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Registration Number 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CERIDIAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-0278528
(State of incorporation) (I.R.S. Employer
Identification Number)
8100 34th Avenue South
Minneapolis, Minnesota 55425
(Address of principal executive offices)
CERIDIAN CORPORATION SAVINGS AND INVESTMENT PLAN
(Full title of the plan)
John A. Haveman
Vice President and Secretary
Ceridian Corporation
8100 34th Avenue South
Minneapolis, Minnesota 55425
(612) 853-7425
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
Securities to be price per offering Registration
to be registered(1)registered share(2) price (2) fee
Common Stock,
$.50 par value 500,000 shares $25.875 $12,937,500 $4,462
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933
(the "Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and 457(h)(1) under the Act,
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based on the average high and low sale prices reported for the
Registrant's Common Stock on the New York Stock Exchange on November
1, 1994.
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Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by Ceridian Corporation (the "Company") are incorporated
in this registration statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1993;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since
December 31, 1993;
(3) The description of the Company's Common Stock, par value $.50 per
share, contained in the Company's Registration Statement on Form S-8, File
No. 33-26839.
All documents filed by the Company and by the Ceridian Corporation
Savings and Investment Plan (the "Plan") with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities
The Company's Common Stock is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
The consolidated financial statements and financial statement
schedules of the Company as of December 31, 1993 and 1992 and for each of
the years in the three-year period ended December 31, 1993 have been
incorporated by reference in this registration statement in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing. The report of KPMG Peat
Marwick LLP covering the December 31, 1993 consolidated financial
statements refers to a change in the method of accounting for post-
retirement benefits other than pensions in 1992. To the extent that KPMG
Peat Marwick LLP examines and reports on financial statements of the
Company and of the Plan issued at future dates, and consents to the use of
their reports thereon, such financial statements also will be incorporated
by reference in this registration statement in reliance upon their reports
and said authority.
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2
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Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
("DGCL") grants each corporation organized thereunder, such as the Company,
the power to indemnify its directors and officers against liability for
certain of their acts. Section 102(b)(7) of the DGCL permits a provision
in the certificate of incorporation of each corporation organized
thereunder eliminating or limiting, with certain exceptions, the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. The Company's
certificate of incorporation contains such a provision. The foregoing
statements are subject to the detailed provisions of Sections 145 and
102(b)(7) of the DGCL.
Article VI of the Company's Bylaws provides that the Company shall
indemnify its officers, directors and employees to the fullest extent
permitted by the DGCL in connection with proceedings with which any such
person is involved by virtue of his or her status as an officer, director
or employee. The Company has also by contract agreed to indemnify its
directors against damages, judgments, settlements and costs arising out of
any actions against the directors brought by reason of the fact that they
are or were directors. The Company maintains directors' and officers'
liability insurance, including a reimbursement policy in favor of the
Company.
Iem 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following is a complete list of Exhibits filed or incorporated by
reference as part of this registration statement:
Exhibit Description
4.01 Restated Certificate of Incorporation of Ceridian Corporation (1)
4.02 Bylaws of Ceridian Corporation, as amended (2)
4.03 Ceridian Corporation Savings and Investment Plan
23.01 Consent of KPMG Peat Marwick LLP
24.01 Power of Attorney
The following exhibits were filed as part of previous Company filings with
the Commission as listed below, and are incorporated herein by reference:
(1) Registration Statement on Form S-8, Exhibit 4.01
(File No. 33-54379)
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(2) Form 10-Q for the quarter ended September 30, 1993,
Exhibit 3.01 (File No. 1-1969)
The undersigned registrant hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to qualify
the Plan under Section 401 of the Internal Revenue Code.
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Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bonafide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
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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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for 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
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of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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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 Minneapolis, State of
Minnesota, as of November 4, 1994.
CERIDIAN CORPORATION
/s/John R. Eickhoff
By: John R. Eickhoff
Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed as of November 4, 1994 by the
following persons in the capacities indicated.
*/s/Lawrence Perlman */s/Ruth M. Davis
Lawrence Perlman Ruth M. Davis
Chairman, President Director
and Chief Executive
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Officer */s/Allen W. Dawson
(Principal Executive Allen W. Dawson
Officer and Director) Director
*/s/Ronald James
/s/John R. Eickhoff Ronald James
John R. Eickhoff Director
Vice President and
Chief Financial Officer */s/Richard G. Lareau
(Principal Financial Richard G. Lareau
Officer) Director
*/s/Charles Marshall
/s/Loren D. Gross Charles Marshall
Loren D. Gross Director
Vice President and Corporate
Controller (Principal */s/Richard W. Vieser
Accounting Officer) Richard W. Vieser
Director
*/s/Paul S. Walsh
Paul S. Walsh
Director
*By /s/John A. Haveman
John A. Haveman
Attorney-in-fact
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The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Minneapolis, State
of Minnesota, as of November 4, 1994.
CERIDIAN CORPORATION
By: Ceridian Corporation Retirement Committee
By: /s/John A. Haveman
John A. Haveman
Secretary to and Member of Ceridian
Corporation Retirement Committee
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EXHIBIT INDEX
Exhibit Description Code
4.01 Restated Certificate of Incorporation of IBR
Ceridian Corporation
4.02 Bylaws of Ceridian Corporation, as amended IBR
4.03 Ceridian Corporation Savings and Investment Plan E
23.01 Consent of KPMG Peat Marwick LLP E
24.01 Power of Attorney E
Legend: E Electronic Filing
IBR Incorporated by Reference
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EXHIBIT 4.03
CERIDIAN CORPORATION
SAVINGS AND INVESTMENT PLAN
Table of Contents
Page
ARTICLE I Description and Purpose........................ 1
1.1 Plan Name...................................... 1
1.2 Plan Description............................... 1
1.3 Plan Purposes.................................. 1
ARTICLE II Eligibility.................................... 2
2.1 Eligibility Requirements....................... 2
2.2 Transfer Among Participating Employers......... 2
2.3 Multiple Employment............................ 2
2.4 Reentry........................................ 2
2.5 Condition of Participation..................... 2
2.6 Termination of Participation................... 2
ARTICLE III Contributions.................................. 3
3.1 Pre-Tax Contributions.......................... 3
3.2 Matching Contributions......................... 4
3.3 Rollovers and Transfers........................ 5
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3.4 Corrective Contributions....................... 6
ARTICLE IV Accounts and Valuation......................... 7
4.1 Establishment of Accounts...................... 7
4.2 Valuation and Account Adjustment............... 7
4.3 Allocations Do Not Create Rights............... 8
ARTICLE V Participant Investment Direction............... 9
5.1 Establishment of Investment Funds.............. 9
5.2 Contribution Investment Directions............. 9
5.3 Transfer Among Investment Funds................ 9
5.4 Company Stock Fund Rules....................... 10
5.5 Investment Direction Responsibility Resides With
Participants................................... 11
5.6 Beneficiaries and Alternate Payees............. 11
ARTICLE VI Withdrawals During Employment and Loans........ 13
6.1 Hardship Withdrawals from Pre-Tax Account...... 13
6.2 Withdrawals from Accounts After Age 59-1/2 or
Disability..................................... 14
6.3 Withdrawals from After-Tax Rollover Account.... 14
6.4 Rules for Withdrawals.......................... 14
6.5 Plan Loans..................................... 15
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ARTICLE VII Vesting and Forfeitures........................ 19
7.1 Vesting........................................ 19
7.2 Forfeiture Upon Distribution................... 19
7.3 Other Forfeitures.............................. 20
7.4 Reallocation of Forfeitures.................... 20
ARTICLE VIII Distributions After Termination................ 21
8.1 Time of Distribution........................... 21
8.2 Form of Distribution........................... 22
8.3 Beneficiary Designation........................ 22
8.4 Assignment, Alienation of Benefits............. 23
8.5 Payment in Event of Incapacity................. 23
8.6 Payment Satisfies Claims....................... 23
8.7 Disposition if Distributee Cannot be Located... 23
8.8 Transfers to Other Plans or Individual Retirement
Arrangements................................... 24
ARTICLE IX Contribution Limitations....................... 25
9.1 Pre-Tax Contribution Dollar Limitation......... 25
9.2 Actual Deferral Percentage Limitations......... 25
9.3 Actual Contribution Percentage Limitations..... 27
9.4 Multiple Use Limitation........................ 29
9.5 Earnings on Excess Contributions............... 31
9.6 Aggregate Defined Contribution Limitations..... 31
9.7 Aggregate Defined Contribution/Defined Benefit
Limitations.................................... 32
9.8 Administrator's Discretion..................... 33
ARTICLE X Amendment and Termination...................... 34
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10.1 Adoption by Affiliated Organizations........... 34
10.2 Authority to Amend and Procedure............... 34
10.3 Authority to Terminate and Procedure........... 34
10.4 Vesting Upon Termination, Partial Termination or
Discontinuance of Contributions................ 35
10.5 Distribution Following Termination, Partial Termination
or Discontinuance of Contributions............. 35
ARTICLE XI Definitions, Construction and Interpretations.. 36
11.1 Account........................................ 36
11.2 Active Participant............................. 36
11.3 Administrator.................................. 36
11.4 Affiliated Organization........................ 36
11.5 Basic Matching Account......................... 36
11.6 Basic Matching Contributions................... 36
11.8 Board.......................................... 37
11.9 Break in Service............................... 37
11.10 Code........................................... 37
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11.11 Committee...................................... 37
11.12 Company........................................ 37
11.13 Company Stock.................................. 37
11.14 Consent of Spouse.............................. 37
11.15 Disabled....................................... 38
11.16 Effective Date................................. 38
11.17 Eligible Earnings.............................. 38
11.18 Employee....................................... 38
11.19 Fund........................................... 38
11.20 Governing Law.................................. 39
11.21 Headings....................................... 39
11.22 Highly Compensated Employee.................... 39
11.23 Hour of Service................................ 40
11.24 Matching Contributions......................... 40
11.25 Normal Retirement Date......................... 40
11.26 Number and Gender.............................. 40
11.27 Participant.................................... 41
11.28 Participating Employer......................... 41
11.29 Performance-Based Matching Account............. 41
11.30 Performance-Based Matching Contributions....... 41
11.31 Plan........................................... 41
11.32 Plan Rule...................................... 41
11.33 Plan Year...................................... 41
11.34 Pre-Tax Account................................ 41
11.35 Pre-Tax Contributions.......................... 41
11.36 Qualified Employee............................. 41
11.37 Reporting Person............................... 42
11.38 Rollover Account............................... 42
11.39 Section 415 Wages.............................. 42
11.40 Termination of Employment...................... 42
11.41 Testing Wages.................................. 43
11.42 Treasury Regulations........................... 43
11.43 Trust.......................................... 44
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11.44 Trustee........................................ 44
11.45 Vesting Service................................ 44
ARTICLE XII Administration of Plan......................... 46
12.1 Named Fiduciary................................ 46
12.2 Retirement Committee........................... 46
12.3 Operation of Committee......................... 46
12.4 Duties of Administrator........................ 47
12.5 Adoption of Rules.............................. 47
12.6 Discretionary Actions.......................... 47
12.7 Compensation................................... 48
12.8 Professional Assistance........................ 48
12.9 Payment of Administrative Costs................ 48
12.10 Indemnification................................ 48
12.11 Benefit Claim Procedure........................ 48
12.12 Correction of Errors........................... 49
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ARTICLE XIII Miscellaneous.................................. 50
13.1 Merger, Consolidation, Transfer of Assets...... 50
13.2 Limited Reversion of Fund...................... 50
13.3 Top-Heavy Provisions........................... 50
13.4 No Employment Rights Created................... 54
13.5 Special Provisions............................. 54
iv
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CERIDIAN CORPORATION
SAVINGS AND INVESTMENT PLAN
ARTICLE I
Description and Purpose
1.1 Plan Name. The name of the Plan is the "Ceridian Corporation Savings
and Investment Plan."
1.2 Plan Description. The Plan is a profit sharing plan providing for
Pre-Tax Contributions pursuant to a qualified cash or deferred arrangement
and discretionary Matching Contributions by Participating Employers. The
Plan is intended to qualify under Code section 401(a) and to satisfy the
requirements of Code sections 401(k) and 401(m). Notwithstanding the
designation of the Plan as a profit sharing plan, a Participating Employer
may make contributions to the Plan even though it has no current or
accumulated earnings and profits.
1.3 Plan Purposes. The purposes of the Plan are to promote effort and
cooperation on the part of Active Participants; to provide a measure of
economic security to Active Participants by accumulating contributions for
distribution upon retirement, as a supplement to other resources then
available; and to permit Active Participants to share in the profits and
growth of their Participating Employers.
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ARTICLE II
Eligibility
2.1 Eligibility Requirements (A) Except as provided in Subsection (B), an
Employee is eligible to participate in the Plan as of the day on which he
or she first completes an Hour of Service as a Qualified Employee.
(B) In connection with an acquisition, the Administrator may specify
an entry date that is later than the date specified in Subsection (A) but
such date may not be later than the first anniversary of the acquisition
date and the later entry date must be applicable to all Employees who
became such in connection with the acquisition.
2.2 Transfer Among Participating Employers. An Active Participant who
transfers from one Participating Employer to another Participating Employer
as a Qualified Employee will participate in the Plan for the Plan Year
during which the transfer occurs on the basis of his or her separate
Eligible Earnings for the Plan Year from each such Participating Employer.
2.3 Multiple Employment. An Active Participant who is simultaneously
employed as a Qualified Employee with more than one Participating Employer
will participate in the Plan as a Qualified Employee of all such
Participating Employers on the basis of his or her separate Eligible
Earnings from each such Participating Employer.
2.4 Reentry. An Active Participant who ceases to be a Qualified Employee
will be eligible to resume active participation in the Plan as of the date
on which he or she first completes an Hour of Service as a Qualified
Employee following the cessation.
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2.5 Condition of Participation. Each Qualified Employee, as a condition
of participation, is bound by all of the terms and conditions of the Plan
and must furnish to the Administrator such pertinent information and
execute such instruments as the Administrator may require.
2.6 Termination of Participation. A Participant will cease to be such as
of the later of the date on which
(a) he or she ceases to be a Qualified Employee, or
(b) all benefits, if any, to which he or she is entitled under the
Plan have been distributed.
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ARTICLE III
Contributions
3.1 Pre-Tax Contributions. (A) Subject to the limitations of Article IX,
for each Plan Year, the Participating Employer of each Active Participant
will make Pre-Tax Contributions to the Trust on behalf of the Participant
in the amount by which the Participant's Eligible Earnings have been
reduced in accordance with this section. Pre-Tax Contributions will be
paid to the Trustee as soon as administratively practicable after the date
on which the Participant would have received the Eligible Earnings but for
the Participant's election pursuant to this section.
(B) Except as provided in Subsection (C), an Active Participant's
Eligible Earnings will be reduced in accordance with the following rules:
(1) An Active Participant may elect to reduce his or her Eligible
Earnings by any one percent increment from two percent to a maximum
percentage of Eligible Earnings specified in Plan Rules, and the
percentage so elected will automatically apply to the Participant's
Eligible Earnings as adjusted from time to time. Plan Rules may
specify a maximum percentage of Eligible Earnings for Active
Participants who are Highly Compensated Employees that is less than
the maximum percentage specified for Active Participants who are not
Highly Compensated Employees.
(2) In conjunction with an Active Participant's entering or
reentering the Plan pursuant to Article II, reduction of his or her
Eligible Earnings will begin as of the first payroll period that
starts at least 30 days (or such shorter period as Plan Rules may
allow) after the Administrator receives the Active Participant's
complete and accurate written election on a form provided by the
Administrator. If, however, the election is not received until after
a date determined pursuant to Plan Rules, it will not be effective and
Eligible Earnings reductions will begin in accordance with clause (3).
(3) If an Active Participant does not elect to reduce his or her
Eligible Earnings in conjunction with his or her entry or reentry into
the Plan in accordance with clause (2), he or she may thereafter elect
to have such reductions begin as of the first payroll period that
starts on or after the first day of the month that follows by at least
30 days (or such shorter period as Plan Rules may allow) the date on
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which the Administrator receives a complete and accurate written
election on a form provided by the Administrator.
(4) No Pre-Tax Contributions will be made on behalf of a Participant
with respect to a period during which he or she is not an Active
Participant. Only Eligible Earnings payable after an Active
Participant's complete and accurate written election on a form
provided by the Administrator has been properly filed will be reduced
pursuant to the election.
(5) An Active Participant may change the percentage rate at which
his or her Eligible Earnings will be reduced as of the first payroll
period that starts on or after the first day of the month that follows
by at least 30 days (or such shorter period as Plan Rules may allow)
the date on which the Administrator receives a complete and accurate
written notice of such change on a form provided by the Administrator.
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(6) An Active Participant may suspend reductions to his or her
Eligible Earnings as of the first payroll period that starts on or
after the first day of the month that follows by at least 30 days (or
such shorter period as Plan Rules may allow) the date on which the
Administrator receives a complete and accurate written notice of such
suspension. Eligible Earnings reductions for any Active Participant
who makes a hardship withdrawal pursuant to Section 6.1 will be
automatically suspended for the 12-month period beginning on the date
of the withdrawal distribution.
(7) An Active Participant whose Eligible Earnings reductions have
ceased by reason of automatic or voluntary suspension may, after the
end of the suspension period, resume Eligible Earnings reductions in
accordance with clause (3).
(C) Eligible Earnings reductions will be made in accordance with Plan
Rules. If any election or notice submitted by an Active Participant to the
Administrator is not processed on a timely basis or if, for any reason, an
Active Participant's Eligible Earnings are not reduced in accordance with
his or her election, no retroactive adjustments of the Participant's
reductions to Eligible Earnings will be made to take into account the
effect of any such delay or failure. Plan Rules may, however, permit a
Participant to reduce his or her Eligible Earnings payable during any
remaining portion of the Plan Year during which such delay or failure
occurred at more than the otherwise applicable percentage to adjust for the
effect of such delay or failure so long as the total reductions for the
Plan Year do not exceed the applicable maximum percentage or limitations of
Article IX.
3.2 Matching Contributions. (A) (1) Subject to Subsection (D) and the
limitations of Article IX, the Participating Employer of an Active
Participant who satisfies the eligibility condition described in
Subsection (B) for a given month will make a Basic Matching
Contribution to the Trust on behalf of the Participant in an amount,
if any, equal to a specified percentage of a specified portion of the
Participant's Pre-Tax Contributions for each payroll period during the
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month, such percentage and portion with respect to all months during a
Plan Year to be specified by the Participating Employer.
(2) Subject to Subsection (D) and the limitations of Article IX, the
Participating Employer of an Active Participant who satisfies the
eligibility condition described in Subsection (B) for a Plan Year will
make a Performance-Based Matching Contribution to the Trust on behalf
of the Participant in an amount, if any, equal to a specified
percentage of a specified portion of the Participant's Pre-Tax
Contributions for each payroll period during the Plan Year, such
percentage and portion to be specified by the Participating Employer.
(B) To be eligible to share in a Basic Matching Contribution for a
given month or a Performance-Based Matching Contribution for a given Plan
Year, an Active Participant must have either been
(1) actively employed with an Affiliated Organization on the last day
of the month or Plan Year, as the case may be, or
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(2) on a leave of absence on the last day of the month or Plan Year,
as the case may be, due to:
(a) military or jury service which is required by applicable law
to be treated as an authorized leave, or any other absence
required by applicable law or contractual undertaking to be
treated as an authorized leave;
(b) a leave of absence authorized for medical reasons, public
service, social service or eductional purposes, which is granted
under rules applied uniformly to all Employees;
(c) any other leave of absence authorized by an Affiliated
Organization, which is granted under rules applied uniformly to
all Employees;
(d) a layoff, but only to the extent it does not exceed six
months' duration; or
(e) a leave of absence not exceeding 12 months' duration granted
under the terms of an Affiliated Organization's Time Off Without
Pay Program.
(C) A Participating Employer's Basic Matching Contributions pursuant
to Subsection (A)(1) will be paid to the Trustee as soon as
administratively practicable after the end of the month to which the
contributions relate. A Participating Employer's Basic Matching
Contributions pursuant to Section 3.4 and Performance-Based Matching
Contributions will be paid to the Trustee on such date or dates during or
following the Plan Year as the Participating Employer may elect but in no
case more than 12 months after the end of the Plan Year.
(D) No Matching Contribution will be made with respect to any portion
of a Participant's Pre-Tax Contributions that is returned to the
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Participant pursuant to Article IX; provided, that for this purpose,
unmatched Pre-Tax Contributions will be deemed to be returned to the
Participant first. If the Administrator determines that any Matching
Contributions that
have been added to a Participant's Account should not have been added by
reason of this subsection, the contributions will be subtracted from the
Account as soon as administratively practicable after the determination and
will be applied to satisfy the Matching Contribution obligations of the
Participating Employer who made the excess Matching Contributions for the
Plan Year in which the excess contributions were made. If, because of the
passage of time, the excess cannot be applied to satisfy the Participating
Employer's Matching Contribution obligations for the Plan Year in which the
excess contributions were made, the excess will, subject to the limitations
of Article IX, be allocated in the discretion of the Administrator
(1) among the Basic or Performance-Based Matching Accounts, as
determined by the Administrator, of all Participants who made Pre-Tax
Contributions for the Plan Year in question as if it were an
additional Matching Contribution for the Plan Year, or
(2) as a corrective contribution pursuant to Section 3.4.
3.3 Rollovers and Transfers. (A) An Active Participant may, with the
prior consent of the Administrator, contribute to the Trust, within 60 days
of receipt,
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(1) the balance of an individual retirement account to which the only
contributions have been one or more "eligible rollover distributions,"
within the meaning of Code section 402(c)(4), from a plan qualified
under Code section 401(a), or
(2) an eligible rollover distribution from such a qualified plan.
(B) With the prior consent of the Administrator, the accounts under
another plan qualified under Code section 401(a) of an Active Participant
may be transferred directly to the Trust. Other than in connection with an
acquisition, such a transfer will not be permitted if, as a result of the
transfer, the Plan would be required to provide any option with respect to
the form or time of distribution or any other right, benefit or feature not
available under the Plan prior to the transfer.
(C) Other than in connection with an acquisition, any contribution or
transfer to the Trust pursuant to Subsection (A) or (B) must be made in
cash and will be added to the Active Participant's appropriate Rollover
Account.
(D) If an Active Participant's accounts under the Ceridian
Corporation Personal Investment Plan are transferred directly to the Plan,
the transfer will be made in kind and will be added to the Account that
corresponds with the transferred account except that the balance of his or
her performance-based matching account under the Personal Investment Plan
will be transferred to his or her Basic Matching Account if he or she has
completed less than five years of Vesting Service at the time of the
transfer.
<PAGE>
3.4 Corrective Contributions. For any Plan Year, a Participating Employer
may contribute to the Basic Matching Accounts of Active Participants who
are not Highly Compensated Employees, or any group of such Active
Participants, such amounts as it deems advisable to assist the Plan in
satisfying the requirements of Sections 9.2, 9.3 and 9.4, or any other
requirement under the Code or Treasury Regulations, for the Plan Year.
Subject to the limitations of Sections 9.6 and 9.7, such contributions will
be allocated among the Basic Matching Accounts of such Active Participants
in proportion to their Eligible Earnings, in proportion to the Pre-Tax
Contributions made on their behalf or in equal shares as the Participating
Employer directs at the time such contribution is made.
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ARTICLE IV
Accounts and Valuation
4.1 Establishment of Accounts. For each Participant, the following
Accounts will be established and maintained:
(a) A Pre-Tax Account, to which there will be added the amount of
Pre-Tax Contributions made on the Participant's behalf;
(b) A Basic Matching Account, to which there will be added the amount
of Basic Matching Contributions made on the Participant's behalf;
(c) A Performance-Based Matching Account, to which there will be
added the amount of Performance-Based Matching Contributions made on
the Participant's behalf; and
(d) One or more Rollover Accounts to which there will be added the
amount of any rollover contribution or trust-to-trust transfer made by
or on the Participant's behalf pursuant to Section 3.3 as follows:
(1) An After-Tax Rollover Account to evidence amounts
transferred directly from another qualified plan pursuant to
Section 3.3(B) which represent after-tax contributions by the
Participant to such other qualified plan and earnings thereon,
(2) A Cash or Deferred Rollover Account to evidence amounts
transferred directly from another qualified plan pursuant to
Section 3.3(B) which represent elective deferrals to such plan
made pursuant to a qualified cash or deferred arrangement and
earnings thereon,
(3) A General Rollover Account to evidence amounts rolled over
pursuant to Section 3.3(A) or transferred directly from another
qualified plan pursuant to Section 3.3(B) which are not required
to be separately accounted for as set forth in clause (1) or (2).
One or more additional accounts may be established for any Participant or
group of similarly situated Participants in connection with the merger of
another plan into the Plan, in which case provisions of the Plan applicable
solely to such accounts will be set forth on an exhibit to the Plan in
accordance with Section 13.5.
<PAGE>
4.2 Valuation and Account Adjustment. (A) Subject to Subsection (B),
Participant's Accounts will be separately adjusted on a daily basis in a
uniform and equitable manner to reflect income, expense, gains and losses
of the Fund and contributions, withdrawals, loans, loan repayments,
satisfactions of unpaid indebtedness in accordance with Section 6.5(C)(4),
forfeitures and distributions.
(B) The portion of Participant's Accounts invested in Company Stock
or publicly traded mutual investment funds will be accounted for in a
uniform and equitable manner on the basis of the number of full and
fractional Company Stock or mutual fund shares credited to the Accounts.
Cash dividends attributable to
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such Company Stock or mutual fund shares will be added to Participants'
Accounts on the date of payment of such dividends
and will be reinvested in Participants' Accounts by the Trustee, to the
extent practicable, in full and fractional Company Stock or the mutual fund
shares, as the case may be, as soon as administratively practicable after
the day on which the dividends are received by the Trustee. Stock
dividends attributable to Company Stock will be added to Participants'
Accounts in accordance with the number of full and fractional shares of
Company Stock held in each Participant's Account on the date of the payment
of such dividends.
4.3 Allocations Do Not Create Rights. The fact that amounts are added to
the Accounts of a Participant does not vest in the Participant any right,
title or interest in or to any portion of the Fund except at the time or
times and upon the terms and conditions expressly set forth in the Plan.
Notwithstanding any addition to an Account, the issuance of any statement
or the distribution of all or any portion of an Account balance, the
Administrator may cause the Account to be adjusted to the extent necessary
to correct any error in the Account, whether caused by misapplication of
any provision of the Plan or otherwise, and may recover from any
distributee the amount of any excess distribution. Any such adjustment
will be made within a reasonable time after the error is discovered.
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ARTICLE V
Participant Investment Direction
5.1 Establishment of Investment Funds. (A) In order to allow each
Participant to determine the manner in which his or her Accounts will be
invested, the Trustee will maintain, within the Trust, three or more
separate investment funds of such nature and possessing such
characteristics as the Committee may specify from time to time. Each
Participant's Accounts will be invested in the investment funds in the
proportions directed by the Participant in accordance with Sections 5.2 and
5.3. The Committee may, from time to time, direct the Trustee to establish
additional investment funds or to terminate any existing investment fund.
(B) Notwithstanding any other provisions of the Plan to the contrary,
the Committee may direct the Trustee to suspend investment activity in any
<PAGE>
or all investment funds, or impose special rules or restrictions of uniform
application, for a period determined by the Committee to be necessary in
connection with
(1) the establishment or termination of any investment fund,
(2) the receipt by the Trustee from, or transfer by the Trustee to,
another trust of account balances pursuant to Section 3.3 or 8.8 in
connection with an acquisition or divestiture or otherwise,
(3) a change of Trustee or investment manager, or
(4) such other circumstances determined by the Committee as making
such suspension or special rules or restrictions necessary or
appropriate.
5.2 Contribution Investment Directions. (A) In conjunction with a
Participant's enrollment in the Plan, contributions, rollovers and
transfers to his or her Accounts will initially be invested in one
investment fund designated by Plan Rules.
(B) On and after a date specified by Plan Rules following a
Participant's enrollment in the Plan, the Participant may direct a change
in the manner in which future contributions, rollovers and transfers added
to his or her Accounts will be invested among the investment funds
maintained pursuant to Section 5.1. A direction must be made in accordance
with and is subject to Plan Rules and will be effective on or as soon as
administratively practicable after the next regular pay day which follows
by at least ten days (or such shorter period as Plan Rules may allow) the
date on which the Trustee receives the direction.
(C) Plan Rules will include procedures pursuant to which Participants
are provided with the opportunity to obtain written confirmation of
investment directions made pursuant to this section.
5.3 Transfer Among Investment Funds. (A) A Participant may direct the
transfer of his or her Accounts among the investment funds maintained
pursuant to Section 5.1. A direction must be
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<PAGE>
made in accordance with and is subject to Plan Rules. Plan Rules will
include procedures pursuant to which Participants are provided with an
opportunity to obtain written confirmation of investment directions made
pursuant to this section.
(B) A transfer pursuant to Subsection (A) will be made and effective
on or as soon as administratively practicable after:
(1) the close of business on the day of receipt by the Trustee of the
transfer direction if the direction is received prior to 1:00 p.m.
Eastern Time; or
(2) the close of business on the next business day following receipt
by the Trustee of the transfer direction if the direction is received
at or after 1:00 p.m. Eastern Time.
<PAGE>
(C) Except with regard to transfers from the Company Stock Fund
described in Section 5.4, a transfer made pursuant to Subsection (A) will
be based upon the value of the Participant's Accounts as of the close of
business on the day on which the transfer is effective. Transfers from the
Company Stock Fund will be based on the value as determined by the actual
trading price; provided, that if no trade is required to effect the
transfer, the value will be determined on the basis of the closing price of
Company Stock on the business day following receipt of the transfer
direction by the Trustee as reported in the New York Stock Exchange
Composite Transactions listing contained in The Wall Street Journal.
(D) Plan Rules may impose uniform limitations and restrictions
applicable to transfers into and out of specific investment funds.
5.4 Company Stock Fund Rules. (A) The Trustee will establish as one of
the investment funds under Section 5.1, a fund, designated as the Company
Stock Fund, which may be invested entirely and will be invested primarily
in Company Stock.
(B) Each Participant having an interest in the Company Stock Fund
will be afforded the opportunity to direct the manner in which shares of
Company Stock credited to his or her Accounts will be voted in connection
with all stockholder actions of the Company. In the event of a public
tender or exchange offer for shares of such common stock, each Participant
will be entitled to direct whether or not the shares of Company Stock
credited to his or her Accounts will be tendered for sale or exchange in
connection with such offer. Voting and tender decisions will be effected
in accordance with the following rules.
(1) The Administrator will, prior to each meeting of the stockholders
of the Company, cause to be furnished to each such Participant a copy
of the proxy solicitation materials, together with a form requesting
confidential directions on how the shares of Company Stock credited to
his or her Accounts will be voted on each matter to be brought before
such meeting. The Administrator will use his or her best efforts to
ensure that each such Participant receives such information as will be
distributed to stockholders of the Company in connection with any
public tender or exchange offer for shares of Company Stock and that
each receives a form on which confidential directions may be provided
to the Trustee.
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<PAGE>
(2) The Trustee will hold all directions received from Participants
pursuant to this section in strict confidence and will not disclose
any such direction to any person unless the Trustee determines such
disclosure is required to comply with applicable law.
(3) The Trustee will vote the number of full and fractional shares
credited to each Participant's Accounts as directed by the Participant
if the direction is received in time for the direction to be
processed. In the case of a public tender or exchange offer, the
Trustee will tender the shares credited to the Participant's Accounts
if so directed by the Participant, and will not tender shares credited
<PAGE>
to the Accounts of a Participant who either directs that such shares
not be tendered or does not furnish a timely direction to the Trustee.
(4) The Trustee will vote any Company Stock that has not been
credited to any Participant's Account and any Company Stock with
respect to which it does not receive timely directions so that the
proportion of such stock voted in any particular manner on any matter
is the same as the proportion of the stock with respect to which the
Trustee has received timely directions which is so voted. The Trustee
will tender for sale or exchange in a public tender or exchange offer
the same proportion of any shares not credited to an Account as it
tenders of shares credited to the Accounts of Participants.
(C) Notwithstanding any other provision of the Plan to the contrary,
in no event will shares of Company Stock be allocated or otherwise credited
to the Accounts of a Participant who is a Reporting Person if such
allocation would cause the aggregate fair market value of Company Stock
held in the Trust with respect to all Participants who are Reporting
Persons to equal or exceed 20 percent of the market value of all securities
with a readily ascertainable market value held in the Trust, as determined
as of the last day of the preceding Plan Year. To the extent the foregoing
limitation would otherwise be exceeded, each such Reporting Person's
interest in the Company Stock Fund will be reduced in a pro rata basis
among all such Reporting Persons' levels of investment in the Company Stock
Fund.
(D) Notwithstanding any other provision of the Plan to the contrary,
a Participant who is a Reporting Person may not transfer amounts either
into or out of the Company Stock Fund more than once during any 30-day
period.
5.5 Investment Direction Responsibility Resides With Participants.
Neither any Affiliated Organization, the Administrator, the Committee nor
the Trustee has any authority, discretion, responsibility or liability with
respect to a Participant's selection of the investment funds in which his
or her Accounts will be invested, the entire authority, discretion and
responsibility for, and any results attributable to, the selection being
that of the Participant.
5.6 Beneficiaries and Alternate Payees. Solely for purposes of this
article, the term "Participant" includes the Beneficiary of a deceased
Participant and an alternate payee under a qualified domestic relations
order within the meaning of Code section 414(p) unless otherwise provided
in such order, but only after
(1) the Administrator has determined the identity of the Beneficiary
and the amount of the Account balance to which he or she is entitled
in the case of a Beneficiary of a deceased Participant, or
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<PAGE>
(2) the Administrator has, in accordance with Plan Rules, made a
final determination that the order is a qualified domestic relations
order and all rights to contest such determination in a court of
competent jurisdiction within the time prescribed by Plan Rules have
expired or been exhausted in the case of an alternate payee.
<PAGE>
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<PAGE>
ARTICLE VI
Withdrawals During Employment and Loans
6.1 Hardship Withdrawals from Pre-Tax Account. (A) Subject to the
provisions of Section 6.4, a Participant who is an Employee may make
hardship withdrawals from his or her Pre-Tax Account in accordance with
this section. The amount of any such withdrawal may not exceed the portion
of the Account consisting of Pre-Tax Contributions or, in the case of a
Participant described in Section 3.3(D), the balance of his or her pre-tax
account (formerly called the "participant directed account") under the
Ceridian Corporation Personal Investment Plan as of December 31, 1988,
increased by the amount of pre-tax contributions (formerly called
"participant directed contributions") made on the Participant's behalf
pursuant to the Personal Investment Plan for plan years after December 31,
1988 and Pre-Tax Contributions made on the Participant's behalf and reduced
by the amount of any such contributions distributed to the Participant
after December 31, 1988. Such withdrawal will be made only if the
Administrator determines that the distribution is made on account of an
immediate and heavy financial need of the Participant and is necessary to
satisfy such financial need.
(B) The existence of an immediate and heavy financial need will be
made by the Administrator on the basis of all relevant facts and
circumstances. A distribution will be deemed to be made on account of an
immediate and heavy financial need, however, if it is determined by the
Administrator to be on account of:
(1) expenses for medical care, described in Code section 213(d),
incurred or to be incurred by the Participant, the Participant's
spouse or the Participant's dependent (as described in Code section
152);
(2) costs directly related to the purchase (excluding mortgage
payments) of a principal residence of the Participant;
(3) payment of tuition and related educational expenses for the next
year of post-secondary education for the Participant or his or her
spouse, child or other dependent; or
(4) payments necessary to prevent the eviction of the Participant
from his or her principal residence or foreclosure of the mortgage on
the Participant's principal residence.
(C) A distribution will be deemed to be necessary to satisfy the
immediate and heavy financial need of the Participant only if the
Administrator determines that each of the following requirements is
satisfied.
(1) The distribution is not in excess of the sum of the amount of the
immediate and heavy financial need of the Participant plus, if elected
by the Participant, the estimated amount of any federal, state and
local income taxes and penalties that the Participant will incur on
<PAGE>
account of the distribution as determined by the Administrator in
accordance with Plan Rules.
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<PAGE>
(2) The Participant has received all withdrawals and has taken all
nontaxable loans available under the Plan and any other qualified plan
maintained by an Affiliated Organization.
(3) All Pre-Tax Contributions under the Plan and all elective
deferrals and after-tax employee contributions on behalf of or by the
Participant under any other qualified or nonqualified deferred
compensation plan maintained by an Affiliated Organization are, to the
extent required by Treasury Regulations, suspended for a period of
12 months following the date of the distribution.
(4) For the Participant's taxable year following the taxable year
during which he or she received the distribution, the amount of
elective deferrals that may be made on the Participant's behalf under
any qualified plan maintained by an Affiliated Organization, including
Pre-Tax Contributions pursuant to the Plan, are reduced by the amount
of such elective deferrals made on the Participant's behalf for the
taxable year during which he or she received the distribution.
(D) The Administrator's determination of the existence of a
Participant's financial hardship and the amount that may be withdrawn to
satisfy the need created by such hardship will be made in accordance with
Treasury Regulations, and is final and binding on the Participant. The
Administrator may require the Participant to make representations and
certifications concerning his or her entitlement to a withdrawal pursuant
to this section and may rely on such representations and certifications
unless the Administrator has actual knowledge to the contrary. The
Administrator is not obligated to supervise or otherwise verify that
amounts withdrawn are applied in the manner specified in the Participant's
withdrawal application.
6.2 Withdrawals from Accounts After Age 59-1/2 or Disability. Subject to
the provisions of Section 6.4, a Participant who is an Employee and has
attained age 59-1/2 or has become Disabled may withdraw all or any portion
of his or her Account balances.
6.3 Withdrawals from After-Tax Rollover Account. Subject to the
provisions of Section 6.4, a Participant who is an Employee may withdraw
all or any portion of the balance of his or her After-Tax Rollover Account.
6.4 Rules for Withdrawals. (A) A withdrawal distribution will be made
only upon the Administrator's receipt from the Participant of a complete
and accurate written application on a form provided by the Administrator.
(B) The Participant's withdrawal application must specify the
investment fund or funds from which the withdrawal is to be made and, in
the case of a withdrawal pursuant to Section 6.2, such withdrawal will be
made on a pro rata basis among the Participant's Accounts invested in that
fund or funds.
<PAGE>
(C) All withdrawal distributions will be made as soon as
administratively practicable after the Administrator's determination that a
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<PAGE>
Participant is entitled to receive the withdrawal distribution based on the
balance of the Account from which the withdrawal distribution is made that
is not attributable to Company Stock (1) as of the close of business on the
day the Administrator notifies the Trustee of the withdrawal if the notice
is received by the Trustee prior to 1:00 p.m. Eastern Time or (2) as of the
close of business on the next business day after the Administrator notifies
the Trustee of the withdrawal if the notice is received by the Trustee at
or after 1:00 p.m. Eastern Time and based on the balance of the Account
from which the distribution is made that is attributable to Company Stock
determined in the case of a cash withdrawal distribution based on the
actual trading price or if no trade is required to effect the distribution,
based on the closing price of Company Stock on the business day following
the Trustee's receipt of notice of withdrawal from the Administrator as
reported in the New York Stock Exchange Composite Transactions listing
contained in The Wall Street Journal.
(D) Amounts withdrawn from the Participant's Accounts which were
invested in the Company Stock Fund will be paid in cash or in full shares
of Company Stock, at the election of the Participant; provided, that
withdrawal distributions pursuant to Section 6.1 will be paid only in the
form of cash. All other withdrawal distributions will be made in the form
of cash.
(E) No withdrawal may be made from the portion of a Participant's
Accounts attributable to a note evidencing a Plan loan.
(F) The provisions of Section 8.8(A) apply to any withdrawal
distribution that constitutes an "eligible rollover distribution" within
the meaning of Code section 402(c)(4).
6.5 Plan Loans. (A) Each Participant or Beneficiary of a deceased
Participant who is an Employee or is otherwise a "party in interest" with
respect to the Plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended, is entitled to borrow funds from his or
her Pre-Tax Account, by application to the Administrator on a form provided
by the Administrator, subject, however, to the succeeding provisions of
this section.
(1) The amount of the loan may not cause the aggregate amount of
outstanding loans to the borrower to exceed the lesser of:
(a) $50,000, reduced by the excess, if any, of (i) the highest
outstanding balance, during the 12-month period ending on the day
before the loan is made, of all loans to the borrower pursuant to
the Plan and all other qualified plans maintained by an
Affiliated Organization over (ii) the outstanding balance of such
loans on the date of the loan; and
(b) 50 percent of the borrower's Pre-Tax Account balance as of
the close of business on the day next preceding the date of the
loan.
<PAGE>
(2) No individual loan will be made in an amount less than $1000 and
each loan must be in a multiple of $100.
(3) No borrower may have outstanding at any time more than two loans
with a maturity of five years or less and one loan with a maturity of
more than five years.
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<PAGE>
(4) A borrower may not submit more than one application for a loan
during any 30-day period.
(5) No loan will be made to a Beneficiary prior to the
Administrator's determination of the identity of and amount
distributable to the Beneficiary.
(6) Loan proceeds will be obtained from the investment fund or funds
in which the borrower's Pre-Tax Account is invested as specified by
the borrower.
(B) Each loan will bear interest on the unpaid principal balance at
the rate specified by the Administrator. The Administrator will specify a
reasonable rate of interest to be effective with respect to loans made
during the six-month periods beginning each January 1 and July 1. Interest
will accrue from the date on which the first payment is due.
(C) The borrower must execute a promissory note and security
agreement provided by the Administrator, which:
(1) create in the Trust a valid first lien against one-half of the
borrower's entire right, title and interest in and to that portion of
his or her Accounts equal to the initial amount of the loan plus
accrued and unpaid interest thereon;
(2) provide for a maturity date not to exceed five years from the
date of the note or not to exceed ten years from the date of the note
if the Administrator determines, at the time of the loan, that the
proceeds of such loan are to be used by the borrower to acquire a
house, apartment, condominium or mobile home which is used, or is
intended to be used within a reasonable time after the loan is made,
as the borrower's principal residence;
(3) provide for payments of principal and interest in equal
installments of such frequency, not less frequently than quarterly, in
such minimum amounts and for such maximum period as prescribed by Plan
Rules;
(4) provide that upon (a) default in payment or otherwise, (b)
termination of a Participant's employment or the occurrence of any
other event permitting or requiring distribution and (c) a borrower
becoming employed with the purchaser of all or a portion of an
Affiliated Organization's trade or business, the unpaid indebtedness
will be accelerated and satisfied from any distribution then due and
from the balance of the borrower's Accounts that could then be
distributed, and that the date on which repayment of any remaining
<PAGE>
part of such unpaid indebtedness is due will be extended, and interest
will continue to accrue, until the earliest date on which the borrower
or his or her Beneficiary could receive a distribution, on which date
the unpaid indebtedness will be satisfied in full and the Account will
be reduced by the amount of the unpaid indebtedness immediately prior
to the satisfaction.
(D) For purposes of this section, a default will be deemed to occur
if part or all of any payment of principal or interest is not paid on or
before 90 days after the most recent payment, provided, however, that if
the borrower is an Employee who is on approved unpaid leave of absence or
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<PAGE>
layoff status on the date a default would otherwise occur, default will not
occur until the earliest of the following:
(1) the thirtieth day following the earlier to occur of the first
anniversary of the commencement of the leave of absence or layoff, or
the borrower's return to active employment; provided that a default
will not occur if, on or before such day, the total amount of
principal payments previously due and all accrued interest are repaid;
(2) the thirtieth day after the earlier to occur of the first
anniversary of the commencement of the leave of absence or layoff, or
the termination of the approved leave or layoff, if the borrower does
not return to active employment with an Affiliated Organization; or
(3) the maturity date of the borrower's promissory note.
(E) In addition to the documents described in Subsection (C), each
borrower who is an Employee must execute an appropriate document under
which any Affiliated Organization is authorized to deduct from the
borrower's pay the amount of payments due under the terms of any such loan,
and each borrower must provide such other documents as may from time to
time be required by Plan Rules.
(F) Before making any loan, the Administrator will deliver to the
borrower a clear statement of the charges involved in the proposed loan
transaction, which statement will include the dollar amount of the loan,
the annual rate of the finance charge and the aggregate amount of the
finance charge to the date of maturity.
(G) Each loan is a loan by the Trust Fund, but for trust accounting
purposes the loan will be deemed made from the borrower's own Pre-Tax
Account, and the note executed by the borrower will be deemed to be an
asset of such Account. Upon making a loan, the borrower's Pre-Tax Account
will be reduced by an amount equal to the principal balance of the loan,
effective as of the date of the loan, and a Loan Account will be
established for the borrower with an initial balance equal to the principal
amount of such loan. All such Loan Accounts will be excluded for purposes
of determining and allocating the net earnings (or losses) of the Trust
pursuant to Section 4.2. A borrower's repayments of principal and payments
of interest will be credited to his or her Pre-Tax Account until the amount
borrowed from such Account has been fully replaced by principal repayments.
On the close of business next following the Trustee's receipt of such a
payment, the Loan Account of each borrower will be reduced by the amount of
<PAGE>
the principal payment credited to such borrower's Pre-Tax Account on such
date. Repayments of loan principal and payments of interest will be
invested among the investment funds in accordance with the borrower's most
recent investment directions with respect to new contributions under the
Plan, but if no contributions are currently being made to the borrower's
Accounts and the borrower does not file a new investment direction, such
repayments will be invested in an investment fund designated by the
Administrator.
(H) The Administrator will establish a means pursuant to which a
borrower may make loan repayments by payroll deduction or
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[DATE]
other periodic payments. Loans, including any accrued interest, may be
repaid in whole or in part without penalty at any time after the first
anniversary of the date the loan was made.
(I) Plan Rules may establish such other terms and conditions as may
be necessary or desirable for the administration of loans under this
section.
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ARTICLE VII
Vesting and Forfeitures
7.1 Vesting. (A) Each Participant will always have a fully vested,
nonforfeitable interest in his or her Pre-Tax Account, Basic Matching
Account and Rollover Account.
(B) A Participant will acquire a fully vested nonforfeitable interest
in his or her Performance-Based Matching Account upon attaining his or her
Normal Retirement Date while employed with an Affiliated Organization.
(C) A Participant will acquire a fully vested nonforfeitable interest
in his or her Performance-Based Matching Account if he or she dies or
becomes Disabled while employed with an Affiliated Organization.
(D) A Participant whose employment terminates prior to his or her
Normal Retirement Date other than by reason of death or becoming Disabled
will acquire a vested nonforfeitable interest in his or her Performance-
Based Matching Account to the extent provided in the following schedule:
Years of Vesting Service Vested Interest
Less than Two Years 0%
Two Years 40%
Three Years 60%
Four Years 80%
Five or More Years 100%
<PAGE>
7.2 Forfeiture Upon Distribution. (A) If the entire vested balance of a
Participant's Accounts is distributed not later than the last day of the
second Plan Year following the Plan Year during which his or her employment
terminates, and if the amount distributed was not more than $3500 or the
distribution was made with the Participant's consent, the nonvested portion
of the Participant's Performance-Based Matching Account will, at the time
of the distribution, be forfeited. A Participant who has no vested
interest in his or her Performance-Based Matching Account at termination of
employment will be deemed to have received distribution of the entire
vested balance in such Account upon such termination.
(B) If a Participant described in Subsection (A)(i) received a
distribution of less than the entire balance of his or her Accounts, (ii)
resumes employment as a Qualified Employee and (iii) repays to the Trustee
the full amount distributed before the earlier of (a) five years following
the date of his or her reemployment as a Qualified Employee or (b) the date
on which he or she incurs a Break in Service of five full years following
the distribution, then, the Participating Employer with whom he or
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she was last employed will restore the amount forfeited to the
Participant's Performance-Based Matching Account, unadjusted for any change
in Fund value occurring since the distribution. The restoration will be
made from forfeitures that arise for the Plan Year for which the
restoration is to be made. To the extent such forfeitures are insufficient
for such purpose, the Participating Employer will contribute the amount
required to restore the Account. A Participant described in the last
sentence of Subsection (A) who is reemployed prior to experiencing a Break
in Service of at least five full years will be deemed to have repaid his or
her deemed distribution upon his or her reemployment as a Qualified
Employee.
7.3 Other Forfeitures. (A) Except as provided in Section 7.2, the
nonvested portion of a Participant's Performance-Based Matching Account
will continue to be held in a separate subaccount of such Account until the
Participant incurs a Break in Service of five full years, at which time the
subaccount balance will be forfeited. If the Participant resumes
employment with an Affiliated Organization before the subaccount balance is
forfeited, the subaccount balance will be included in the Participant's
Performance-Based Matching Account balance.
(B) A Participant's vested interest in his or her Performance-Based
Matching Account balance following a resumption of employment in accordance
with the last sentence of Subsection (A) at any given time will not be less
than the amount "X" determined by the formula: X = P(AB + (R x D)) - (R x
D), where P is the Participant's vested percentage at the time of
determination; AB is the Account balance at the time of determination; D is
the amount of the distribution; and R is the ratio of the Account balance
at the time of determination, to the Account balance immediately following
the distribution.
7.4 Reallocation of Forfeitures. All forfeitures occurring under this
article in a Plan Year will be allocated as of the last day of such Plan
Year as follows:
<PAGE>
(1) Such forfeitures will first be applied to restore the accounts of
Participants as provided in Section 7.2(B); and
(2) Any remaining forfeitures will be applied toward the Matching
Contribution obligations of the Participating Employer with whom the
Participant in question was last employed.
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<PAGE>
ARTICLE VIII
Distributions After Termination
8.1 Time of Distribution. (A) Following a Participant's termination of
employment or earlier attainment of age 70-1/2, the Trustee will distribute
to the Participant or, if the Participant has died, to his or her
Beneficiary, the vested balance of the Participant's Accounts. The amount
of such distribution will be equal to the aggregate vested balance of the
Participant's Accounts as of the close of business on the day following the
day on which the Trustee has received instruction from the Administrator
that all information necessary for processing the distribution has been
received and approved. Subject to the remaining subsections of this
section and Sections 8.2 and 8.8, distributions will be made in accordance
with the following provisions.
(1) If the aggregate vested balance of the Participant's Accounts at
the time of the distribution is not more than $3500, distribution to
the Participant will be made as soon as administratively practicable
following the Participant's termination of employment or, if the
Participant's employment has not terminated, following the date on
which the Participant attains age 70-1/2. This clause will not apply,
however, if the Participant's Account balance exceeded $3500 at the
time of any previous distribution to the Participant.
(2) Except as provided in clause (1), distribution to the Participant
of his or her vested Account balances will be made on or as soon as
administratively practicable following such date as the Participant
specifies by written notice to the Administrator, which date will not
be later than the date specified under Subsection (B).
(3) Any distribution to the Participant's Beneficiary will be made as
soon as administratively practicable following the Administrator's
receipt of notice of the Participant's death.
(B) Distribution of each Participant's vested Account balance will be
made in full not later than the earlier of -
(1) the sixtieth day following the close of the Plan Year during
which there occurs the later of -
(a) the date the Participant terminates employment,
(b) the Participant's Normal Retirement Date; or
(2) the April 1 of the calendar year following the calendar year
during which the Participant attains age 70-1/2.
<PAGE>
(C) Any contribution allocated to the Account of a Participant who
has attained age 70-1/2 will be distributed not later than the last day of
the Plan Year following the Plan Year for which such allocation was made.
(D) Notwithstanding any other provision of the Plan to the contrary,
distributions will be made in accordance with Treasury Regulations issued
under Code section 401(a)(9), including
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<PAGE>
Treasury Regulation section 1.401(a)(9)-2, and any provisions of the Plan
reflecting Code section 401(a)(9) take precedence over any distribution
options that are inconsistent with Code section 401(a)(9).
8.2 Form of Distribution. (A) Any distribution under the Plan will be
made in the form of a single lump sum payment.
(B) Distributions will be made in the form of cash; provided, that to
the extent that the Account to be distributed is invested in the Company
Stock Fund immediately prior to the distribution, at the election of the
Participant or Beneficiary, as the case may be, the number of whole shares
of Company Stock credited to the Account will be distributed in kind.
8.3 Beneficiary Designation (A) (1) Each Participant may designate,
upon forms furnished by the Administrator, one or more individuals to
be primary Beneficiaries or alternative Beneficiaries for all or a
specified fractional part of his or her aggregate Accounts and may
change or revoke any such designation from time to time. No such
designation, change or revocation is effective unless executed by the
Participant and received by the Administrator during the Participant's
lifetime. Except as provided in Subsection (B), no such change or
revocation requires the consent of any person.
(2) If a Participant
(a) fails to designate a Beneficiary, or
(b) revokes a Beneficiary designation without naming another
Beneficiary, or
(c) designates one or more Beneficiaries none of whom survives
the Participant,
for all or any portion of the Accounts, such Accounts or portion will
be distributed to the first class of the following classes of
automatic Beneficiaries that includes a member surviving the
Participant:
Participant's spouse;
Participant's issue, per stirpes and not per capita;
Participant's parents;
Participant's brothers and sisters;
Representative of Participant's estate.
(3) When used in this section and, unless the designation otherwise
specifies, when used in a Beneficiary designation, the term "per
<PAGE>
stirpes" means in equal shares among living children and the issue
(taken collectively) of each deceased child, with such issue taking by
right of representation; "children" means issue of the first
generation; and "issue" means all persons who are descended from the
person referred to, either by legitimate birth or legal adoption. The
automatic Beneficiaries specified above and, unless the designation
otherwise specifies, the Beneficiaries designated by the Participant,
become fixed as of the Participant's death so that, if a Beneficiary
survives the Participant but dies before the receipt of the payment
due such Beneficiary, the payment will be made to the representative
of such Beneficiary's estate. Any designation of a Beneficiary by
name that is accompanied by a description of relationship or only by
statement of relationship to the Participant is effective only to
designate the individual or individuals standing in such relationship
to the Participant at the Participant's death.
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<PAGE>
(B) Notwithstanding Subsection (A), no designation of a Beneficiary
other than the Participant's spouse is effective unless such spouse
consents to the designation. Any such consent is effective only with
respect to the Beneficiary or class of Beneficiaries so designated and only
with respect to the spouse who so consented.
8.4 Assignment, Alienation of Benefits. (A) Except as required under a
qualified domestic relations order or by the terms of any loan from the
Trust, no benefit under the Plan may in any manner be anticipated,
alienated, sold, transferred, assigned, pledged, encumbered or charged, and
any attempt to do so is void; and no such benefit will in any manner be
liable for or subject to the debts, contracts, liabilities, engagements or
torts of the person entitled to such benefit.
(B) To the extent provided in a qualified domestic relations order,
distribution of benefits assigned to an alternate payee by such order may
be distributed to the alternate payee in the form of a lump sum prior to
the Participant's earliest retirement age. The terms "qualified domestic
relations order," "alternate payee" and "earliest retirement age" have the
meanings given in Code section 414(p).
8.5 Payment in Event of Incapacity. If any person entitled to receive any
payment under the Plan is physically, mentally, or legally incapable of
receiving or acknowledging receipt of the payment, and no legal
representative has been appointed for such person, the Administrator in his
or her discretion may (but is not required to) cause any sum otherwise
payable to such person to be paid to any one or more as may be chosen by
the Administrator from the following: the Beneficiaries, if any, designated
by such person, the institution maintaining such person, a custodian for
such person under the Uniform Transfers to Minors Act of any state or such
person's spouse, children, parents or other relatives by blood or marriage.
Any payment so made constitutes a complete discharge of all liability under
the Plan with respect to any such payment.
8.6 Payment Satisfies Claims. Any payment to or for the benefit of any
Participant, legal representative or Beneficiary in accordance with the
provisions of the Plan will, to the extent of such payment, be in full
satisfaction of all claims against the Trustee, the Committee, the
<PAGE>
Administrator and the Participating Employer, any of whom may require the
payee to execute a receipted release as a condition precedent to such
payment.
8.7 Disposition if Distributee Cannot be Located. If the Administrator is
unable to locate a Participant or Beneficiary to whom a distribution is
due, the Participant's Accounts will continue to be held in the Fund and
invested in accordance with Plan Rules until such time as the Administrator
has located the Participant or Beneficiary or the Participant or
Beneficiary makes a proper claim for the benefit, as the case may be;
provided, that, any Accounts not claimed within the period prescribed by
applicable escheat laws will be paid to such governmental authorities, in
such manner, as is specified in such laws.
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<PAGE>
8.8 Transfers to Other Plans or Individual Retirement Arrangements. (A)
To the extent a distribution pursuant to the Plan is an "eligible rollover
distribution" within the meaning of Code section 402(c)(4), the Committee
will, if so instructed by the distributee in accordance with Plan Rules,
direct the trustee to make the distribution to an "eligible retirement
plan" within the meaning of Code section 402(c)(8). The foregoing
provision will not apply if (1) the aggregate taxable distribution to be
made to the distributee during the distributee's taxable year is less than
$200, (2) if less than the entire taxable amount of the distribution is to
be distributed to an eligible retirement plan, and the amount to be
distributed to the eligible retirement plan is less than $500 or (3) with
respect to any portion of an eligible rollover distribution that consists
of an offset amount with respect to a Plan loan. Not more than 90 days and
not less than 30 days before any eligible rollover distribution, the
Committee will provide the distributee with a notice that satisfies the
requirements of Code section 402(f). A distributee may waive the 30-day
advance notice requirement in a manner specified in Plan Rules.
(B) The Committee may, in conjunction with (1) the sale of an
Affiliated Organization or the sale by an Affiliated Organization of all or
a portion of a business operation of the Affiliated Organization, direct
the Trustee to transfer the balance of any or all of the Accounts of each
Participant who is employed with the purchaser of such business operation
or an affiliate, to the trustee of a plan sponsored by such purchaser or
affiliate or (2) a Participant who has ceased to be a Qualified Employee
becoming a participant in a plan sponsored by an Affiliated Organization,
direct the Trustee to transfer the balance of any or all of the
Participant's Accounts to the Trustee of the Affiliated Organization's
plan; provided, in either case, that
(a) such other plan is qualified under Code section 401(a),
(b) such other plan satisfies the withdrawal requirements set forth
in Code section 401(k) with respect to such transferred Accounts to
which such requirements are applicable under the Plan, and
(c) such trustee is willing to accept such transfer.
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<PAGE>
<PAGE>
ARTICLE IX
Contribution Limitations
9.1 Pre-Tax Contribution Dollar Limitation. The aggregate amount of Pre-
Tax Contributions and other "elective deferrals" (within the meaning of
Code section 402(g)(3)) under any other qualified plan maintained by an
Affiliated Organization with respect to a Participant for any taxable year
of the Participant may not exceed $7000 (automatically adjusted for
increases in the cost of living in accordance with Treasury Regulations).
The limitation for any Participant who received a hardship distribution
under Section 6.1 will, for the year following the year in which such
distribution was made, be reduced as provided in Section 6.1(C)(4). If the
foregoing limitation is exceeded for any taxable year of the Participant,
the Participant will be deemed to have notified the Administrator of such
excess and the amount of Pre-Tax Contributions in excess of such
limitation, increased by Fund earnings or decreased by Fund losses
attributable to the excess, determined in accordance with Section 9.5, will
be distributed to the Participant. Such distribution may be made at any
time after the excess contributions are received but not later than April
15 of the taxable year following the taxable year to which such limitation
relates. The amount distributed to a Participant who has made elective
deferrals for the taxable year other than pursuant to Section 3.1 will, to
the extent of such other elective deferrals, be determined in accordance
with written allocation instructions received by the Administrator from the
Participant not later than March 1 of the taxable year following the
taxable year with respect to which the Pre-Tax Contributions were made.
9.2 Actual Deferral Percentage Limitations. (A) Notwithstanding
Section 3.1, for any Plan Year, Pre-Tax Contributions may be made on behalf
of Active Participants who are Highly Compensated Employees only if the
requirements of Code section 401(k)(3), as set forth in Subsection (B), are
satisfied. To the extent deemed necessary by the Administrator in order to
comply with such requirements, the Administrator may, in accordance with
Plan Rules, prospectively decrease the rate at which a Participant's
Eligible Earnings will be reduced.
(B) (1) The requirements of Code section 401(k)(3) will be satisfied
for any Plan Year if, for that Plan Year, the Plan satisfies the
requirements of Code section 410(b)(1) with respect to "eligible
employees" and either of the following tests.
(a) The "actual deferral percentage" for eligible employees who
are Highly Compensated Employees is not more than the product of
the actual deferral percentage for all other eligible employees,
multiplied by one and one-quarter.
(b) The excess of the actual deferral percentage for eligible
employees who are Highly Compensated Employees over the actual
deferral percentage for all other eligible employees is not more
than two percentage points and the actual deferral percentage for
eligible employees who are Highly Compensated Employees is not
more than the product of the actual deferral percentage of all
other eligible employees, multiplied by two.
<PAGE>
<PAGE>
(2) For purposes of this section,
(a) "eligible employee" means an Active Participant who is
eligible to have Pre-Tax Contributions made on his or her behalf
for the Plan Year in question or would be so eligible but for a
suspension imposed under Section 6.1(C)(3); and
(b) "actual deferral percentage," with respect to either of the
two groups of eligible employees referenced above, is the average
of the ratios, calculated separately for each eligible employee
in the particular group, of the amount of Pre-Tax Contributions
made on behalf of the eligible employee for that Plan Year, to
the eligible Employee's Testing Wages for the Plan Year or the
portion of the Plan Year during which he or she was an eligible
employee, as specified in Plan Rules. In computing the actual
deferral percentage, the following rules apply.
(i) If aggregation of Pre-Tax Contributions and Testing
Wages is required under Sections 11.22(C) and 11.41(C), the
actual deferral percentage of the Highly Compensated
Employee to whom the aggregate amounts are attributed is the
actual deferral percentage determined for the group of all
eligible family members, treating such group as a single
eligible employee.
(ii) If any eligible Employee is required to be aggregated
with more than one family group under Section 11.22(C), all
the groups with which the eligible employee is aggregated
will be treated as a single family group.
(iii) Any Pre-Tax Contributions made on behalf of an
eligible employee who is not a Highly Compensated Employee
that are in excess of the limitation of Section 9.1 will be
excluded.
(iv) Any Pre-Tax Contributions made on behalf of an eligible
employee that are distributed to the eligible employee
pursuant to Section 9.6(C) or 9.7(D) will be excluded.
(v) Except as otherwise provided in Treasury Regulations,
Pre-Tax Contributions taken into account in determining the
actual contribution percentage under Section 9.3(B)(2) will
be excluded.
(vi) To the extent determined by the Administrator, all or
any portion of the Basic Matching Contribution for the Plan
Year on behalf of all or any similarly situated group of
eligible employees will be included.
(vii) Elective contributions under any other plan that
is aggregated with this Plan to satisfy the requirements of
Code section 410(b) will be included.
(viii) To the extent required by Treasury Regulations,
elective contributions made under any other qualified cash
or deferred arrangement of any Affiliated Organization on
<PAGE>
behalf of any eligible employee who is a Highly Compensated
Employee will be included.
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<PAGE>
(C) If, for any Plan Year, the requirements of Subsection (B) are not
satisfied, the Administrator will determine the amount by which Pre-Tax
Contributions made on behalf of each eligible employee who is a Highly
Compensated Employee for the Plan Year exceeds the permissible amount as
determined under Subsection (B). The determination will be made by
successively decreasing the rate of Eligible Earnings reductions for Highly
Compensated Employees who, during the Plan Year, had the greatest
percentage of Eligible Earnings reductions, to the next, lower percentage,
then again decreasing the percentage of such Highly Compensated Employees
Eligible Earnings reductions, together with the percentage of Eligible
Earnings reductions of such Highly Compensated Employees who were already
at such lower percentage, to the next lower percentage, and continuing such
procedure for as many percentage decreases as the Administrator deems
necessary. The Administrator may, in his or her discretion, make such
reductions in any amount, in lieu of one percent increments.
(D) At such time as the Administrator specifies following the last
day of the Plan Year for which the determination described in Subsection
(C) is made, but in no case later than the last day of the following Plan
Year, the excess will be corrected by taking either or both of the
following steps.
(1) The amount of excess Pre-Tax Contributions so determined,
increased by Fund earnings or decreased by Fund losses attributable to
such excess as determined under Section 9.5, will be distributed to
each such Highly Compensated Employee. The amount to be returned
pursuant to the foregoing sentence with respect to any Plan Year will
be reduced by the portion of the amount, if any, distributed pursuant
to Section 9.1 that is attributable to Pre-Tax Contributions that
relate to such Plan Year, determined by assuming that Pre-Tax
Contributions in excess of the limitation described in Section 9.1 for
a given taxable year are the first contributions made for a Plan Year
falling within such taxable year.
(2) The Participating Employer will make an additional contribution
for the Plan Year pursuant to Section 3.4.
(E) Any excess amount determined under Subsection (C) for a Highly
Compensated Employee whose actual deferral percentage is determined under
Subsection (B)(2)(b)(i) will be allocated among all persons whose
contributions are aggregated to determine such percentage in proportion to
the amount of Pre-Tax Contributions made on behalf of each with respect to
the Plan Year.
(F) To the extent required or permitted by Treasury Regulations, the
Administrator will or may, as the case may be, apply the limitations
described in this section separately to each group of eligible employees
who are included in a unit of employees covered by a collective bargaining
agreement and those who are not included or are included in a different
unit.
<PAGE>
9.3 Actual Contribution Percentage Limitations. (A) Notwithstanding
Section 3.2, for any Plan Year, Matching Contributions may be made on
behalf of Participants who are Highly Compensated Employees with respect to
that Plan Year only to the extent that either of the following tests is
satisfied.
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<PAGE>
(1) The "actual contribution percentage" for "eligible employees" who
are Highly Compensated Employees is not more than the product of the
actual contribution percentage for all other eligible employees,
multiplied by one and one-quarter.
(2) The excess of the actual contribution percentage for eligible
employees who are Highly Compensated Employees over the actual
contribution percentage for all other eligible employees is not more
than two percentage points and the actual contribution percentage for
eligible employees who are Highly Compensated Employees is not more
than the product of the actual contribution percentage for all other
eligible Employees, multiplied by two.
(B) For purposes of this section,
(1) "eligible employee" means an Active Participant who is eligible
to have Matching Contributions made on his or her behalf for the Plan
Year in question or would have been so eligible had he or she elected
to make Pre-Tax Contributions for such Plan Year, and
(2) the "actual contribution percentage" with respect to either of
the two groups of eligible employees referenced above, is the average
of the ratios, calculated separately for each eligible employee in the
particular group, of the aggregate amount of Matching Contributions
made on behalf of the eligible employee for the Plan Year, to the
eligible employee's Testing Wages for the Plan Year or the portion of
the Plan Year during which he or she was an eligible employee, as
specified in Plan Rules. In computing the actual contribution
percentage, the following rules apply.
(a) If aggregation of Matching Contributions and Testing Wages
is required under Sections 11.22(C) and 11.41(C), the actual
contribution percentage of the Highly Compensated Employee to
whom the aggregate amounts are attributed is the actual
contribution percentage determined for the group of all eligible
family members, treating such group as a single eligible
employee.
(b) If any eligible employee is required to be aggregated with
more than one family group under Section 11.22(C), all the groups
with which the eligible employee is aggregated will be treated as
a single family group.
(c) Except as otherwise provided in Treasury Regulations, Basic
Matching Contributions taken into account in determining the
actual deferral percentage under Section 9.2(B)(2)(b) will be
excluded.
<PAGE>
(d) Matching Contributions taken into account for purposes of
the minimum contribution required pursuant to Section 13.3(A)
will be excluded.
(e) To the extent determined by the Administrator, all or any
portion of the Pre-Tax Contributions for the Plan Year on behalf
of eligible employees will be included.
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<PAGE>
(f) Matching contributions (within the meaning of Code
section 401(m)(4)(A)) and after-tax contributions made under any
other plan that is aggregated with this Plan to satisfy the
requirements of Code section 410(b) will be included.
(g) To the extent required by Treasury Regulations, matching
contributions (within the meaning of Code section 401(m)(4)(A))
and after-tax contributions made under any other qualified plan
of any Affiliated Organization on behalf of or by any eligible
employee who is a Highly Compensated Employee will be included.
(C) If, for any Plan Year, the requirements of Subsection (A) are not
satisfied, the Administrator will determine the amount by which Matching
Contributions made on behalf of each eligible employee who is a Highly
Compensated Employee for the Plan Year exceeds the permissible amount as
determined under Subsection (A), such determination being made in
accordance with the procedure described in Section 9.2(C).
(D) At such time as the Administrator specifies following the last
day of the Plan Year for which the determination described in Subsection
(C) is made, but in no case later than the last day of the following Plan
Year, the excess will be corrected by taking either or both of the
following steps.
(1) The amount of excess Matching Contributions so determined with
respect to each Highly Compensated Employee, increased by Fund
earnings or decreased by Fund losses attributable to such excess as
determined under Section 9.5, will be distributed to such Highly
Compensated Employee first from his or her Basic Matching Account and
then from his or her Performance-Based Matching Account; provided,
that to the extent any excess Performance-Based Matching Contributions
would not be fully vested if retained in the Plan, such excess will be
forfeited rather than distributed and any such forfeitures will be
applied as provided in Section 3.2(D).
(2) The Participating Employer will make an additional contribution
for the Plan Year pursuant to Section 3.4.
(E) Any excess amount determined under Subsection (C) for a Highly
Compensated Employee whose actual contribution percentage is determined
under Subsection (B)(2)(a) will be allocated among all persons whose
contributions are aggregated to determine such percentage in proportion to
the amount of Matching Contributions made on behalf of each with respect to
the Plan Year.
<PAGE>
(F) To the extent provided in Treasury Regulations, the limitations
described in this section do not apply to any group of eligible employees
who are included in a unit of employees covered by a collective bargaining
agreement.
9.4 Multiple Use Limitation. (A) This section applies for any Plan Year
for which the sum of the actual deferral percentage, as determined under
Section 9.2(B)(2)(b), for eligible employees who are Highly Compensated
Employees plus the actual contribution percentage, as determined under
Section 9.3(B)(2), for eligible employees who are Highly Compensated
Employees, exceeds the "aggregate limit." For purposes of this subsection,
the aggregate limit is the greater of:
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<PAGE>
(1) The sum of:
(a) the product of one and one-quarter, multiplied by the
greater of:
(i) the actual deferral percentage, as determined under
Section 9.2(B)(2)(b), for the Plan Year for eligible
employees who are not Highly Compensated Employees, or
(ii) the actual contribution percentage, as determined under
Section 9.3(B)(2), for the Plan Year for eligible employees
who are not Highly Compensated Employees;
plus
(b) the sum of two percentage points plus the lesser of the
actual deferral percentage determined under item (i) of clause
(a) above or the actual contribution percentage determined under
item (ii) of clause (a) above, with such sum in no case exceeding
twice the lesser of such actual deferral percentage or actual
contribution percentage;
or
(2) The sum of:
(a) the product of one and one-quarter, multiplied by the lesser
of:
(i) the actual deferral percentage, as determined under
Section 9.2(B)(2)(b), for the Plan Year for eligible
employees who are not Highly Compensated Employees, or
(ii) the actual contribution percentage, as determined under
Section 9.3(B)(2), for the Plan Year for eligible employees
who are not Highly Compensated Employees;
plus
(b) the sum of two percentage points plus the greater of the
actual deferral percentage determined under item (i) of clause
<PAGE>
(a) above or the actual contribution percentage determined under
item (ii) of clause (a) above, with such sum in no case exceeding
twice the lesser of such actual deferral percentage or actual
contribution percentage.
(B) If, for any Plan Year, the calculations under Subsection (A)
require that this section be applied, the Administrator will determine the
amount by which Matching Contributions made on behalf of each Highly
Compensated Employee for the Plan Year causes the excess amount determined
under Subsection (A), such determination being made in accordance with the
provisions of Section 9.3(C). At such time as the Administrator specifies
following the last day of the Plan Year for which such determination is
made, but in no case later than the last day of the following Plan Year,
the excess will be corrected by taking any one or more of the steps
described in Sections 9.2(D) and 9.3(C).
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<PAGE>
(C) To the extent provided in Treasury Regulations, the limitations
described in this section do not apply to any group of eligible employees
who are included in a unit of employees covered by a collective bargaining
agreement.
9.5 Earnings on Excess Contributions The amount of Fund earnings or
losses with respect to the excess amount of contributions distributed to a
Highly Compensated Employee pursuant to the foregoing provisions of this
article is an amount equal to the product of the total earnings or losses
for the Participant's Account to which the excess contributions were added
for the Plan Year, multiplied by a fraction, the numerator of which is the
excess amount of contributions made on the Participant's behalf to the
Account for the Plan Year, and the denominator of which is the closing
balance of the Account for the Plan Year, decreased by the amount of
earnings added to the Account, or increased by the amount of losses
subtracted from the Account, for the Plan Year.
9.6 Aggregate Defined Contribution Limitations. (A) Notwithstanding any
contrary provisions of this Plan, there will not be allocated to any
Participant's Accounts for a Plan Year any amount that would cause the
aggregate "annual additions" with respect to the Participant for the Plan
Year to exceed the lesser of (1) $30,000 (or, if greater, one-fourth of the
dollar limitation in effect under Code section 415(b)(1)(A) for the
calendar year during which the Plan Year in question begins) and (2) 25
percent of the Participant's Section 415 Wages for the Plan Year.
(B) For purposes of Subsection (A), the "annual additions" with
respect to a Participant for a Plan Year are the sum of
(1) the aggregate amount of Pre-Tax and Matching Contributions
allocated to the Participant's Accounts for the Plan Year (including
any such contributions that are distributed pursuant to Section 9.2,
9.3 or 9.4, but excluding any Pre-Tax Contributions in excess of the
limitation described in Section 9.1 that are distributed to the
Participant by the April 15 following the Plan Year to which the
contributions relate) and employer contributions, employee
contributions and forfeitures allocated to the Participant's accounts
<PAGE>
under any other qualified defined contribution plan maintained by any
Affiliated Organization for the Plan Year; plus
(2) the amount, if any, attributable to post-retirement medical
benefits that is allocated to a separate account for the Participant
as a "key employee" (as defined in Section 13.3(C)), to the extent
required under Code section 419A(d)(1).
(C)(1) If the Administrator, in his or her discretion, determines
that the limitation under Subsection (A) would otherwise be exceeded
for a Plan Year, to the extent necessary to prevent such excess from
occurring the amount of a Participant's Eligible Earnings reductions
and Pre-Tax Contributions will be prospectively reduced.
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<PAGE>
(2) If a further reduction of contributions is required, the Matching
Contributions that would otherwise be allocated to the Participant's
Account will be reduced and the aggregate amount of Matching
Contributions for the Plan Year will be reduced by the same amount.
(3) If, in spite of such reductions and as a result of reasonable
error in estimating the amount of the Participant's Eligible Earnings,
Pre-Tax Contributions, other elective deferrals within the meaning of
Code section 402(g)(3) or Section 415 Wages for the Plan Year, the
limitation would otherwise be exceeded, then, to the extent required
to prevent such excess, the amount of Pre-Tax Contributions made for
the Participant will be distributed to the Participant and any
Matching Contributions attributable to the amount so distributed,
together with earnings on such contributions, will be forfeited and
applied as provided in Section 3.2(D).
9.7 Aggregate Defined Contribution/Defined Benefit Limitations. (A)
Notwithstanding any contrary provisions of the Plan, in no event will the
amount of a Participant's annual additions under the Plan exceed an amount
that would cause the decimal equivalent of the sum of the "defined benefit
fraction" plus the "defined contribution fraction" to exceed one.
(B) The "defined benefit fraction" is a fraction, the numerator of
which is the Participant's aggregate projected annual benefit under all
qualified defined benefit pension plans maintained by any Affiliated
Organization (determined as of the end of the Plan Year), and the
denominator of which is the lesser of:
(1) 125 percent of the maximum dollar benefit limitation in effect
under Code section 415(b)(1)(A) for the calendar year during which the
Plan Year in question begins under such defined benefit pension plans;
and
(2) 140 percent of the average Section 415 Wages of the Participant
during the three consecutive Plan Years during which he or she was a
participant in any such defined benefit pension plan which produce the
highest average.
(C) The "defined contribution fraction" is a fraction, the numerator
of which is the sum of the annual additions to the Participant's accounts
<PAGE>
for the Plan Year under this Plan and any other qualified defined
contribution plans maintained by any Affiliated Organization, determined in
the manner described in Section 9.6, and the denominator of which is the
aggregate of the lesser of:
(1) 125 percent of the maximum annual addition dollar limitation in
effect under Code section 415(c)(1)(A) for the calendar year during
which the Plan Year in question begins under such defined
contributions plans; and
(2) 140 percent of 25 percent of the Participant's Section 415 Wages
for the Plan Year,
applied for all years during which the Participant was employed with an
Affiliated Organization, without regard to whether there was a defined
contribution plan in effect during all such years.
(D) If the annual additions that would otherwise be made with respect
to a Participant for a Plan Year would cause the limitation of Subsection
(A) to be exceeded, the Participant's
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<PAGE>
benefit under one or more defined benefit pension plans maintained by an
Affiliated Organization will, to the extent provided in such plans, be
reduced to the extent necessary to prevent such excess from occurring, and,
if a sufficient reduction cannot be made under such plans, the provisions
of Section 9.6(C) will be applied to reduce the amount of the annual
additions to the Participant's Accounts under this Plan for such Plan Year
to the extent necessary to prevent such excess.
9.8 Administrator's Discretion. Notwithstanding the foregoing provisions
of this article, the Administrator may, in his or her discretion, apply the
provisions of Sections 9.1 through 9.7 in any manner permitted by Treasury
Regulations that will cause the Plan to satisfy the limitations of the Code
incorporated in such sections, and the Administrator's good faith
application of Treasury Regulations is binding on all Participants and
Beneficiaries.
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<PAGE>
ARTICLE X
Amendment and Termination
10.1 Adoption by Affiliated Organizations. Any Affiliated Organization may
adopt this Plan and become a Participating Employer with the prior approval
of the Administrator by furnishing to the Administrator a certified copy of
a resolution of its Board adopting the Plan. Any adoption of the Plan by
an Affiliated Organization, however, must either be approved by the
Company's Board in advance or ratified by such Board prior to the end of
the fiscal year of such Affiliated Organization in which it adopts the
Plan.
10.2 Authority to Amend and Procedure. (A) The Company reserves the right
to amend the Plan at any time, to any extent that it may deem advisable.
Each amendment will be stated in a written instrument approved in advance
<PAGE>
or ratified by the Company's Board and executed in the name of the Company
by its duly authorized officers. On and after the effective date of the
amendment, all interested parties will be bound by the amendment; provided,
first, that no amendment will increase the duties or liabilities of the
Trustee without its written consent; and, second, that no amendment will
have any retroactive effect so as to deprive any Participant, or any
Beneficiary of a deceased Participant, of any benefit already accrued or
vested or of any option with respect to the form of such benefit that is
protected by Code Section 411(d)(6), except that any amendment that is
required to conform the Plan with Treasury Regulations so as to qualify the
Trust for income tax exemption may be made retroactively to the Effective
Date of the Plan or to any later date.
(B) If the schedule for determining the extent to which benefits
under the Plan are vested is changed, whether by amendment or on account of
the Plan's becoming or ceasing to be a top-heavy plan, each Participant
with at least three years of service may elect to have his or her vested
benefits determined without regard to such change by giving written notice
of such election to the Administrator within the period beginning on the
date such change was adopted (or the Plan's top heavy status changed) and
ending 60 days after the latest of (a) the date such change is adopted, (b)
the date such change becomes effective or (c) the date the Participant is
issued notice of such change by the Administrator or the Trustee. Except
as otherwise provided in an amendment permitted by Treasury Regulations, if
an optional form of benefit payment protected under Code section 411(d)(6)
is eliminated, each Participant may elect to have that portion of the value
of his or her Accounts that was accrued as of the date of such elimination,
distributed in the optional form of benefit payment that was eliminated.
(C) The provisions of the Plan in effect at the termination of a
Participant's employment will, except as specifically otherwise provided by
a subsequent amendment, continue to apply to such Participant.
10.3 Authority to Terminate and Procedure. The Company expects to continue
the Plan indefinitely but reserves the right to terminate the Plan in its
entirety at any time. Each Participating Employer expects to continue its
participation in the Plan indefinitely but reserves the right to cease its
participation in the Plan at any time. The Plan will terminate in its
entirety or with respect to a particular Participating Employer as of the
date specified by the Company or such Participating Employer, as the case
may be, to the Trustee in a written instrument adopted and executed in the
manner of an amendment.
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<PAGE>
10.4 Vesting Upon Termination, Partial Termination or Discontinuance of
Contributions. Upon termination of the Plan or upon the complete
discontinuance of contributions by all Participating Employers, to the
extent required by Code section 411(d)(3) and Treasury Regulations
thereunder, the Accounts of each affected Participant will, to the extent
funded, vest in full. Upon a partial termination of the Plan, the Accounts
of each Participant as to whom the Plan has been partially terminated will,
to the extent funded, vest in full.
10.5 Distribution Following Termination, Partial Termination or
Discontinuance of Contributions. After termination or partial termination
<PAGE>
of the Plan or the complete discontinuance of contributions under the Plan,
the Trustee will continue to hold and distribute the Fund at the times and
in the manner provided by Section 8.1 as if such event had not occurred or,
if the Administrator so directs in accordance with Treasury Regulations,
will distribute to each Participant or Beneficiary of any deceased
Participant the entire balance of his or her Accounts.
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<PAGE>
ARTICLE XI
Definitions, Construction and Interpretations
The definitions and the rules of construction and interpretations set forth
in this article will be applied in construing this instrument unless the
context otherwise indicates.
11.1 Account. An "Account" with respect to a Participant is any or all of
the accounts maintained on his or her behalf pursuant to Section 4.1, as
the context requires.
11.2 Active Participant. An "Active Participant" is a Participant who is a
Qualified Employee.
11.3 Administrator. The "Administrator" of the Plan is the Company's Vice
President Human Resource Services, or in the event such position is
substantially changed or eliminated, the Employee performing the duties of
such position.
11.4 Affiliated Organization. An "Affiliated Organization" is -
(a) for purposes of applying the limitations set forth at Sections
9.6 and 9.7 of the Plan, any member of a controlled group of
corporations (within the meaning of Code section 1563(a) without
regard to Code sections 1563(a)(4) and 1563(e)(C)) that includes the
Company or any trade or business (whether or not incorporated) that,
together with the Company, is under common control (within the meaning
of Code section 414(c)), the determination of any such corporation or
trade or business being made under Code section 1563(a) by
substituting the phrase "more than 50 percent" for the phrase "at
least 80 percent" wherever it appears in such Code section, and
(b) for all other purposes, any corporation that is a member of a
controlled group of corporations (within the meaning of Code section
1563(a) without regard to Code sections 1563(a)(4) and 1563(e)(3)(C))
that includes the Company, any trade or business (whether or not
incorporated) that, together with the Company, is under common control
(within the meaning of Code section 414(c)), any member of an
"affiliated service group" (within the meaning of Code section 414(m))
of which the Company is a member or any other organization that,
together with the Company, is treated as a single employer pursuant to
Code section 414(o) and Treasury Regulations thereunder.
11.5 Basic Matching Account. The "Basic Matching Account" is the account
established pursuant to clause (b) of Section 4.1 to evidence Basic
Matching Contributions made on behalf of a Participant.
<PAGE>
11.6 Basic Matching Contributions. "Basic Matching Contributions" means
contributions made by a Participating Employer on behalf of Active
Participants pursuant to Section 3.2(A)(1) or 3.4.
11.7 Beneficiary. A "Beneficiary" is a person designated or otherwise
determined under the provisions of Section 8.3 as the distributee of
benefits payable after the death of a Participant. A person designated or
otherwise determined to be a Beneficiary
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<PAGE>
under the terms of the Plan has no interest in or rights under the Plan
until the Participant in question has died. A Beneficiary will cease to be
such on the day on which all benefits to which he, she or it is entitled
under the Plan have been distributed.
11.8 Boardof directors or equivalent governing body of the Affiliated
Organization in question. When the Plan provides for an action to be taken
by the Board, the action may be taken by any committee or individual
authorized to take such action pursuant to a proper delegation by the board
of directors or equivalent governing body of the Affiliated Organization in
question.
11.9 Break in Service. A "Break in Service" with respect to an Employee is
the period commencing on the Employee's "employment severance date," as
defined at Section 11.45(A)(2), and ending on the Employee's "reemployment
commencement date," as defined at Section 11.45(A)(3); provided, that if an
Employee becomes absent on account of (a) the Employee's pregnancy, (b) the
birth of the Employee's child, (c) the placement of a child with the
Employee on account of the Employee's adoption of the child or (d) the
Employee's caring for a child immediately following the child's birth or
placement with the Employee, and the Employee furnishes to the
Administrator, upon request, such information as the Administrator requires
to determine the reasons for the Employee's absence or continued absence,
then solely for the purpose of determining whether the Employee has
incurred a Break in Service pursuant to this section, the Employee's
employment severance date will be the first anniversary of the date on
which the employment severance date would otherwise occur for the purpose
of determining the Employee's Vesting Service pursuant to Section
11.45(A)(2).
11.10 Code. The "Code" is the Internal Revenue Code of 1986, as
amended. Any reference to a specific provision of the Code includes a
reference to such provision as it may be amended from time to time and to
any successor provision.
11.11 Committee. The "Committee" is the Retirement Committee
constituted under Article XII.
11.12 Company. The "Company" is Ceridian Corporation or any successor
thereto.
11.13 Company Stock. "Company Stock" means common stock issued by the
Company.
<PAGE>
11.14 Consent of Spouse. Whenever the consent of a Participant's
spouse is required with respect to any act of the Participant, such consent
will be deemed to have been obtained only if:
(a) the Participant's spouse executes a written consent to such act,
which consent acknowledges the effect of such act and is witnessed by
a notary public; or
(b) the Administrator determines that no such consent can be obtained
because the Participant has no spouse, because the Participant's
spouse cannot be located, or because of such other circumstances as
may, under Treasury Regulations, justify the lack of such consent.
Any such consent by the Participant's spouse or such determination by the
Administrator that such spouse's consent is not required is effective only
with respect to the particular spouse of the Participant who so consented
or with respect to
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<PAGE>
whom such determination was made. Any such consent by the Participant's
spouse to an act of the Participant under the Plan is irrevocable with
respect to that act.
11.15 Disabled. A Participant will be considered to be "Disabled" only
if
(a) in the case of a Participant who is participating in the
Company's long-term disability plan, he or she is receiving disability
benefits under such plan, or
(b) in the case of any other Participant, he or she is certified as
being disabled by the Social Security Administration and is receiving
disability benefits under the disability provisions of the Social
Security Act.
11.16 Effective Date. The "Effective Date" of the Plan is January 1,
1995.
11.17 Eligible Earnings. (A) The "Eligible Earnings" of a Participant
from his or her Participating Employer for any period is the amount
reportable by the Participating Employer for federal income tax purposes as
wages paid to the Participant for such period, increased by the amount of
Eligible Earnings reductions experienced by the Participant pursuant to the
Plan and any cafeteria plan maintained by the Participating Employer
pursuant to Code section 125 for that period, to the extent such reductions
are not otherwise included for that period, and decreased by any amount
received by the Participant during the period as deferred income from a
previous period, expatriation premium, tuition aid reimbursement,
relocation allowance, restricted stock plan awards, any such amount
attributable to the exercise of an option under a stock option plan
maintained by a Participating Employer, any amounts representing imputed
income on account of benefits pursuant to the Code, any amounts
representing severance payments under the Participating Employer's
severance policy and any other amounts of an unusual or nonrecurring
nature, as specified in Plan Rules.
<PAGE>
(B) Notwithstanding Subsection (A), in no event will a Participant's
Eligible Earnings be taken into account to the extent it exceeds $150,000
(or such dollar amount, adjusted to reflect increases in the cost of
living, as in effect under Code section 401(a)(17) for the calendar year
during which the Plan Year in question begins).
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<PAGE>
(C) In the case of a Participant who is a Highly Compensated Employee
described in clause (1) of Section 11.22(A), or of a Highly Compensated
Employee described in clause (2) or (3) of Section 11.22(A) whose
"compensation" (as defined in Section 11.22(B)(2)) for a Plan Year is not
less than the compensation of at least ten other Highly Compensated
Employees, the limitation set forth in Subsection (B) will be applied to
the Participant, the Participant's spouse and the Participant's lineal
descendants who have not attained age 19 prior to the end of the Plan Year
as if they were a single Participant.
11.18 Employee. An "Employee" is any individual who performs services
for an Affiliated Organization as a common-law employee of the Affiliated
Organization.
11.19 Fund. The "Fund" is the total of all of the assets of every kind
and nature, both principal and income, held in the Trust at any particular
time or, if the context so requires, one or more of the investment funds
described in Section 5.1.
11.20 Governing Law. To the extent that state law is not preempted by
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or any other laws of the United States, the Plan will be
administered, construed, and enforced according to the internal,
substantive laws of the State of Minnesota, without regard to its conflict
of law rules of the State of Minnesota or any other jurisdiction.
11.21 Headings. The headings of articles and sections are included
solely for convenience. In the event of a conflict between the headings
and the text of the Plan, the text controls.
11.22 Highly Compensated Employee. (A) A "Highly Compensated Employee"
for any Plan Year is any employee who -
(1) at any time during such Plan Year or the preceding Plan Year,
owns or owned (or is considered as owning or having owned within the
meaning of Code section 318) more than five percent of the outstanding
stock of an Affiliated Organization or stock possessing more than five
percent of the total combined voting power of all outstanding stock of
an Affiliated Organization, or
(2) during the Plan Year preceding such Plan Year -
(a) received compensation in excess of $75,000 (or such dollar
amount, adjusted to reflect increases in the cost of living, as
in effect under Code section 414(q)(1)(B) for the calendar year
during which the Plan Year in question begins), or
<PAGE>
(b) received compensation in excess of $50,000 (or such dollar
amount, adjusted to reflect increases in the cost of living, as
in effect under Code section 414(q)(1)(C) for the calendar year
during which the Plan Year in question begins) and whose
compensation exceeded the compensation of at least 80 percent of
all employees, excluding, for purposes of determining the number
of employees in such group but not for purposes of determining
the specific employees comprising the group, all employees who
(i) have completed less than six months of service with the
Affiliated Organizations, (ii) normally work fewer than 17-1/2
hours per week for the Affiliated Organizations, (iii) normally
work for the Affiliated Organizations during not more than six
months during any calendar year or (iv) have not attained age 21,
or
(c) was at any time an officer of an Affiliated Organization (an
administrative executive in regular and continued service with
the Affiliated Organization) and received compensation in excess
of 50 percent of the amount in effect under Code section
415(b)(1)(A) for the calendar year during which the Plan Year in
question begins, but in no case will there be taken into account
more than the lesser of (i) 50 employees or (ii) the greater of
three employees or ten percent of the aggregate number of
employees, excluding, for purposes of determining the number of
such officers, any employees that are excluded pursuant to clause
(b); or, if no officer received compensation in excess of such
amount, the officer with the highest compensation for the Plan
Year, or
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<PAGE>
(3) during such Plan Year, is described in items (a), (b) or (c) of
clause (2) and received compensation in an amount that is not less
than the amount of compensation received by at least 100 other
employees.
(B) For purposes of this section,
(1) an "employee" is any individual who is not described in Section
11.36(B)(2) and who, during the Plan Year for which the determination
is being made, performs services for an Affiliated Organization as -
(a) a common law employee,
(b) an employee pursuant to Code section 401(c)(1), or
(c) a leased employee who is treated as an employee of an
Affiliated Organization pursuant to Code section 414(n)(2) or
414(o)(2), and
(2) "compensation" for any period means an employee's Section 415
Wages for the period increased by the amount of any reductions to the
employee's compensation for the period in connection with an election
by the employee made pursuant to a Plan maintained under Code section
125 or 401(k).
<PAGE>
(C) For purposes of applying Sections 9.2, 9.3 and 9.4, any employee
who is the spouse, a lineal ascendant or descendant or the spouse of a
lineal ascendant or descendant of a Highly Compensated Employee described
in clause (1) of Subsection (A), or of a Highly Compensated Employee
described in clause (2) or (3) of Subsection (A) whose compensation for the
Plan Year is not less than the compensation of at least ten other Highly
Compensated Employees, will not be considered a separate employee and any
Eligible Earnings with respect to such employee, and any contributions
allocated to the employee's Accounts under this Plan if the employee is a
Participant, will be deemed to have been paid to, or allocated to the
Accounts of, such Highly Compensated Employee.
11.23 Hour of Service. The term "Hour of Service" with respect to an
Employee is each hour for which the Employee is paid, or entitled to
payment, for the performance of duties for an Affiliated Organization.
11.24 Matching Contributions. "Matching Contributions" means
contributions made by a Participating Employer on behalf of Active
Participants pursuant to Section 3.2 or 3.4.
11.25 Normal Retirement Date. The "Normal Retirement Date" of a
Participant is the date on which he or she attains age 65.
11.26 Number and Gender. Wherever appropriate, the singular number may
be read as the plural, the plural may be read as the singular, and the
masculine gender may be read as the feminine gender.
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<PAGE>
11.27 Participant. A "Participant" is a current or former Qualified
Employee who has satisfied the eligibility requirements of Article II,
following his or her initial hire or rehire, as the case may be, and who
has not ceased to be a Participant pursuant to Section 2.6.
11.28 Participating Employer. A "Participating Employer" is the
Company and any other Affiliated Organization that has adopted the Plan, or
all of them collectively, as the context requires, and their respective
successors. An Affiliated Organization will cease to be a Participating
Employer upon a termination of the Plan as to its Employees or upon its
ceasing to be an Affiliated Organization.
11.29 Performance-Based Matching Account. The "Performance-Based
Matching Account" is the account established pursuant to clause (c) of
Section 4.1 to evidence Performance-Based Matching Contributions made on
behalf of a Participant.
11.30 Performance-Based Matching Contributions. "Performance-Based
Matching Contributions" means contributions made by a Participating
Employer on behalf of Active Participants pursuant to Section 3.2(A)(2).
11.31 Plan. The "Plan" is that set forth in this instrument as it may
be amended from time to time.
11.32 Plan Rule. A "Plan Rule" is a rule, policy, practice or
procedure adopted by the Administrator or the Committee. Each Plan Rule
<PAGE>
will be uniform and nondiscriminatory with respect to similarly situated
persons.
11.33 Plan Year. A "Plan Year" is a calendar year.
11.34 Pre-Tax Account. The "Pre-Tax Account" is the account
established pursuant to clause (a) of Section 4.1 to evidence Pre-Tax
Contributions made on behalf of a Participant.
11.35 Pre-Tax Contributions. "Pre-Tax Contributions" mean contributions
made by a Participating Employer on behalf of Active Participants pursuant
to Section 3.1.
11.36 Qualified Employee. (A) Except as provided in Subsection (B), a
"Qualified Employee" is an Employee who -
(1) is classified by a Participating Employer as a common-law
employee of the Participating Employer,
(2) is paid under a domestic payroll,
(3) performs services for the Participating Employer primarily within
the United States or on a temporary foreign assignment, and
(4) is not a participant in any qualified defined benefit pension
plan maintained by an Affiliated Organization.
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<PAGE>
(B) An Employee who would otherwise be a Qualified Employee is not a
Qualified Employee if he or she -
(1) resides in the United States but is not a United State citizen,
unless he or she is classified as an immigrant alien;
(2) is a nonresident alien who receives no earned income (within the
meaning of Code section 911(d)(2)) from a Participating Employer that
constitutes income from sources within the United States (within the
meaning of Code section 861(a)(3)); or
(3) is covered by a collective bargaining agreement, for whom
retirement benefits were the subject of good faith bargaining between
such person's representative and a Participating Employer, and is not,
as a result of such bargaining, specifically covered by this Plan.
11.37 Reporting Person. A "Reporting Person" is any Participant or
Beneficiary who is subject to the reporting requirements of section 16 of
the Securities Exchange Act of 1934 with respect to the securities of the
Company or its affiliates.
11.38 Rollover Account. The "Rollover Account" is the account
established pursuant to clause (d) of Section 4.1 to evidence the amounts,
if any, rolled over from an individual retirement arrangement or another
qualified plan, or transferred directly from another qualified plan with
respect to an Active Participant pursuant to Section 3.3.
<PAGE>
11.39 Section 415 Wages. (A) An individual's "Section 15 Wages" for
any period is the sum of all remuneration received by the individual during
such period from all Affiliated Organizations that constitutes
"compensation" within the meaning of Code section 415(c)(3) and Treasury
Regulations thereunder.
(B) The Administrator may, for any Plan Year, determine the items of
remuneration that, in accordance with Treasury Regulations, will be
included in Section 415 Wages for the Plan Year; provided that for each
purpose under this Plan, the Administrator's determination will be uniform
throughout any Plan Year.
(C) Section 415 Wages will not include the amount by which an
individual's remuneration is reduced in connection with an election by the
individual made pursuant to a plan maintained by an Affiliated Organization
under Code section 125 or 401(k).
11.40 Termination of Employment. (A) For purposes of determining
entitlement to a distribution under this Plan, a Participant will be deemed
to have terminated employment only if he or she has completely severed his
or her employment relationship with all Affiliated Organizations or become
Disabled. Neither transfer of employment among Affiliated Organizations
nor absence from active service by reason of disability leave, other than
in connection with his or her becoming Disabled, or any other leave of
absence will constitute a termination of employment.
(B) A Participant will be deemed to have terminated employment in
conjunction with the disposition of all or any portion of the business
operation of an Affiliated Organization which is a disposition of a
subsidiary or of substantially all of
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<PAGE>
the assets used in a trade or business of an Affiliated Organization within
the meaning of Code section 401(k)(10)(A) with respect to which the
requirements of Code section 401(k)(10)(B) and (C) and Treasury Regulations
thereunder are satisfied.
(C) A Participant who, in conjunction with the disposition of all or
any portion of a business operation of an Affiliated Organization which is
not described in Subsection (B), transfers employment to the acquiror of
such business operation or to any affiliate of such acquiror will not be
considered to have terminated employment. If a Participant is deemed to
have continued employment by reason of the preceding sentence, such
sentence will continue to apply to such Participant in the event of any
subsequent transfer of employment in conjunction with the disposition of
all or any portion of a business operation of the initial acquiror or any
subsequent acquirors which is not a disposition of a subsidiary of such
acquiror or of substantially all of the assets used in a trade or business
of such acquiror within the meaning of Code section 401(k)(10)(A) with
respect to which the requirements of Code section 401(k)(10)(B) and (C) and
Treasury Regulations thereunder are satisfied. Except in conjunction with
such a disposition of a subsidiary or substantially all of the assets used
in a trade or business of the seller, such a Participant will be considered
to have terminated employment only when he or she has severed the
employment relationship with all such acquirors and their affiliates.
<PAGE>
11.41 Testing Wages. (A) An individual's "Testing Wages" for any
period is his or her Section 415 Wages for such period increased by
compensation reductions for such period in connection with an election by
the individual made pursuant to a plan maintained by an Affiliated
Organization under Code section 125 or 401(k).
(B) Notwithstanding Subsection (A), in no event will a Participant's
Testing Wages for any Plan Year be taken into account to the extent it
exceeds $150,000 (or such dollar amount, adjusted to reflect increases in
the cost of living, as in effect under Code section 401(a)(17) for the
calendar year during which the Plan Year in question begins).
(C) In the case of a Participant who is a Highly Compensated Employee
described in clause (1) of Section 11.22(A), or of a Highly Compensated
Employee described in clause (2) or (3) of Section 11.22(A) whose
"compensation" (as defined in Section 11.22(B)(2)) for a Plan Year is not
less than the compensation of at least ten other Highly Compensated
Employees, the limitation set forth in Subsection (B) will be applied to
the Participant, the Participant's spouse and the Participant's lineal
descendants who have not attained age 19 prior to the end of the Plan Year
in question as if they were a single Participant.
(D) The Administrator may, in his or her discretion, for any Plan
Year, adopt any alternative definition of Testing Wages that complies with
Code section 414(s) and Treasury Regulations thereunder; provided, that for
each purpose under this Plan, the definition so adopted will be uniform
throughout any Plan Year.
11.42 Treasury Regulations. "Treasury Regulations" mean regulations,
rulings, notices and other promulgations issued under the authority of the
Secretary of the Treasury that apply to, or may be relied upon in the
administration of, this Plan.
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<PAGE>
11.43 Trust. The "Trust" is the trust or trusts created by the Company
to implement benefits under the Plan.
11.44 Trustee. The "Trustee" is the corporation and/or individual or
individuals who from time to time is or are the duly appointed and acting
trustee or trustees of the Trust.
11.45 Vesting Service. (A) An Employee's "Vesting Service" means the
sum of the lengths of the periods of the Employee's service with a
Participating Employer or with an Affiliated Organization from and after
the date on which it became an Affiliated Organization, commencing as of
the Employee's employment commencement date or reemployment commencement
date, as the case may be, and ending with the Employee's next employment
severance date, as determined in accordance with the following rules:
(1) an Employee's "employment commencement date" is the date on which
he or she first performs an Hour of Service;
(2) for purposes of this section only, an Employee's "employment
severance date" is the earlier to occur of:
<PAGE>
(a) the date on which the Employee terminates employment with
all Affiliated Organizations because he or she quits, retires, is
discharged or dies; or
(b) the first anniversary of the first date of a period during
which the Employee remains absent from service (with or without
pay) with all Affiliated Organizations for any reason other than
a quit, retirement, discharge or death following the employment
commencement date or reemployment commencement date, as the case
may be;
(3) an Employee's "reemployment commencement date" is the first date,
following a period of severance from employment which is not required
to be taken into account under either item (4) or (5), on which the
Employee performs an Hour of Service;
(4) if the Employee's employment is severed by reason of a quit,
discharge or retirement and he or she subsequently performs an Hour of
Service within 12 months following the employment severance date, the
period of such severance will be taken into account;
(5) if the Employee quits, is discharged or retires during an absence
from service of 12 months or less for any reason other than a quit,
discharge, retirement or death and the Employee subsequently performs
an Hour of Service within 12 months following the date on which such
absence commenced, the period of such severance will be taken into
account.
(B) To the extent provided in Subsection (A), service by a person who
is a "leased employee" of an Affiliated Organization or of a "related
person" (within the meaning of Code sections 414(n)(2) and 144(a)(3),
respectively) or service by a person with any other organization that is
required to be taken into account pursuant to Code section 414(o) and
Treasury Regulations thereunder will be deemed to be Vesting Service for
purposes of the Plan if such person becomes a Participant.
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<PAGE>
(C) Notwithstanding the foregoing provisions of this section,
service completed by an Employee with an Affiliated Organization prior to
the date on which it became an Affiliated Organization (or with another
entity prior to the acquisition of such entity's business or assets by an
Affiliated Organization) will be taken into account for purposes of this
section only if and to the extent provided in any agreement pursuant to
which it became an Affiliated Organization (or such other business or
assets were acquired) or as provided by resolution of the Company's Board.
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<PAGE>
ARTICLE XII
Administration of Plan
<PAGE>
12.1 Named Fiduciary. The Company is the "named fiduciary" of the Plan for
purposes of the Employee Retirement Income Security Act of 1974, as
amended.
12.2 Retirement Committee. The Chief Executive Officer of the Company
will appoint a Retirement Committee composed of not fewer than three
members who will serve at the pleasure of the Chief Executive Officer. The
Chief Executive Officer will provide to each member of the Retirement
Committee a copy of a written charter outlining the responsibilities of the
Committee. Each member will file his or her written acceptance of
appointment with the Chief Executive Officer. A Retirement Committee
member may resign by delivering his or her written resignation to the Chief
Executive Officer, and any Retirement Committee member may be removed, with
or without cause, by the Chief Executive Officer upon delivery of written
notice of such removal to the removed member. Any such resignation or
removal will be effective upon delivery of the written resignation or
notice of removal, as the case may be, or upon any later date specified
therein. Vacancies created by any such resignation or removal will be
filled by appointment by the Chief Executive Officer; provided, that,
subject to there being at least three persons serving as Retirement
Committee members at all times, the Chief Executive Officer need not fill
any vacancy so created.
12.3 Operation of Committee. The Committee will perform its duties
hereunder in accordance with the following procedures -
(a) The Chief Executive Officer of the Company will designate one
member of the Committee to act as its chair, and the member so
designated will preside over the Committee's meetings.
(b) The Committee will elect a secretary who may, but need not, be a
member of the Committee. The secretary will keep minutes of the
Committee's meetings and perform such other duties as may be specified
from time to time by the Committee.
(c) The Committee may appoint such subcommittees with such duties and
powers as it may specify, and it may delegate administrative powers to
one or more of its members or to such other person or entity as it may
designate.
(d) The Committee will meet at such times and places and upon such
notice as its members may determine from time to time. A majority of
the current membership of the Committee will constitute a quorum for
the transaction of business, and all acts of the Committee at any
meeting will require, for their validity, the affirmative vote of a
majority of the current membership of the Committee.
(e) The Committee may adopt bylaws for the conduct of its business,
provided such bylaws are not inconsistent with the provisions of this
article.
(f) No member of the Committee may vote with respect to a decision of
the Committee relating solely to his or her own participation or
benefit under the Plan.
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<PAGE>
<PAGE>
12.4 Duties of Administrator. The following administrative duties will be
performed by the Administrator or his or her designate on behalf of the
Company:
(a) The determination of initial and continuing eligibility of
Employees to participate in the Plan and enrollment of Participants in
the Plan;
(b) The determination of Participants' entitlement to, and the amount
of, their individual allocable share of Participating Employer
contributions under the Plan;
(c) The processing of Participant's Eligible Earnings reductions and
investment direction elections;
(d) The processing of Participants' Beneficiary designations;
(e) The processing of Participants' withdrawal applications and,
where required, the determination of the existence and extent of a
financial hardship on which a Participant's withdrawal application is
based;
(f) The review of claims made pursuant to the Plan's benefit claim
procedure;
(g) The computation of the amount of each Participant's Account
balances and the vested portion of such balances;
(h) The authorization of disbursements from the Fund in the form of
withdrawals and distributions;
(i) The administration of loans made pursuant to the loan provisions
of the Plan;
(j) The duties expressly assigned to the Administrator pursuant to
the Plan; and
(k) Such other duties as the Committee may delegate to the
Administrator from time to time.
The Administrator is authorized to delegate such of his or her duties as
the Administrator may specify in writing to such other person or entity as
the Administrator may designate, including a committee established for the
specific purpose of performing such a delegated duty.
12.5 Adoption of Rules. The Committee and the Administrator have the
discretionary power and authority to make such Plan Rules as the Committee
or Administrator deem necessary or appropriate to perform their respective
duties in connection with the administration of the Plan and to modify or
rescind any such Plan Rules. Plan Rules will be uniform and
nondiscriminatory with respect to similarly situated persons.
12.6 Discretionary Actions. To the extent applicable to their respective
administrative duties, the Committee and the Administrator have
discretionary power and authority to make all determinations necessary or
<PAGE>
appropriate for the administration of the Plan and to construe, interpret,
apply and enforce the Plan
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<PAGE>
and Plan Rules and decide any and all matters arising thereunder, including
the discretionary power and authority to remedy possible ambiguities,
inconsistencies, omissions or erroneous Account balances. In the exercise
of their discretionary powers, the Committee and Administrator will treat
all persons similarly situated in a uniform matter.
12.7 Compensation. Neither Committee members nor the Administrator will
receive compensation from the Plan or Trust for their services as such, but
they are entitled to reimbursement for all sums reasonably and necessarily
expended by them in the performance of their duties.
12.8 Professional Assistance. The Committee and the Administrator may
retain such accounting, record keeping, legal and clerical services as they
reasonably deem to be required in the administration of the Plan, and may
pay reasonable compensation for such services. The Committee and
Administrator are entitled to rely conclusively on all tables, valuations,
certificates, opinions and reports furnished to them by such persons and on
all information, elections and designations furnished to them by
Participants and Participating Employers.
12.9 Payment of Administrative Costs. Reimbursements under Section 12.7,
compensation under Section 12.8 and all other costs of establishing and
administering the Plan may be paid by the Trustee from the Fund, upon
statements issued by the Committee or Administrator, but to the extent not
so paid, will be paid by the Participating Employers.
12.10 Indemnification. The Participating Employers jointly and
severally agree to indemnify the Committee members, the Administrator and
each director, officer and Employee against any and all liabilities,
losses, costs and reasonable expenses (including legal fees) of every kind
and nature that may be imposed on, incurred by or asserted against such
person at any time by reason of such person's services in connection with
the Plan, but only if such person did not act dishonestly or in bad faith
or in willful violation of the law or regulations under which such
liability, loss, cost or expense arises. The Participating Employers have
the right, but not the obligation, to select counsel and control the
defense and settlement of any action for which a person may be entitled to
indemnification under this section, unless they are determined to be due to
gross negligence or intentional misconduct.
12.11 Benefit Claim Procedure. If a request for a benefit by a
Participant or Beneficiary of a deceased Participant is denied in whole or
in part, not later than 30 days after receipt of notice of the denial, the
Participant or Beneficiary, as the case may be, may file with the
Administrator a written claim objecting to the denial. Not later than 90
days after receipt of such claim, the Administrator will render a written
decision on the claim to the claimant. If the claim is denied in whole or
in part, such decision will include: the reasons for the denial; a
reference to the Plan provision that is the basis for the denial; a
description of any additional material or information necessary for the
<PAGE>
claimant to perfect the claim; an explanation as to why such information or
material is necessary; and an explanation of
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<PAGE>
the Plan's claim procedure. Not later than 60 days after receiving the
Administrator's written decision, the claimant may file with the
Administrator a written request for review of the Administrator's decision,
and the claimant or the representative may thereafter review Plan documents
that relate to the claim and submit written comments to the Administrator.
Not later than 60 days after receiving such request, the Administrator will
afford the claimant or the representative an opportunity to present the
claim in person to the Administrator. Not later than 60 days after such
presentation or, if there is no such presentation, not later than 60 days
after the Administrator's receipt of the request for review, the
Administrator will render a written decision on the claim, which decision
will include the specific reasons for the decision, including references to
specific Plan provisions where appropriate. The 90- and 60-day periods
during which the Administrator must respond to the claimant may be extended
by up to an additional 90 or 60 days, respectively, if special
circumstances beyond the Administrator's control so require and if notice
of such extension is given to the claimant.
12.12 Correction of Errors. If the Committee determines that, by
reason of administrative error or other cause attributable to a
Participating Employer, the Account of any Participant has incurred a loss,
the Committee may enter into an agreement with such Participating Employer
under which the Account is fully restored and may, upon such restoration,
release the Participating Employer from further responsibility.
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<PAGE>
ARTICLE XIII
Miscellaneous
13.1 Merger, Consolidation, Transfer of Assets. If this Plan is merged or
consolidated with, or its assets or liabilities are transferred to, any
other plan, each Participant will be entitled to receive a benefit
immediately after such merger, consolidation or transfer (if such other
plan were then terminated) that is equal to or greater than the benefit he
or she would have been entitled to receive immediately before such merger,
consolidation or transfer (if this Plan had then terminated).
13.2 Limited Reversion of Fund. (A) Except as provided in Subsection (B),
no corpus or income of the Trust will at any time revert to a Participating
Employer or be used other than for the exclusive benefit of eligible
Employees and their Beneficiaries by paying benefits and, if applicable,
administrative expenses of the Plan.
(B) Notwithstanding any contrary provision in the Plan,
(1) All contributions made by a Participating Employer to the Trustee
prior to the initial determination of the Internal Revenue Service as
to qualification of the Plan under Code section 401(a) and the tax
exempt status of the Trust under Code section 501(a) will be repaid by
the Trustee to such Participating Employer, upon the Participating
<PAGE>
Employer's written request, if the Internal Revenue Service rules that
the Plan, as adopted by that Participating Employer, is not qualified
or the Trust is not tax exempt; provided, that the Participating
Employer requests such determination within a reasonable time after
adoption of the Plan and the repayment by the Trustee to such
Participating Employer is made within one year after the date of
denial of qualification of the Plan; and
(2) To the extent a contribution is made by a Participating Employer
by a mistake of fact or a deduction is disallowed a Participating
Employer under Code section 404, the Trustee will repay the
contribution to such Participating Employer upon the Participating
Employer's written request; provided, that such repayment is made
within one year after the mistaken payment is made or the deduction is
disallowed, as the case may be. Each contribution to the Plan by a
Participating Employer is expressly conditioned on such contribution
being fully deductible by the Participating Employer under Code
section 404.
13.3 Top-Heavy Provisions. (A)(1) Notwithstanding the provisions of
Sections 3.1 and 3.2, no contributions will be made and allocated on
behalf of any "key employee" for any Plan Year during which the Plan
is a top-heavy plan, unless the amount of contributions (excluding
Pre-Tax Contributions) made and allocated for such Plan Year on behalf
of each Participant who is not a key employee and who is employed with
an Affiliated Organization on the last day of the Plan Year, expressed
as a percentage of the Participant's Testing Wages for the Plan Year,
is at least equal to the lesser of
(a) three percent, or
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<PAGE>
(b) the largest percentage of such Testing Wages at which
contributions (including Pre-Tax Contributions) are made and
allocated on behalf of any key employee for such Plan Year.
(2) If, in addition to this Plan, an Affiliated Organization
maintains another qualified defined contribution plan or qualified
defined benefit pension plan during a Plan Year, the provisions of
clause (1) will be applied for such Plan Year -
(a) by taking into account the employer contributions (other
than elective deferrals for a non-key employee) on behalf of the
Participant under all such defined contribution plans;
(b) without regard to any Participant who is not a key employee
and whose accrued benefit, expressed as a single life annuity,
under such defined benefit pension plan for such Plan Year is not
less than the product of -
(i) the Participant's average Testing Wages for the period
of consecutive years (not exceeding five) when the
Participant had the highest aggregate Testing Wages,
disregarding years in which the Participant fails to
<PAGE>
complete a minimum period of service as specified in
Treasury Regulations, multiplied by
(ii) the lesser of (A) two percent per year of service,
disregarding years of service beginning after the close of
the last Plan Year in which such defined benefit plan was a
top heavy plan, or (B) 20 percent.
(B) For purposes of Subsection (A),
(1) (a) The Plan will be a "top-heavy plan" for a particular Plan
Year if, as of the last day of the initial Plan Year or, with
respect to any other Plan Year, as of the last day of the
preceding Plan Year, the aggregate of the Account balances of key
employees is greater than 60 percent of the aggregate of the
Account balances of all Participants.
(b) For purposes of calculating the aggregate Account balances
for both key employees and employees who are not key employees:
(i) Any distributions made within the five-year period
preceding the Plan Year for which the determination is being
made, other than a distribution transferred or rolled over
to a plan maintained by an Affiliated Organization, will be
included;
(ii) Amounts transferred or rolled over from a plan not
maintained by an Affiliated Organization at the initiation
of the Participant will not be included;
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<PAGE>
(iii) The Account balances of any key employee and any
employee who is not a key employee who has not performed an
Hour of Service at any time during the five-year period
ending on the date as of which the determination is being
made will not be included; and
(iv) The terms "key employee" and "employee" include the
Beneficiaries of such persons who have died.
(2) (a) Notwithstanding the provisions of clause (1), this Plan will
not be a top-heavy plan if it is part of either a "required
aggregation group" or a "permissive aggregation group" and such
aggregation group is not top-heavy. An aggregation group will be
top-heavy if the sum of the present value of accrued benefits and
account balances of key employees is more than 60 percent of the
sum of the present value of accrued benefits and account balances
for all Participants, such accrued benefits and account balances
being calculated in each case in the same manner as set forth in
clause (1).
(b) Each plan in a required aggregation group will be top-heavy
if the group is top-heavy. No plan in a required aggregation
group will be top-heavy if the group is not top-heavy.
<PAGE>
(c) If a permissive aggregation group is top-heavy, only those
plans that are part of an underlying top-heavy, required
aggregation group will be top-heavy. No plan in a permissive
aggregation group will be top-heavy if the group is not top-
heavy.
(3) The "required aggregation group" of consists of (i) each plan of
an Affiliated Organization in which a key employee participates, and
(ii) each other plan of an Affiliated Organization that enables a plan
in which a key employee participates to meet the nondiscrimination
requirements of Code sections 401(a)(4) and 410.
(4) A "permissive aggregation group" consists of those plans that are
required to be aggregated and one or more plans (providing comparable
benefits or contributions) that are not required to be aggregated,
which, when taken together, satisfy the requirements of Code sections
401(a)(4) and 410.
(5) For purposes of applying clauses (2), (3) and (4) of this
Subsection (B), any qualified defined contribution plan maintained by
an Affiliated Organization at any time within the five-year period
preceding the Plan Year for which the determination being made which,
as of the date of such determination, has been formally terminated,
has ceased crediting service for benefit accruals and vesting and has
been or is distributing all plan assets to participants or their
beneficiaries, will be taken into account to the extent required or
permitted under such clauses and under Code section 416.
(C) A "key employee" is any person who is or was employed with an
Affiliated Organization and who, at any time during the Plan Year in
question or any of the preceding four Plan Years is or was:
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<PAGE>
(1) An officer of the Affiliated Organization (an administrative
executive in regular and continued service with the Affiliated
Organization) whose compensation for such Plan Year exceeds 50 percent
of the amount in effect under Code section 415(b)(1)(A) for such Plan
Year, but in no case will there be taken into account more than the
lesser of (a) 50 persons, or (b) the greater of (i) three persons or
(ii) ten percent of the number of the Affiliated Organization's
employees, excluding for purposes of determining the number of such
officers, any employees that are excluded pursuant to Section
11.22(A)(2)(b);
(2) The owner of an interest in the Affiliated Organization,
including business entities that are required to be aggregated under
Code section 414(b), (c) or (m), that is not less than the interest
owned by at least 10 other persons employed with the Affiliated
Organization; provided, that, such owner will not be a key employee
solely by reason of such ownership for a Plan Year if he or she does
not own more than one-half of one percent of the value of the
outstanding interests of the Affiliated Organization or if the amount
of his or her compensation for such Plan Year is less than the amount
in effect under Code section 415(c)(1)(A) for such Plan Year;
<PAGE>
(3) The owner of more than five percent of the Affiliated
Organization's outstanding stock or more than five percent of the
total combined voting power of the Affiliated Organization's stock; or
(4) The owner of more than one percent of the Affiliated
Organization's outstanding stock or more than one percent of the total
combined voting power of the Affiliated Organization's stock, whose
compensation for such Plan Year exceeds $150,000.
For purposes of this Subsection (C), the term "compensation" has the same
meaning as in Section 11.22(B)(2) and ownership of an Affiliated
Organization's stock will be determined in accordance with Code section
318; provided, that subparagraph 318(a)(2)(C) will be applied by
substituting the phrase "5 percent" for the phrase "50 percent" wherever it
appears in such Code section.
(D) If an Affiliated Organization maintains a qualified defined
contribution plan and a qualified defined benefit pension plan, the
limitation on combined contributions and accrued benefits will be adjusted
by substituting "100 percent" for "125 percent" in the definitions of the
defined benefit fraction and the defined contribution fraction in
Section 9.7; provided, first, that this Subsection (D) will be applied
prospectively only to prohibit additional contributions allocated, and
forfeitures reallocated, to and defined benefit accruals for, a Participant
and will not reduce any allocations or reallocations made to, or benefits
accrued for, such Participant prior to the Plan Year for which it first
becomes effective; and, second, that if the Plan would not be a top heavy
plan if "90 percent" were substituted for "60 percent" in Subsection
(B)(1)(a), this Subsection (D) will not apply if -
(1) the aggregate employer contribution (other than elective
deferrals for a non-key employee) under all such qualified defined
contribution plans on behalf of each Participant who is not a key
employee and who is employed with an Affiliated Organization on the
last day of the Plan Year is not less than seven and one-half percent
of his or her Testing Wages for the Plan Year, or
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<PAGE>
(2) the accrued benefit for each Participant under the qualified
defined benefit pension plan is not less than the benefit described in
Subsection (A)(2)(b), applied by substituting "3 percent" for "2
percent" in item (A) of clause (ii) and "30 percent" for "20 percent"
in item (B) of clause (ii).
13.4 No Employment Rights Created. The establishment of the Plan neither
gives any Employee a right to continuing employment nor limits the right of
an Affiliated Organization to discharge the Employee or otherwise deal with
the Employee without regard to the effect such action might have on his or
her initial or continued participation in the Plan.
13.5 Special Provisions.Special provisions of the Plan applicable only to
certain Participants will be set forth on an exhibit to the Plan. In the
event of a conflict between the terms of the exhibit and the terms of the
Plan, the exhibit controls.
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<PAGE>
<PAGE>
EXHIBIT 23.01
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ceridian Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in this Form S-8
registration statement.
KPMG Peat Marwick LLP
Minneapolis, MN
November 4, 1994
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Ceridian Corporation (the "Company"), a Delaware corporation, do hereby
make, nominate and appoint JOHN R. EICKHOFF and JOHN A. HAVEMAN, and each
of them, to be my attorney in fact for three months from the date hereof,
with full power and authority to sign his name on a registration statement
on Form S-8 and any amendments thereto relating to the Company's Savings
and Investment Plan, provided that any registration statement or amendment
in final form is first reviewed by my attorney in fact; and his name, when
thus signed, shall have the same force and effect as though I had manually
signed the registration statement and/or amendment.
IN WITNESS WHEREOF, I have signed this Power of Attorney on
August 11, 1994.
/s/Lawrence Perlman
LAWRENCE PERLMAN
/s/Ruth M. Davis
RUTH M. DAVIS
/s/Allen W. Dawson
ALLEN W. DAWSON
/s/Ronald James
RONALD JAMES
/s/Richard G. Lareau
RICHARD G. LAREAU
/s/Charles Marshall
CHARLES MARSHALL
/s/Richard W. Vieser
RICHARD W. VIESER
/s/Paul S. Walsh
PAUL S. WALSH
