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As filed with the Securities and Exchange Commission
on March 19, 1996
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)
COMDATA HOLDINGS CORPORATION 401(K) SAVINGS AND RETIREMENT 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 registered (1) share(2) price (2) fee
Common Stock,
$.50 par value 25,000 shares $45.19 $1,129,750 $389.57
(1) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933 (the "Act"), this Registration Statement also
covers an indeterminate number 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,based on the average high and low
sale prices reported for the Registrant's Common Stock on
the New York Stock Exchange on March 15, 1996.
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Part II Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and
Exchange Commission (the "Commission") by Ceridian Corporation
(the "Company") and by the Comdata Holdings Corporation 401(k)
Savings and Retirement Plan (the "Plan") are incorporated in
this Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995, June 30, 1995 and September
30, 1995;
(3) The Company's Current Reports on Form 8-K dated January 19,
1995, August 24,1995 and December 12, 1995;
(4) The Plan's Annual Report on Form 11-K for the year ended
December 31, 1994;
(5) All other reports filed by the Company or the Plan pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 ("Exchange Act") since December 31, 1994; and
(6) The description of the Company's Common Stock, par value
$.50 per share, contained in the Company's Registration
Statement on Form S-4, File No. 33-64089.
All documents filed by the Company and by 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 for each of the years in the
three-year period ended December 31, 1994 have been incorporated
by reference in this Registration Statement in reliance upon the
reports 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. To
the extent that KPMG Peat Marwick LLP examines and reports on
financial statements of the Company or the Plan issued at future
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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.
The financial statements of the Plan as of December 31, 1994
and 1993 have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect
thereto included therein and incorporataed herein by reference.
Such financial statements are incorporated herein by reference in
reliance upon the authority of such firm as experts in accounting
and auditing in giving such report.
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 changes 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.
Item 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
4.1 Restated Certificate of Incorporation of Ceridian
Corporation (incorporated by reference to Exhibit 4.01
to the Company's Registration Statement on Form S-8
(File No. 33-54379))
2
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4.2 Bylaws of Ceridian Corporation, as amended
(incorporated by reference to Exhibit 3.01 to the
Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1993
(File No. 1-1969))
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on page 5 of this
Registration Statement)
99.1 Comdata Holdings Corporation 401(k) Savings and
Retirement Plan, as amended
99.2 Internal Revenue Service Determination Letter
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.
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(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 the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in 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 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, on March 19, 1996.
CERIDIAN CORPORATION
By: /s/J. R. Eickhoff
J. R. Eickhoff
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Ceridian Corporation,
hereby severally constitute John R. Eickhoff and John A. Haveman, and
either of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our name in the
capacities indicated below any and all amendments to this Registration
Statement on Form S-8 filed by Ceridian Corporation with the Securities and
Exchange Commission, and generally to do all such things in our name and
behalf in such capacities as may be necessary to enable Ceridian
Corporation to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission,
and we hereby ratify and confirm our signatures as they may be signed by
our said attorneys, or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed as of March 19, 1996 by the
following persons in the capacities indicated.
/s/Lawrence Perlman /s/Ruth M. Davis
Lawrence Perlman Ruth M. Davis, Director
Chairman, President and
Chief Executive Officer /s/Allen W. Dawson
(Principal Executive Allen W. Dawson, Director
Officer and Director)
/s/Richard G. Lareau
Richard G. Lareau, Director
/s/J. R. Eickhoff
J. R. Eickhoff /s/George R. Lewis
Executive Vice President George R. Lewis, Director
and Chief Financial
Officer (Principal /s/Charles Marshall
Financial Officer) Charles Marshall, Director
/s/Carole J. Uhrich
/s/Loren D. Gross Carole J. Uhrich, Director
Loren D. Gross
Vice President and Corporate /s/Richard W. Vieser
Controller (Principal Richard W. Vieser, Director
Accounting Officer)
/s/Paul S. Walsh
Paul S. Walsh, Director
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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
Brentwood, State of Tennessee, as of March 19, 1996.
COMDATA HOLDINGS CORPORATION 401(k)
SAVINGS AND RETIREMENT PLAN
By: Comdata Holdings Corporation
By: /s/George L. McTavish
Chairman and Chief Executive Officer
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EXHIBIT INDEX
Exhibit Description Code
4.1 Restated Certificate of Incorporation of IBR
4.2 Bylaws of Ceridian Corporation, as amended IBR
23.1 Consent of KPMG Peat Marwick LLP E
23.2 Consent of Arthur Andersen LLP E
99.1 Comdata Holdings Corporation 401(k) Savings and E
Retirement Plan
99.2 Internal Revenue Service Determination Letter E
Legend: E Electronic Filing
IBR Incorporated by Reference
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EXHIBIT 23.1
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
/s/KPMG Peat Marwick LLP
Minneap lis, Minnesota
March 19, 1996
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUPLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form
S-8 of Ceridian Corporation of our report dated January 31, 1996
included in the Comdata Holding Corporation 401(K) Retirement
Plan Form 11-K for the year ended December 31, 1994 and to all
references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
/s/ARTHUR ANDERSEN LLP
Nashville, Tennessee
March 14, 1996
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EXHIBIT 99.1
AMENDED AND RESTATED COMDATA HOLDINGS CORPORATION
401(k) SAVINGS AND RETIREMENT PLAN
Effective as of July 1, 1993
(Except Where Otherwise Stated)
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...........................................1
ARTICLE II ELIGIBILITY AND PARTICIPATION ...................26
Section 2.01 Eligibility..................................26
Section 2.02 Entry and Participation......................26
Section 2.03 Reemployment.................................26
Section 2.04 Acceptance...................................26
Section 2.05 Employees Who Are Officers, Shareholders or
Highly Compensated ..............................27
Section 2.06 Absence in the Armed Services................27
Section 2.07 Transfer Among Employers which are Controlled
Group Members ...................................27
ARTICLE III FINANCING OF PLAN AND INDIVIDUAL ACCOUNTS..........29
Section 3.01 Medium of Financing the Plan.................29
Section 3.02 Contributions................................29
Section 3.03 Elections....................................30
Section 3.04 Nondiscrimination Test Compliance............31
Section 3.05 Return of Excess Contributions...............33
Section 3.06 Form and Manner of Employer Contributions....36
Section 3.07 Prohibition of Reversion.....................36
Section 3.08 Transfers from Qualified Plans...............37
Section 3.09 Participant's Election as to Investment Funds40
Section 3.10 Suspension and Limitation of Contributions
Upon Withdrawal .................................42
Section 3.11 Purchase of Employer Stock...................42
ARTICLE IV ALLOCATIONS TO INDIVIDUAL ACCOUNTS..................45
Section 4.01 Individual Accounts..........................45
Section 4.02 Account Adjustments..........................45
Section 4.03 Limitation on Allocations....................46
Section 4.04 Voting of Shares.............................49
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ARTICLE V BENEFITS.............................................50
Section 5.01 Payment of Benefits..........................50
Section 5.02 Early Retirement Benefit.....................54
Section 5.03 Normal Retirement Benefit....................54
Section 5.04 Delayed Retirement Benefit...................54
Section 5.05 Disability Retirement Benefit................54
Section 5.06 Vested Benefit...............................55
Section 5.07 Death Benefit................................57
Section 5.08 Withdrawal of Contributions..................60
Section 5.09 Participant Loans............................62
Section 5.10 Failure to Locate............................66
Section 5.11 Direct Rollover Election.....................67
Section 5.12 Accounts for Participants Electing to Defer
Distribution..............................................68
ARTICLE VI MODIFICATIONS FOR TOP-HEAVY PLANS...................70
Section 6.01 Application of Provisions....................70
Section 6.02 Minimum Contribution.........................70
Section 6.03 Accelerated Vesting..........................71
ARTICLE VII FORM OF PAYMENT....................................73
Section 7.01 Description of Optional Benefits.............73
Section 7.02 Election of Options..........................74
ARTICLE VIII ADMINISTRATION OF PLAN............................76
Section 8.01 Plan Administrator...........................76
Section 8.02 Claims Procedure.............................78
Section 8.03 Records......................................79
Section 8.04 Delegation of Authority......................79
Section 8.05 Legal Incompetence...........................80
Section 8.06 Correction of Errors.........................80
Section 8.07 Qualified Domestic Relations Order Procedure.81
ARTICLE IX AMENDMENT OR TERMINATION............................83
Section 9.01 Amendment of Plan............................83
Section 9.02 Termination of Plan..........................84
Section 9.03 Distribution Upon Termination................84
Section 9.04 Merger of Plan...............................85
Section 9.05 Failure of Internal Revenue Service
Qualification.............................................85
Section 9.06 Distribution Limitation......................86
ARTICLE X MISCELLANEOUS........................................87
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Section 10.01 Liability of Employer.......................87
Section 10.02 Intent to Continue Plan and Trust...........88
Section 10.03 Binding on Parties..........................88
Section 10.04 Agent for Legal Process.....................88
Section 10.05 Spendthrift Clause..........................88
Section 10.06 Successor to Business of Employer...........89
Section 10.07 Conflict of Provisions......................89
Section 10.08 Successors to Trustee.......................89
Section 10.09 Definition of Words.........................90
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INTRODUCTION TO AMENDED AND RESTATED
COMDATA HOLDINGS CORPORATION 401(k)
SAVINGS AND RETIREMENT PLAN
Effective as of January 1, 1988, Comdata Holdings Corporation
and its subsidiaries adopted the Comdata Holdings Corporation
401(k) Retirement Plan. Since its adoption, the plan has been
amended on thirteen occasions. The primary purpose of this
amendment and restatement is to incorporate all of these amendments
into a single plan document. The plan as amended and restated is
identical to the prior plan as amended, except for the addition of
Section 5.11 relating to direct rollovers and certain conforming
amendments. Unless otherwise stated or required by the context,
the effective date of the plan as herein amended and restated is
July 1, 1993.
ARTICLE I
DEFINITIONS
As used herein, the following words and phrases shall have the
meaning indicated unless otherwise defined or required by the
context:
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Section 1.1 "Active Participant" shall mean, with respect
to any six-month period ending June 30 or December 31, a
Participant who has been credited with at least one (1) Hour of
Employment for such six-month period and is employed on the June 30
or December 31.
Section 1.2 "Administrative Committee" or "Committee" shall
mean the Committee to which the administrative duties and
responsibilities under the Plan are delegated pursuant to Section
8.04 hereof.
Section 1.3 "Administrator" or "Plan Administrator" shall
mean, with respect to the Plan, Comdata Holdings Corporation.
Section 1.4 "Alternate Payee" shall mean any spouse, former
spouse, child or other dependent of a Participant who is recognized
by a Qualified Domestic Relations Order as having a right to
receive all or a portion of the benefits payable under the Plan
with respect to such Participant.
Section 1.5 "Average Contribution Percentage for the
Prohibited Group" shall mean the average of the Contribution
Percentages of the Prohibited Group for a Plan Year as determined
by adding together the Contribution Percentages of each Participant
who is a member of the Prohibited Group for the Plan Year and
dividing the sum by the number of Participants who are members of
the Prohibited Group for that Plan Year.
Section 1.6 "Average Contribution Percentage for the
Protected Group" shall mean the average of the Contribution
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Percentages for the Protected Group for a Plan Year as determined
by adding together the Contribution Percentages of each Participant
who is a member of the Protected Group for the Plan Year and
dividing that sum by the number of Participants who are members of
the Protected Group for that Plan Year.
Section 1.7 "Average Deferral Ratio for the Prohibited
Group" shall mean the average of the Deferral Ratios of the
Prohibited Group for a Plan Year as determined by adding together
the Deferral Ratios of each Participant who is a member of the
Prohibited Group for the Plan Year and dividing the sum by the
number of Participants who are members of the Prohibited Group for
that Plan Year.
Section 1.8 "Average Deferral Ratio for the Protected
Group" shall mean the average of the Deferral Ratios for the
Protected Group for a Plan Year as determined by adding together
the Deferral Ratios of each Participant who is a member of the
Protected Group for the Plan Year and dividing that sum by the
number of Participants who are members of the Protected Group for
that Plan Year.
Section 1.9 "Basic Employer Contributions" shall mean the
contributions, if any, made pursuant to Section 3.02(a) of the
Plan.
Section 1.10 "Basic Employer Contributions Account" shall
mean the amount of the Fund standing to the credit of a Participant
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which is attributable to the Basic Employer Contributions, together
with adjustments allocable thereto under the terms of the Plan.
Section 1.11 "Beneficiary" shall mean the designated
recipient or recipients who shall receive any benefits payable
under the Plan upon the death of a Participant. If a Beneficiary
has not been designated, the Trustee shall, upon the death of the
Participant, pay any benefit payable under the Plan to the
Participant's estate. Notwithstanding the preceding, if a
Participant is married, his Beneficiary shall be his spouse unless
the Participant and his spouse choose an alternate beneficiary in
accordance with Section 5.07(b).
Section 1.12 "Board" shall mean the board of directors of
Comdata Holdings Corporation.
Section 1.13 "Break in Employment" shall mean a computation
period during which an Employee has not been credited with more
than five hundred (500) Hours of Employment; for these purposes,
the computation period considered shall be determined in the same
manner as under Section 1.75.
Section 1.14 "Code" shall mean the Internal Revenue Code of
1986 as in effect on the relevant date to be interpreted under this
Plan. Reference to any section of the Code shall include that
section, any valid regulation promulgated thereunder, and any
comparable section or sections of any future legislation that
amends, supplements or supersedes said section.
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Section 1.15 "Compensation" shall mean the total salary and
commissions paid by the Employer to the Employee, inclusive of
overtime and bonus, which is attributable to the period of his
participation in the Plan for each Plan Year. For purposes of
applying section 401(k)(3) and 401(m)(3) of the Code, compensation
shall be as defined under section 414(s) of the Code. For purposes
of applying the limitations under sections 414(q), 404(a), 415 and
416 of the Code, Compensation shall include only those items
specified in section 1.415-2(d)(1) of the regulations and exclude
only those items set forth in section 1.415-2(d)(2) of the
regulations and the amounts deferred by salary reduction pursuant
to Section 3.02(c) hereof for the Plan Year. For Plan Years
beginning after December 31, 1988, Compensation shall exclude
amounts in excess of two hundred thousand dollars ($200,000) (or
such other amount as determined in accordance with the cost-of-
living adjustment procedures described in section 416(d) of the
Code). For Plan Years beginning after December 31, 1993,
Compensation shall exclude amounts in excess of one hundred fifty
thousand dollars ($150,000) (or such other amount determined in
accordance with the cost-of-living procedures described in section
416(d) of the Code).
Section 1.16 "Contribution Percentage" shall mean the ratio
calculated separately for each employee, the numerator of which
shall be the Matching Employer Contributions paid under the Plan on
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his behalf for the Plan Year, and the denominator of which shall be
the Employee's Compensation for the Plan Year.
Section 1.17 "Controlled Group Member" shall mean:
(a) any corporation which is a member of a controlled
group of corporations (as defined by section 414(b) of the Code) of
which the Employer is a member,
(b) any other trade or business (whether or not
incorporated) which is under common control with respect to the
Employer (as defined by section 414(c) of the Code), or
(c) any organization which is a member of an affiliated
service group (as defined by section 414(m) of the Code);
but only for the period during which such other corporation, trade,
business or organization and the Employer are members of such
controlled group of corporations, are under such common control or
are serving as an affiliated service group. All employees of the
Controlled Group Members shall be treated as employed by a single
employer.
Section 1.18 "Credited Employment" shall mean the sum of an
Employee's Years of Employment. In the case of an Employee not
entitled to a Vested Benefit as of a prior termination of
Employment, he shall be credited with the number of Years of
Employment prior to his Break in Employment for purposes of
participation and vesting unless the number of consecutive Breaks
in Employment equals or exceeds the greater of (a) five (5), or (b)
the total number of Years of Employment before the Break in
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Employment. Credited Employment shall not be interrupted by, but
shall not include, an authorized Leave of Absence.
Section 1.19 "Deferral Ratio" shall mean, with respect to
any Participant, the ratio which is the result of dividing the sum
of contributions made on his behalf under Section 3.02(c) in a Plan
Year by his Compensation prior to his directing contributions in
the form of salary reduction in that Plan Year.
Section 1.20 "Delayed Retirement Benefit" shall mean the
benefit to which a Participant is entitled at his Delayed
Retirement Date.
Section 1.21 "Delayed Retirement Date" shall mean, for each
Participant, any date after his Normal Retirement Date.
Section 1.22 "Determination Date" shall mean, for any Plan
Year subsequent to the first Plan Year, the last day of the
preceding Plan Year and, for the first Plan Year of the Plan, the
last day of that year.
Section 1.23 "Disability Retirement Benefit" shall mean the
benefit to which a Participant is entitled at his Disability
Retirement Date.
Section 1.24 "Disability Retirement Date" shall mean, for
each Participant, the first day of the month next following the
Administrator's determination that he is disabled.
Section 1.25 "Domestic Relations Order" shall mean a
judgment, decree, or order, including approval of a property
settlement agreement, made pursuant to state domestic relations law
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or community property law that relates to the provision of child
support or alimony payments to, or marital property rights of, a
spouse, former spouse, child or other dependent of a Participant.
Section 1.26 "Early Retirement Benefit" shall mean the
benefit to which a Participant is entitled at his Early Retirement
Date.
Section 1.27 "Early Retirement Date" shall mean, for each
Participant, the first day of any month coinciding with or
following the date on which he attains age fifty-five (55) and
completes ten (10) Years of Employment but before he reaches his
Normal Retirement Date.
Section 1.28 "Effective Date" shall mean the original
effective date of the Plan which shall be January 1, 1988.
Section 1.29 "Employee" shall mean an individual employed by
the Employer.
Section 1.30 "Employer" shall mean Comdata Network, Inc. (a
Maryland corporation), Comdata Holdings Corporation (a Delaware
corporation), U.S. Insta-Permit, Inc. (a Texas corporation),
Cashex, Inc. (a Missouri corporation), Cashex West, Inc. (a
California corporation), Instacom Check Systems, Inc. (a Texas
corporation), Honest Face Systems, Inc. (a Georgia corporation),
American Facsimile Systems, Inc., Fleetline Permit Services, Inc.,
Fleetline Transportation Services, Inc., Financial & Communication
Services, Inc., Fundsnet, Inc., Cashcheck International, Inc., Cal
Permits, Incorporated, Truckers Network, Incorporated, Trucker
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Tapes, Inc., Saunders, Inc. and Cash Control Corporation, each of
them.
Section 1.31 "Employer Contributions" shall mean, if any,
Basic Employer Contributions and Matching Employer Contributions.
Section 1.32 "Employer Contributions Account" shall mean the
Basic Employer Contributions Account and Matching Employer
Contributions Account.
Section 1.33 "Employer Stock" shall mean the common stock of
Comdata Holdings Corporation.
Section 1.34 "Employment" shall mean the employment
relationship as an Employee of the Employer.
Section 1.35 "Employment Date" shall mean the date as of
which an Employee is credited with the first Hour of Employment
upon his initial Employment.
Section 1.36 "ERISA" shall mean Public Law 93-406, the
Employee Retirement Income Security Act, as in effect on the
relevant date to be interpreted under the Plan and regulations
relative thereto.
Section 1.37 "Family Members" with respect to a Highly
Compensated Employee who is a Five-Percent Owner or among the ten
(10) most highly compensated Employees during the Plan Year, shall
mean such Employee's spouse and lineal ascendants or descendants
and the spouses of such lineal ascendants or descendants.
Section 1.38 "Five-Percent Owner" shall mean any person who
owns (or is considered as owning within the meaning of section 318
9
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of the Code) more than five percent (5%) of the outstanding stock
of the Employer or stock possessing more than five percent (5%) of
the total combined voting power of all stock of the Employer.
Section 1.39 "Forfeiture" shall mean the portion of a
Participant's Individual Account which is forfeited because of a
Break in Employment before full vesting occurs or because of
application of Section 4.03 hereof.
Section 1.40 "Fund" or "Investment Fund" shall mean one of
the five collective investment funds established by the Trustee as
set forth in Section 3.09(a).
Section 1.41 "Fund Earnings" shall mean, with respect to
Investment Funds B through E, (a) the fair market value of the Fund
on the current Valuation Date minus (b) the fair market value of
the Fund on the Valuation Date that immediately preceded the
current Valuation Date and minus (c) all contributions paid to the
Fund from such preceding Valuation Date through the current
Valuation Date, plus (d) all benefits paid to Participants from
such preceding Valuation Date through the current Valuation Date
and plus (e) fees and expenses, if any, paid by the Fund.
Section 1.42 "Highly Compensated Employee" shall mean with
respect to a Plan Year, any Employee who at any time during the
year or the preceding Plan Year, meets one of the qualifications
below:
(a) a Five-Percent Owner,
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(b) an Employee earning more than seventy-eight
thousand, three hundred and fifty-three dollars ($78,353) in
Compensation from the Employer,
(c) an Employee earning more than fifty-two thousand,
two hundred and thirty-five dollars ($52,235) in Compensation from
the Employer and earning more than eighty percent (80%) of all
Employees, or
(d) an officer of the Employer who received compensation
greater than one hundred and fifty percent (150%) of the dollar
limit on annual additions to a defined contribution plan under Code
section 415(c)(1)(A). If for any year no officer of the Employer
received Compensation in excess of this level, the highest paid
officer of the Employer shall be treated as a Highly Compensated
Employee.
These criteria shall be applied in accordance with section 414(q)
of the Code and regulations thereunder as may be prescribed by the
Secretary of the Treasury. The dollar amount prescribed under (b)
and (c) hereinabove will be adjusted for percentage increases in
the Consumer Price Index (CPI) according to procedures issued by
the Internal Revenue Service.
Section 1.43 "Hour of Employment" shall mean the following:
(a) Each hour for which an Employee is paid, or entitled
to payment of Compensation as defined in this Article I, for the
performance of duties for the Employer or for any other Controlled
Group Member during the applicable computation period.
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(b) Each hour for which an Employee is paid, or entitled
to payment of Compensation as defined in this Article I, by the
Employer or any other Controlled Group Member on account of a
period of time during which no duties are performed (irrespective
of whether the Employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability), jury
duty, military duty or Leave of Absence; provided, however, that,
with respect to this subsection (b):
(1) no more than five hundred and one (501) Hours
of Employment shall be credited to an Employee on account of any
single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single computation
period),
(2) hours for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a period
during which no duties are performed shall not be credited if such
payment is made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation,
unemployment compensation or disability insurance laws, and
(3) hours shall not be credited for a payment which
solely reimburses an Employee for medical or medically-related
expenses incurred by the Employee.
For purposes of this subsection (b), a payment shall
be deemed to be made by or due from the Employer regardless of
whether such payment is made by or due from the Employer directly,
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or indirectly through, among others, a trust fund, or insurer, to
which the Employer contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
(c) Each hour for which a Participant is absent from
work for any period by reason of the pregnancy of the Participant,
the birth of a child of the Participant, placement of a child with
the Participant in connection with the adoption of such child by
such Participant or for purposes of caring for such child
immediately following such birth or placement, but solely for
determining whether a Participant has incurred a Break in
Employment. The hours to be credited to such Participant in
accordance with this subparagraph (c) shall be the Hours of
Employment which otherwise would normally have been credited to
such Participant but for such absence, or in any case in which the
Plan Administrator is unable to determine such Hours of Employment,
eight (8) Hours of Employment per day of such absence; provided,
however, that with respect to this subsection (c):
(1) no more than five hundred and one (501) Hours
of Employment shall be credited to a Participant by reason of any
one such pregnancy or placement,
(2) such hours shall be treated as Hours of
Employment in the Plan Year in which the absence from work begins,
if the Participant would be prevented from incurring a Break in
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Employment in such Plan Year solely because periods of absence are
treated as Hours of Employment, or in any other case, in the
immediately following year, and
(3) no Hours of Employment will be credited unless
the Participant furnishes to the Plan Administrator such timely
information as the Plan Administrator may reasonably require to
establish that the absence from work is for reasons referred to in
this subsection (c) including a statement of the number of days for
which there was such an absence.
(d) Each hour for which back pay irrespective of
mitigation of damages, is either awarded or agreed to by the
Employer. The same hours shall not be credited both under
subsection (a), (b) or (c) and under this subsection. Hours
credited for back pay under this subsection with respect to periods
described in subsection (b) shall be subject to the limitations set
forth in subsection (b).
The provisions of paragraphs (b) and (c) of 29 CFR 2530.200b-2
shall be observed in crediting Hours of Employment under this
Section, which paragraphs are incorporated herein by reference.
Section 1.44 "Inactive Participant" shall mean a Participant
(including a former Participant who has a balance remaining in his
Individual Account) who is not classified as an Active Participant
with respect to a Plan Year.
Section 1.45 "Individual Account" shall mean the amount of
the Fund standing to the credit of each Participant attributable to
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all contributions made under the Plan together with adjustments
allocable thereto in accordance with the terms of the Plan.
Section 1.46 "Key Employee" shall mean any Employee, former
Employee or Beneficiary thereof, who, at any time during the Plan
Year in question or during any of the four (4) preceding Plan
Years, is:
(a) an officer of the Employer whose annual Compensation
exceeds one hundred fifty percent (150%) of the amount in effect
under Code section 415(c)(1)(A) for such Plan Year,
(b) one of the ten (10) Employees having annual
Compensation greater than the limitation in effect under Code
section 415(c)(1)(A) and owning (or considered as owning within the
meaning of section 318 of the Code) the largest interests in the
Employer,
(c) a Five-Percent Owner, or
(d) a one percent (1%) owner of the Employer having an
annual Compensation from the Employer of more than one hundred
fifty thousand dollars ($150,000).
For the purposes of paragraph (a), no more than fifty (50)
Employees (or, if less, the greater of three (3), or ten percent
(10%), of the Employees) shall be treated as officers. For the
purposes of paragraph (b), if two (2) Employees have the same
interest in the Employer, the Employee having greater annual
Compensation shall be treated as having the larger interest. For
the purposes of applying the terms of this definition, the
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provisions of Code Section 416(i) are incorporated herein by
reference.
Section 1.47 "Leave of Absence" shall mean that period during
which the Participant is absent without compensation and for which
the Employer, in its sole discretion, has determined him to be on a
leave of absence rather than having terminated his employment.
Such discretion of the Employer shall be exercised in a
nondiscriminatory manner.
Section 1.48 "Limitation Year" shall mean the Plan Year.
Section 1.49 "Matching Employer Contributions" shall mean
the contributions, if any, made pursuant to Section 3.02(b) of the
Plan.
Section 1.50 "Matching Employer Contributions Account" shall
mean the amount of the Fund standing to the credit of a
Participant which is attributable to the Matching Employer
Contributions together with adjustments allocable thereto under the
terms of the Plan.
Section 1.51 "Non-Key Employee" shall mean an Employee who
is not a Key Employee.
Section 1.52 "Normal Retirement Age" shall mean, for each
Participant, age sixty-five (65).
Section 1.53 "Normal Retirement Benefit" shall mean the
benefit to which a Participant is entitled at his Normal Retirement
Date.
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Section 1.54 "Normal Retirement Date" shall mean, for each
Participant, the first day of the month coinciding with or
following his Normal Retirement Age.
Section 1.55 "Participant" shall mean any Employee who
becomes a Participant hereunder as provided in Article II.
Section 1.56 "Participant-Directed Account" shall mean the
amount of the Fund standing to the credit of each Participant
attributable to such Participant's Participant Tax-Deferred
Contributions Account, Voluntary Rollover Account and Basic
Employer Contributions Account. Such term specifically shall not
include the amount of the Fund standing to the credit of any
Participant attributable to such Participant's Matching Employer
Contributions Account.
Section 1.57 "Participant Tax-Deferred Contributions" shall
mean the contributions, if any, made pursuant to Section 3.02(c) of
the Plan.
Section 1.58 "Participant Tax-Deferred Contributions
Account" shall mean the amount of the Fund standing to the credit
of a Participant which is attributable to his Participant Tax-
Deferred Contributions together with Fund Earnings allocable
thereto under the terms of the Plan.
Section 1.59 "Permissive Aggregation Group" shall mean the
Required Aggregation Group of plans plus any other plan or plans of
the Employer which, when considered as a group with the Required
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Aggregation Group, would continue to satisfy the requirements of
sections 401(a)(4) and 410 of the Code.
Section 1.60 "Plan" shall mean the Amended and Restated
Comdata Holdings Corporation 401(k) Savings and Retirement Plan,
the Trust Agreement attached hereto as Exhibit A and the Trust
established under that Agreement.
Section 1.61 "Plan Year" shall mean the twelve (12) month
period ending on December 31.
Section 1.62 "Prohibited Group" shall mean those
Participants who are considered Highly Compensated Employees.
Section 1.63 "Protected Group" shall mean those Participants
who are not members of the Prohibited Group.
Section 1.64 "Qualified Domestic Relations Order" shall mean
a Domestic Relations Order which creates or recognizes the
existence of an Alternate Payee's right to, or assigns to an
Alternate Payee the right to receive all or a portion of the
benefits payable to a Participant under the Plan and does not alter
the amount or form of Plan benefits. Any order that is qualified
under this Section shall remain qualified with respect to a
successor plan of the Employer or a plan of a successor employer.
(a) To be a Qualified Domestic Relations Order, a
Domestic Relations Order shall specify the following:
(1) the name and the last known mailing address, if
any, of the Participant and the name and mailing address of each
Alternate Payee covered by the order,
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(2) the amount or percentage of the Participant's
benefits to be paid by the Plan to each such Alternate Payee, or
the manner in which such amount or percentage is to be determined,
(3) the number of payments or period to which such
order applies, and
(4) a statement that such order applies to this
Plan.
(b) Such order shall not require:
(1) the Plan to provide any type or form of
benefits, or any option, not otherwise provided under the Plan, or
(2) the payment of benefits to an Alternate Payee
which are required to be paid to another Alternate Payee under
another order previously determined to be a Qualified Domestic
Relations Order.
(c) A Domestic Relations Order shall not be treated as
failing to meet the requirements of subparagraph (b)(1) above
solely because such order requires that payment of benefits be made
to an Alternate Payee:
(1) in the case of any payment before a Participant
has separated from Employment on or after the date on which the
Participant attains (or would have attained) the earliest
retirement date,
(2) as if the Participant had retired on the date
on which such payment is to begin under such order (but taking into
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account only the value of the Participant's Individual Account on
such date), and
(3) in any form in which such benefits may be paid
under the Plan to the Participant (other than the form of a joint
and survivor annuity with respect to the alternate payee and his or
her subsequent spouse).
For this purpose, "earliest retirement date"
shall mean the earlier of: (i) the date on which the Participant is
entitled to a distribution under the Plan, or (ii) the later of the
date the Participant attains age fifty (50), or the earliest date
on which the Participant could begin receiving benefits under the
Plan if lie separated from service.
(d) To the extent provided in a Qualified Domestic
Relations Order, the former spouse of a Participant shall be
treated as a surviving spouse for purposes of sections 401 (a)(11)
and 417 of the Code.
Section 1.65 "Reemployment Date" shall mean the date as of
which an Employee is credited with the first Hour of Employment
upon a resumption of Employment after an interruption in
Employment.
Section 1.66 "Required Aggregation Group" shall mean (a)
each qualified plan of the Employer in which at least one Key
Employee participates or participated at any time during the
determination period (regardless of whether the plan has
terminated), and (b) each other qualified plan of the Employer
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which enables a plan described in clause (a) to meet the
requirements of sections 401(a)(4) or 410 of the Code.
Section 1.67 "Retirement" shall mean any of the forms of
retirement set forth in Article V hereof (but shall not mean any
payment of a benefit hereunder pursuant to Section 5.06).
Section 1.68 "Top Heavy Plan" shall mean this Plan for any
Plan Year if, as of the Determination Date, any of the following
conditions exist:
(a) the Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans,
(b) this Plan is a part of a Required Aggregation Group
of plans but not part of a Permissive Aggregation Group and the Top
Heavy Ratio for the group of plans exceeds sixty percent (60%), or
(c) this Plan is a part of the Required Aggregation
Group and part of a Permissive Aggregation Group of plans and the
Top Heavy Ratio for the Permissive Aggregation Group exceeds sixty
percent (60%).
Section 1.69 "Top Heavy Ratio" shall mean, for any Required
or Permissive Aggregation Group, as appropriate, a fraction, the
numerator of which is the sum of account balances hereunder plus,
if the Employer maintains a defined benefit plan in addition to
this Plan, the sum of the present value of accrued benefits
thereunder for all Key Employees as of the Determination Date(s),
and the denominator of which is the sum of the account balances
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under this Plan plus, if the Employer maintains a defined benefit
plan, the present value of accrued benefits thereunder for all
Participants as of the Determination Date(s), all determined in
accordance with section 416 of the Code and the regulations
thereunder. The accrued benefits and account balances in both the
numerator and denominator to the Top Heavy Ratio are increased for
any distribution made in the five (5)-year period ending on the
Determination Date. For purposes of the above, the value of
account balances and the present value of accrued benefits will be
determined as of the most recent valuation date that falls within
or ends with the twelve (12)-month period ending on the
Determination Date, except as provided in section 416 of the Code
and the regulations thereunder. The account balances and accrued
benefits of a Participant (1) who is not a Key Employee but who was
a Key Employee in a prior year, or (2) who has not been credited
with at least one (1) Hour of Employment with any employer
maintaining the plan at any time during the five (5)-year period
ending on the Determination Date will be disregarded. The account
balances and accrued benefits of a former Employee who has
performed no services for the Employer for five (5) years shall be
disregarded in determining whether the Plan is Top Heavy. The
calculation of the Top Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account will
be made in accordance with section 416 of the Code and the
regulations thereunder. Employee contributions and salary
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deferrals will be taken into account for purposes of computing the
Top Heavy Ratio. When aggregating plans, the value of account
balances and accrued benefits will be calculated with reference to
the Determination Dates that fall within the same calendar year.
Section 1.70 "Trust Agreement" shall mean Exhibit A as
attached hereto and incorporated by reference as part of this Plan.
Section 1.71 "Trust Fund" shall mean the Fund.
Section 1.72 "Trustee" shall mean the party or parties
designated as such under the Trust Agreement.
Section 1.73 "Valuation Date" shall mean March 31, June 30,
September 30 and December 31 and such other date or dates during a
Plan Year selected by the Administrator.
Section 1.74 "Vested Benefit" shall mean the portion of his
Individual Account value to which a Participant is entitled as
determined under Section 5.06.
Section 1.75 "Voluntary Rollover Account" shall mean the
amount of the Fund standing to the credit of a Participant or
Employee which is attributable to his voluntary rollover of funds
pursuant to Section 3.08, together with Fund Earnings allocable
thereto under the terms of the Plan.
Section 1.76 "Year of Employment" shall mean the computation
period of twelve (12) consecutive months, as set forth herein
below, during which an Employee has been credited with at least one
thousand (1,000) Hours of Employment.
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(a) For purposes of eligibility for participation, the
initial computation period shall begin with the date on which the
Employee first performs an Hour of Employment. The computation
period beginning after a Break in Employment shall be measured from
the date on which the Employee again performs an Hour of
Employment. After the initial computation period, the
participation computation period shall shift to the Plan Year which
includes the anniversary of the date on which the Employee first
performed an Hour of Employment.
(b) For purposes of determining Credited Employment, the
computation period shall be the Plan Year.
(c) With regard to Honest Face Systems, Inc., Years of
Employment for purposes of determining participation shall include
service with Honest Face Systems, Inc. prior to its acquisition by
Comdata Holdings Corporation. Years of Employment for purposes of
determining Credited Employment for employees of Honest Face
Systems, Inc. shall include all service beginning with July 14,
1982 and excluding all prior service.
(d) With regard to American Facsimile Systems, Inc.,
Years of Employment for purposes of determining participation shall
include all service with American Facsimile Systems, Inc. prior to
its acquisition by Comdata Holdings Corporation. The preceding
notwithstanding, no employee of American Facsimile Systems, Inc.
shall enter the Plan as provided under Section 2.02 prior to the
date of acquisition, which is December 22, 1988. Years of
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Employment for purposes of determining Credited Employment for
employees of American Facsimile Systems, Inc. shall include only
service beginning with date of acquisition, December 22, 1988, and
exclude all prior service.
(e) With regard to Fleetline Permit Services, Inc. and
Fleetline Transportation Services, Inc., Years of Employment for
purposes of determining participation shall include all service
with Fleetline Permit Services, Inc. or Fleetline Transportation
Services, Inc. prior to their acquisition by Comdata Holdings
Corporation. The preceding notwithstanding, no employee of
Fleetline Permit Services, Inc. or Fleetline Transportation
Services, Inc. shall enter the Plan as provided under Section 2.02
prior to the date of acquisition, which is May 31, 1989. Years of
Employment for purposes of determining Credited Employment for
employees of Fleetline Permit Services, Inc. or Fleetline
Transportation Services, Inc. shall include only service beginning
with the date of acquisition, May 31, 1989, and exclude all prior
service.
(f) With regard to Financial & Communication Services,
Inc., Fundsnet, Inc. and Cashcheck International, Inc., Years of
Employment for purposes of determining participation shall include
all service with Financial & Communication Services, Inc.,
Fundsnet, Inc. and Cashcheck International, Inc. prior to their
acquisition by Comdata Holdings Corporation. The preceding
notwithstanding, no employee of Financial & Communication Services,
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Inc., Fundsnet Inc. or Cashcheck International, Inc. shall enter
the Plan as provided under Section 2.02 prior to the date of
acquisition, which is June 30, 1989. Year of Employment for
purposes of determining Credited Employment for employees of
Financial & Communication Services, Inc., Fundsnet, Inc. or
Cashcheck International, Inc. shall include only service beginning
with the date of acquisition, June 30, 1989, and exclude all prior
service.
(g) With regard to Cal Permits, Incorporated and
Truckers Network, Incorporated, Years of Employment for purposes of
determining participation shall include all service with Cal
Permits, Incorporated and Truckers Network, Incorporated prior to
their acquisition by Comdata Corporation. The preceding
notwithstanding, no employee of Cal Permits, Incorporated or
Truckers Network, Incorporated shall enter the Plan as provided
under Section 2.02 prior to July 1, 1990. Years of Employment for
purposes of determining Credited Employment for employees of Cal
Permits, Incorporated and Truckers Network, Incorporated shall
include only service beginning with the date of acquisition, March
27, 1990, and exclude all prior service.
(h) With regard to Trucker Tapes, Inc., Years of
Employment for purposes of determining participation shall include
all service with Trucker Tapes, Inc. prior to its acquisition by
Comdata Corporation. The preceding notwithstanding, no employee of
Trucker Tapes, Inc. shall enter the Plan as provided under Section
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2.02 prior to January 1, 1991. Years of Employment for purposes of
determining Credited Employment for employees of Trucker Tapes,
Inc. shall include only service beginning with the date of
acquisition, December 31, 1990, and exclude all prior service.
(i) With regard to Saunders, Inc. and Cash Control
Corporation, Years of Employment for purposes of determining
participation shall include all service with Saunders, Inc. and
Cash Control Corporation prior to their acquisition by Comdata
Holdings Corporation. The preceding notwithstanding, no employee
of Saunders, Inc. or Cash Control Corporation shall enter the Plan
as provided under Section 2.02 prior to January 1, 1994. Year of
Employment for purposes of determining Credited Employment for
employees of Saunders, Inc. or Cash Control Corporation shall
include only service beginning with the date of acquisition,
December 7, 1993, and exclude all prior service.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
Section 2.01 Eligibility. Each Employee shall be eligible
to participate in the Plan upon the latest of:
(a) the Effective Date,
(b) the date on which he completes one (1) Year of
Employment, or
(c) the date on which he attains age twenty-one (21).
Notwithstanding the above, each Employee who was employed on
or before January 1, 1988 and who is expected to complete a Year of
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Employment for purposes of eligibility shall be eligible to
participate in the Plan as of the Effective Date.
Section 2.02 Entry and Participation. Each Employee who is
eligible to become a Participant shall become a Participant and
enter the Plan on the January 1, April 1, July 1 or October 1
coincident with or next following the date he shall have satisfied
the conditions of eligibility.
Section 2.03 Reemployment. Notwithstanding the foregoing
Section, an Employee
who is reemployed and who was a Participant, or who had satisfied
the conditions of eligibility as of a prior termination of
Employment, shall become a Participant and enter the Plan on his
Reemployment Date.
Section 2.04 Acceptance. The Plan shall not be deemed to
constitute a contract between the Employer and an Employee; neither
shall it be a consideration nor an inducement for the Employment of
any Employee. No provisions of the Plan shall be deemed to abridge
or limit any managerial right of the Employer, give any Employee
the right to be retained in Employment, or to interfere with the
right of the Employer to discharge any Employee at any time
regardless of the effect which such discharge may have on him as a
Participant. By his act of participation in the Plan, each
Participant on behalf of himself, his heirs, his assigns and
Beneficiary shall be deemed conclusively to have agreed to and
accepted the terms and conditions of the Plan.
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Section 2.05 Employees Who Are Officers, Shareholders or
Highly Compensated. Employees who are either officers or
shareholders of the Employer or are highly compensated may
participate hereunder on and after the Effective Date only if they
meet the same eligibility requirements which must be met by other
Employees as stated herein in Section 2.01.
Section 2.06 Absence in the Armed Services. In the case of
all Employee or a Participant who is granted a Leave of Absence by
reason of service in the armed forces of the United States of
America and who returns to Employment on or before the expiration
of ninety (90) days after the date on which he is entitled to be
released from active duty in the armed forces (or at such other
date as the law may specify as to reemployment), such Employment,
to the extent required by law, shall be treated as continuous
despite such absence solely for purposes of determining that the
Employee has not incurred a Break in Employment.
Section 2.07 Transfers Among Employers which are Controlled
Group Members. A transfer of an Employee directly from one
employer which is a Controlled Group Member to another shall not
constitute a termination of Employment or an interruption in
Credited Employment; provided, however, that there shall be no
duplication of benefits. Upon his transfer, the Years of
Employment with which he was credited under the plan of the
employer from which he transferred shall count as Years of
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Employment under the plan of the Controlled Group Member to which
he transferred.
ARTICLE III
FINANCING OF PLAN AND INDIVIDUAL ACCOUNTS
Section 3.01 Medium of Financing the Plan. Investment of all
contributions made under the Plan and all transactions of the Trust
Fund shall be made in accordance with the terms of the Trust
Agreement, as it may be amended from time to time, which shall
constitute a part of the Plan and which is attached hereto as Exhibit
A.
Section 3.02 Contributions.
(a) Basic Employer Contributions. For each Plan Year the
Employer may pay to the Trustee as a contribution to the Plan on
behalf of each Participant who has been credited with at least one
thousand (1,000) Hours of Employment during the Plan Year and who is
employed on the last day of the Plan Year an amount not to exceed
that percentage of such Participant's Compensation as may be approved
by the Board.
(b) Matching Employer Contributions. For the allocation period
ending on June 30 and December 31 of each Plan Year, the Employer
shall pay to the Trustee as a contribution to the Plan on behalf of
each Active Participant who has made contributions during such
allocation period pursuant to Section 3.02(c) below and who is an
Employee on such date an amount equal to a percentage not to exceed
one hundred percent (100%) of the Participant Tax-Deferred
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Contributions of up to three percent (3%) of Compensation; such
percentage shall initially equal one hundred percent (100%) of the
first one hundred dollars ($100) of Participant Tax-Deferred
Contributions made by a Participant during a Plan Year and fifty
percent (50%) of any additional Participant Tax-Deferred
Contributions made by the Participant during the year up to three
percent (3%) of Compensation. Such percentages may be revised at any
time by appropriate action of the Board.
(c) Participant Tax-Deferred Contributions. Effective June 1,
1988, each Participant may sign, but is not required to sign, a
written participation form (hereinafter referred to as the
"Participation Agreement"). The terms of the Participation Agreement
shall provide that the Participant agrees to accept a reduction in
Compensation from the Employer, subject to the limitations
hereinafter described, only not to exceed twenty percent (20%) of his
Compensation for the Plan Year and not to exceed eight thousand nine
hundred ninety four dollars ($8,994) for the 1993 calendar year, with
this dollar limit adjusted for percentage increases in the Consumer
Price Index (CPI) according to procedures by the Internal Revenue
Service. In consideration of such Agreement, the Employer will make
a contribution to the Plan on behalf of the Participant in an amount
equal to the total amount by which the Participant's Compensation
from the Employer was reduced pursuant to the Participation
Agreement.
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Section 3.03 Elections. Elections to make, discontinue, resume or
change the amount of Participant Tax-Deferred Contributions hereunder
shall be permitted at such time or times, and in such manner and
form, as shall be uniformly and nondiscriminatorily established by
the Plan Administrator.
Section 3.04 Nondiscrimination Test Compliance. Each Plan Year, the
Plan Administrator shall monitor the annual additions to the
Individual Account of each Participant to ensure that each of the
following tests is satisfied:
(a) Nondiscrimination Test for Participant Tax-Deferred
Contributions. For each Plan Year,
(i) the Average Deferral Ratio of the Prohibited Group
shall not exceed the Average Deferral Ratio of the Protected Group
multiplied by one and one-quarter (1.25), or
(ii) the Average Deferral Ratio of the Prohibited Group
shall not exceed the Average Deferral Ratio of the Protected Group
multiplied by two (2.0) and the excess of the Average Deferral Ratio
of the Prohibited Group over the Protected Group shall not be more
than two (2) percentage points.
In the event that neither of these tests is satisfied,
adjustments shall be made pursuant to Section 3.05.
(b) Nondiscrimination Test for Matching Employer
Contributions. For each Plan Year,
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(i) the Average Contribution Percentage of the Prohibited
Group shall not exceed the Average Contribution Percentage of the
Protected Group multiplied by one and one-quarter (1.25), or
(ii) the Average Contribution Percentage of the Prohibited
Group shall not exceed the lesser of the Average Contribution
Percentage of the Protected Group multiplied by two (2.0) or the
Average Contribution Percentage of the Protected Group plus two (2)
percentage profits.
If necessary to ensure compliance with this requirement,
the Plan Administrator may direct that Participant Tax-Deterred
Contributions in the Plan Year also be taken into account in
calculating the Average Contribution Percentage. In the event that
neither of these tests is satisfied, adjustments shall be made
pursuant to Section 3.05.
(c) Nondiscrimination Test for Aggregate Contributions. For
Plan Years beginning after December 31, 1988, the sum of the Average
Deferral Ratio of the Prohibited Group and the Average Contribution
Percentage of the Prohibited Group shall not exceed the aggregate
limit described hereinbelow. The aggregate limit is the sum of (1)
and (2) where
(1) is one and one-quarter (1.25) multiplied by the
greater of
(i) the Average Deferral Ratio of the Protected
Group, or
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(ii) the Average Contribution Percentage of the
Protected Group, and
(2) is the lesser of (i) or (ii) above multiplied by two
(2), but in no event more than lesser of (i) or (ii) above plus two
(2) percentage points.
The Average Deferral Ratio and Average Contribution
Percentage of the Prohibited Group shall be determined after any
corrective distribution is made to ensure compliance with Sections
3.04(a) or (b) above. In the event the aggregate limit is exceeded,
adjustments shall be made pursuant to Section 3.05.
(d) Inclusion of Family Members. For purposes of determining
the Contribution Percentage and Deferral Ratio of a Participant who
is a Highly Compensated Employee, the relevant contributions
attributable to and Compensation of such Participant shall include
the contributions attributable to and Compensation of his Family
Members, and such Family Members shall be disregarded in determining
the Average Contribution Percentage and Average Deferral Ratio of the
Protected Group.
Section 3.05 Return of Excess Contributions. In the event that
contributions are credited to a Participant's Individual Account in
excess of the limitations described in Section 3.02(c) or 3.04
hereinabove, such excess contributions shall be disbursed to the
Participant or recharacterized as follows:
(a) Participant Tax-Deferred Contributions in excess of the
eight thousand nine hundred ninety four dollars ($8,994) limit
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described in Section 3.02(c) (including appropriate adjustments)
shall be distributed to the Participant, along with Fund Earnings
allocated thereto, no later than April 15 following the calendar year
in which such contributions were made. It there has been a net
investment loss, instead of income, allocable to such excess
Participant Tax-Deferred Contributions, the amount of such
Participant Tax-Deferred Contributions to be distributed hereunder
shall be reduced by such loss to the extent permitted by section
401(k)(8) or 401(m)(6) of the Code.
(b) Participant Tax-Deferred Contributions and Matching
Employer Contributions that exceed the maximum amount permitted by
the nondiscrimination tests described in Section 3.04 shall be
distributed to the Participant, along with Fund Earnings allocable
thereto no later than the last day of the following Plan Year. If
the excess Matching Employer Contribution is not fully vested, such
non-vested portion shall constitute a Forfeiture and shall be
allocated as such according to Section 4.02(c), except that such
forfeited amounts shall not be allocated to the Individual Account of
a Participant whose contributions have been reduced for the Plan Year
under this subsection (b). The maximum amount of Participant Tax-
Deferred and Matching Employer Contributions permitted under the
limitations of Section 3.04 shall be determined by reducing the
amount of such contributions made on behalf of Highly Compensated
Employees in the order of their Deferral Percentages and Contribution
Percentages, beginning with the highest. This determination of
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maximum amount shall be made in accordance with the provisions of
section 401(m) of the Code and regulations thereunder.
(c) The Fund Earnings allocable to such excess contributions
for the Plan Year are determined by multiplying the Fund Earnings
allocable to the Participant Tax-Deferred Contributions Account (or
the Matching Employer Contributions Account as applicable) by a
fraction. The numerator of the fraction is the excess contribution
to the respective account for the Plan Year and the denominator is
the total balance of the Plan Year, reduced by Fund Earnings
allocable to such account for the Plan Year.
The Fund Earnings allocable to excess contributions for
the period between the end of the Plan Year and the date of the
corrective distribution are equal to ten percent (10%) of the Fund
Earnings allocable to the excess contributions for the Plan Year as
determined under the preceding paragraph, multiplied by the number of
calendar months that have elapsed since the end of the Plan Year. In
this determination, a distribution on or before the fifteenth day of
the month will be treated as having been distributed on the last day
of the preceding month; a distribution made after the fifteenth day
of the month will be treated as having been distributed on the last
day of the month.
Section 3.06 Form and Manner of Employer Contributions. Employer
Contributions may be made on any date or dates the Employer elects,
but the total amount of its contribution for any Plan Year shall be
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paid within the period described in section 404(a)(6) of the Code.
Although it is the intent of the Employer that its contributions
hereunder shall be regular and substantial, the Employer shall be
under no duty to contribute the same amount or to contribute the same
percentage of its profits for every Plan Year.
Section 3.07 Prohibition of Reversion. Subject to Section 4.03,
the Employer Contributions to the Plan shall be made irrevocably and
it shall be impossible for the assets of the Plan to inure to the
benefit of the Employer or to be used in any manner other than for
the exclusive purpose of either providing benefits to Participants
and Beneficiaries or defraying reasonable expenses of administering
the Plan; provided, however, that nothing herein shall be construed
to prohibit the return to the Employer of all or part of a
contribution as follows:
(a) which is made by the Employer by a mistake of fact,
provided the return of such contribution is made within one (1) year
after the payment thereof;
(b) to the extent a deduction thereof under section 404 of the
Code is disallowed, provided the return of such contribution is
limited to the amount disallowed and is made within one year after
the disallowance; or
(c) which is conditioned upon initial Internal Revenue Service
qualification of the Plan under Section 9.05 hereof, provided the
return is made within one (1) year after the denial of qualification
of the Plan.
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Section 3.08 Transfers from Qualified Plans.
(a) General. With the consent of the Administrator, amounts
may be transferred from other qualified plans by Employees, provided
that the trust from which such funds are transferred permits the
transfer to be made and the transfer will not jeopardize the tax
exempt status of the Plan or Trust or create adverse tax consequences
for the Employer. The amounts transferred shall be set up in the
transferring Participant's Voluntary Rollover Account. Such account
shall be fully vested at all times and shall not be subject to
forfeiture for any reason.
(b) Distribution of Voluntary Rollover Account. Amounts in a
Participant's Voluntary Rollover Account shall be held by the Trustee
pursuant to the provisions of this Plan and may not be withdrawn by,
or distributed to, the Participant, in whole or in part, except as
follows:
(i) Except as permitted by regulations (including
Regulation section 1.411(d)-4), amounts attributable to elective
contributions (as defined in Regulation section 1.401(k)-1(g)(3)),
including amounts treated as elective contributions, which are
transferred from another qualified plan in a plan-to-plan transfer
shall be subject to the distribution limitations provided for in
Regulation 1.401(k)-1(d).
(ii) At Normal Retirement Date, or such other date when
the Participant or his Beneficiary shall be entitled to receive
benefits, the fair market value of the Participant's Voluntary
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Rollover Account shall be used to provide additional benefits to the
Participant or his Beneficiary. Any distributions of amounts held in
Participant's Voluntary Rollover Account shall be made in a manner
which is consistent with and satisfies the provisions of Article V.
Furthermore, such amounts shall be considered as part of a
Participant's benefit in determining whether an involuntary cash-out
of benefits without Participant consent may be made.
(c) Definitions. For purposes of this Section, the term
"qualified plan" shall mean any tax qualified plan under Code section
401(a). The term "amounts transferred from other qualified plans"
shall mean: (i) amounts transferred to this Plan directly from
another qualified plan; (ii) lump-sum distributions received by an
Employee from another qualified plan which are eligible for tax free
rollover to a qualified plan and which are transferred by the
Employee to this Plan within sixty (60) days following his receipt
thereof; (iii) amounts transferred to this Plan from a conduit
individual retirement account, provided that the conduit individual
retirement account has no assets other than assets which (A) were
previously distributed to the Employee by another qualified plan as a
lump-sum distribution, (B) were eligible for tax-free rollover to a
qualified plan and (C) were deposited in such conduit individual
retirement account within sixty (60) days of receipt thereof and
other than earnings on said assets; and (iv) amounts distributed to
the Employee from a conduit individual retirement account meeting the
requirements of clause (iii) above, and transferred by the Employee
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to this Plan within sixty (60) day of his receipt thereof from such
conduit individual retirement account.
(d) Other Limitations. Prior to accepting any transfers to
which this Section applies, the Administrator may require the
Employee to establish that the amounts to be transferred to this Plan
meet the requirements of this Section and may also require the
Employee to provide an opinion of counsel satisfactory to the
Employer that the amounts to be transferred meet the requirements of
this Section. Further, this Plan shall not accept any direct or
indirect transfers (as that term is defined and interpreted under
Code section 401(a)(11) and the regulations thereunder) from a
defined benefit plan, money purchase plan (including a target benefit
plan), stock bonus or profit sharing plan which would otherwise have
provided for a life annuity form of payment to the Participant.
Notwithstanding anything herein to the contrary, a transfer directly
to this Plan from another qualified plan (or a transaction having the
effect of such transfer) shall only be permitted if it will not
result in the elimination or reduction of any benefit protected by
Code section 411(d)(6).
Section 3.09 Participant's Election as to Investment Funds.
(a) General. Subject to the terms and conditions set forth
herein, each Participant shall be entitled to make an election to
direct how his Participant-Directed Account shall be invested. Each
such Participant shall be entitled to allocate his account balance in
increments of 10% in and among the Investment Funds described below.
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Fund A shall consist of shares of Employer Stock.
Fund B shall consist of a stock index fund.
Fund C shall consist of a managed portfolio of fixed
income and equity-type securities.
Fund D shall consist of a managed portfolio of short- and
intermediate-term bonds.
Fund E shall consist of a money market fund.
(b) Elections. Each Participant shall make an initial
election at the time of enrollment in the Plan. Until the
Participant makes a new election, the initial election shall remain
in effect and shall apply to all present and future allocations to
the Participant's Participant-Directed Account. A Participant shall
be entitled to change his election within a specified period of time
established by the Administrator prior to the date on which the
change is to become effective. Changes in investment elections by
Participants hereunder shall become effective on January 1, April 1,
July 1 or October 1 of each Plan Year or at such other time or times
as the Administrator, in a uniform and nondiscriminatory manner, may
determine. Should a Participant fail to make an initial election for
his Participant-Directed Account to be invested in any Fund or
combination of Funds or fail to make an election which equals 100% of
his Participant-Directed Account, such undesignated amount shall be
invested in Fund E.
(c) Election to Transfer Assets. Each Participant shall be
entitled to transfer assets between and among the Funds. Such
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election to transfer assets shall specify the percentage of the
Participant's Individual Account balance to be transferred and shall
specify the funds involved. Each Participant shall be entitled to
elect such transfer as described herein within a specified period of
time established by the Administrator prior to the date on which the
change is to become effective, subject to the limitations described
herein. Changes in investment elections by Participants hereunder
shall become effective on January 1, April 1, July 1 or October 1 of
each Plan Year or at such other time or times as the Administrator,
in a uniform and nondiscriminatory manner, may determine.
(d) Form of Elections. Each election made pursuant to this
Section shall be made in such manner and at such time or times as the
Administrator in its sole discretion may determine.
(e) Investment of Matching Employer Contributions Account.
Amounts allocated to a Participant's Matching Employer Contributions
Account shall be invested in Fund A or in such other manner as
determined by the Administrator in its sole discretion.
Notwithstanding anything herein to the contrary, such amounts shall
not be subject to the Participant elections described in this Section
3.09.
Section 3.10 Suspension and Limitation of Contributions upon
Withdrawal. Notwithstanding Sections 3.02(c) and 3.03 hereinabove, if
a Participant is granted a hardship withdrawal of funds from his
Participant Tax-Deferred Contributions Account pursuant to Section
5.08(b), then his Participant Tax-Deferred Contributions to this Plan
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or his contributions or salary deferrals to any other qualified plan
maintained by the Employer shall be suspended for a period of twelve
(12) full months following the date of such distribution. After the
twelve (12) month suspension period, his Participant Tax-Deferred
Contributions shall resume on the next following January 1 or July 1
in the same amount previously elected, unless the Participant has
made a contrary election pursuant to Section 3.03.
Further, in the calendar year following the year in which a
Participant receives a hardship withdrawal, the dollar limit
described in Section 3.02(c) shall be reduced by the amount of the
Participant's Tax-Deferred Contributions for the calendar year of the
withdrawal.
Section 3.11 Purchase of Employer Stock.
(a) Subject to the provisions of paragraph (b) below, the
Trustee shall purchase all shares of Employer Stock for Fund A either
(i) in the open market, or (ii) privately from any other person or
entity (including, without limitation, a Participant or an Employer)
at a price per share not in excess of the closing sale price on the
date of purchase as reported in the share note in excess of the
closing sale price on the date of purchase as reported in the share
not in excess of the closing sale price on the date of purchase as
reported in the NASDAQ National Market listing, or if Employer Stock
is traded on a national securities exchange, at a price per share
equal to the closing price on the date of purchase of Employer Stock
as reported by the exchange, or if there were no such trades on the
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date of purchase, at a price per share equal to the closing price on
the last day immediately preceding the date of purchase on which
shares of Employer Stock were traded on such exchange.
(b) Notwithstanding the foregoing provisions of paragraph (a)
above, (i) in no event shall the Trustee purchase shares of Employer
Stock from a person or entity the sale by whom would subject such
person or entity to liability under Section 16(b) of the Securities
Exchange Act of 1934, as amended, and (ii) in the event that the
Trustee purchases shares of Employer Stock from any person or entity
that is a "party in interest" (within the meaning of Section 3(14) of
ERISA), then such purchase shall satisfy in all respects the
provisions of Section 408(e) of ERISA (and the regulations
promulgated thereunder).
ARTICLE IV
ALLOCATIONS TO INDIVIDUAL ACCOUNTS
Section 4.01 Individual Accounts. On each Valuation Date the
Trustee shall determine the value of the Fund at its fair market
value adjusted for appropriate accrual items, and the balances of all
Individual Accounts shall be brought up to date in accordance with
this Article so that the sum total of the balances of all Individual
Accounts shall equal the value of the Fund on such date. All entries
to Individual Accounts shall be conclusive and binding on all
Participants and Beneficiaries.
Section 4.02 Account Adjustments.
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(a) Allocation of Contributions. As of each Valuation Date,
the Participant Tax-Deferred Contributions Account, Voluntary
Rollover Account, Basic Employer Contributions Account and Matching
Employer Contributions Account of each Participant shall be brought
up to date and credited with contributions made since the last
Valuation Date, as applicable. Participant Tax-Deferred
Contributions may be considered allocated as of any date within the
Plan Year if such contributions are actually made to the Plan no
later than thirty (30) days after the end of the Plan Year.
(b) Allocation of Fund Income. As of each Valuation Date,
dividends and other income attributable to Employer Stock and Fund
Earnings attributable to the investments made by the Trustee in Funds
B through E shall be allocated to each Participant's respective
accounts.
Dividends on Employer Stock shall be allocated to each
account in the ratio that the number of shares of Employer Stock in
each respective account on the date the dividends are declared bears
to the total number of shares of Employer Stock in all accounts on
such date. The Fund Earnings shall be allocated to the accounts in
proportion to the value of the account for the period since the last
Valuation Date, debited by the amount of withdrawals, if any, made
since that Valuation Date. Adjustments may be made in an equitable
manner, to accurately reflect Fund Earnings based upon an average
account balance during the period.
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(c) Forfeitures. Forfeitures which become available for
reallocation under the terms of Sections 3.04 or 5.06 shall be used
to reduce or to augment the Matching Employer Contributions made
under Section 3.02(b), as the Board may direct in any Plan Year.
Section 4.03 Limitation on Allocations.
(a) Annual Additions Limitation. Subject to further reduction
under subsections (b) and (c), the annual additions to the Individual
Account of a Participant shall not exceed the Maximum Permissible
Amount. For purposes of this Section, "annual additions" shall mean,
for any Limitation Year, reallocated Forfeitures plus the sum of the
Participant's Tax-Deferred Contributions and the Participant's
allocable share of Employer Contributions, all determined prior to
any corrective distribution or Forfeiture pursuant to Section 3.05.
(b) Maximum Permissible Amount. For any Limitation Year, the
Maximum Permissible Amount shall mean the lesser of:
(1) thirty thousand dollars ($30,000) (or such greater
amount according to the cost-of-living adjustment permissible under
415(d)(3) of the Code and determined by the Commissioner of Internal
Revenue for the Limitation Year or, if greater, one-fourth (1/4) of
the limit for defined benefit plans as set forth in Section 415(b)(1)
of the Code as in effect for the Limitation Year), or
(2) twenty-five percent (25%) of the Compensation
received by the Participant from the Employer for the Limitation
Year.
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If because of an amendment changing the Limitation Year a
short Limitation Year is created, then the Maximum Permissible Amount
will not exceed thirty thousand dollars ($30,000) multiplied by the
following fraction:
Number of months in the short Limitation Year - twelve (12)
(c) Aggregation of Plans. If, in addition to this Plan, the
Employer maintains another defined contribution plan, then the
limitations under section 415 of the Code shall apply as if such
other plan and this Plan were one plan, and the limitation under
subsection (a) shall be reduced correspondingly by the amount of
annual additions (as defined in section 415(c) of the Code) allocated
to the account or accounts of a Participant covered under such other
plan.
(d) Disposition of Excess Amounts. If a reduction of amounts
to be allocated to a Participant's Individual Account is necessitated
by such facts and circumstances as the Commissioner finds justify the
application of the limits imposed by section 415 of the Code, such
reduction shall be as follows:
(1) the Participant Tax-Deferred Contributions in excess
of the limit shall be distributed to the Participant prior to April
15 of the year following the year of deferral;
(2) the amount of such reduction consisting of Employer
Contributions shall be allocated and reallocated to the Employer
Contributions Accounts of other Participants in accordance with the
formula for allocating Employer Contributions in Section 4.02 to the
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extent that such amounts do not exceed the limitations of this
Section; and
(3) If such reductions cannot be allocated in the
foregoing manner, such reductions shall be allocated to a suspense
account and held therein until the next Valuation Date and succeeding
Valuation Dates as of which such amounts can be either allocated or
credited under Section 4.02 until the amount in the suspense account
is exhausted. Notwithstanding the foregoing, the Employer shall not
contribute any amount that would cause an allocation to the suspense
account as of the Valuation Date such contribution is allocated. If
the contribution is made prior to the date as of which it is to be
allocated, then such contribution shall not exceed an amount that
would cause an allocation to the suspense account if the date of
contribution were the date of allocation; and, provided, further,
that investment gains and losses and other income shall not be
allocated to the suspense account. Upon termination of the Plan, the
suspense account shall revert to the Employer to the extent it may
not then be allocated to any Individual Account of a Participant.
Section 4.04 Voting of Shares. Effective May 1, 1993, the Trustee
shall vote all shares of Employer Stock which are allocated to each
Participant's Individual Account.
ARTICLE V
BENEFITS
Section 5.01 Payment of Benefits.
(a) Determination of Value.
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The value of an Individual Account which is to be
distributed pursuant to the normal form of benefit described in
Section 5.01(e) below shall be determined as an amount equal to the
balance of such Individual Account as of the Valuation Date next
preceding the date of the termination of the Employment, or
Retirement, of the Participant, plus any contributions credited to
his account since that time, together with Fund Earnings credited or
charged thereto as of each subsequent Valuation Date up to and
including the Valuation Date which next precedes the date such
determination is made less the sum of any distributions to such
Participant since such Valuation Date and less the portion of such
account, if any, which is to be paid to an Alternate Payee in
accordance with the terms of a Qualified Domestic Relations Order.
(b) General Conditions.
(1) Before payment of any benefit hereunder, the
Administrator may require that written application be made by the
Participant or Beneficiary, as the case may be, and submitted to the
Administrator in such form and manner as it shall uniformly and
nondiscriminatorily prescribe.
(2) The Plan Administrator shall require the written
consent of the Participant prior to the commencement of the
distribution of any part of his benefit if the value of such benefit
is greater than three thousand five hundred dollars ($3,500).
(3) Any payment made in accordance with the provisions of
the Plan to a Participant or Beneficiary, or to their legal
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representative, shall, to the extent of the method of computation as
well as the amount thereof, constitute full satisfaction of claims
hereunder against the Trustee, the Committee and the Administrator,
any of whom may require such Participant, Beneficiary or legal
representative, as a condition precedent to such payment, to execute
a receipt and release therefor.
(4) The distribution of the Participant's entire interest
in the Plan will be made in a lump sum or in periodic payments over a
period not exceeding the life expectancy of the Participant or the
joint life expectancy of the Participant and his designated
Beneficiary.
(c) Time of Payment. Benefits shall be paid as soon as is
practicable after the value thereof shall have been determined, and
when a Participant becomes eligible for a benefit, in accordance with
the terms of this Article V. Unless a Participant elects to defer the
payment of his benefits until a later date, the payment shall be made
or commenced not later than sixty (60) days after the close of the
Plan Year in which the latest of the following events occurs:
(1) the Participant reaches his Normal Retirement Date,
(2) the tenth (10th) anniversary of the year in which the
Participant began participating in the Plan, or
(3) the Participant terminates his Employment with the
Employer.
(d) Required Distribution.
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(1) Distribution of benefits shall commence no later than
the end of the taxable year in which the Participant attains age
seventy and one-half (70/), or in which he retires, whichever is
later. However, if a Participant is a five percent (5%) owner, as
defined in Section 416 of the Code, the distribution of the
Participant's Individual Account must begin no later than April 1st
following the calendar year in which such Participant attains age
seventy and one-half (70/), even though the Participant has not
elected Retirement or terminated his Employment.
(2) Effective January 1, 1989, distribution of benefits
shall commence no later than April 1 following the calendar year in
which the Participant attains age seventy and one-half (70/) without
regard to the actual date of Retirement or termination of Employment.
Provided, however, the provisions of the preceding subsection (d)(1)
shall continue to apply in lieu of this subsection (d)(2) for any
Participant who is at least age seventy and one-half (70/) as of
January 1, 1988 and who was not a Five Percent Owner at any time
after attaining age sixty-six and one-half (66/).
(e) Normal Form of Payment. Unless a Participant elects an
optional form of payment pursuant to Section 7.02, the form of
payment of a benefit under the Plan shall be a lump sum payment of
the entire nonforfeitable interest of the Participant in the Plan
within one (1) taxable year to the Participant or the Beneficiary, as
the case may be.
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(f) Distribution of Shares. Whole shares of Employer Stock
shall be distributed in cash or in kind at the election of the
Participant. In lieu of distributing any fractional shares, the
Trustee shall pay to the Participant, in cash, the value of any
fractional share on the basis of the price per share established by
the Trustee as of the evaluation date coinciding with or immediately
preceding the date of distribution. In establishing the price for
whole or fractional shares, the Trustee may use the closing prices
quoted in the Wall Street Journal, or by the National Quotation
Bureau, Inc., if any, for such day, but if there is no such quoted
price available, the Trustee may obtain and use a quotation from a
licensed stockbroker, or such other pertinent information as in its
judgment may be necessary to determine the value. The Committee will
determine the date of evaluation, which will fail within a reasonable
period of time of the distribution date.
Section 5.02 Early Retirement Benefit. Each Participant
shall be eligible to retire on or after his Early Retirement Date
whereupon he shall be entitled to an Early Retirement Benefit equal
to the value of his Individual Account; provided, however, that the
Participant who desires to receive an Early Retirement Benefit shall
give three (3) months notice thereof before such distribution is to
be made.
Section 5.03 Normal Retirement Benefit. Each Participant
shall be eligible to retire on his Normal Retirement Date whereupon
he shall be entitled to a Normal Retirement Benefit equal to the
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value of his Individual Account. The interest of a Participant in
his Individual Account shall be fully vested and nonforfeitable on
the date the Participant attains his Normal Retirement Age.
Section 5.04 Delayed Retirement Benefit. A Participant who
continues Employment beyond his Normal Retirement Date may retire on
his Delayed Retirement Date whereupon he shall be entitled to a
Delayed Retirement Benefit equal to the value of his Individual
Account.
Section 5.05 Disability Retirement Benefit. For purposes of
the Plan, a Participant shall be deemed to be disabled or under a
disability if he is deemed by the Social Security Administration
Department to be eligible to receive a Primary Social Security
Disability benefit. A Participant who has become disabled as defined
in this Section shall be retired on his Disability Retirement Date
whereupon he shall be entitled to a Disability Retirement Benefit
equal to the value of his Individual Account.
Section 5.06 Vested Benefit.
(a) Determination of Vested Benefit. If a Participant
terminates Employment other than because of his death or Retirement
and if he then does not become entitled to a benefit under any
preceding Section of this Article V, he shall be entitled to a Vested
Benefit under this Section equal to the vested value of his
Individual Account. Such vested value shall be determined as
follows:
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(1) The nonforfeitable percentage of his Employer
Contributions Account shall be determined according to the following
schedule:
Years of Credited Percentage of
Employment at Termination Account Vested
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(2) The remainder of his Individual Account shall be
fully vested and nonforfeitable at all times.
Notwithstanding any other provision of the Plan to the
contrary, the right of any Participant to receive any benefits
payable under this Section shall not be forfeited or waived for any
reason for which such Participant's Employment is terminated,
provided that such termination occurs after he has met the
requirements which would quality him for benefits hereunder.
(b) Distribution Of Vested Benefit. The Vested Benefit shall
be payable within sixty (60) days after the Valuation Date coincident
with or next following the date Employment is terminated. However,
if the value of his vested Individual Account is greater than $3,500,
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then the Vested Benefit may not be distributed without the
Participant's consent prior to the time he attains what would have
been his Normal Retirement Date.
Any portion of the Employer Contributions Account of the
Participant which is in excess of the nonforfeitable percentage
thereof shall, upon termination of the Participant's Employment under
this Section, be maintained until the Valuation Date coincident with
or following the earlier of
(1) the date on which the Vested Benefit is distributed,
or
(2) the date on which the Participant incurs five (5)
consecutive one-year Breaks in Employment.
At that time, such excess shall constitute a Forfeiture
and shall be reallocated in accordance with Section 4.02(c).
If a Participant who is partially but not fully vested at
the time of his termination of Employment and who has received a
distribution of the vested portion of his Individual Account is
reemployed before he has incurred five (5) consecutive one-year
Breaks in Employment and before his prior Credited Employment may be
disregarded, then the previously forfeited portion of his Employer
Contributions Account shall be restored provided he repays the amount
distributed to him from his Employer Contributions Account before the
earlier of the close of the Plan Year in which he incurs his fifth
consecutive one-year Break in Employment following the date of
distribution, or five years after the date on which he is reemployed
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by the Employer. The Employer shall contribute to such Participants'
Employer Contributions Account an amount equal to the amount (if any)
which he previously forfeited and his vested interest shall be
determined thereafter as if he had not ceased Employment. Upon
repayment, the nonvested amount reinstated will not be less than the
nonvested amount in the Participant's Employer Contributions Account
at the time of distribution, unadjusted by any subsequent gains or
losses.
Section 5.07 Death Benefit.
(a) Benefit. In the event a Participant's death occurs while
employed by the Employer a death benefit equal to the value of his
Individual Account shall be payable to the Beneficiary of the
Participant. In the event a Participant's death occurs after having
terminated Employment but before distribution has commenced, a death
benefit equal to the portion of his Individual Account to which he
would otherwise have been entitled shall be payable to the
Beneficiary of the Participant,
(b) Designation of Alternate Beneficiary. A married
Participant may designate, in writing on forms provided by the
Administrator, a Beneficiary other than his spouse if (i) the
Participant's spouse consents in writing to such election, (ii) the
spouse's consent acknowledges the effect of such election and (iii)
such election is witnessed by the Plan Administrator or a Notary
Public, or it is established to the satisfaction of the Plan
Administrator that the consent required under (i) above may not be
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obtained because there is no spouse or because the spouse cannot be
located. Any consent by a spouse (or assertion that the consent of a
spouse may not be obtained) under the preceding sentence shall be
effective only with respect to such spouse and any subsequent change
in the designation of the Beneficiary is invalid without a new
consent from the spouse. The election must designate a Beneficiary
(or a form of benefits) which designations may not be changed without
spousal consent; however, the consent of the spouse may expressly
permit designations by the Participant without further consent by the
spouse.
(c) Distribution Upon Death. Upon the death of the
Participant, the following distribution provisions shall take effect:
(1) If the Participant dies after distribution of his
account has commenced, the remaining portion of such account will
continue to be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(2) If the Participant dies before distribution of his
account commences, the Participant's entire account will be
distributed no later than five (5) years after the Participant's
death except to the extent that an election is made to receive
distributions in accordance with (i) or (ii) below:
(i) If any portion of the Participant's account is
payable to a designated Beneficiary, distributions may be made in
substantially equal installments over the life expectancy of the
designated Beneficiary. Such distribution shall commence at such
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time as the Plan Administrator shall determine, but no later than
sixty (60) days after the end of the Plan Year in which death occurs,
or one (1 ) year after the date of death.
(ii) If the designated Beneficiary is the
Participant's surviving spouse, the date distributions are required
to begin in accordance with (i) above shall not be earlier than the
date on which the Participant would have attained age seventy and
one-half (70 /), and, if the spouse dies before payments begin,
subsequent distributions shall be made as if the spouse had been the
Participant.
(3) For purposes of (2) above, payments will be
calculated by use of the return multiples specified in section 1.72-9
of the regulations. Life expectancy of a surviving spouse may be
recalculated annually; however, in the case of any other designated
Beneficiary, such life expectancy will be calculated at the time
payment first commences without further recalculation.
(4) For purposes of (1), (2) and (3) above, any amount
paid to a child of the Participant will be treated as if it had been
paid to the surviving spouse if the amount becomes payable to the
surviving spouse when the child reaches the age of majority.
(5) Subject to the provisions of Section 5.01(e), the
Beneficiary may choose to receive payments in accordance with Section
7.02.
(6) The Plan Administrator may require such proper proof
of death and such evidence of the right of any person to receive
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payment of the vested benefits of a deceased Participant as the Plan
Administrator may deem desirable. The Plan Administrator's
determination of death and of the right of any person to receive
payment shall be conclusive.
Section 5.08 Withdrawal of Contributions. Withdrawals by a
Participant shall be permitted in accordance with the provisions of
this Section. Any such withdrawal shall be permitted at such time or
times, and in such manner and form, as shall be uniformly and
nondiscriminatorily established by the Plan Administrator. Further,
married Participants must obtain written spousal consent prior to
making a withdrawal.
(a) Employer Contributions. In-service withdrawals shall not
be made for any reason from the Basic Employer Contributions or
Matching Employer Contributions Accounts of a Participant.
(b) Participant Tax-Deferred Contributions. In-service
withdrawals shall be permitted from the Participant Tax-Deferred
Contributions Account only upon demonstration of hardship, i.e., only
if the withdrawal is necessary in light of an immediate and heavy
financial need of the Participant. Such withdrawal shall not exceed
the amount required to meet the immediate financial need created by
the hardship and shall not reasonably be available from other
resources of the Participant.
The determination of an immediate and heavy financial need
and of the amount necessary to meet the need shall be made by the
Plan Administrator in accordance with the standards set forth in
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Treasury Regulation 1.401(k)-0 and other rulings or notices published
by the Commissioner.
Under these standards, a withdrawal shall be deemed to be
made on account of hardship if it is made pursuant to:
(1) medical expenses described in section 213(d) of the
Code incurred by the Participant, his spouse or his dependents (as
defined in section 152 of the Code);
(2) purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3) payment of tuition for the next semester or quarter
of post-secondary education for the Participant, his spouse or his
dependents;
(4) the need to prevent eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(5) any other cause which, in the Administrator's
determination, has produced an immediate and heavy financial need.
The amount of the hardship withdrawal shall be further
limited to the amount of Participant Tax-Deferred Contributions plus
income allocable thereto credited as of December 31, 1988; income
allocated after that date shall not be available for hardship
withdrawal.
(c) Voluntary Rollover Contributions. In-service withdrawals
shall be permitted from the Participant's Voluntary Rollover Account;
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provided, however, that withdrawals may not be made more frequently
than once between Valuation Dates.
Section 5.09 Participant Loans. A Participant may be granted
a loan from the Plan, subject to the terms and conditions as herein
set forth. All loans, made or renegotiated on or after October 18,
1989, must conform to the specific provisions outlines in this
Section 5.09 and any applicable requirements of section 4975(d) and
section 72(p) of the Code.
(a) Loans shall be made available to all Participants,
Beneficiaries and Alternate Payees on a reasonably equivalent basis.
Loans shall not be made available to Highly Compensated Employees in
an amount greater than that made available to other Employees.
(b) Loans to a Participant may only be granted for reasons of
hardship. The loan must be necessary in light of immediate and heavy
financial needs of the Participant. The loan may not exceed the
amount required to meet the immediate financial need created by the
hardship and shall not reasonably be available form other resources
of the Participant.
(c) All loan applications must be made in writing delivered to
the Plan Administrator in such form and manner as the Plan
Administrator may require.
(d) The Plan Administrator shall review each loan application
and may, in its sole discretion, authorize and direct the Trustee to
make the loan from the Trust to the applicant.
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(e) A loan may be granted to a Participant (and/or his
Beneficiary or Alternate Payee) no more than once in any six (6)
month period.
(f) The minimum loan amount shall be one thousand dollars
($1,000).
(g) The maximum loan amount (when added to the outstanding
balance of all other loans made from the Plan) shall be the lesser
of:
(1) one-half (/) of the Participant's vested interest in
his Individual Account (excluding amounts attributable to accumulated
deductible employee contributions as defined by section 72(o) of the
Code, if any), or
(2) fifty thousand dollars ($50,000), reduced by
(i) the highest outstanding balance of loans from
the Plan during the one (1)-year period ending on the date before the
date on which such loan was made, over
(ii) the outstanding balance of loans from the Plan
on the date on which the loan was made.
For this purpose, all qualified plans of the
Employer, all qualified plans or trades or businesses which are under
common control with the Employer (within the meaning of Code section
414(b) or 414(c)), and all qualified plans of an affiliated service
group (within the meaning of Code section 414(m)) of which the
Employer is a part must be aggregated.
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(h) Loans shall be made from such Fund or Funds of each
Participant's Individual Account as the Administrator in its sole
discretion may determine. Loans shall be repaid to the same Fund or
Funds from which they are made, notwithstanding any elections made by
Participants pursuant to Section 3.09.
(i) A Participant loan must be adequately secured so that no
loss to the Plan will occur in the event of default. The
Participant's vested interest in his Individual Account shall serve
to collateralize the loan, as shall be evidenced by a promissory note
payable to the Trust and signed by the Participant, stating that any
loan balance, together with accrued interest, shall become
immediately due and payable upon default. A loan shall be deemed in
default two (2) weeks after a Participant fails to made a required
payment. Upon default, the Participant's Individual Account balance
shall be decreased by the amount in default, which shall be
considered a taxable distribution to the Participant. Foreclosure of
the loan may be delayed, however, as long as no loss to the Plan
occurs in consequence.
(j) The period of repayment for any loan shall be agreed upon
by the Plan Administrator and the borrowing Participant. In no event
shall the loan repayment period exceed five (5) years unless the loan
is used to purchase the principal residence of the Participant.
(k) The interest rate for the loan shall be determined by the
Plan Administrator commensurate with the rates used by commercial
lenders for loans which would be made under similar circumstances.
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Loans made at different times may bear different rates of interest
due to changes in commercial interest rates. The Plan Administrator
shall review the interest rates for loans made or renegotiated after
1989 on a quarterly basis to determine if the rates correctly reflect
current commercial rates.
(l) The loan shall be amortized in level payment made no less
frequently than quarterly, and shall be repaid through payroll
deductions. If the Participant terminates employment prior to full
repayment of the loan, he may continue to make payment to the Trust
according to the same schedule, upon the approval of the Plan
Administrator.
(m) No distribution other than as provided in Section 5.08
shall be paid to any Participant, Beneficiary or Alternate Payee of a
Participant unless and until the balance on all unpaid loans,
including accrued interest, has been collected.
(n) No loan shall be granted to a married Participant unless
the spouse of the Participant consents in writing at the time the
loan is made or during the ninety (90)-day period ending on the date
the loan is made. The consent must comply with the requirements of
Section 5.07(b), but shall be deemed to meet the requirement of that
Section with respect to the consent of any subsequent spouse.
Section 5.10 Failure to Locate. If the Participant or
Beneficiary to whom benefits are to be distributed cannot be located,
and reasonable efforts have been made to find him, including sending
notification by certified or registered mail to his last known
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address, then the Plan Administrator shall consider the balances in
the Participant's Individual Account forfeited, and such amounts
shall be reallocated in accordance with Section 4.02(c). In the event
that such Participant or Beneficiary is subsequently located, the
balance in his Individual Account at the time of forfeiture shall be
reinstated and distributed to him.
Section 5.11 Direct Rollover Election.
(a) Election. This Section 5.11 applies to distributions made
on or after January 1, 1993. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a distributee's
election under this Section 5.11, a distributee may elect, at the
time an in the manner prescribed by the Plan Administrator, to have
any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover.
(b) Definitions.
(i) Eligible Rollover Distribution. An "eligible
rollover distribution" is any distribution of all or any portion of
the balance to the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or for
a specified period of ten years or more; any distribution to the
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extent such distribution is required under section 401(a)(9) of the
Code; and the portion of any distribution that is not includable in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(ii) Eligible Retirement Plan. An "eligible retirement
plan" is an individual retirement account described in section 408(a)
of the Code, an individual retirement annuity described in section
408(b) of the Code, an annuity plan described in section 403(a) of
the Code, or qualified trust described in section 401(a) of the Code,
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(iii) Distributee. A "distributee" includes an
employee or former employee. In addition, the employee's or former
employee's surviving spouse and the employee's or former employee's
spouse or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in section 414(p) of the Code,
are distributees with regard to the interest of the spouse or former
spouse.
(iv) Direct Rollover. A "direct rollover" is a payment by
the plan to the eligible retirement plan specified by the
distributee.
Section 5.12 Accounts for Participants Electing to Defer
Distribution. If the Participant or Beneficiary elects to defer
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distribution of his vested account balance, as determined under
Section 5.06, then, unless the Administrator determines otherwise in
its sole discretion, his Matching Employer Contributions Account
shall continue to be invested in Fund A, and the remainder of his
account shall be invested by the Trustee in Fund E, as described in
Section 3.09. The account shall remain so invested sharing in Fund
Earnings and losses, if any, until the account is distributed to the
Participant or Beneficiary.
ARTICLE VI
MODIFICATIONS FOR TOP-HEAVY PLANS
Section 6.01 Application of Provisions. Prior to the
allocation of contributions to Participant accounts pursuant to
Section 4.02, the Plan Administrator shall determine whether the Plan
constitutes a Top Heavy Plan. Should a determination be made that
this Plan constitutes a Top Heavy Plan, the provisions of this
Article VI shall be applicable notwithstanding any other provisions
of this Plan to the contrary.
Section 6.02 Minimum Contribution. A minimum Employer
contribution shall be provided to each Non-Key Employee who is
employed on the last day of the Plan Year. This minimum Employer
contribution shall be made, even though under other Plan provisions
the Participant would not otherwise be entitled to receive an
allocation because of:
(a) his failure to complete 1,000 Hours of Employment during
the Plan Year,
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(b) his failure to make contributions required for
participation in the Plan, or
(c) his level of Compensation.
The minimum amount required under this Section shall be equal
to three percent (3%) of the Participant's Compensation. If,
however, the sum of Employer contributions and forfeitures for any
Key Employee for such Plan Year, under this and any other defined
contribution plan required to be included in the Top Heavy Ratio and
maintained by the Employer, is less than three percent (3%) of such
Key Employee's total Compensation, then the minimum amount required
need not exceed the amount that results from the multiplying each
Participant's Compensation by the highest contribution rate of any
Key Employee covered by the Plan.
For Plan Years beginning after December 31, 1988, Participant
Tax-Deferred Contributions and Matching Employer Contributions made
on behalf of Key Employees shall be taken into account in determining
the minimum required amount. However, such contributions made on
behalf of Non-Key Employees shall not be treated as Employer
contributions for purposes of satisfying the minimum required amount
as described above.
There shall be disregarded for purposes of this Section any
contributions or benefits under chapter 21 of the Code (relating to
the Federal Insurance Contributions Act), Title II of the Social
Security Act, or any other federal or state law.
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Section 6.03 Accelerated Vesting. The Plan provides for a
graduated vesting schedule in Section 5.06. For any Plan Year in
which this Plan is deemed to be a Top Heavy Plan, the vesting
schedule shall be as follows:
Year of Credited Percentage of
Employment at Termination Account Vested
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
Should this Plan, in a later year, not be deemed a Top Heavy Plan,
after previously being so categorized, the original vesting schedule
shall again be effective, except that the vested percentage attained
by Participants shall not be reduced thereby and Participants with
three (3) or more Years of Employment shall have the right to select
the schedule under which their Vested Benefit will be determined.
ARTICLE VII
FORM OF PAYMENT
Section 7.01 Description of Optional Benefits.
Notwithstanding any statement herein to the contrary, in no event
shall election of any optional form of benefit be permitted which
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would enable the Participant to elect irrevocably prior to Retirement
to have all or such part of his nonforfeitable interest in the Plan,
which would otherwise become available to him during his lifetime,
paid to his Beneficiary after his death in such a way that would
cause the Plan to fail to meet the requirements of section 401(a) of
the Code. In accordance with the above, the following optional forms
shall be available:
(a) Option A: Time Period Installments. Option A shall be
defined as a distribution, which shall begin at the Participant's
Retirement or termination, from the Individual Account balance of the
Participant payable in monthly, quarterly, semi-annual or annual
installments, over a specified period of years not in excess of
twenty (20) years, as elected by the Participant. The distribution
in any year shall be determined as a fraction of the remaining
Individual Account value, such fraction being determined as of the
most recent Valuation Date as one (1) divided by the remaining number
of years of the specified period, in accordance with the election of
the Participant; provided, however, that no arrangement may be made
which would result in a periodic payment of less than fifty dollars
($50.00). Upon the death of the Participant after distributions
commence hereunder, the Beneficiary, if living, may similarly elect
to receive the balance of the Individual Account of the Participant
in installments over not more than five (5) years or in a lump sum,
and upon the Beneficiary's subsequent death, the balance, if any, in
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the Individual Account of the Participant shall be paid in a lump sum
to the estate of the Beneficiary.
(b) Option B: Level Dollar Installments. Option B shall be
defined as a distribution, which shall begin at the Participant's
Retirement or termination, from the Participant's Individual Account
balance in level monthly, quarterly, semi-annual or annual
installments of such amount as elected by the Participant, payable
until there is no balance remaining in the Individual Account of the
Participant. It is further provided that the total annual amount of
such installments must equal not less than ten percent (10%) of the
value of the Individual Account as of the Valuation Date which
immediately precedes the date the distribution commences and that no
installment arrangement may be made which involves a periodic payment
of less than fifty dollars ($50.00), or which involves payments over
more than twenty (20) years. Upon the death of the Participant while
payments are being made under this Option, the Beneficiary shall
receive the balance of the Individual Account in a lump sum.
Section 7.02 Election of Options. A Participant or
Beneficiary entitled to a benefit under the Plan may elect, upon
written notice of such election filed with the Administrator in such
form and manner as prescribed by the Administrator, to receive such
benefit payable in accordance with any one or a combination of the
options provided above. The election of any option may be revoked
and a new option elected, but election of any option hereunder shall
be duly filed prior to the date benefits would otherwise be paid or
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commenced, and in no event shall an election be permitted after the
initial distribution or commencement of payment of any benefit,
except as permitted by law and authorized by the Plan Administrator,
with such authorization to be uniformly and nondiscriminatorily
applied.
ARTICLE VIII
ADMINISTRATION OF PLAN
Section 8.01 Plan Administrator. The Administrator of the
Plan shall have the sole power, duty and responsibility of directing
the administration thereof in accordance with the provisions herein
set forth. The Administrator shall have the sole and absolute right
and power to construe and to interpret the provisions of the Plan and
to administer it for the best interests of Employees including, but
not limited to, the following powers and duties:
(a) to construe any ambiguity and interpret any provision of
the Plan or supply any omission or reconcile any inconsistencies in
such manner as it deems proper;
(b) to determine eligibility to become a Participant in the
Plan in accordance with its terms;
(c) to decide all questions of eligibility for, and determine
the amount, manner, and time of payment of any benefits hereunder,
and to afford any person dissatisfied with such decision or
determination, upon written notice thereof, the right to a full and
fair hearing thereon;
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(d) to establish uniform rules and procedures to be followed
by Participants and Beneficiaries in filing applications for
benefits, in furnishing and verifying proofs necessary to determine
age, and in any other matters required to administer the Plan;
(e) to adopt such reasonable accounting methods as it deems
necessary or desirable, and to receive and review the annual
allocation report on the Plan;
(f) to receive and review reports of the financial condition
and of the receipts and disbursements of the Fund from the Trustee,
and to determine and communicate to the Trustee the long-term and
short-term financial goals of the Plan;
(g) to file such reports and statements with, and to make such
disclosures to the Secretary of Labor or his delegate and the
Internal Revenue Service as required by law;
(h) to furnish to Participants and Beneficiaries such
information and statements with respect to the Plan and their
individual interests therein, as required by law, and any additional
information as it deems to be appropriate; and
(i) to establish reasonable procedures for determining whether
a Domestic Relations Order is a Qualified Domestic Relations Order
pursuant to the Plan and the Retirement Equity Act.
All directions by the Administrator shall be conclusive on all
parties concerned, including the Trustee, and all decisions of the
Administrator as to the facts of any case and the meaning, intent, or
proper construction of any provision of the Plan, or as to any rule
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or regulation in its application to any case shall be final and
conclusive; provided, however, that all rules and decisions of the
Administrator shall be uniformly and consistently applied to all
Employees in similar circumstances, and the Administrator shall have
no power administratively to add to, subtract from or modify any of
the terms of the Plan, or to change, add to or subtract from any
benefits provided by the Plan, or to waive or fail to apply any
requirements of eligibility for participation or for benefits under
the Plan
Section 8.02 Claims Procedure. If the Administrator shall
determine that benefits applied for by a Participant or Beneficiary
shall be denied either in whole or in part, the following provisions
shall govern:
(a) Notice of Denial. The Administrator shall, upon its
denial of a claim for benefits under the Plan, provide the applicant
with written notice of such denial setting forth (1) the specific
reason or reasons for the denial, (2) specific reference to pertinent
Plan provisions upon which the denial is based, (3) a description of
any additional material or information necessary for the claimant to
perfect the claim, and (4) an explanation of the claimant's rights
with respect to the claims review procedure as provided in subsection
(b) of this Section.
(b) Claims Review. Every claimant with respect to whom a
claim is denied shall, upon written notice of such denial, have the
right to (1) request a review of the denial of benefits by written
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notice delivered to the Administrator, (2) review pertinent documents
and (3) submit issues and comments in writing.
(c) Decision on Review. The Administrator shall, upon receipt
of a request for review submitted by the claimant in accordance with
subsection (b), appoint a committee for the purpose of conducting
such review and provide the claimant with written notice of the
decision reached by the said committee setting forth the specific
reasons for the decision and specific references to the provisions of
the Plan upon which the decision is based. Such notice shall be
delivered to the claimant not later than sixty (60) days following
the receipt of the request of the claimant, or, in the event that the
Administrator shall determine that a hearing is needed, not later
than one hundred twenty (120) days following receipt of such request.
Section 8.03 Records. All acts, determinations and
correspondence with respect to the Plan shall be duly recorded and
all such records, together with such other documents, including the
Plan and all amendments thereto, if any, pertinent to the Plan or the
administration thereof, shall be preserved in the custody of the
Administrator and shall at all reasonable times be made available to
Participants and Beneficiaries for examination.
Section 8.04 Delegation of Authority. The duties and
responsibilities of the Administrator as set forth in this Article
and elsewhere in the Plan may be delegated in whatever manner it
chooses, in whole or in part, to an Administrative Committee
consisting of such persons as the Administrator shall select. The
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Administrator shall certify to the Trustee in writing as to the
membership and extent of authority of such Committee and any changes
relative thereto as may occur from time to time. The authority of
the Committee shall be deemed to be that of the Administrator to the
extent so certified by the Administrator. The Trustee shall be
entitled to rely on the last such certification received and to
continue to rely thereon until subsequent written certification to
the contrary is received from the Administrator. The Administrator
shall indemnify and hold harmless the members of the Committee, and
each of them, from any liability arising from the effects and
consequences of their acts, omissions and conduct in their official
capacity with respect to the Plan and the administration thereof,
except to the extent that such liability shall result from their own
willful misconduct or gross negligence. The Administrator, or the
Administrative Committee to which it has delegated its duties and
responsibilities hereunder, may employ such competent agent or agents
as it may deem appropriate or desirable to perform such ministerial
duties or consultative or other services as the Administrator or its
Committee may deem necessary to facilitate the efficient and proper
administration of the Plan. The Administrator and its Committee
shall be entitled to rely upon all reports, advice and information
furnished by such agent or agents, and all action taken or suffered
by them in good faith in reliance thereon shall be conclusive upon
all such agents, Participants, Beneficiaries and other persons
interested in the Plan.
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Section 8.05 Legal Incompetence. If any Participant or
Beneficiary is a minor, or is in the judgment of the Administrator
otherwise legally incapable of personally receiving and giving a
valid receipt for any payment due him hereunder, the Administrator
may, unless and until a claim shall have been made by a guardian or
conservator of such person duly appointed by a court of competent
jurisdiction, direct the Trustee that payment be made to such
person's spouse, child, parent, brother, sister or other person
deemed by the Administrator to be a proper person to receive such
payment. Any payment so made shall be a complete discharge of any
liability under the Plan for such payment.
Section 8.06 Correction of Errors. If any change in records
or error results in any Participant or Beneficiary receiving from the
Plan more or less than he would have been entitled to receive had the
records been correct or had the error not been made, the
Administrator, upon discovery of such error, shall correct the error
by adjusting, as far as is practicable, the payments in such a manner
that the benefits to which such person was correctly entitled shall
be paid.
Section 8.07 Qualified Domestic Relations Order Procedure.
In the case of any Domestic Relations Order received by the Plan
Administrator, the Plan Administrator shall promptly notify the
Participant and the Alternate Payee of the receipt of such order and
the Plan's procedures for determining the qualified status of
Domestic Relations Orders, and within a reasonable period after
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receipt of such order, the Plan Administrator shall determine whether
such order is a Qualified Domestic Relations Order and notify the
Participant and each Alternate Payee of such determination.
The Plan Administrator shall establish, in writing, reasonable
procedures to determine whether a Domestic Relations Order is a
Qualified Domestic Relations Order and if it is so determined,
procedures to administer the distribution of benefits to an Alternate
Payee. An Alternate Payee, or any person claiming to be an Alternate
Payee, shall be given the notice of the Plan's procedures for
determining whether a Domestic Relations Order is qualified and the
Plan's procedures for the distribution of benefits under Qualified
Orders. Furthermore, an Alternate Payee, or any person claiming to
be an Alternate Payee, shall be given the opportunity to designate a
representative to receive any notices or information concerning the
status of the Domestic Relations Order and or the distribution of
benefits under any such order which is determined to be qualified.
During any period in which the issue of whether a Domestic Relations
Order is a Qualified Domestic Relations Order is being determined (by
the Plan Administrator, by a court of competent jurisdiction, or
otherwise), the Plan Administrator shall segregate in a separate
account in the Plan or in an escrow account the amounts which would
have been payable to the Alternate Payee during such period if the
order had been determined to be a Qualified Domestic Relations Order.
If within eighteen (18) months, it is determined that the order is
not a Qualified Domestic Relations Order, or the issue as to whether
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such order is a Qualified Domestic Relations Order is not resolved,
then the Plan Administrator shall pay the segregated amounts (plus
any interest thereon) to the person or persons who would have been
entitled to such amounts if there had been no order.
Any determination that an order is a Qualified Domestic
Relations Order which is made after the close of the eighteen (18)-
month period shall be applied prospectively only.
If the Plan Administrator or any fiduciary acts in accordance with
this Section in treating a Domestic Relations Order as being (or not
being) a Qualified Domestic Relations Order, or taking action under
this Section, then the Plan 's obligation to the Participant and each
Alternate Payee shall be discharged to the extent of any payment made
pursuant to the Code.
ARTICLE IX
AMENDMENT OR TERMINATION
Section 9.01 Amendment of Plan. The Administrator shall have
the right at any time to modify, alter or amend the Plan in whole or
in part by instrument in writing duly executed by the Administrator
and delivered to and acknowledged by the Trustee; provided, however,
that no amendment shall have the effect of causing or permitting any
part of the Fund to be used for or diverted to purposes other than
for the exclusive benefit of Participants and Beneficiaries and no
amendment shall have the effect of revesting in the Employer any
portion of the Fund. No amendment to the Plan shall decrease a
Participant's account balance or eliminate an optional form of
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distribution. No amendment to the vesting schedule shall deprive a
Participant of his nonforfeitable rights to benefits accrued to the
date of the amendment. It the vesting schedule of the Plan is
amended, or if the Plan is amended in any way which directly or
indirectly affects the computation of a Participant's nonforfeitable
percentage of benefits, each Participant with at least three (3)
Years of Employment may elect, within a reasonable period after such
amendment is adopted, to have his nonforfeitable percentage computed
under the Plan without regard to such amendment. The period during
which the election may be made shall commence on the date of adoption
of the amendment and shall end on the latest of:
(a) sixty (60) days after the amendment is adopted;
(b) sixty (60) days after the amendment is effective; or
(c) sixty (60) days after the Participant is given written
notice of the amendment by the Administrator.
No amendment shall operate to increase the duties and
responsibilities of the Trustee except by written instrument duly
executed by and between the Administrator and the Trustee.
Section 9.02 Termination of Plan. Although the Employer
expects the Plan to be continued indefinitely, it reserves the right
at any time to terminate the Plan by action of its Board and to
discontinue all contributions from time to time as it shall deem
appropriate and necessary, and such suspension of contributions shall
not be considered to be a termination of the Plan. In the event of
termination of the Plan or a complete discontinuance of contributions
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to the Plan, the Administrator shall notify the Trustee in writing of
such termination and, prior to any distribution of assets hereunder,
shall file notice with the Internal Revenue Service.
Section 9.03 Distribution Upon Termination. Upon termination
or partial termination of the Plan, or upon complete discontinuance
of contributions. the individual Account of each affected Participant
shall become nonforfeitable without regard to the Section of Article
V entitled "Vested Benefit". The Administrator, by written notice of
termination of the Plan, shall direct the Trustee to reduce such
assets of the Fund to cash which are not designated by the
Administrator to be retained for distribution in kind. The Trustee
shall cause a valuation of the Fund to be made as of the date such
assets are reduced to cash, at which time the balances of Individual
Accounts shall be brought up to date in accordance with Section 4.02.
Upon completion of such accounting and receipt from the Administrator
of directions as to the form of distributions, the Trustee shall
distribute the assets of the Fund to the Participants or
Beneficiaries, as the case may be, in accordance with such
directions. Each Participant or Beneficiary who is entitled to
receive a distribution may elect an option in accordance with Article
VII. The Administrator shall consider the needs and financial
situation of each Participant or Beneficiary, as the case may be, to
approve or disapprove the optional form of benefit, or to determine
the optional form of benefit after making a good faith determination
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of the best interest of the person, and such determination shall not
be open to question by any person.
Section 9.04 Merger of Plan. In the event of any merger or
consolidation with, or transfer of assets or liabilities to, any
other retirement plan, the benefit hereunder to which a Participant
or Beneficiary is entitled (if the Plan subsequently terminated)
shall, immediately after such merger, consolidation or transfer, be
equal to, or greater than such benefit would have been immediately
before such merger, consolidation or transfer (if the Plan had then
terminated).
Section 9.05 Failure of Internal Revenue Service
Qualification. This Plan is adopted by the Employer upon the
condition that it shall qualify initially under the applicable
provisions of the Code. Therefore, if the Plan fails to so quality,
as evidenced by receipt of a letter to such effect from the Internal
Revenue Service, then the Employer reserves the following:
(a) the right to withdraw and terminate the Plan hereunder
whereupon the Participant shall have any right or claim to any of the
assets hereunder which are derived from Employer contributions,
notwithstanding any other provision hereof; or
(b) the right to amend the Plan to the extent necessary to
secure a favorable determination that the Plan is so qualified.
Section 9.06 Distribution Limitation. Notwithstanding the
foregoing Section 9.03, funds attributable to Participant Tax-
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Deferred Contributions may not be distributed earlier than upon one
of the following events:
(a) the Participant's retirement, death, disability or
separation from service;
(b) the termination of the Plan without the establishment of a
successor plan;
(c) the date of the sale or other disposition by the Employer
to an unrelated corporation of substantially all of the assets of the
Employer, but only with respect to an Employee who continues
employment with the corporation acquiring the assets;
(d) the date of the sale or other disposition by the Employer
of its interest in a subsidiary to an unrelated entity, but only with
respect to an Employee who continues employment with such subsidiary;
(e) the Participant's attainment of age 59/; or
(f) the Participant's hardship, as described in Section
5.08(b).
ARTICLE X
MISCELLANEOUS
Section 10.01 Liability of Employer. No Employee, Participant
or Beneficiary shall have any right or claim to any benefit under the
Plan except in accordance with its provisions. Neither the
establishment of the Plan or Trust, nor any modification thereof, nor
the creation of any fund or account, nor the payment of any benefits
shall be construed as giving to any Participant or other person any
legal or equitable right against the Employer, any officer, director
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or employee thereof, or the Trustee except as otherwise expressly
provided by law. The Employer does not in any way guarantee the
Trust from loss, nor does the Employer guarantee the payment of any
money which may be or may become due to any person from the Trust.
Any person having a right or claim under the Plan shall look solely
to the Trust assets, and in no event shall the Employer or its
employees, officers, directors or stockholders be liable to any
person on account of any claim arising by reason of the provisions of
the Plan or of any instrument or instruments implementing its
provisions, or for the failure of any Participant, Beneficiary or
other person to be entitled to any particular tax consequences with
respect to the Plan, the Trust or any contribution thereto or
distribution therefrom. The Employer shall not be liable to any
person for failure on its part to make contributions, nor shall any
action lie to compel the Employer to make such contributions.
Neither the Employer nor its employees, officers, directors or
stockholders shall have any liability to any person by reason of the
failure of the Plan to attain or maintain qualified status under
section 401(a) of the Code or the failure of the Trust to attain or
maintain tax-exempt status under section 501(a) of the Code,
regardless of whether or not such failure is due to any act or
omission (willful, negligent or otherwise) of the Employer or its
employees, officers, directors or stockholders. The provisions of
this Section shall apply only to the extent not inconsistent with the
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provisions of the Employee Retirement Income Security Act of 1974, as
amended.
Section 10.02 Intent to Continue Plan and Trust. The Employer
has established the Plan and Trust with the bona fide intention and
expectation that from year to year it will be able to and will deem
it advisable to make its contributions as herein provided. However,
the Employer realizes that circumstances not now foreseen or
circumstances beyond its control may make it either impossible or
inadvisable to continue to make its contributions as herein provided.
Section 10.03 Binding on Parties. Persons claiming any
interest or benefit under the Plan shall perform any and all acts,
including the execution of papers, which may be necessary for
carrying out its terms. This Plan and acts and decisions made by the
Trustee, Administrator or Employer shall be binding upon the heirs,
executors, administrators, successors and assigns of any party hereto
or any persons claiming any benefit hereunder.
Section 10.04 Agent for Legal Process. The Employer may
appoint an agent empowered to accept service of legal process for the
Plan and the Employer shall make such appointment known to the
Administrator. In the absence of such appointment, the resident
agent of the Employer shall be empowered to accept service of legal
process for the Plan.
Section 10.05 Spendthrift Clause. No interest, right or claim
in or to any part of the Trust Fund or any payment therefrom shall be
assignable, transferable or subject to sale, mortgage, pledge,
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hypothecation, garnishment, attachment, execution, or levy of any
kind whatsoever, and the Trustee shall not issue any certificate or
other documentation representing any interest, right or claim in or
to any part of the Trust Fund. Notwithstanding the preceding,
payment to an Alternate Payee pursuant to a Qualified Domestic
Relations Order and the withholding of federal income tax shall not
be considered an assignment or alienation of benefits under the Plan.
Section 10.06 Successor to Business of Employer. Any
successor to the business of the Employer may continue the Plan and
such successor shall thereupon succeed to all the rights, powers and
duties of the Employer hereunder. The Employment of any Employee who
has continued in the employ of such successor which maintains the
Plan shall not be deemed to have been terminated or severed for any
purpose hereunder. In the event that the Employer is reorganized, or
all or substantially all of its assets are sold without any provision
being made for the continuance of this Plan by a successor to the
business of the Employer, the Plan shall terminate and the assets
shall be distributed as provided in Section 9.03 hereof.
Section 10.07 Conflict of Provisions. If any provision or
term of this Plan, or of the Trust Agreement entered into pursuant
hereto, is deemed to be substantively at variance with, or contrary
to, any law of the United States or other applicable state law, the
provision of the law shall be deemed to govern, but only to the
extent necessary to bring this Plan and Trust Agreement into
compliance with such law, provided, further, that no provision of
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state law shall be deemed to govern if it would disqualify the Plan
and Trust Agreement under section 401(a) and 501(a) of the Code.
Section 10.08 Successors to Trustee. The provisions of this
Plan, and of the Trust Agreement entered into pursuant hereto, shall
bind and inure to the benefit of the successors to the Trustee named
in said Agreement.
Section 10.09 Definition of Words. The masculine form of
pronouns is used herein in order to comply with generally accepted
grammatical rules, and the feminine form of pronouns shall be deemed
to be substituted herein where appropriate, and the plural shall be
substituted for the singular, in any place or places herein where the
context may require such substitution or substitutions.
Section 10.10 Titles. The titles of Articles and Sections are
included for convenience only and shall not be construed as a part of
the Plan or in any respect to affect or modify its provisions.
Section 10.11 Execution of the Plan. This document may be executed
in any number of counterparts and each fully executed counterpart
shall be deemed an original.
IN WITNESS WHEREOF, COMDATA HOLDINGS CORPORATION, for itself
and for its subsidiaries listed on Exhibit A attached hereto, has
caused the Plan to be signed by its duly authorized officer and
adopted as of this __ day of ______________, 19__.
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COMDATA HOLDINGS CORPORATION, for itself and for its
subsidiaries listed on Exhibit A attached hereto
By:
Its:
RECEIVED AND ACKNOWLEDGED BY TRUSTEE.
BANKERS TRUST COMPANY
By:
Its:
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FIRST AMENDMENT
TO THE
AMENDED AND RESTATED COMDATA HOLDINGS CORPORATION
401(K) RETIREMENT PLAN
WHEREAS, Comdata Holdings Corporation (the "Employer") has
adopted the Amended and Restated Comdata Holdings Corporation
401(k) Retirement Plan (the "Plan");
WHEREAS, pursuant to Section 9.01 of the Plan, the Employer as
administrator of the Plan has the right at any time to modify,
alter or amend the Plan in whole or in part by instrument in
writing duly executed by the Employer; and
WHEREAS, the Employer has determined that certain amendments
to the Plan are necessary and desirable and in the best interests
of the Employer.
NOW, THEREFORE, the Plan shall be and hereby is amended in the
following respects:
1. Article I of the Plan shall be amended by adding to the
end of Section 1.76 the following new subparagraph (j):
(j) With regard to RoTec-The Routing Technology Company,
Years of Employment for purposes of determining participation shall
include all service with RoTec-The Routing Technology Company prior
to its acquisition by Comdata Holdings Corporation. The preceding
notwithstanding, no employee of RoTec-The Routing Technology
Company shall enter the Plan as provided under Section 2.02 prior
to April 1, 1994. Years of Employment for purposes of determining
Credited Employment for employees of RoTec-The Routing Technology
Company shall include only service beginning with the date of
acquisition, February 23, 1994, and exclude all prior service.
2. Article IX of the Plan shall be amended by deleting the
sentence of Section 9.01 that begins, "The Administrator shall have
the right at any time to modify, alter or amend the Plan...", and
inserting in lieu thereof the following new sentence:
The Board of Directors of the Administrator shall
have the right at any time to modify, alter or amend the Plan in
whole or in part by instrument in writing duly executed by the
Administrator and delivered to and acknowledged by the Trustee;
provided, however, that no amendment shall have the effect of
causing or permitting any part of the Fund to be used for or
diverted to purposes other than for the exclusive benefit of
Participants and Beneficiaries and no amendment shall have the
effect of revesting in the Employer any portion of the Fund.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Employer has executed this First
Amendment as of this ___ day of __________, 1994.
ADMINISTRATOR:
COMDATA HOLDINGS CORPORATION:
By:
Its:
RECEIVED AND ACKNOWLEDGED BY TRUSTEE THIS ___ DAY OF
______________, 1994.
BANKERS TRUST COMPANY
By:
Its:
<PAGE>
<PAGE>
SECOND AMENDMENT
TO THE
AMENDED AND RESTATED COMDATA HOLDINGS CORPORATION
401(K) RETIREMENT PLAN
WHEREAS, Comdata Holdings Corporation (the "Employer") has
adopted the Amended and Restated Comdata Holdings Corporation
401(k) Retirement Plan (the "Plan") and is the administrator of
the Plan;
WHEREAS, pursuant to Section 9.01 of the Plan, the Board of
Directors of the Employer has the right at any time to modify,
alter or amend the Plan in whole or in part by instrument in
writing duly executed by the Employer; and
WHEREAS, the Employer has determined that certain amendments
to the Plan are necessary and desirable and in the best interests
of the Employer.
NOW, THEREFORE, the Section 3.02(a) of the Plan shall be and
hereby is amended, effective July 1, 1993, by deleting such
subsection in its entirety and inserting in lieu thereof the
following new subsection:
(a) Basic Employer Contributions. For each Plan Year the
Employer may pay to the Trustee as a contribution to the Plan on
behalf Participants in the Plan who have been credited with at
least one thousand (1,000) Hours of Employment during the Plan
Year and who are employed on the last day of the Plan Year such
amount as determined by the Employer, which amount may be zero.
Any contribution hereunder shall be allocated among such
Participants in the proportion that each Participant's
Compensation for such year bears to the total Compensation of all
such Participants.
IN WITNESS WHEREOF, the Employer has executed this Second
Amendment as of this ___ day of __________, 1994.
ADMINISTRATOR:
COMDATA HOLDINGS CORPORATION:
By:
Its:
RECEIPT AND ACKNOWLEDGEMENT
RECEIVED AND ACKNOWLEDGED BY TRUSTEE THIS ___ DAY OF
______________, 1994.
<PAGE>
BANKERS TRUST COMPANY
By:
Its:
<PAGE>
<PAGE>
THIRD AMENDMENT
TO THE
AMENDED AND RESTATED COMDATA HOLDINGS CORPORATION
401(K) RETIREMENT PLAN
WHEREAS, Comdata Holdings Corporation (the "Employer") has
adopted the Amended and Restated Comdata Holdings Corporation
401(k) Retirement Plan (the "Plan") and is the administrator of
the Plan;
WHEREAS, pursuant to Section 9.01 of the Plan, the Board of
Directors of the Employer has the right at any time to modify,
alter or amend the Plan in whole or in part by instrument in
writing duly executed by the Employer;
WHEREAS, on March 7, 1995, the Employer acquired all of the
outstanding stock of Trendar Corporation ("Trendar"), the terms
and conditions of which were set forth in that certain Agreement
for the Exchange of Stock and Funding for the Redemption of
Debentures, dated as of March 7, 1995, by and among Comdata
Network, Inc. and Trendar (the "Exchange Agreement");
WHEREAS, Section 7.2 of the Exchange Agreement provides that
Trendar employees shall be given credit for service with Trendar
for purposes of determining participation and vesting under the
Plan; and
WHEREAS, the Employer has determined that it is necessary
and desirable and in the best interests of Plan participants to
amend the Plan to comply with the Exchange Agreement.
NOW, THEREFORE, the Plan shall be and hereby is amended in
the following respects:
1. Section 1.30 of the Plan shall be and hereby is amended
to read in its entirety as follows:
Section 1.30 "Employer" shall mean Comdata Network,
Inc. (a Maryland corporation), Comdata Holdings Corporation (a
Delaware corporation), U.S. InstaPermit, Inc. (a Texas
corporation), Cashex, Inc. (a Missouri corporation), Cashex West,
Inc. (a California corporation), Instacom Check Systems, Inc. (a
Texas corporation), Honest Face Systems, Inc. (a Georgia
corporation), American Facsimile Systems, Inc., Fleetline Permit
Services, Inc., Fleetline Transportation Services, Inc.,
Financial & Communication Services, Inc., Fundsnet, Inc.,
Cashcheck International, Inc., Cal Permits, Incorporated,
Truckers Network, Incorporated, Trucker Tapes, Inc., Saunders,
Inc., Cash Control Corporation and Trendar Corporation, and each
of them.
<PAGE>
<PAGE>
2. Section 1.76 of the Plan shall be and hereby is amended
by adding to the end thereof the following new subparagraph (k):
(k) With regard to Trendar Corporation, Years of Employment
for purposes of determining participation and Credited Employment
shall include all service with Trendar Corporation prior to its
acquisition by Comdata Holdings Corporation. The preceding
notwithstanding, no employee of Trendar Corporation shall enter
the Plan as provided under Section 2.02 prior to April 1, 1995.
IN WITNESS WHEREOF, the Employer has executed this Third
Amendment as of this ___ day of __________, 1995.
ADMINISTRATOR:
COMDATA HOLDINGS CORPORATION:
By:
Its:
RECEIPT AND ACKNOWLEDGEMENT
RECEIVED AND ACKNOWLEDGED BY TRUSTEE THIS ___ DAY OF
______________, 1995.
BANKERS TRUST COMPANY
By:
Its:
<PAGE>
<PAGE>
FOURTH AMENDMENT
TO THE
AMENDED AND RESTATED COMDATA HOLDINGS CORPORATION
401(K) SAVINGS AND RETIREMENT PLAN
WHEREAS, Comdata Holdings Corporation (the "Employer") has
adopted the Amended and Restated Comdata Holdings Corporation
401(k) Savings and Retirement Plan (the "Plan") and is the
administrator of the Plan;
WHEREAS, pursuant to Section 9.01 of the Plan, the Board of
Directors of the Employer has the right at any time to modify,
alter or amend the Plan in whole or in part by instrument in
writing duly executed by the Employer; and
WHEREAS, the Employer has determined that certain amendments
to the Plan are necessary and desirable and in the best interests
of the Employer.
NOW, THEREFORE, effective on and after December 12, 1995,
Section 1.33 of the Plan shall be and hereby is amended to read
in its entirety as follows:
Section 1.33 "Employer Stock" shall mean the common
stock of Ceridian Corporation, a Delaware corporation.
IN WITNESS WHEREOF, the Employer has executed this Fourth
Amendment as of this ___ day of __________, 1995.
COMDATA HOLDINGS CORPORATION
By:
Its:
RECEIPT AND ACKNOWLEDGMENT
RECEIVED AND ACKNOWLEDGED BY TRUSTEE THIS ___ DAY OF
______________, 1995.
BANKERS TRUST COMPANY
By:
Its:
<PAGE>
<PAGE>
EXHIBIT 99.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. BOX 941 Employer Identification Number:
ATLANTA, GA 30370 13-3396750
Person to Contact:
Date: December 8, 1994 Philemon Amos
Contact Telephone Number:
COMDATA HOLDINGS CORPORATION (404) 391-0944
C/O WILLIAM H, NEELY Plan Name:
424 CHURCH STREET, SUITE 2800 COMDATA HOLDINGS CORPORATION
NASHVILLE, TN 37219 401(k) SAVINGS AND
RETIREMENT PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on our plan,
identified above, based on the information supplied. Please keep
this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its affect in operation. (See section 1.401(d)(3)
of the Income Tax Regulations.) We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some features that may
affect the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan
It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination is subject to your adoption of the
proposed amendments submitted in your letters dated 11/17/94 and
11/4/94. The proposed amendments should be adopted on or before
the date prescribed by the regulations under Code section
4901(b).
This determination is also subject to your adoption of the
proposed amendments submitted in your letter dated 6/17/94.
These proposed amendments should also be adopted on or before the
date prescribed by the regulations under Code section 4901(b).
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
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This plan satisfies the nondiscrimination in amount
requirement of section 1.401(a)(4)-1(b)(2) of the regulations on
the basis of a design-based safe harbor described in the
regulations.
This letter is issued under Rev. Prbc. 93-99 and considers
the amendments required by the Tax Reform Act of 1986 except as
otherwise specified in this letter.
This plan satisfies the nondiscriminatory current
availability requirements of section 1.401(a)(4)-1(b) of the
regulations with respect to those benefits, rights and features
that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group
consists of those employees treated as currently benefiting for
purposes of demonstrating that the plan satisfies the minimum
coverage requirements of section 410(D) of the Code.
This plan qualifies for Extended Reliance described in the
last paragraph of Publication 794 under the caption "Limitations
of a Favorable Determination Letter."
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/Nelson A. Brodke
District Director
Enclosures
Publication 794
Reporting Disclosure Guide for
Employee Benefit Plans
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