualification and tax exemption under the Code, or the
corresponding provisions of other or subsequent revenue laws or
of ERISA, no amendment may be made which may:
(a) Cause any of the assets of the Trust, at any time
prior to the satisfaction of all liabilities with respect to
Participants and their Beneficiaries, to be used for or
diverted to purposes other than for the exclusive benefit of
Participants or their Beneficiaries;
(b) Decrease the accrued benefit of any Participant or
Beneficiary within the meaning of Section 411(d)(6) of the
Code;
(c) Create or effect any discrimination in favor of
Participants who are Highly Compensated Employees; and
(d) Increase the duties or liabilities of the Trustee
without its written consent.
8.2 - Discontinuance of Plan.
(a) It is the Company's expectation that this Plan and
the payment of contributions hereunder will be continued
indefinitely, but continuance of the Plan by the Company is not
assumed as a contractual obligation, and the Company reserves the
right to permanently discontinue contributions hereunder. In the
event of the complete discontinuance of contributions by the
Company, the entire interest of each Participant affected thereby
shall immediately become 100% vested. The Company shall not be
liable for the payment of any benefits under this Plan and all
benefits hereunder shall be payable solely from the assets of the
Trust.
(b) The Company may terminate this Plan at any time.
Upon complete termination or partial termination of the Plan, the
entire interest of each of the affected Participants shall become
100% vested. The Trustee shall thereafter, upon direction of the
Committee, distribute to the Participants the amounts in such
Participant's Company and Voluntary Contribution Accounts in the
same manner as set forth in Article VI.
8.3 - Failure to Contribute.
Any failure by the Company to contribute to the Trust
in any year when no contribution is required under this Plan
shall not of itself be a discontinuance of contributions under
this Plan.
8.4 - Plan Merger or Consolidation; Transfer of Plan Assets.
(a) This Plan shall not be merged or consolidated
with, nor shall its assets or liabilities be transferred to, any
other plan unless each Participant in this Plan (if the Plan then
terminated) would receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the
benefit such Participant would have been entitled to receive
immediately before the merger, consolidation or transfer (if this
Plan had been terminated). Where the foregoing requirement is
satisfied, this Plan and its related Trust may be merged or
consolidated with another qualified plan and trust.
(b) The Committee may, in its discretion, authorize a
plan to plan transfer, provided such a transfer will meet the
requirements of Section 414(l) of the Code and that all other
actions legally required are taken. In the event of a transfer
of assets from the Plan pursuant to this subsection, any
corresponding benefit liabilities shall also be transferred.
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 - Contributions Not Recoverable.
Except where contributions or earnings are required to
be returned to the Company by the provisions of this Plan as
permitted or required by ERISA or the Code, it shall be
impossible for any part of the contributions or earnings made
under this Plan to be used for, or diverted to, purposes other
than the exclusive benefit of Participants or their
Beneficiaries. Notwithstanding this or any other provision of
this Plan, the Company shall be entitled to recover, and the
Participants under this Plan shall have no interest in (a) any
contributions made under this Plan by mistake of fact, so long as
the contribution is returned within one year after payment (b) in
the event that the Company receives an adverse determination from
the Internal Revenue Service with respect to the Plan's initial
qualification with the result that the Trust is not exempt from
Federal income tax and the Company's contributions to the Trust
are not deductible in determining its Federal income tax, any
contributions and earnings made prior to that time, so long as
such amounts are returned within one year after such
determination and the application for determination was made by
the time prescribed by law for filing the Company's return for
the taxable year in which the Plan was adopted or such later date
as the Secretary of the Treasury may prescribe and (c) any
contributions for which deduction is disallowed under Section 404
of the Code, so long as the contributions are returned to the
Company within one year following such disallowance or as
permitted or required by the Code or ERISA. In the event of such
mistake of fact, determination by the Commissioner, or
disallowance of deductions, contributions shall be returned to
the Company, subject to the limitations, if any, of Section
403(c) of ERISA.
9.2 - Limitation on Participant's Rights.
Participation in this Plan shall not give any Employee
the right to be retained as an Employee of the Company or any
right or interest under the Plan other than as herein provided.
The Company reserves the right to dismiss any Employee without
any liability for any claim either against the Trustee, the Trust
except to the extent provided in the Trust, or against the
Company. All benefits under the Plan shall be provided solely
from the assets of the Trust.
9.3 - Receipt or Release.
Any payment to any Participant or Beneficiary in
accordance with the provisions of the Plan shall, to the extent
thereof, be in full satisfaction of all claims against the
Trustee, the Committee, and the Company. The Trustee may require
such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.
9.4 - Alienation.
(a) None of the benefits, payments, proceeds or claims
of any Participant or Beneficiary shall be subject to any claim
of any creditors and, in particular, the same shall not be
subject to attachment or garnishment or other legal process by
any creditor, nor shall any such Participant or Beneficiary have
the right to alienate, anticipate, commute, pledge, encumber or
assign any of the benefits or payments or proceeds which such
Participant or Beneficiary may expect to receive, contingently or
otherwise, under this Plan.
(b) The provisions of this Section 9.4 shall also
apply to the creation, assignment, or recognition of a right to
any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless (1) such order is determined to
be a qualified domestic relations order, as defined in Section
414(p) of the Code, or (2) the Committee determines in its
discretion to treat any domestic relations order entered before
January 1, 1985 as a qualified domestic relations order. The
Committee shall establish reasonable procedures to determine the
qualified status of domestic relations orders and to administer
distributions under such qualified orders. In the event a
qualified domestic relations order exists with respect to a
benefit payable under the Plan, the benefits otherwise payable to
a Participant or Beneficiary shall be payable to the alternate
payee specified in the qualified domestic relations order.
(c) Notwithstanding subsection (a), a loan described
in Section 9.11 of the Plan, shall not be considered a violation
of this Section.
9.5 - Persons Under Incapacity.
In the event any amount is payable under the Plan to a
person for whom a conservator has been legally appointed, the
payment shall be distributed to the duly appointed and currently
acting conservator, without any duty on the part of the Committee
to supervise or inquire into the application of any funds so
paid.
9.6 - Governing Law.
This Plan shall be construed, administered, and
governed in all respects under applicable federal law, and to
the extent that federal law is inapplicable, under the laws of
the State of [California]; provided, however, that if any
provision is susceptible to more than one interpretation, such
interpretation shall be given thereto as is consistent with this
Plan's remaining qualified within the meaning of Section 401(a)
of the Code. If any provisions of this instrument shall be held
by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall continue to
be fully effective.
9.7 - Headings, etc. Not Part of Plan.
Headings and subheadings in this Plan are inserted for
convenience of reference only and are not to be considered in the
construction of the provisions hereof.
9.8 - Masculine Gender Includes Feminine and Neuter.
As used in this Plan, the masculine gender shall
include the feminine gender.
9.9 - Instruments in Counterparts.
This Plan may be executed in several counterparts, each
of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument, which may be
sufficiently evidenced by any one counterpart.
9.10 - Reorganization of Company.
This Plan shall inure to the benefit of, and be binding
upon the parties hereto and their successors and assigns. If the
Company merges or consolidates with or into a successor, this
Plan shall continue in effect unless the successor terminates
this Plan.
9.11 - Loans to Participants.
(a) Each Participant shall have the right, subject to
prior approval by the Committee, to borrow from his Accounts.
Application for a loan must be submitted by a Participant to the
Committee on such form(s) as the Committee may require. Approval
shall be granted or denied as specified in subsection (b), on the
terms specified in subsection (c). For purposes of this Section
9.12, but only to the extent required by Department of Labor
Regulations Section 2550.408b-1, the term "Participant" shall
include any Employee, former Employee, Beneficiary or alternate
payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, who is a party in interest and has an
interest in the Plan that is not contingent.
(b) The Committee shall grant any loan which meets
each of the requirements of paragraphs (1), (2) and (3) below:
(1) The amount of the loan, when added to the
outstanding balance of all other loans to the Participant
from the Plan or any other qualified plan of the Company or
any Related Company shall not exceed the lesser of:
(A) $50,000, reduced by the excess, if any, of a
Participant's highest outstanding balance of all loans
from the Plan or any other qualified plan maintained by
the Company or any Related Company during the preceding
12 months over the outstanding balance of such loans on
the loan date, or
(B) 50% of the value of the vested balance of the
Participant's Compensation Deferral and Rollover
Accounts;
(2) The loan shall be for at least $1,000; and
(3) No more than one loan may be outstanding to a
Participant at any time.
(c) Each loan granted shall, by its terms, satisfy
each of the following additional requirements:
(1) Each loan must be repaid within five years (except
that if the Committee is satisfied that the loan proceeds
are being used to purchase the principal residence of a
Participant, the Committee may, in its discretion, establish
a term of up to 10 years for repayment);
(2) Each loan must require substantially level
amortization over the term of the loan, with payments not
less frequently than quarterly; and
(3) Each loan must be adequately secured, with the
security to consist of the balance of the Participant's
Accounts.
(A) In the case of any Participant who is an
active Employee, automatic payroll deductions shall be
required as additional security.
(B) In the case of any other Participant, the
outstanding loan balance may at no time exceed 50% of
the outstanding vested balance of the Participant's
Accounts. If such limit is at any time exceeded, or if
the Participant fails to make timely repayment, the
loan will be treated as in default and become
immediately payable in full.
(C) The investment gain or loss attributable to
the loan shall not be included in the calculation or
allocation of the increase or decrease in fair market
value of the Investment Funds. Instead, the entire
gain or loss (including any gain or loss attributable
to interest payments or default) shall be allocated to
the Accounts of the Participant.
(4) Each loan shall bear reasonable rate of interest,
which rate shall be the prime rate (as determined by the
Committee) as of the last day of the quarter preceding the
quarter in which the loan is made, plus one percent.
Furthermore, the Participant's Accounts shall be charged a
setup fee of $75 at the time the loan is made; such setup
fee shall be paid to the Plan's recordkeeper.
(d) All loan payments shall be transmitted by the
Company to the Trustee as soon as practicable but not later than
the end of the month during which such amounts were received or
withheld. Each loan may be prepaid in full at any time. Any
prepayment shall be paid directly to the Trustee in accordance
with procedures adopted by the Committee.
(e) Each loan shall be evidenced by a promissory note
executed by the Participant and payable in full to the Trustee,
not later than the earliest of (1) a fixed maturity date meeting
the requirements of subsection (c)(1) above, (2) the
Participant's death, or (3) the termination of the Plan. Such
promissory note shall evidence such terms as are required by this
section.
(f) If the individual requesting a loan was a
Participant on or before June 30, 1996, the Participant's spouse
(if any) must consent to the loan in the manner described in
Section 4(c) of Appendix C.
(g) The Committee shall have the power to modify the
above rules or establish any additional rules with respect to
loans extended pursuant to this section. Such rules may be
included in a separate document or documents and shall be
considered a part of this Plan; provided, each rule and each loan
shall be made only in accordance with the regulations and rulings
of the Internal Revenue Service and Department of Labor and other
applicable state or federal law. The Committee shall act in its
sole discretion to ascertain whether the requirements of such
regulations and rulings and this section have been met.
9.12 - Top-Heavy Plan Requirements.
For any Plan Year for which this Plan is a Top-Heavy
Plan, as defined in Section B.3 of Appendix B, attached hereto,
and despite any other provisions of this Plan to the contrary,
this Plan will be subject to the provisions of Appendix B.
IN WITNESS WHEREOF, the undersigned has caused this
document to be executed by its duly authorized officers on this
day of , 1996.
WYLE ELECTRONICS, INC.
By
Its
<PAGE>
APPENDIX A
ANNUAL ADDITION LIMITS
Article IV of the Plan shall be construed in accordance
with this Appendix A. Unless the context clearly requires
otherwise, words and phrases used in this Appendix A shall have
the same meanings that are assigned to them under the Plan.
A.1 - Definitions.
As used in this Appendix A, the following terms shall
have the meanings specified below.
"Annual Additions" shall mean the sum credited to a
Participant's Accounts for any Plan Year of (a) Company
contributions, (b) voluntary contributions, (c) forfeitures,
(d) amounts credited after March 31, 1984 to an individual
medical account, as defined in Section 415(l)(2) of the Code
which is part of a Defined Benefit Plan maintained by the
Company, and (e) amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement medical
benefits allocated to the separate account required with respect
to a key employee (as defined in Section B.2(e) of Appendix B to
the Plan) under a welfare benefit plan (as defined in Section
419(e) of the Code) maintained by the Company.
"Defined Benefit Plan" means a plan described in
Section 414(j) of the Code.
"Defined Contribution Plan" means a plan described in
Section 414(i) of the Code.
"Defined Benefit Plan Fraction" shall mean a fraction,
the numerator of which is the projected annual benefit
(determined as of the close of the relevant Plan Year) of the
Participant under all Defined Benefit Plans maintained by one or
more Related Companies, and the denominator of which is the
lesser of (a) the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(b)(1)(A) of the Code for
the Plan Year, or (b) the product of 1.4 multiplied by the amount
which may be taken into account under Section 415(b)(1)(B) of the
Code with respect to the Participant for the Plan Year.
"Defined Contribution Plan Fraction" shall mean a
fraction, the numerator of which is the sum of the annual
additions to a Participant's accounts under all Defined
Contribution Plans maintained by one or more Related Companies,
and the denominator of which is the sum of the lesser of (a) or
(b) for such Plan Year and for each prior Plan Year of service
with one or more Related Companies, where (a) is the product of
1.25 multiplied by the dollar limitation in effect under Section
415(c)(1)(A) of the Code for the Plan Year (determined without
regard to Section 415(c)(6) of the Code), and (b) is the product
of 1.4 multiplied by the amount which may be taken into account
under Section 415(c)(1)(B) of the Code (or Section 415(c)(7) of
the Code, if applicable) with respect to the Participant for the
Plan Year. Solely for purposes of this definition, contributions
made directly by an Employee to a Defined Benefit Plan which
maintains a qualified cost-of-living arrangement as such term is
defined in Section 415(k)(2) shall be treated as Annual
Additions. Notwithstanding the foregoing, the numerator of the
Defined Contribution Plan Fraction shall be adjusted pursuant to
Treasury Regulations 1.415-7(d)(1), Questions T-6 and T-7 of
Internal Revenue Service Notice 83-10, and Questions Q-3 and Q-14
of Internal Revenue Service Notice 87-21.
"Section 415 Compensation" shall mean a Participant's
wages within the meaning of Code Section 3401(a) and all other
payments of compensation to the Participant by the Company (in
the course of the Company's business) for which the Company is
required to provide the Participant a written statement under
Code Sections 6041(d), 6051(a)(3) and 6052. Section 415
Compensation shall be determined without regard to any rules
under Code Section 3401(a) that limit the remuneration included
in wages based on the nature or location of the employment or the
services performed. Compensation for any limitation year is the
compensation actually paid or includible in gross income during
such year.
A.2 - Annual Addition Limitations.
(a) The compensation limitation of Section 4.1 of the
Plan shall not apply to any contribution for medical benefits
(within the meaning of Section 419A(f)(2)) after separation from
service which is treated as an Annual Addition. In the event
that Annual Additions to all the accounts of a Participant would
exceed the limitations of Section 4.1 of the Plan, they shall be
reduced in the following priority: (1) return of voluntary
contributions to the Participant; (2) reduction of Company
contributions.
(b) If any Company or any Related Company contributes
amounts, on behalf of Participants covered by the Plan, to other
Defined Contribution Plans, the limitation on Annual Additions
provided in Article IV of the Plan shall be applied to Annual
Additions in the aggregate to the Plan and such other plans.
Reduction of Annual Additions, where required, shall be
accomplished by first refunding any voluntary contributions to
Participants, then by reducing contributions under such other
plans pursuant to the directions of the fiduciary for
administration of such other plans or under priorities, if any,
established by the terms of such other plans, and then, if
necessary, by reducing contributions under the Plan.
(c) In any case where a Participant under the Plan is
also a participant under a Defined Benefit Plan or a Defined
Benefit Plan and other Defined Contribution Plans maintained by
the Company or a Related Company, the sum of the Defined Benefit
Plan Fraction and the Defined Contribution Plan Fraction shall
not exceed 1.0. Reduction of contributions to or benefits from
all plans, where required, shall be accomplished by first
reducing benefits under such other Defined Benefit Plan or plans,
then by allocating any excess in the manner set out above with
respect to the Plan, and finally by reducing contributions or
allocating any excess contributions with respect to other Defined
Contribution Plans, if any; provided, however, that adjustments
necessary under this or the next preceding paragraph may be made
in a different manner and priority pursuant to the agreement of
the Committee and the administrators of all other plans covering
such Participant, provided such adjustments are consistent with
procedures and priorities prescribed by Treasury Regulations
under Section 415 of the Code.
(d) In the event the limitations of Section 4.1 of the
Plan or this Appendix A are exceeded and the conditions specified
in Treasury Regulations Section 1.415-6(b)(6) are met, the
Committee may elect to apply the procedures set forth in Treasury
Regulations Section 1.415-6(b)(6).
<PAGE>
APPENDIX B
TOP-HEAVY PROVISIONS
Section 9.13 of the Plan shall be construed in
accordance with this Appendix B. Definitions in this Appendix B
shall govern for the purposes of this Appendix B. Any other
words and phrases used in this Appendix B, however, shall have
the same meanings that are assigned to them under the Plan,
unless the context clearly requires otherwise.
B.1 - General.
This Appendix B shall be effective for Plan Years
beginning on or after January 1, 1984. This Appendix B shall be
interpreted in accordance with Section 416 of the Code and the
regulations thereunder.
B.2 - Definitions.
(a) The "Benefit Amount" for any Employee means (1) in
the case of any defined benefit plan, the present value of his
normal retirement benefit, determined on the Valuation Date as if
the Employee terminated on such Valuation Date, plus the
aggregate amount of distributions made to such Employee within
the five-year period ending on the Determination Date (except to
the extent already included on the Valuation Date) and (2) in the
case of any defined contribution plan, the sum of the amounts
credited, on the Determination Date, to each of the accounts
maintained on behalf of such Employee (including accounts
reflecting any nondeductible employee contributions) under such
plan plus the aggregate amount of distributions made to such
Employee within the five-year period ending on the Determination
Date. For purposes of this Section, the present value shall be
computed using a 5% interest assumption and the mortality
assumptions contained in the defined benefit plan for benefit
equivalence purposes, provided that, if more than one defined
benefit plan is being aggregated for top-heavy purposes, the
actuarial assumptions which shall be used for testing top-
heaviness are those of the plan with the lowest interest
assumption, provided further that if the lowest interest
assumption is the same for two or more plans, the actuarial
assumptions used shall be that of the plan with the greatest
value of assets on the applicable date.
(b) "Company" means any company (including
unincorporated organizations) participating in the Plan or plans
included in the "aggregation group" as defined in this
Appendix B.
(c) "Determination Date" means the last day of the
preceding Plan Year or, in the case of the first Plan Year of the
Plan, the last day of the Plan Year.
(d) "Employees" means employees, former employees,
beneficiaries, and former beneficiaries who have a Benefit Amount
greater than zero on the Determination Date.
(e) "Key Employee" means any Employee who, during the
Plan Year containing the Determination Date or during the four
preceding Plan Years, is:
(1) one of the ten Employees of a Company having
annual compensation from such Company of more than the
limitation in effect under Section 415(c)(1)(A) of the Code
and owning (or considered as owning within the meaning of
Section 318 of the Code) both more than a 1/2% interest and
the largest interests in such Company (if two Employees have
the same interest the Employee having the greater annual
compensation from the Company shall be treated as having a
larger interest);
(2) a 5% owner of a Company;
(3) a 1% owner of a Company who has an annual
compensation above $150,000; or
(4) an officer of a Company having an annual
compensation greater than 50% of the amount in effect under
Section 415(b)(1)(A) of the Code for any such Plan Year
(however, no more than the lesser of (A) 50 employees or
(B) the greater of 3 employees or 10% of the Company's
employees shall be treated as officers). For purposes of
determining the number of employees taken into account under
this Section B.2(e)(4), employees described in Section
414(q)(8) of the Code shall be excluded.
(f) A "Non-Key Employee" means an Employee who is not
a Key Employee.
(g) "Valuation Date" means the first day (or such
other date which is used for computing plan costs for minimum
funding purposes) of the 12-month period ending on the
Determination Date.
(h) A "Year of Service" shall be calculated using the
Plan rules that normally apply for determining vesting service.
These definitions shall be interpreted in accordance
with Section 416(i) of the Code and the regulations thereunder
and such rules are hereby incorporated by reference. The term
"Key Employee" shall not include any officer or employee of an
entity referred to in Section 414(d) of the Code. For the
purpose of this subsection, "compensation" shall mean
compensation as defined in Section 414(q)(7) of the Code and
shall be determined without regard to Sections 125, 402(a)(8),
402(h)(1)(B) or, in the case of employer contributions made
pursuant to a salary reduction agreement, Section 403(b).
B.3 - Top-Heavy Definition.
The Plan shall be top-heavy for any Plan Year if, as of
the Determination Date, the "top-heavy ratio" exceeds 60%. The
top-heavy ratio is the sum of the Benefit Amounts for all
employees who are Key Employees divided by the sum of the Benefit
Amounts for all Employees. For purposes of this calculation
only, the following rules shall apply:
(a) The Benefit Amounts of all Non-Key Employees who
were Key Employees during any prior Plan Year shall be
disregarded.
(b) The Benefit Amounts of all employees who have not
performed any services for any Company at any time during
the five-year period ending on the Determination Date shall
be disregarded; provided, however, if an Employee performs
no services for five years and then again performs services,
such Employee's Benefit Amount shall be taken into account.
(c)(1) Required Aggregation. This calculation
shall be made by aggregating any plans, of the Company
or a Related Company, qualified under Section 401(a) of
the Code in which a Key Employee participates or which
enables this Plan to meet the requirements of Section
401(a)(4) or 410 of the Code; all plans so aggregated
constitute the "aggregation group."
(2) Permissive Aggregation. The Company may
also aggregate any such plan to the extent that such
plan, when aggregated with this aggregation group,
continues to meet the requirements of Section 401(a)(4)
and Section 410 of the Code.
If an aggregation group includes two or more defined benefit
plans, the actuarial assumptions used in determining an
Employee's Benefit Amount shall be the same under each
defined benefit plan and shall be specified in such plans.
The aggregation group shall also include any terminated plan
which covered a Key-Employee and which was maintained within
the five-year period ending on the Determination Date.
(d) This calculation shall be made in accordance with
Section 416 of the Code (including 416(g)(3)(B) and
(g)(4)(A)) and the regulations thereunder and such rules are
hereby incorporated by reference. For purposes of
determining the accrued benefit of a Non-Key Employee who is
a Participant in a defined benefit plan, this calculation
shall be made using the method which is used for accrual
purposes for all defined benefit plans of the Company, or if
there is no such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under
Section 411(b)(1)(C) of the Code.
B.4 - Vesting.
Notwithstanding the vesting provisions of the Plan, if
the Plan is top-heavy for any Plan Year, any Participant who
completes one Hour of Service during any day of such Plan Year or
any subsequent Plan Year and who terminates during any day of
such Plan Year or any subsequent Plan Year shall be entitled to a
vested benefit which is the greater of his vested interest
pursuant to Section 5.2 of the Plan, or a vested interest at
least equal to the product of (x) the benefit such Participant
would receive under the Plan if he was 100% vested on the date of
such termination times (y) the percentage shown below:
Number of Completed
Years of Service Percentage
2 20%
3 40%
4 60%
5 100%
Notwithstanding the foregoing, the nonforfeitable percentage of a
Participant's benefit under the Plan shall not be less than that
determined under the Plan without regard to the preceding vesting
schedule. Such benefit shall be payable in accordance with the
provisions of the Plan regarding payments to terminated
Participants.
Notwithstanding the preceding paragraph, if the Plan is
no longer top-heavy in a Plan Year following a Plan Year in which
it was top-heavy, a Participant's vesting percentage shall be
computed under the vesting schedule that otherwise exists under
the Plan. However, in no event shall a Participant's vested
percentage in his accrued benefit be reduced. In addition, a
Participant shall have the option of remaining under the vesting
schedule set forth in this Section if he has completed three
years of Vesting Service. The period for exercising such option
shall begin on the first day of the Plan Year for which the Plan
is no longer top-heavy and shall end 60 days after the later of
such first day or the day the Participant is issued written
notice of such option by the Company or the Committee.
B.5 - Minimum Benefits or Contributions, Compensation
Limitations and Section 415 Limitations.
If the Plan is top-heavy for any Plan Year, the
following provisions shall apply to such Plan Year:
(a)(1) Except to the extent not required by Section
416 of the Code or any other provision of law,
notwithstanding any other provision of this Plan, if the
Plan and all other plans which are part of the aggregation
group are defined contribution plans, each Participant (and
any other Employee required by Section 416 of the Code)
other than Key employees shall receive an allocation of
employer contributions and forfeitures from a plan which is
part of the aggregation group at least equal to 3% (or, if
lesser, the largest percentage allocated to any Key Employee
for the Plan Year) of such Participant's compensation for
such Plan Year (the "defined contribution minimum"). For
purposes of this subsection, salary reduction contributions
on behalf of a Key Employee must be taken into account. For
purposes of this subsection, a non-Key Employee shall be
entitled to a contribution if he is employed on the last day
of the Plan Year (1) regardless of his level of
compensation, (2) without regard to whether he has made any
mandatory contributions required under the Plan, and (3)
regardless of whether he has less than 1,000 Hours of
Service (or the equivalent) for the accrual computation
period.
(2) Except to the extent not required by Section 416
of the Code or any other provision of law, notwithstanding
any other provisions of the Plan, if the Plan or any other
plan which is part of the aggregation group is a defined
benefit plan each Participant who is a participant in any
such defined benefit plan (who is not a Key Employee) who
accrues a full Year of Service during such Plan Year shall
be entitled to an annual normal retirement benefit from a
defined benefit plan which is part of the aggregation group
which shall not be less than the product of (1) the
employee's average compensation for the five consecutive
years when the employee had the highest aggregate
compensation and (2) the lesser of 2% per Year of Service or
20% (the "defined benefit minimum"). A Non-Key Employee
shall not fail to accrue a benefit merely because he is not
employed on a specified date or is excluded from
participation because (1) his compensation is less than a
stated minimum or (2) he fails to make mandatory employee
contributions. For purposes of calculating the defined
benefit minimum, (1) compensation shall not include
compensation in Plan Years after the last Plan Year in which
the Plan is top-heavy and (2) a Participant shall not
receive a Year of Service in any Plan Year before January 1,
1984 or in any Plan Year in which the Plan is not top-heavy.
This defined benefit minimum shall be expressed as a life
annuity (with no ancillary benefits) commencing at normal
retirement age. Benefits paid in any other form or time
shall be the actuarial equivalent (as provided in the plan
for retirement benefit equivalence purposes) of such life
annuity. Except to the extent not required by Section 416
of the Code or any other provisions of law, each Participant
(other than Key Employees) who is not a participant in any
such defined benefit plan shall receive the defined
contribution minimum (as defined in paragraph (a)(1) above).
(3) If a non-Key Employee is covered by plans
described in both paragraphs (1) and (2) above, he shall be
entitled only to the minimum described in paragraph (1),
except that for the purpose of paragraph (1) "3% (or, if
lesser, the largest percentage allocated to any key employee
for the Plan Year)" shall be replaced by "5%".
Notwithstanding the preceding sentence, if the accrual rate
under the plan described in (2) would comply with this
Section B.5 absent the modifications required by this
Section, the minimum described in paragraph (1) above shall
not be applicable.
(b) For purposes of this Section, "compensation" shall
mean all earnings included in the Employee's Form W-2 for
the calendar year that ends within the Plan Year, not in
excess of $200,000, adjusted at the same time and in the
same manner as under Section 415(d) of the Code.
(c)(1) Unless the Plan qualifies for an exception under
Section B.5(c)(2), "1.0" shall be substituted for "1.25" in
the definitions of Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction used in Appendix A to the Plan.
(2) A Plan qualifies for an exception from the
rule of Section B.5(c)(1) if the Benefit Amount of all
Employees who are Key Employees does not exceed 90% of the
sum of the Benefit Amounts for all Employees and one of the
following requirements is met:
(A) A defined benefit minimum of 3% per Year
of Service (up to 30%) is provided;
(B) For Participants covered only by a
defined contribution plan, a defined contribution
minimum of 4% is provided;
(C) For Participants covered by both types
of plans, benefits from the defined contribution
minimum are comparable to the 3% defined benefit
minimum;
(D) The plan provides a floor offset where
the floor is a 3% defined benefit minimum; or
(E) A defined contribution minimum of 7-1/2% of
compensation is provided for any non-Key Employee who
is covered under both a defined benefit plan and a
defined contribution plan (each of which is top-heavy)
of a Company.
<PAGE>
APPENDIX C
SPECIAL DISTRIBUTION RULES FOR INDIVIDUALS
WHO WERE PARTICIPANTS
ON OR BEFORE JUNE 30, 1996
The Wyle Electronics 401(k) Plan is a restatement and
continuation of the Wyle Electronics Capital Accumulation Plan
("Prior Plan"). This Appendix C sets forth certain rules
concerning distributions which are applicable to those
participants who were participants in the Prior Plan. In order
to be governed by this Appendix C, an individual must have become
a Participant in the Prior Plan on or before June 30, 1996. Such
an individual is referred to herein as a "Prior Plan
Participant."
1. Additional Distribution Options for Prior Plan
Participants. In addition to the lump sum distribution option
available under Section 6.1, a Prior Plan Participant may elect
distribution in one of the following forms upon termination of
employment (or, to the extent required by Code Section 401(a)(9),
after reaching age 70 1/2): Qualified Joint and Survivor Annuity;
straight life annuity; single life annuities with certain periods
of 5, 10, or 15 years; single life annuity with installment
refund; survivorship life annuities with installment refund and
survivorship percentages of 50, 66 and 2/3 or 100; fixed period
annuities for any period of whole months which is not less than
60 and does not exceed the life expectancy of the Participant and
the named Beneficiary where the life expectancy is not
recalculated; and a series of installments chosen by the
Participant with a minimum payment each year beginning with the
year the Participant turned age 70 1/2. The terms and conditions
of the optional forms of benefit available to a Prior Plan
Participant shall be as set forth in the Prior Plan as it existed
on June 30, 1996. Any optional form of distribution consisting
of an annuity shall be in the amount of benefit which can be
purchased with the Participant's Vested Account. The Committee
shall, if a Prior Plan Participant elects an annuity form of
benefit (and may, for any other form of benefit referred to in
this Appendix A), provide the benefit by using the vested portion
of the Participant's Account to purchase an annuity from the
insurance company selected by the Committee.
Unless a Prior Plan Participant elects otherwise
pursuant to a Qualified Election (as defined below), the
Participant's benefit shall be provided in the form of a
Qualified Joint and Survivor Annuity. Upon the death of a Prior
Plan Participant who has a Spouse at the time of death, the
Spouse's death benefit shall be provided in the form of a
Qualified Preretirement Survivor Annuity, unless the Spouse
waives the Qualified Preretirement Survivor Annuity.
2. Qualified Joint and Survivor Annuity.
(a) Notice: The Committee shall provide each Prior
Plan Participant within a reasonable period prior to the
commencement of benefits a written explanation of: (i) the
terms and conditions of a Qualified Joint and Survivor
Annuity; (ii) the Participant's right to make and the effect
of an election to waive the Qualified Joint and Survivor
Annuity form of benefit; (iii) the rights of a Participant's
Spouse; and (iv) the right to make, and the effect of, a
revocation of a previous election to waive the Qualified
Joint and Survivor Annuity.
(b) Waiver: A Participant may waive a Qualified Joint
and Survivor Annuity pursuant to a Qualified Election within
the 90-day period ending on the date benefit payments will
commence.
3. Qualified Preretirement Survivor Annuity.
(a) Notice: (i) The Committee shall provide each
Prior Plan Participant within the period beginning on the
first day of the Plan Year in which the Participant attains
age 32 and ending with the close of the Plan Year preceding
the Plan Year in which the Participant attains age 35, a
written explanation of the Qualified Preretirement Survivor
Annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the
requirements of Paragraph 1.(a) above applicable to a
Qualified Joint and Survivor Annuity.
(ii) If a Participant enters the Plan after he has
attained age 32, the Committee shall provide notice no later
than the end of the three year period commencing with the
first day of the first Plan Year for which the individual is
a Participant.
(iii)If a Participant has a Break in Employment prior
to age 32, the Committee shall provide notice at the time of
such Break in Employment or within one year after such Break
in Employment.
(b) Waiver: A Participant may waive a Qualified
Preretirement Survivor Annuity pursuant to a Qualified
Election within the Election Period.
4. Definitions.
(a) Election Period: The period which begins on the
first day of the Plan Year in which the Participant attains
age 35 and ends on the date of Participant's death. If a
Participant has a Break in Employment prior to the first day
of the Plan Year in which age 35 is attained, with respect
to his accounts as of the Break in Employment, the Election
Period shall begin on the date the Break in Employment
occurs.
(b) Earliest Retirement Age: The earliest date on
which, under the Plan, the Participant could elect to
receive retirement benefits.
(c) Qualified Election: A written waiver of a
Qualified Joint and Survivor Annuity or a Qualified
Preretirement Survivor Annuity, consented to by the
Participant's Spouse, which consent must be witnessed by a
Plan representative or notary public. Such consent must
acknowledge any specific non-spouse beneficiary, including
any class of beneficiaries or any contingent beneficiaries.
If the Participant establishes to the satisfaction of a Plan
representative that such written consent may not be obtained
because there is no Spouse or the Spouse cannot be located,
a waiver will be deemed a Qualified Election. A written
consent will be valid only as to the Spouse who signs the
consent and not as to any other Spouse. Notwithstanding the
above in the case of a waiver which is not signed by a
Spouse but is deemed a Qualified Election, the election
shall be valid only as to the designated Spouse and not as
to any other Spouse. Revocation of a prior waiver may be
made by a Participant without the consent of the Spouse at
any time before the commencement of benefits. The number of
revocations shall not be limited. Any new waiver or change
of Beneficiary will require a new spousal consent. Any
Spouse's consent shall be irrevocable. A partial or total
distribution may not be made after the annuity starting
date, regardless of the present value of the non-forfeitable
accrued benefit, without a consent in the form of a
Qualified Election.
(d) Qualified Joint and Survivor Annuity: An annuity
for the life of the Participant with a survivor annuity for
the life of the Spouse which is not less than 50% and not
more than 100% of the amount of the annuity which is payable
during the joint lives of the Participant and the Spouse and
which is the amount of benefit which can be purchased with
the Participant's vested account. In the case of an
unmarried Participant, a Qualified Joint and Survivor
Annuity shall mean an annuity for the life of the
Participant.
(e) Qualified Preretirement Survivor Annuity: An
annuity for the life of the surviving Spouse and which is
the amount of benefit which can be purchased with the
Participant's vested account. Following the Participant's
death, the Spouse may elect a lump sum distribution. The
surviving Spouse shall have the right to direct that
payments under the Qualified Preretirement Survivor Annuity
commence within a reasonable time after the Participant's
death.
(f) Spouse (surviving Spouse): The Spouse or
surviving Spouse of the Participant, provided that a former
spouse will be treated as the Spouse or surviving Spouse to
the extent provided under a qualified domestic relations
order as described in Section 414(p) of the Code.
<PAGE>
TRUST AGREEMENT
Between
WYLE ELECTRONICS, as EMPLOYER,
and
NORTHWESTERN TRUST & INVESTORS
ADVISORY COMPANY, as TRUSTEE
Dated: May 24, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I ESTABLISHMENT OF FUND . . . . . . . . . . . . 1
ARTICLE II GENERAL DUTIES OF TRUSTEE . . . . . . . . . . 2
ARTICLE III POWERS OF TRUSTEE . . . . . . . . . . . . . . 7
ARTICLE IV ACCOUNTING BY TRUSTEE . . . . . . . . . . . . 10
ARTICLE V RESIGNATION AND REMOVAL; SUCCESSOR TRUSTEES . 11
ARTICLE VI COMPENSATION; EXPENSES; BONDING . . . . . . . 12
ARTICLE VII AMENDMENT AND TERMINATION . . . . . . . . . . 13
ARTICLE VIII IMMUNITY AND PROTECTION . . . . . . . . . . . 13
ARTICLE IX MISCELLANEOUS PROVISIONS. . . . . . . . . . . 15
<PAGE>
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST, hereinafter
referred to as the "Agreement," or "Trust Agreement," by and
between WYLE ELECTRONICS, a corporation organized and existing
under the laws of the State of California, hereinafter referred
to as the "Employer," and NORTHWESTERN TRUST AND INVESTORS
ADVISORY COMPANY, a Washington trust company, its successor or
successors, referred to as the "Trustee":
W I T N E S S E T H:
WHEREAS, the Employer maintains the WYLE ELECTRONICS 401(k)
Plan for the benefit of its Employees, hereinafter referred to as
the "Plan"; and
WHEREAS, the Plan is a restatement and continuation of the
Wyle Electronics Capital Accumulation Plan; and
WHEREAS, the Employer desires to enter into a Trust
Agreement to provide for the investment of assets of the Plan by
the Trustee;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the Employer and the Trustee
do hereby covenant and agree as follows:
ARTICLE I
ESTABLISHMENT OF FUND
The Employer hereby establishes with the Trustee, pursuant
to the Plan, a trust which shall be comprised of all sums of
money and other property acceptable to the Trustee as shall from
time to time be paid or delivered to the Trustee and the earnings
and profits thereon. All such money and property, all
investments and proceeds thereof and earnings, losses,
appreciations or depreciations thereon, less the payments which
shall have been made by the Trustee at any time of reference as
authorized herein, are referred to herein as the "Fund".
Certain assets of the Fund are assets which were formerly
held in trust and/or under one or more annuity contracts pursuant
to the Wyle Electronics Capital Accumulation Plan.
ARTICLE II
GENERAL DUTIES OF TRUSTEE
2.1 It shall be the duty of the Trustee to hold, invest,
reinvest and manage the Fund in accordance with the terms of
this Agreement. The Trustee shall have no duty or authority to
determine the correctness of any contribution to the Trust, nor
to enforce collection of such contribution.
2.2 The Trustee shall make payments from the Fund to such
persons, at such times and in such amounts and manner as the
Committee (as defined in the Plan) may direct. (As used in this
Trust Agreement, the term Committee refers, as appropriate in the
context, to persons to whom the Committee has delegated duties
under the Plan, specifically including the Committee, as defined
in the Plan.) The Trustee shall not be responsible for the
propriety of such payments, unless the Trustee acts in a gross
negligent manner to improperly distribute such payment. The
Trustee shall have no authority with respect to the control and
management of the operation and administration of the Plan, all
of which responsibility and authority is hereby specifically
allocated to the Committee to be carried out pursuant to the
provisions of the Plan. Without limiting the generality of the
foregoing, the Trustee shall have no responsibility or authority
with respect to the following:
(a) Determining any question relating to the eligibility of
Employees to participate;
(b) Enrollment of eligible employees;
(c) Determining the amount and kind of benefits payable to
Participants, spouses and beneficiaries;
(d) Preparing and disseminating to Employees disclosure as
required by law unless the Trustee is required by law to prepare
and disseminate such disclosure;
(e) Preparing and carrying out a claims procedure;
(f) Maintaining any records for the administration of the
Plan other than those that the Trustee has agreed to maintain
hereunder or specifically agrees to maintain by written
agreement;
(g) Interpretation of the provisions of the Employer's
Plan;
(h) Establishing a funding policy;
(i) Compliance with applicable bonding requirements of
federal law; and
(j) Filing any governmental report(s) other than those
which the Trustee specifically agrees to file pursuant to a
separate written agreement.
The foregoing provisions shall be interpreted to allocate to
the Committee to the fullest extent allowed by law all
responsibility and authority for the administration, management
and control of the Plan; provided, however, that the foregoing
provisions shall only apply to the allocation of duties between
the Committee and the Trustee, and shall not be deemed to refer
to or alter the allocation of responsibility and authority among
the Committee, the Committee, any Investment Manager (as defined
in the Plan) or any other Fiduciary (as defined in the Plan,
other than the trustee). The allocation of responsibility and
authority for the administration, management and control of the
Plan between all parties other than the Trustee shall be governed
by the terms of the Plan. The Trustee shall be responsible only
for duties specifically undertaken pursuant to the terms of this
Agreement or as otherwise required by law, and the Trustee shall
not be liable for breach of fiduciary responsibility of another
fiduciary except to the extent that the Trustee is liable for
such breach pursuant to applicable federal law.
2.3 The Trustee shall invest and reinvest the Fund, without
distinction between principal and income, in any property, real,
personal or mixed, foreign or domestic, or share thereof or part
interest therein, wherever situated, as the Trustee is directed
by the Committee, or an Investment Manager, pursuant to Section
7.3(b) of the Plan, provided that the indicia of ownership of all
property held in the Fund shall be retained within the
jurisdiction of the District Courts of the United States. Such
investment and reinvestment shall not be restricted to property
authorized for investment by trustees by any present or future
law of any state, and shall include but not be limited to:
common and preferred stocks, bonds, debentures, notes, mortgages,
insurance contracts, regulated investment company shares,
Participant loans, fees, leaseholds, options on securities,
common or collective trust funds maintained by the Trustee (the
terms of which are incorporated herein by reference), and other
securities and evidences of indebtedness or ownership.
Notwithstanding the foregoing, the Trustee may segregate the
fund into subfunds and each such subfund shall be invested in the
shares of a regulated investment company selected by the
Committee. Provided, that in the discretion of the Committee, a
subfund may be invested in accordance with the direction of an
investment manager appointed by the Committee. Any investment
manager so appointed shall be registered as an investment advisor
under the Investment Advisor's Act of 1940. The Trustee shall
receive a written acknowledgement by the investment manager that
it is a registered investment advisor, that it is a fiduciary
with respect to the Plan, that it has accepted appointment as an
investment manager, and that it has complied with any applicable
bonding requirements of federal law. The Trustee shall be
protected in assuming that the appointment of an investment
manager remains in effect until the Trustee shall be notified in
writing by the Committee that such investment manager has been
removed or has resigned. With respect to an amount allocated to
an investment manager for investment, the Trustee shall invest
and reinvest the subfund pursuant to the directions of such
investment manager.
If directed pursuant to the written instructions of the
Committee, the Trustee shall establish a subfund which shall be
invested in the common stock of the Employer and cash or cash
equivalents (including shares in a regulated investment company
which is a short term or money market fund). The Trustee shall
acquire shares of the common stock of the Employer at such times
and at such terms as the Committee shall direct either from the
Employer or on the open market pursuant to the instructions of
the Committee. All acquisitions of common stock of the Employer
shall be accomplished in a manner consistent with the
requirements of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
If directed pursuant to the written instructions of the
Committee, the Trustee shall establish a subfund which shall be
invested solely in one or more group annuity contracts issued by
life insurance companies selected by the Committee.
If permitted pursuant to the terms of the Plan, individual
Participants may allocate their contributions to one or more of
the subfunds and may transfer among subfunds. The allocation of
contributions and the transfer among subfunds shall be carried
out pursuant to the terms of the Plan and such operational
procedures as shall be agreed to by the Trustee and the Employer.
The Trustee shall not be liable for any loss or for any
breach of fiduciary responsibility which results from a
Participant's exercise of control over all or part of the
investment of contributions made on his or her behalf. Where a
Participant is directing the investment of his or her accounts,
the Trustee shall have no responsibility to maintain
diversification.
The Trustee shall not be liable for the acts or omissions of
the Employer or for the acts or omissions of any investment
manager appointed by the Employer, nor be under any obligation to
invest or otherwise manage any asset of the Fund which is the
subject of the management of the Employer, Committee, or the
investment manager.
The Trustee shall have the authority to interpret its
responsibilities under this Agreement and in the absence of an
abuse of such discretion, the Trustee's interpretation shall be
conclusive.
2.4 The Trustee shall discharge its investment
responsibilities hereunder solely in the interests of the
Participants and beneficiaries and:
(a) for the exclusive purpose of providing benefits to
Participants and their beneficiaries, and defraying reasonable
expenses of administering the Plan;
(b) with care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims;
(c) by diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the circumstances
it is clearly prudent not to do so; and
(d) in accordance with the terms of the Trust Agreement.
2.5 In determining whether the requirements of prudence and
diversification stated in Sections 404(a)(1)(B) and (C),
respectively, of ERISA have been met, all the investments of the
Trust funds shall be considered in their entirety, and the
portion managed by the Trustee hereunder shall be only one
consideration in making such a determination. If one or more
investment managers, in addition to the Trustee, are appointed
pursuant to this Agreement, the Employer shall be responsible for
seeing that the requirement of the proper diversification of the
total Plan assets mentioned above has been met, and the Trustee
shall not have any such responsibility.
2.6 Except for acts or omissions involving negligence, the
Employer agrees to indemnify the Trustee for and to hold it
harmless against any and all liabilities, losses, costs or
expenses (including reasonable legal fees and expenses) which may
be imposed on, incurred by or asserted against the Trustee at any
time for following directions from the Committee (including those
relating to participant direction), or following any direction of
an investment manager, which are proper on their face and
permitted by the provisions of this Trust Agreement.
ARTICLE III
POWERS OF TRUSTEE
In addition to and not in limitation of powers given by law,
the Trustee is authorized and empowered:
(a) To sell, exchange, convey, transfer, mortgage, pledge,
grant options with respect to, or otherwise dispose of any real
or personal property, at public or private sale, for such prices
and on such terms as the Trustee deems suitable and without
obligation upon any person dealing with the Trustee to see to the
application of any money or other property delivered to it;
(b) To hold all or any part of the Fund in cash, without
liability for interest thereon;
(c) To exercise any right, including the right to vote,
personally or by general of special proxies or powers of
attorney, appurtenant to any securities or other property held in
the Fund, except where pass through voting rights are required by
the Plan;
(d) At the direction of a Participant (or in the event of a
Participant's death, the Participant's beneficiary), to vote, or
make tender decisions, on Employer stock in accordance with the
provisions of the Plan. The Participant shall have the right to
the extent provided in the Plan to direct the Trustee with
respect to the voting or tender shares of Employer stock
allocated to the Participant's account;
(e) To exercise or sell any conversion privileges
subscription rights or other rights or options and to make any
payments incidental thereto; to oppose, consent to, or otherwise
participate in, any reorganization, recapitalization or other
changes affecting securities held in the Fund, or any lease,
mortgage or sale of the property of an organization the
securities of which are held in the Fund; to deposit any
securities or other property in a voting trust or with any
committee, to delegate discretionary powers, to the extent
permitted by law, and to pay expenses, assessments or charges in
connection therewith; to retain any property allotted to the Fund
in connection with any such reorganization or other changes; and
generally to exercise any of the powers of an owner with respect
to stock, bonds, securities or other property held in the Fund;
(f) To borrow money for purposes of the Trust in such
amounts and upon such terms as it deems advisable; to issue
promissory notes therefor, and pledge all or part of the Fund as
security therefor;
(g) To hold securities or other property in its name as
Trustee or in the name of one or more nominees or in bearer form;
provided, that the Trustee's records shall at all times show that
such property is part of the Fund;
(h) To make, execute, acknowledge and deliver any
instruments that may be necessary or appropriate to carry out the
powers herein granted;
(i) To consult and employ suitable agents, auditors and
legal counsel or other advisers, and to pay their reasonable
expenses and compensation;
(j) To enforce, abstain from enforcing, settle, modify,
compromise, submit to arbitration or abandon any rights,
obligations, claims, debts or damages due or owing to or from the
Fund; to commence, defend or represent the Fund in all suits and
legal and administrative proceedings; and to abandon any
property;
(k) To acquire, hold, manage, operate, repair, develop,
improve, alter, demolish, partition, mortgage, grant options with
respect to, lease for any term or terms of years, or otherwise
deal with real property held in the Fund, upon such terms and
conditions as the Trustee deems advisable;
(l) To accept and retain any securities or other property
received or acquired by the Trust, whether or not such property
would normally be purchased or would then be authorized as
investments hereunder;
(m) To collect and receive any money or other property due
to the Fund and to give full discharge and acquittance therefor;
(n) To contract or make reasonable arrangements with a
party in interest, for office space, legal, accounting or other
services necessary for operation of the Trust if no more than
reasonable compensation is paid therefor;
(o) To engage in the lending of securities pursuant to
regulations of the Department of Labor and any other applicable
regulatory authority;
(p) To do all acts, execute all such instruments, take all
such proceedings and exercise all such rights and privileges with
relation to the Fund as it deems necessary to carry out its
obligations hereunder to the extent consistent with the rights of
Participants and beneficiaries, and the standard of care imposed
by Article II hereof;
(q) To do all acts and things, although not specifically
name herein, which it deems advisable to carry out the purposes
of this Agreement.
ARTICLE IV
ACCOUNTING BY TRUSTEE
4.1 The Trustee shall keep complete and accurate records of
all transactions of the Fund, which shall be open to inspection
by the Employer or the Committee or their agents at all
reasonable times during the business hours of the Trustee and may
be audited by independent public accountants engaged by the
Employer or the Committee.
4.2 Within ninety (90) days after each fiscal year of the
Trust, and within ninety (90) days after the termination of
services of the Trustee, the Trustee shall file with the Employer
and Committee a certified account of its administration of the
Trust during the preceding year or during the period from the
close of the last fiscal year to the date of such termination of
services, which account shall include such information maintained
by the Trustee which is necessary to enable the Committee to
comply with the reporting requirements of federal law. Trustee
is hereby relieved of all obligations of the Trustees' Accounting
Act of the State of Washington or similar obligations created by
the laws of other states.
4.3 Upon the expiration of ninety (90) days from the date
of submission of the report (provided such report is submitted
within ninety days of the Trustee's certified account) of the
independent public accountant engaged by the employer or
Committee to examine the records of the Plan for the year the
account is provided by the Trustee, or upon prior written
approval of the account by the Employer or Committee, the Trustee
shall be forever released and discharged from all liability and
accountability to anyone with respect to all acts, transactions
and matters shown in such account, except those as to which the
Employer or Committee shall within such ninety (90) day period
file with the Trustee as written objection. If any such
objection is filed and is not satisfactorily adjusted by the
parties, the Trustee shall apply to a court of competent
jurisdiction for judicial settlement of the account.
ARTICLE V
RESIGNATION AND REMOVAL; SUCCESSOR TRUSTEES
5.1 The Employer may remove the Trustee at any time by
giving sixty (60) days notice in writing to such Trustee and the
Committee. The Trustee may resign at any time by giving sixty
(60) days notice in writing to the Employer and the Committee.
The parties by agreement may waive such written notice or may
cause a resignation or removal to become effective before the
running of the notice period.
5.2 In the event of a vacancy in the office of Trustee
arising by removal, resignation, inability or unwillingness to
act, or otherwise, the Employer may appoint one or more successor
Trustees. Upon accepting such appointment, a new or successor
Trustee shall have the same rights, powers, authority, duties
and obligations as those conferred and imposed upon Trustee
hereunder; all property of the Fund shall be assigned,
transferred and paid over to the new or successor Trustee or
Trustees; and title to all property constituting the Fund shall
vest in that person or jointly in those persons who shall from
time to time serve as Trustee or Trustees hereunder.
5.3 The Trustee is authorized, however, to reserve such sum
of money as it reasonably may deem advisable for payment of its
fees and expenses in connection with the settlement of its
account or otherwise and any balance of such reserve remaining
after the payment of such fees and expenses shall be paid over to
the successor trustee.
5.4 Pending appointment of an successor Trustee and
acceptance of such appointment, the remaining Trustee or Trustees
in office shall have full power and authority to take any action
hereunder.
5.5 No successor Trustee shall be liable or responsible for
anything done or omitted in the administration of the Trust prior
to the date he became a Trustee.
ARTICLE VI
COMPENSATION; EXPENSES; BONDING
6.1 The Trustee shall receive such reasonable compensation
for services rendered as may from time to time be agreed upon by
the Employer and the Trustee.
6.2 All reasonable expenses of administrating the Fund,
including fees for the services of counsel or agents, the
compensation due the Trustee, and all taxes (including interest
and penalties with respect thereto) levied or assessed with
respect to all or any part of the Fund or the income thereon,
shall, unless paid by the Employer, be paid from and constitute a
charge upon the Fund.
6.3 Where required by law, each fiduciary of the Plan and
every person handling Plan funds shall be bonded. It shall be
the obligation of the Committee to assure compliance with
applicable bonding requirements with respect to individuals
handling Plan funds, other than the Trustee, and the employees
and agents of the Trustee. The Trustee shall not be responsible
for assuring that bonding requirements applicable to others are
complied with and such responsibility is specifically allocated
to the Committee.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 The Employer shall have the right to any time and from
time to time to amend, in whole or part, any or all of the
provisions of this Agreement, or to terminate this Agreement;
provided that no amendment shall have the effect of reducing a
Participant's Accrued Benefit except to the extent permitted by
law; and provided further that no such amendment which affects
the rights, duties and responsibilities of the Trustee may be
made without its consent in writing.
7.2 In the event of termination of this Agreement or of the
Plan, the Trustee shall continue to hold the Fund in trust for
application and disbursement in such manner and at such times as
the Committee may direct.
7.3 If continuance of the Fund beyond a certain period
would cause it to fail, then it shall continue for the maximum
period permitted by law and shall then terminate with
distribution of all assets as the Committee may direct.
ARTICLE VIII
IMMUNITY AND PROTECTION
8.1 In the performance of its duties under this Trust
Agreement, the Trustee shall exercise good faith and shall comply
with the standard of care imposed upon it and with the terms of
this Agreement. The Trustee shall have the authority to
interpret its responsibilities hereunder. In case any dispute or
doubt arises as to the Trustee's rights, liabilities or duties
hereunder, the Trustee, as an expense of administration
hereunder, may employ counsel and take the advice of such counsel
as it may select and shall be fully protected in acting upon and
following such advice except to the extent otherwise provided by
law.
8.2 Whenever the Trustee must or may act upon the direction
or approval of the Committee, it shall be fully protected in
relying upon a written communication signed by or on behalf of
the Committee or by the Employer or in failing to act without
such a communication.
8.3 The Trustee shall be fully protected in relying upon
the signed statement of the Employer as to who constitutes the
Committee at any time, and in continuing to rely upon such
statement until advised otherwise in writing.
8.4 The Trustee shall be fully protected in acting in good
faith upon any instrument, request, direction or other
communication believed by it to be genuine and to be executed by
the proper person or persons.
8.5 The Trustee may from time to time consult with legal
counsel, who may be counsel to the Employer or who may be counsel
to the Trustee, and shall be fully protected with respect to any
action taken or omitted by them in reliance upon the advice of
counsel.
8.6 The Trustee shall not be obligated to institute, defend
or participate in any legal or administrative action or
proceeding, unless requested by the Employer and indemnified by
the Employer against all costs and expenses, or unless such action
or proceeding is occasioned by the fault of the Trustee or
involves a question of their fault.
8.7 No persons dealing with the Trustee shall be bound to
see to proper application of any money paid or property delivered
to the Trustee, or to inquire into the validity or propriety of
any act or transaction or the authority of the Trustee with
respect thereto.
8.8 The Employer does hereby indemnify and hold harmless
the Trustee from any loss, claim or suit arising out of the
performance of obligations imposed hereunder (including out-of-
<PAGE>
pocket costs and reasonable attorneys' fees, including fees on
appeal) and not arising from the Trustee's willful neglect or
negligence.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 To the extent permitted by applicable law, no benefit,
interest, distribution of payment to any person hereunder shall
be subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, whether voluntary or
involuntary; nor to seizure, attachment or other legal, equitable
or other process; nor shall it be liable for, or subject to, the
debts, liabilities or other obligations of such person. In the
event of an attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge such right or interest, or to
subject it to seizure, attachment or other legal, equitable or
other process, such right or interest shall immediately cease;
but the Trustee may, in its uncontrolled discretion, pay to or
apply for the benefit of such person or his family so much of
such right or interest as they may deem advisable. This Section
9.1 shall not be deemed to prohibit a loan to a participant, as
provided under the terms of the Plan, or a distribution pursuant
to a qualified domestic relations order, as defined in the Plan.
9.2 Unless the context clearly indicates otherwise, any
term used herein shall have the same meaning as in the Plan.
Where the context so requires, the masculine when used herein
includes the feminine and the singular includes the plural.
9.3 The assets held under the Plan in the Fund shall never
inure to the benefit of the Employer, except in limited
circumstances described in the Plan document, and shall be held
for the exclusive purposes of providing benefits to Participants
in the Plan and their beneficiaries and defraying reasonable
expenses of administering the Plan.
9.4 The Trustee hereby accepts the Trust created by this
Agreement on the terms and conditions herein set forth. The
Trustee acknowledges that it is a fiduciary, within the meaning
of the Employee Retirement Income Security Act of 1974, as
amended, with respect to the assets it holds for investment, and
the Trustee represents and covenants that it will comply with
applicable federal law in the exercise of its rights and the
performance of its obligations under this Agreement.
9.5 This Agreement shall be construed and enforced
according to the Employee Retirement Security Act of 1974, as
amended, and the laws of the State of Washington to the extent
applicable. Any provision in this Agreement which relieves the
Trustee from responsibility or liability for any responsibility,
obligation or duty imposed by federal law shall be construed to
have such effect to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Employer and the Trustee have caused
this Agreement to be executed this 24 day of May, 1996.
EMPLOYER:
WYLE ELECTRONICS
By: /s/ R. Van Ness Holland, Jr.
Its: EVP-Finance, CFO
TRUSTEE:
NORTHWESTERN TRUST AND INVESTORS
ADVISORY COMPANY, a Washington trust
company
By: /s/ Gerry O. Kelley
Its: Senior Trust Officer
Stephen D. Natcher
Senior Vice President - Administration,
General Counsel and Secretary
Wyle Electronics
15370 Barranca Parkway
Irvine, California 92718
May 20, 1996
Wyle Electronics
15370 Barranca Parkway
Irvine, California 92718
Re: Registration on Form S-8 of Wyle Electronics (the "Company")
Gentlemen:
At your request, I have examined the Registration
Statement on Form S-8 to be filed with the Securities and
Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 200,000 shares of Common
Stock, without par value, of the Company (the "Shares"),
interests in the Plan, and additional rights (together with the
Shares and interests, the "Securities"), to be issued pursuant to
the Wyle Electronics 401(k) Plan (the "Plan"). I have examined
the proceedings heretofore taken and to be taken in connection
with the authorization of the Plan and the Shares that may be
sold to the Plan.
Based upon such examination and upon such matters of
fact and law as I have deemed relevant, I am of the opinion that
the Securities have been duly authorized by all necessary
corporate action on the part of the Company and, when issued in
accordance with such authorization and appropriate action as
contemplated thereby and by the Plan and related agreements, the
Securities will be validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to
the Registration Statement.
Respectfully submitted,
/s/ Stephen D. Natcher
Stephen D. Natcher
Senior Vice President -
Administration,
General Counsel and Secretary
<PAGE>
May
23rd
1 9 9 6
953,235-039
NB1-262239.V1
Wyle Electronics
15370 Barranca Parkway
Irvine, California 92718
Re: Wyle Electronics 401(k) Plan
Gentlemen:
In connection with the preparation of the Form S-8 to
be submitted by Wyle Electronics (the "Company") to the
Securities and Exchange Commission with respect to the Wyle
Electronics 401(k) Plan as amended effective July 1, 1996 (the
"Plan"), you have requested our opinion as to whether the
provisions of the written documents constituting the Plan comply
with the requirements of the Employment Retirement Income
Security Act of 1974 ("ERISA"). We consent to the use of this
opinion as an exhibit to the Registration Statement on Form S-8
for the Plan.
We have been advised by you that the Plan will be
submitted to the Internal Revenue Service in order to obtain a
favorable determination letter that the Plan satisfies the
requirements of the Tax Reform Act of 1986, as amended, and
subsequent legislation. In addition, you have advised us that
the Plan will be timely amended within the applicable remedial
amendment period with respect to any additional amendments
required by the Internal Revenue Service as a condition to
granting a favorable determination letter.
Based on the foregoing, and our examination of the Plan
and accompanying trust, it is our opinion that, the form of the
Plan satisfies the essential substantive requirements of ERISA
and the Code. Our opinion and any determination letter issued by
the Internal Revenue Service covers only the form of the Plan and
leaves open the question of whether in operation the Plan is
qualified.
Respectfully submitted,
/s/ O'Melveny & Myers
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 registration statement of our report
dated February 16, 1996, incorporated by reference in the Wyle
Electronics Annual Report on Form 10-K for the year ended December 31,
1995 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
May 23, 1996
