As filed with the Securities and Exchange Commission on
October 5, 1995.
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
COMCAST CORPORATION
(Exact name of issuer as specified in its charter)
PENNSYLVANIA 23-1709202
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 Market Street, Philadelphia, PA 19102-2148
(Address of Principal Executive Offices) (Zip Code)
THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
(Full Title of the Plan)
Arthur R. Block, Esquire
Vice President
Comcast Corporation
1500 Market Street
Philadelphia, PA 19102-2148
(Name and address of agent for service)
(215) 665-1700
(Telephone number, including area code, of agent for service)
Copies to:
Mark K. Kessler, Esquire
Wolf, Block, Schorr and Solis-Cohen
Twelfth Floor Packard Building
Philadelphia, PA 19102
(215) 977-2000
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee (1)
Class A Special
Common Stock, 4,000,000 (2) $19.6875 $78,750,000 $27,155.17
$1.00 Par Value
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low prices of the Class A Special Common
Stock of Comcast Corporation as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System on October 3, 1995.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the Comcast Corporation Retirement- Investment Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934 (the "1934 Act") are incorporated into this registration statement
by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994.
2. The Registrant's Annual Report on Form 11-K for the year ended
December 31, 1994, filed with respect to The Comcast Corporation
Retirement-Investment Plan (the "Plan").
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995.
4. The Registrant's Current Reports on Form 8-K filed on April 13,
1995 and April 25, 1995.
5. The consolidated financial statements of Storer Communications,
Inc., Commission File No. 1-3872 ("Storer"), for the year ended December 31,
1992 listed in Item 14(b)(ii) of the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1994, incorporated by reference to Storer's Annual
Report on Form 10-K for the year ended December 31, 1993.
6. The description of the Registrant's shares of Class A Special
Common Stock, $1.00 par value (the "Class A Special Common Stock"), contained in
the Registrant's Registration Statement on Form 8-A filed with the Commission on
November 4, 1986 to register such securities under the 1934 Act, as amended by
the description contained in the Registrant's Proxy Statement dated May 26, 1988
under the caption, "Proposal to Increase the Number of Authorized Shares of the
Company's Common Stock," the description contained in the Registrant's Proxy
Statement dated June 1, 1990 under the caption, "Proposals to Amend the
Company's Articles of Incorporation to Eliminate the $1.00 Per Share Liquidation
Preference of the Company's Class A Common Stock and Class A Special Common
Stock" and the description contained in the Registrant's Proxy Statement dated
May 25, 1994 under the caption, "Approval of Amendment to the Company's Articles
of Incorporation to Increase the Number of Authorized Shares of the Company's
Class A Special Common Stock."
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<PAGE>
All documents filed by the Registrant or the Plan pursuant to Section
13(a), 13(c), 14 and 15(d) of the 1934 Act after the date of this registration
statement and prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
a part hereof from the date of filing such documents. Any statement contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
Experts
The consolidated financial statements of Comcast Corporation and
subsidiaries and the related financial statement schedule, incorporated in this
registration statement by reference from the Registrant's Annual Report on Form
10-K for the year ended December 31, 1994, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing. With respect to Storer, Comcast International Holdings, Inc. and
Subsidiaries ("Comcast International") and Garden State Cablevision, L.P.
("Garden State"), Deloitte & Touche LLP relied on the reports of other auditors,
as noted below.
The consolidated financial statements and schedules of Storer for the
year ended December 31, 1992, as incorporated by reference in the Annual Report
on Form 10-K of Comcast Corporation for the year ended December 31, 1994, have
been incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
The financial statements of Comcast International and Garden State,
incorporated by reference in this registration statement, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
Reference is made to said report on Garden State which includes an explanatory
paragraph that states that Garden State is currently seeking to justify its
existing rates on the basis of cost-of-service showings with regulatory
authorities as discussed in Note 9 to the financial statements.
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<PAGE>
The combined financial statements for the U.S. Cable Television
Operations of Maclean Hunter, Inc. as at December 31, 1993 and 1992 and for the
years ended December 31, 1993, 1992 and 1991, incorporated in this registration
statement by reference from the Registrant's December 31, 1994 Annual Report on
Form 10-K, which incorporates such financial statements by reference, have been
audited by Ernst & Young, chartered accountants, as stated in their report which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
The consolidated financial statements of QVC, Inc. ("QVC") and
subsidiaries, incorporated by reference in this registration statement from the
Registrant's Current Report on Form 8-K filed with the Commission on April 25,
1995 which incorporates as an exhibit QVC's consolidated financial statements as
of January 31, 1995 and 1994 and for each of the years in the three year period
ended January 31, 1995, have been audited and reported upon by KPMG Peat Marwick
LLP, independent certified public accountants, whose report thereon refers to a
change in accounting for income taxes in the year ended January 31, 1994. Such
consolidated financial statements have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements of Comcast MHCP Holdings, L.L.C.
and subsidiaries, incorporated in this registration statement by reference from
the Registrant's Current Report on Form 8-K filed on April 25, 1995, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The financial statements of the Plan, included in the Annual Report on
Form 11-K filed with respect to the Plan for the year ended December 31, 1994
and incorporated in this registration statement by reference, have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
Item 4. Description of Securities.
Not applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Subchapter D (Sections 1741 through 1750) of Chapter 17 the
Pennsylvania Business Corporation Law of 1988 (the "BCL") contains provisions
for mandatory and discretionary indemnification of a corporation's directors,
officers, employees and agents (collectively "Representatives"), and related
matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors, officers and other Representatives under
certain prescribed circumstances against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, to which any of them
is a party or threatened to be made a party by reason of his being a
Representative of the corporation or serving at the request of the corporation
as a Representative of another corporation, partnership, joint venture, trust or
other enterprises, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
Section 1742 provides for indemnification with respect to derivative
actions similar to that provided by Section 1741. However, indemnification is
not provided under Section 1742 in respect to any claim, issue or matter as to
which a Representative has been adjudged to be liable to the corporation unless
and only to the extent that the proper court determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Representative is fairly and reasonably entitled to indemnity for
the expenses that the court deems proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that a Representative has been successful on the merits
or otherwise in defense of any such action or proceeding referred to in Section
1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of a
Representative is proper
II-4
<PAGE>
because the Representative met the applicable standard of conduct, and such
determination will be made by the board of directors by a majority vote of a
quorum of directors not parties to the action or proceeding; if a quorum is not
obtainable or if obtainable and a majority of disinterested directors so
directs, by independent legal counsel in a written opinion; or by the
shareholders.
Section 1745 provides that expenses incurred by a Representative in
defending any action or proceeding referred to in Subchapter D of Chapter 17 of
the BCL may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on behalf of the
Representative to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter D of Chapter
17 of the BCL shall not be deemed exclusive of any other rights to which a
Representative seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding that office.
Section 1747 grants a corporation the power to purchase and maintain
insurance on behalf of any Representative against any liability incurred by him
in his capacity as a Representative, whether or not the corporation would have
the power to indemnify him against that liability under Subchapter D of Chapter
17 of the BCL.
Sections 1748 and 1749 apply the indemnification and advancement of
expenses provisions contained in Subchapter D of Chapter 17 of the BCL to
successor corporations resulting from consolidation, merger or division and to
service as a representative of a corporation or an employee benefit plan.
Section 7-2 of the Registrant's Bylaws provides that the Registrant
will indemnify any director or officer of the Registrant to the fullest extent
permitted by Pennsylvania Law against all expense, liability and loss reasonably
incurred or suffered by such person in connection with any threatened, pending
or completed action, suit or proceeding (a "Proceeding") involving such person
by reason of the fact that he or she is or was a director or officer of the
Registrant or is or was serving
II-5
<PAGE>
at the request or for the benefit of the Registrant in any capacity for another
corporation or other enterprise. No indemnification pursuant to Section 7-2 may
be made, however, in any case where the act or failure to act giving rise to the
claim for indemnification is determined by a court to have constituted willful
misconduct or recklessness.
Section 7-2 further provides that the right to indemnification
includes the right to have the expenses incurred by the indemnified person in
defending any Proceeding paid by the Registrant in advance of the final
disposition of the Proceeding to the fullest extent permitted by Pennsylvania
Law. In addition, Section 7-2 provides that the Registrant may purchase and
maintain insurance for the benefit of any person on behalf of whom insurance is
permitted to be purchased by Pennsylvania Law against any expense, liability or
loss whether or not the Registrant would have the power to indemnify such person
under Pennsylvania or other law. The Registrant may also purchase and maintain
insurance to insure its indemnification obligations, whether arising under the
Bylaws or otherwise. In addition, Section 7-2 states that the Registrant may
create a fund of any nature or otherwise may secure in any manner its
indemnification obligations, whether arising under the Bylaws or otherwise.
Section 7-3 of the Registrant's Bylaws states that the provisions of
the Bylaws relating to indemnification constitute a contract between the
Registrant and each of its directors and officers which may be modified as to
any director or officer only with that person's consent or as provided in
Section 7-3. Further, any repeal or amendment of the indemnification provisions
of the Bylaws adverse to any director or officer will apply only on a
prospective basis. In addition, no repeal or amendment of the Bylaws may affect
the indemnification provisions of the Bylaws so as to reduce or limit
indemnification or the advancement of expenses in any manner unless adopted by
(a) the unanimous vote of the directors of the Registrant then serving or (b)
the affirmative vote of shareholders entitled to cast at least 80% of the votes
that all shareholders are entitled to cast in the election of directors,
provided that no such amendment will have a retroactive effect inconsistent with
the preceding sentence.
Subsection 2(j) of the Plan provides that the Registrant will
indemnify and hold harmless to the maximum extent permitted by its Bylaws
officers and directors who exercise any discretionary authority or discretionary
control respecting management of the Plan or exercise any authority or control
with respect to management or disposition of the Plan's assets, or who have any
discretionary authority or discretionary responsibility in the administration of
the Plan.
II-6
<PAGE>
The Registrant has purchased directors and officers liability
insurance for its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following Exhibits are filed or incorporated by reference as part
of this Registration Statement:
Exhibit No.
5 Opinion of Wolf, Block, Schorr and Solis-Cohen.
10.1 The Comcast Corporation Retirement- Investment Plan, as
amended and restated effective January 1, 1993 (revised
through September 30, 1995).
10.2 Defined Contribution Plans Master Trust Agreement Between
Comcast Corporation and State Street Bank and Trust Company.
II-7
<PAGE>
23.1 Consents of Deloitte & Touche LLP.
23.2 Consents of KPMG Peat Marwick LLP.
23.3 Consent of Ernst & Young.
23.4 Consents of Arthur Andersen LLP.
23.5 Consent of Wolf, Block, Schorr and Solis-Cohen (contained in
Exhibit 5).
24. Power of Attorney (included on page II-10 of this
registration statement).
With respect to Exhibit 5, the Registrant has submitted the Plan, as
amended and restated, (and will submit the Plan and subsequent amendments
thereto) to the Internal Revenue Service (the "IRS") in a timely manner and will
make all changes required by the IRS in order to qualify the Plan under Section
401 of the Internal Revenue Code.
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
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 15(d)
II-8
<PAGE>
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(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 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense 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.
II-9
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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 Philadelphia, Pennsylvania, on October 4, 1995.
COMCAST CORPORATION
By: /s/ Brian L. Roberts
----------------------------
Brian L. Roberts, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Ralph J. Roberts, Brian L. Roberts, Julian A. Brodsky,
John R. Alchin, Lawrence S. Smith, Stanley Wang, Arthur R. Block, and each of
them, the undersigned's true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the undersigned and in the
undersigned's name, place and stead, in any and all capacities, to sign any and
all amendments to this registration statement, and to file the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title(s) Date
/s/ Ralph J. Roberts
- -------------------- Chairman of the Board October 4, 1995
Ralph J. Roberts of Directors; Director
/s/ Julian A. Brodsky
- --------------------- Vice Chairman of the October 4, 1995
Julian A. Brodsky Board of Directors;
Director
II-10
<PAGE>
Signature Title(s) Date
/s/ Brian L. Roberts
- -------------------- President; Director October 4, 1995
Brian L. Roberts (Principal Executive
Officer)
/s/ John R. Alchin
- -------------------- Senior Vice President; October 4, 1995
John R. Alchin Treasurer (Principal
Financial Officer)
/s/ Lawrence S. Smith
- -------------------- Senior Vice President, October 4, 1995
Lawrence S. Smith Accounting and
Administration
(Principal Accounting
Officer)
/s/ Daniel Aaron
- -------------------- Director October 4, 1995
Daniel Aaron
/s/ Gustave G. Amsterdam
- ------------------------ Director October 4, 1995
Gustave G. Amsterdam
/s/ Sheldon M. Bonovitz
- ----------------------- Director October 4, 1995
Sheldon M. Bonovitz
/s/ Joseph L. Castle II
- ----------------------- Director October 4, 1995
Joseph L. Castle II
/s/ Bernard C. Watson
- --------------------- Director October 4, 1995
Bernard C. Watson
/s/ Irving A. Wechsler
- ---------------------- Director October 4, 1995
Irving A. Wechsler
/s/ Anne Wexler
- -------------------- Director October 4, 1995
Anne Wexler
II-11
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
The Comcast Corporation Retirement- Investment Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Philadelphia, Pennsylvania on October 4, 1995.
THE COMCAST CORPORATION RETIREMENT-
INVESTMENT PLAN
By: Comcast Corporation,
Plan Administrator
By: /s/ Lawrence S. Smith
----------------------------------
Lawrence S. Smith
Senior Vice President,
Accounting and Administration
II-12
<PAGE>
COMCAST CORPORATION
THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit No.
5 Opinion of Wolf, Block, Schorr and Solis-Cohen.
10.1 The Comcast Corporation Retirement-Investment Plan, as
amended and restated effective January 1, 1993 (revised
through September 30, 1995).
10.2 Defined Contribution Plans Master Trust Agreement Between
Comcast Corporation and State Street Bank and Trust Company.
23.1 Consents of Deloitte & Touche LLP.
23.2 Consents of KPMG Peat Marwick LLP.
23.3 Consent of Ernst & Young.
23.4 Consents of Arthur Andersen LLP.
23.5 Consent of Wolf, Block, Schorr and Solis-Cohen (contained in
Exhibit 5).
24. Power of Attorney (included on page II-10 of this
registration statement).
EXHIBIT 5
LAW OFFICES
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
TWELFTH FLOOR PACKARD BUILDING
S.E. CORNER 15TH AND CHESTNUT STREETS
PHILADELPHIA, PA 19102-2678
(215) 977-2000
FACSIMILE: (215) 977-2334
FACSIMILE: (215) 977-2346
305 N. FRONT STREET GREAT VALLEY CORPORATE CENTER
SUITE 401 SUITE 110
HARRISBURG, PA 17101-1236 20 VALLEY STREAM PARKWAY
(717) 237-7160 P.O. BOX 3005
FACSIMILE: (717) 237-7161 MALVERN, PA 19355-1406
(610) 889-4900
FACSIMILE: (610) 889-4916
DIRECT DIAL NUMBER:
(215) 977-2234
October 5, 1995
Comcast Corporation
1500 Market Street
Philadelphia, PA 19102-2148
Re: Comcast Corporation Retirement-Investment Plan/
Registration Statement on Form S-8
Dear Ladies and Gentlemen:
As counsel for Comcast Corporation, a Pennsylvania corporation (the
"Company"), we have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission in connection with the offering of up to 4,000,000 shares of
the Company's Class A Special Common Stock, $1.00 par value (the "Shares"),
pursuant to the Comcast Corporation Retirement-Investment Plan (the "Plan"). Of
the Shares being registered, up to 1,000,000 (the "New Shares") may be issued by
the Company from its authorized but previously unissued Shares, and any of the
registered Shares not so issued will consist of previously issued and
outstanding shares purchased for the account of participants in the Plan in
accordance with the terms of the Plan.
In connection with the Registration Statement, we have examined the
originals or copies, certified or otherwise identified to our satisfaction, of
the Company's Articles of Incorporation and Bylaws, each as amended, minutes and
such other documents, and have made such inquiries of the Company's officers, as
we have deemed appropriate for the purpose of rendering this opinion. In all
such examinations, we have assumed the genuineness of all signatures, the
authenticity of all items submitted to us as originals, and the conformity with
originals of all items submitted to us as copies. As to matters of fact which
have not been independently established, we have relied upon representations of
officers of the Company.
<PAGE>
Comcast Corporation
October 5, 1995
Page 2
Based upon the foregoing, it is our opinion that such of the New Shares as
are issued by the Company to or for the account of eligible participants through
the Plan, when issued and delivered as contemplated by the Plan, will be legally
issued, fully paid and non-assessable.
We hereby expressly consent to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ WOLF, BLOCK, SCHORR and SOLIS-COHEN
EXHIBIT 10.1
THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
(Amended and Restated Effective January 1, 1993)
<PAGE>
ARTICLE I
DEFINITIONS
Account....................................................................... 4
Matching Contribution Account..................................................4
Pension Account................................................................4
Prior Plan Account.............................................................4
Rollover Account...............................................................5
Salary Reduction Account.......................................................5
Vision Account.................................................................5
Active Participant.............................................................5
Actual Deferral Percentage.....................................................5
Actuarial Equivalent...........................................................6
Administrator..................................................................6
Affiliated Company.............................................................6
Age ......................................................................7
Average Actual Deferral Percentage.............................................7
Average Contribution Percentage................................................8
Benefit Commencement Date......................................................8
Board of Directors.............................................................8
Code ......................................................................8
Committee......................................................................8
Company ......................................................................8
Compensation...................................................................8
Company Stock.................................................................10
Contract .....................................................................10
Contribution Percentage.......................................................10
Covered Employee..............................................................11
Effective Date................................................................12
Eligible Employee.............................................................12
Employee .....................................................................12
Employment Commencement Date..................................................12
Entry Date....................................................................12
ERISA .....................................................................12
Fund .....................................................................12
Highly Compensated Eligible Employee..........................................12
Highly Compensated Employee...................................................12
Hour of Service...............................................................15
Insurance Company.............................................................16
Investment Medium.............................................................16
Leased Employee...............................................................17
Limitation Year...............................................................17
Matching Contributions........................................................17
Normal Retirement Date........................................................17
One-Year Period of Severance..................................................17
Participant...................................................................17
Participating Company.........................................................17
Payroll Period................................................................18
Pension Plan..................................................................18
- i -
<PAGE>
PAGE
Period of Service.............................................................18
Period of Severance...........................................................18
Plan .....................................................................18
Plan Year.....................................................................19
Prior Plan Contributions......................................................19
Reemployment Commencement Date................................................19
Required Beginning Date.......................................................19
Rollover Contributions........................................................20
Salary Reduction Contributions................................................20
Separation from Service.......................................................20
Severance from Service Date...................................................21
Special Employee..............................................................22
Special Share.................................................................22
Storer Plan...................................................................22
Total Disability..............................................................22
Trust Agreement...............................................................22
Trustee .....................................................................22
Valuation Date................................................................22
Year of Eligibility Service...................................................22
Year of Service...............................................................23
ARTICLE II
TRANSITION AND ELIGIBILITY TO PARTICIPATE
2.1 Rights Affected and Preservation of Accrued Benefit..................24
2.2 Year of Eligibility Service for Special Employees....................24
2.3 Eligibility to Participate - Salary Reduction Contributions..........25
2.4 Election to Make Salary Reduction Contributions .....................25
2.5 Participation in Matching Contributions..............................26
2.6 Participation in Vision Contributions................................26
2.7 Data.................................................................26
ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 Salary Reduction Contributions.......................................27
3.2 Change of Percentage Rate............................................28
3.3 Discontinuance of Salary Reduction Contributions.....................29
3.4 Matching Contributions...............................................29
3.5 Vision Contributions.................................................30
3.6 Timing and Deductibility of Contributions............................30
3.7 Fund.................................................................31
3.8 Limitation on Salary Reduction Contributions and Matching
Contributions........................................................32
3.9 Prevention of Violation of Limitation on Salary Reduction
Contributions and Matching Contributions.............................35
3.10 Maximum Allocation...................................................40
- ii -
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PAGE
ARTICLE IV
PARTICIPANTS' ACCOUNTS
4.1 Accounts.............................................................43
4.2 Valuation............................................................43
4.3 Apportionment of Gain or Loss .......................................43
4.4 Accounting for Allocations...........................................44
ARTICLE V
DISTRIBUTION
5.1 General..............................................................47
5.2 Separation from Service..............................................47
5.3 Death................................................................47
5.4 Total Disability.....................................................48
5.5 Valuation for Distribution...........................................48
5.6 Timing of Distribution...............................................49
5.7 Mode of Distribution of Retirement or Disability Benefits............51
5.8 Rules for Election of Optional Mode of Retirement or
Disability Benefit...................................................52
5.9 Death Benefits.......................................................55
5.10 Explanations to Participants.........................................57
5.11 Beneficiary Designation..............................................58
5.12 Recalculation of Life Expectancy.....................................61
5.13 Transfer of Account to Other Plan....................................62
ARTICLE VI
VESTING
6.1 Nonforfeitable Amounts...............................................64
6.2 Years of Service for Vesting.........................................65
6.3 Breaks in Service and Loss of Service................................66
6.4 Restoration of Service...............................................66
6.5 Forfeitures and Restoration of Forfeited Amounts upon
Reemployment.........................................................66
ARTICLE VII
ROLLOVER CONTRIBUTIONS
7.1 Rollover Contributions...............................................70
7.2 Vesting and Distribution of Rollover Account.........................71
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PAGE
ARTICLE VIII
WITHDRAWALS
8.1 Withdrawals Not Subject to Section 401(k) Restrictions...............73
8.2 Withdrawals Subject to Section 401(k) Restrictions...................73
8.3 Withdrawals On and After Attainment of Age 59-1/2....................77
8.4 Amount and Payment of Withdrawals....................................78
8.5 Withdrawals Not Subject to Replacement...............................78
8.6 Pledged Amounts......................................................78
8.7 Investment Medium to be Charged with Withdrawal......................78
ARTICLE IX
LOANS TO PARTICIPANTS
9.1 Loan Application.....................................................79
9.2 Loan Approval........................................................79
9.3 Amount of Loan.......................................................80
9.4 Terms of Loan........................................................80
9.5 Enforcement..........................................................84
9.6 Additional Rules.....................................................85
ARTICLE X
ADMINISTRATION
10.1 Committee............................................................86
10.2 Duties and Powers of Committee.......................................86
10.3 Functioning of Committee.............................................88
10.4 Disputes.............................................................88
10.5 Indemnification......................................................90
ARTICLE XI
THE FUND
11.1 Designation of Trustee and/or Insurance Company......................91
11.2 Exclusive Benefit....................................................91
11.3 No Interest in Fund..................................................91
11.4 Trustee..............................................................91
11.5 Investments..........................................................92
ARTICLE XII
AMENDMENT OR TERMINATION OF THE PLAN
12.1 Power of Amendment and Termination...................................94
12.2 Merger...............................................................95
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PAGE
ARTICLE XIII
TOP-HEAVY PROVISIONS
13.1 General.............................................................96
13.2 Definitions.........................................................96
13.3 Minimum Contribution for Non-Key Employees.........................101
13.4 Social Security....................................................103
13.5 Adjustment to Maximum Benefit Limitation...........................103
ARTICLE XIV
GENERAL PROVISIONS
14.1 No Employment Rights...............................................105
14.2 Governing Law......................................................105
14.3 Severability of Provisions.........................................105
14.4 No Interest in Fund................................................105
14.5 Spendthrift Clause.................................................106
14.6 Incapacity.........................................................106
14.7 Withholding........................................................107
14.8 Missing Persons....................................................107
14.9 Determination of Highly Compensated Employees......................107
ARTICLE XV
ADDITIONAL SERVICE CREDIT FOR FORMER EMPLOYEES OF
CERTAIN ACQUIRED BUSINESSES
15.1 Additional Service Credit..........................................109
15.2 Applicability......................................................109
15.3 Limitation.........................................................109
ARTICLE XVI
PARTICIPATION BY EMPLOYEES OF
PHILADELPHIA CABLE ADVERTISING
16.1 General............................................................111
16.2 Eligibility and Vesting Service....................................111
16.3 Separate Identification of Highly Compensated Employees............111
16.4 Separate Application of Nondiscrimination Tests....................111
16.5 Separate Testing for Top-Heaviness.................................112
16.6 No Vision Contribution for Employees of Inter-Connect..............112
16.7 No Investment in Company Stock.....................................112
ARTICLE XVII
PARTICIPATION BY EMPLOYEES OF AWACS, INC.
17.1 General............................................................113
17.2 Eligibility and Vesting Service....................................113
17.3 Merger with AWACS 401(k) Plan......................................113
17.4 Temporary Suspension of Distributions, Withdrawals, and
Loans.............................................................114
17.5 Eligibility to Participate.........................................114
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PAGE
17.6 Normal Retirement Date for Certain Employees.......................115
17.7 Vision Contribution for Employees of AWACS.........................115
17.8 Separate Identification of Highly Compensated Employees............115
17.9 Separate Application of Nondiscrimination Tests....................116
17.10 Separate Testing for Top-Heaviness.................................116
SCHEDULE AMINIMUM DISTRIBUTION INCIDENTAL BENEFIT TABLE......................A-1
SCHEDULE B...................................................................B-1
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<PAGE>
THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
Amended and Restated Effective January 1, 1993
(Revised Through September 30, 1995)
BACKGROUND
Comcast Corporation, a Pennsylvania corporation, established The Comcast
Corporation Employees' Thrift Plan (the "Plan") to provide benefits to those of
its employees and the employees of its subsidiaries who were eligible to
participate as provided therein effective December 1, 1979.
The Plan was amended from time to time and amended, restated and
redesignated The Comcast Corporation Retirement- Investment Plan effective March
1, 1983. The Plan was subsequently amended, and amended and restated at various
times.
MERGER WITH METROPHONE PLAN
Effective as of January 1, 1993, Metrophone's 401(k) Savings Plan was
merged with and into the Retirement-Investment Plan and AWACS, Inc. became a
Participating Company hereunder.
MERGER WITH STORER PLAN
Comcast Corporation adopted the Storer Communications Retirement Savings
Plan (the "Storer Plan"), effective as of December 2, 1992, in connection with
its acquisition of part of the business formerly carried on by Storer
Administration, Inc. and certain of its affiliated corporations, which was
completed as of that date.
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Before the adoption of the Plan by Comcast Corporation, the Storer Plan was
maintained by Storer Administration, Inc. for the benefit of the employees of
Storer Administration, Inc. and certain of its affiliates, to enable such
employees to save for their retirement through a program of employee pre-tax
elective contributions and employer matching contributions. The Storer Plan was
initially effective as of April 1, 1991.
Prior to April 1, 1991, certain participants in the Storer Plan
participated in the Storer Communications Pension Plan (the "Storer Pension
Plan") which was terminated as of March 31, 1991. Each participant in the Storer
Pension Plan who was employed by a participating employer in the Plan on April
1, 1991 was allowed to elect voluntarily to have his entire accrued benefit
under the Pension Plan transferred to this Plan and become subject to the terms
of this Plan, including the investment and distribution provisions. Upon
termination of the Storer Pension Plan, the surplus assets held under the Storer
Pension Plan, to the extent thereof, were transferred to this Plan for
allocation to the accounts of participants in accordance with the Plan, as then
in effect.
Effective as of October 1, 1995, The Storer Plan was merged with and into
the Retirement-Investment Plan.
SPECIAL TRANSITIONAL PROVISIONS
Notwithstanding any other provisions in the Plan to the contrary, effective
for the period extending from September 6, 1995 through December 31, 1995:
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(1) No Participant-directed changes shall be permitted with respect to the
investment of Plan Accounts credited through September 5, 1995.
Contributions made to the Plan after September 5, 1995 shall be
allocated among Investment Media in accordance with Participant
elections made on or before that date, in accordance with procedures
established by the Committee. Plan Accounts credited through September
5, 1995 shall be allocated among Investment Media in accordance with
Participant elections made on or before that date, in accordance with
procedures established by the Committee.
(2) No withdrawals or distributions shall be made from Plan Accounts.
(3) No loans shall be made to Participants from Plan Accounts
Comcast Corporation hereby amends and restates the Comcast Corporation
Retirement-Investment Plan, effective January 1, 1993, and as revised through
October 1, 1995, subject to receipt of an Internal Revenue Service determination
that the Plan continues to meet all applicable requirements of section 401(a) of
the Code (as defined in Article I), that employer contributions thereto remain
deductible under section 404 of the Code and that the trust fund maintained with
respect thereto remains tax exempt under section 501(a) of the Code.
3
<PAGE>
ARTICLE I
DEFINITIONS
Except where otherwise clearly indicated by context, the masculine shall
include the feminine and the singular shall include the plural, and vice-versa.
Any term used herein without an initial capital letter that is used in a
provision of the Code with which this Plan must comply to meet the requirements
of section 401(a) of the Code shall be interpreted as having the meaning used in
such provision of the Code, if necessary for the Plan to comply with such
provision.
"Account" means the entries maintained in the records of the Trustee
which represent the Participant's interest in the Fund. The term "Account" shall
refer, as the context indicates, to any or all of the following:
"Matching Contribution Account" -- the Account to which are credited
Matching Contributions allocated to a Participant, adjustments for withdrawals
and distributions, and the earnings, losses and expenses attributable thereto.
"Pension Account" -- the Account to which are credited any amount
voluntarily transferred by a Participant from the Storer Pension Plan to the
Storer Plan in connection with the termination of the Storer Pension Plan.
"Prior Plan Account" -- the Account to which are credited Prior Plan
Contributions allocated to a Participant,
4
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adjustments for withdrawals and distributions, and the earnings, losses and
expenses attributable thereto.
"Rollover Account" -- the Account to which are credited a
Participant's Rollover Contributions, adjustments for withdrawals and
distributions, and the earnings, losses and expenses attributable thereto.
"Salary Reduction Account" -- the Account to which are credited a
Participant's Salary Reduction Contributions, adjustments for withdrawals and
distributions, and the earnings, losses and expenses attributable thereto.
"Vision Account" -- the Account to which are credited a Participant's
Vision Contributions, adjustments for withdrawals and distributions, and the
earnings, losses and expenses attributable thereto.
"Active Participant" means an individual who has become an Active
Participant as provided in Article II and has remained a Covered Employee at all
times thereafter.
"Actual Deferral Percentage" means, for any Eligible Employee for a
given Plan Year, the ratio of:
(a) the sum of:
(1) such Eligible Employee's Salary Reduction Contributions
for the Plan Year, plus
(2) in the case of any Highly Compensated Eligible Employee,
his elective deferrals for the year under any other qualified retirement plan,
other than an employee stock ownership plan as defined in section 4975(e)(7) of
the Code or a
5
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tax credit employee stock ownership plan as defined in section 409(a) of the
Code, maintained by the Participating Company or any Affiliated Company; to
(b) the Eligible Employee's Compensation for the Plan Year.
"Actuarial Equivalent" means, with respect to any benefit or item, a
benefit or item of equal actuarial value, based upon the factors and assumptions
used by the insurance company from whom the Committee directs the purchase of
any annuity contracts for the purpose of providing benefits under the Plan.
"Administrator" means the plan administrator within the meaning of
ERISA. The Company shall be the Administrator.
"Affiliated Company" means, with respect to any Participating Company:
(a) In General.
(1) any corporation that is a member of a controlled group
of corporations, as determined under section 414(b) of the Code, which includes
such Participating Company;
(2) any trade or business (whether or not incorporated) that
is under common control with such Participating Company, as determined under
section 414(c) of the Code;
(3) any member of an affiliated service group, as determined
under section 414(m) of the Code, of which such Participating Company is a
member; and
6
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(4) any other organization or entity which is required to be
aggregated with the Participating Company under section 414(o) of the Code and
regulations issued thereunder.
(b) "50% Affiliated Company."
"50% Affiliated Company" means an Affiliated Company described in
subsection (a)(1) or subsection (a)(2) of this definition, but determined with
"more than 50%" substituted for the phrase "at least 80%" in section 1563(a) of
the Code, when applying sections 414(b) and (c) of the Code.
(c) Special Rules.
An entity is an Affiliated Company only during those periods in
which it is included in a category described in Subsection (a) or (b) of this
definition.
For purposes of crediting service for eligibility to participate
and vesting, an entity at least 25% owned by the Company or a Participating
Company shall be deemed an Affiliated Company.
"Age" means, for any individual, his age on his last birthday, except
that an individual reaches Age 59 1/2 or Age 70 1/2 on the corresponding date in
the sixth calendar month following the month in which his 59th or 70th
(respectively) birthday falls (or the last day of such sixth month if there is
no such corresponding date therein).
"Average Actual Deferral Percentage" means, for a specified group of
Eligible Employees for a Plan Year, the
7
<PAGE>
average of the Actual Deferral Percentages for such Eligible Employees for the
Plan Year.
"Average Contribution Percentage" means, for a specified group of
Eligible Employees for a Plan Year, the average of the Contribution Percentages
for such Eligible Employees for the Plan Year.
"Benefit Commencement Date" means, for any Participant or beneficiary,
the date as of which the first benefit payment, including a single sum, from the
Participant's Account is due, other than pursuant to a withdrawal under Article
VIII.
"Board of Directors" means the board of directors (or other governing
body) of the Company and, to the extent the Board has delegated its authority
hereunder to the Board's Executive Committee, the Executive Committee.
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations issued thereunder.
"Committee" means the individuals appointed by the Board of Directors
(if any) or by the Company to supervise the administration of the Plan, as
provided in Article X.
"Company" means Comcast Corporation, a Pennsylvania corporation, and
its successors.
"Compensation" means, for any Eligible Employee, for any Plan Year or
Limitation Year, as the case may be:
(a) except as otherwise provided below in this definition, and
subject to the limitations set forth in Subsection (c) of this definition, his
wages as reported on Form
8
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W-2 (i.e., wages as defined in section 3401(a) of the Code and all other
payments of compensation for which the Participating Company is required to
furnish the employee a written statement under sections 6041(d) and 6051(a)(3)
of the Code) from a Participating Company for such Plan Year, reduced by
reimbursements or other expense allowances, fringe benefits (cash and noncash),
moving expenses, deferred compensation, and welfare benefits, but including
Salary Reduction Contributions and elective contributions that are not
includible in gross income under sections 125 or 402(a)(8) of the Code. For the
purposes of the definitions of "Actual Deferral Percentage" and "Contribution
Percentage" in this Article (except as otherwise provided in such definitions),
the Company may elect to consider only Compensation as defined above for that
portion of the Plan Year during which the Employee was an Eligible Employee,
provided that this election is applied uniformly to all Eligible Employees for
the Plan Year.
(b) for the purposes of Article XIII and Section 3.10, subject to
the limitations set forth in Subsection (c) of this definition, the Employee's
wages as reported on Form W-2 (i.e., wages as defined in section 3401(a) of the
Code and all other payments of compensation for which the Participating Company
is required to furnish the employee a written statement under sections 6041(d)
and 6051(a)(3) of the Code).
(c) With respect to (i) the Plan Year beginning January 1, 1993,
only compensation not in excess of $235,840
9
<PAGE>
shall be taken into account; and (ii) Plan Years beginning after 1993, only
compensation not in excess of $150,000, or such other amount to which the limit
of section 401(a)(17) of the Code shall apply for such Plan Year provided that
this Subsection (c) shall not apply for purposes of Section 3.10 and Section
13.2.3. In determining Compensation for purposes of this limitation, the rules
of section 414(q)(6) of the Code shall apply, except in applying such rules, the
term "family" shall include only the spouse of the Employee and any lineal
descendants who have not reached Age 19 before the close of the Plan Year. In
applying the rules of section 414(q)(6) of the Code, the limit of this
Subsection (c) shall be allocated among family members in proportion to their
compensation as defined in Subsection (a) without regard to this Subsection (c).
"Company Stock" means the Company's Class A Common Stock and Special
Shares.
"Contract" means any group annuity, investment, insurance, or similar
contract, and amendments thereto issued to the Company or to the Trustee by an
Insurance Company with respect to this Plan.
"Contribution Percentage" means for any Eligible Employee for a given
Plan Year, the ratio of:
(a) the sum of
(1) such Eligible Employee's Matching Contributions for the
Plan Year, plus
10
<PAGE>
(2) in the case of any Highly Compensated Eligible Employee,
any employee contributions and employer matching contributions, including any
elective deferrals recharacterized as employee contributions, under any other
qualified retirement plan, other than an employee stock ownership plan as
defined in section 4975(e)(7) of the Code or a tax credit employee stock
ownership plan as defined in section 409(a) of the Code, maintained by the
Participating Company or any Affiliated Company, plus
(3) at the election of the Committee, any portion of the
Eligible Employee's Salary Reduction Contributions for the Plan Year or elective
deferrals under any other qualified retirement plan maintained by a
Participating Company or any Affiliated Company that may be disregarded without
causing this Plan or such other qualified retirement plan to fail to satisfy the
requirements of section 401(k)(3) of the Code and the regulations issued
thereunder; to
(b) the Eligible Employee's Compensation for the Plan Year.
"Covered Employee" means any Employee who is (a) employed by a
Participating Company and (b) not covered by a collective bargaining agreement,
unless such agreement specifically provides for participation hereunder. An
individual who is treated as an Employee solely by reason of being a Leased
Employee shall not be a Covered Employee.
11
<PAGE>
"Effective Date" means January 1, 1993, the effective date of this
amended and restated Plan.
"Eligible Employee" means an Employee who has become an Eligible
Employee as set forth in Section 2.3, whether or not he is an Active
Participant, and who has remained a Covered Employee at all times thereafter.
"Employee" means an individual who is employed by a Participating
Company or an Affiliated Company or an individual who is a Leased Employee.
"Employment Commencement Date" means, for any Employee, the date on
which he is first entitled to be credited with an "Hour of Service" described in
Paragraph (a)(1) of the definition of Hour of Service in this Article.
"Entry Date" means the first day of any calendar month.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Fund" means the fund established for this Plan, administered under
the Trust Agreement and/or Contract, out of which benefits payable under this
Plan shall be paid.
"Highly Compensated Eligible Employee" means an Eligible Employee who
is (or is treated as) a Highly Compensated Employee.
"Highly Compensated Employee" means an Employee who during the current
Plan Year or the immediately preceding Plan Year:
12
<PAGE>
(a) was a five-percent owner, as defined in section 416(i) of the
Code;
(b) received more than $93,518 (as indexed) in Compensation from
a Participating Company or an Affiliated Company;
(c) received more than $62,345 (as indexed) in Compensation from
a Participating Company or an Affiliated Company and was among the top 20% of
Employees of all Participating Companies and Affiliated Companies ranked by
Compensation (excluding Employees described in section 414(q)(8) of the Code to
the extent (1) permitted under the Code and regulations thereunder and (2)
elected by the Committee, for purposes of identifying the number of Employees in
the top 20%); or
(d) was among the 50 officers of a Participating Company or an
Affiliated Company (or, if lesser, the greater of 3 or 10% of all Employees,
excluding Employees described in section 414(q)(8) of the Code, to the extent
(1) permitted under the Code and regulations thereunder and (2) elected by the
Committee for purposes of identifying the top 20%) and received Compensation of
more than $56,110.50 (as indexed); provided, however, that, if no officer has
satisfied the compensation requirement described above during either the current
Plan Year or the immediately preceding Plan Year, the highest paid officer for
such year shall be treated as a Highly Compensated Employee.
13
<PAGE>
Notwithstanding Subsections (b)-(d) of this definition, an Employee, other than
a five-percent owner, who was not a Highly Compensated Employee in the preceding
Plan Year is a Highly Compensated Employee for the current Plan Year only if he
is among the 100 most highly compensated Employees of all Participating
Companies and Affiliated Companies ranked by Compensation for the current Plan
Year.
If an Employee is, during the current Plan Year or the immediately
preceding Plan Year, a family member of either a five-percent owner who is an
Employee or a former Employee or a Highly Compensated Employee who is one of the
10 most highly compensated Employees ranked by compensation during such year,
then the family member and the five-percent owner or Highly Compensated Employee
shall be treated as a single Highly Compensated Employee, and the Compensation
and elective deferrals, employee contributions and employer matching
contributions of such family member and five-percent owner or Highly Compensated
Employee shall be aggregated in determining the Actual Deferral Percentage and
Contribution Percentage of such "single" Highly Compensated Employee. For
purposes of this definition, "family member" shall include the spouse, lineal
ascendants and descendants of the Employee or former Employee and the spouse of
such lineal ascendants and descendants.
If the Participating Company has made the election described in
Section 14.9, references to the "preceding Plan
14
<PAGE>
Year" shall refer instead to the calendar year ending with or within the current
Plan Year.
"Hour of Service" means, for any Employee, a credit awarded with
respect to:
(a) except as provided in (b),
(1) each hour for which he is directly or indirectly paid or
entitled to payment by a Participating Company or an Affiliated Company for the
performance of employment duties; or
(2) each hour for which he is entitled, either by award or
agreement, to back pay from a Participating Company or an Affiliated Company,
irrespective of mitigation of damages; or
(3) each hour for which he is directly or indirectly paid or
entitled to payment by a Participating Company or an Affiliated Company on
account of a period of time during which no duties are performed due to
vacation, holiday, illness, incapacity (including disability), jury duty,
layoff, leave of absence, or military duty.
(b) Anything to the contrary in Subsection (a) notwithstanding:
(1) No Hours of Service shall be credited to an Employee for
any period merely because, during such period, payments are made or due him
under a plan maintained solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or disability insurance laws.
15
<PAGE>
(2) No more than 501 Hours of Service shall be credited to
an Employee under Subsection (a)(3) of this definition on account of any single
continuous period during which no duties are performed by him, except to the
extent otherwise provided in the Plan.
(3) No Hours of Service shall be credited to an Employee
with respect to payments solely to reimburse for medical or medically related
expenses.
(4) No Hours of Service shall be credited twice.
(5) Hours of Service shall be credited at least as liberally
as required by the rules set forth in U.S. Department of Labor Reg.
ss.2530.200b-2(b) and (c).
(6) In the case of an Employee who is such solely by reason
of service as a Leased Employee, Hours of Service shall be credited as if such
Employee were employed and paid with respect to such service (or with respect to
any related absences or entitlements) by the Participating Company or Affiliated
Company that is the recipient thereof.
"Insurance Company" means any legal reserve life insurance company
with which funds are deposited pursuant to a Contract to provide benefits under
the Plan.
"Investment Medium" means any fund, contract, obligation, or other
mode of investment to which a Participant may direct the investment of the
assets of his Account.
16
<PAGE>
"Leased Employee" means an individual who is not an employee of a
Participating Company or an Affiliated Company (as defined without regard to
Subsection (c) of the definition thereof) which is the recipient of such
individual's services, but who is required to be treated as an employee of such
Participating Company or Affiliated Company because of the application of
sections 414(n) or 414(o) of the Code and the applicable regulations thereunder,
and to whom section 414(n)(5) of the Code does not apply.
"Limitation Year" means the Plan Year or such other
12-consecutive-month period as may be designated by the Company.
"Matching Contributions" means the amounts contributed by the Company
pursuant to Section 3.4.
"Normal Retirement Date" means, for any Participant, the date on which
he reaches Age 65.
"One-Year Period of Severance" means a 12-consecutive- month period
beginning on the date of the Employee's Separation from Service during which the
former Employee is credited with no Hours of Service.
"Participant" means an individual for whom one or more Accounts are
maintained under the Plan.
"Participating Company" means the Company, each subsidiary of the
Company which is eligible to file a consolidated federal income tax return with
the Company and each other organization which is authorized by the Board of
Directors
17
<PAGE>
to adopt this Plan by action of its board of directors or other governing body.
"Payroll Period" means a weekly, bi-weekly, semi-monthly, or monthly
pay period or such other standard pay period of the Participating Company
applicable to the class of Employees of which the Eligible Employee is a part.
"Pension Plan" means the Storer Communications Pension Plan, which was
terminated as of March 31, 1991.
"Period of Service" means, with respect to any Employee, the period of
time commencing on the Employee's Employment Commencement Date and ending on the
date of the Employee's Separation from Service and, if applicable, the period of
time commencing on an Employee's Reemployment Commencement Date and ending on
the date of the Employee's subsequent Separation from Service. For purposes of
determining an employee's eligibility to participate and his vested status under
the Plan, an Employee's period of employment with Storer Administration, Inc.
before January 1, 1993 shall be counted as part of his Period of Service.
"Period of Severance" means the period of time commencing on the date
of an Employee's Separation from Service and ending on the date on which the
Employee is again entitled to be credited with an Hour of Service.
"Plan" means the Comcast Corporation Retirement- Investment Plan, a
profit sharing plan, as set forth herein.
18
<PAGE>
"Plan Year" means each 12-consecutive month period that begins on
January 1st and ends on the next following December 31st.
"Prior Plan Contributions" means the amounts, if any, contributed by a
Participant prior to the Effective Date as after-tax contributions to the Plan.
"Reemployment Commencement Date" means the first day following a
One-Year Period of Severance on which an Employee is entitled to be credited
with an Hour of Service described in Paragraph (a)(1) of the definition of "Hour
of Service" in this Article.
"Required Beginning Date" means, for any Participant:
(a) if he reached Age 70 1/2 before January 1, 1988, and is not a
five-percent owner (within the meaning of section 416 of the Code) of a
Participating Company at any time during the five-Plan-Year period ending in the
calendar year in which he reached Age 70 1/2, or thereafter, April 1 of the
calendar year following the later of the calendar year in which he has a
Separation from Service or the calendar year in which he reached Age 70 1/2;
(b) if he reached Age 70 1/2 before January 1, 1988, and is a
five-percent owner (within the meaning of section 416 of the Code) of a
Participating Company at any time during the five- Plan-Year period ending in
the calendar year in which he reached Age 70 1/2, or thereafter, the later of
(1) December 31, 1987 (2) April 1 of the calendar year following the calendar
year in which
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he reached Age 70 1/2 or (3) April 1 of the calendar year in which he becomes a
five-percent owner.
(c) if he reached Age 70 1/2 before January 1, 1989 and after
December 31, 1987, is not a five-percent owner (within the meaning of section
416 of the Code) of a Participating Company and has not had a Separation from
Service before January 1, 1989, April 1, 1990;
(d) except as otherwise provided in Subsection (c), if he reaches
Age 70 1/2 on or after January 1, 1988, April 1 of the calendar year next
following the calendar year in which he reaches Age 70 1/2.
"Rollover Contributions" means, for any Participant, his rollover
contributions as provided in Section 7.1.
"Salary Reduction Contributions" means, for any Participant,
contributions on his behalf as provided in Subsection 3.1(a).
"Separation from Service" means, for any Employee, his death,
retirement, resignation, discharge or any absence that causes him to cease to be
an Employee, provided that for purposes of Article V relating to distributions,
a Participant who transfers employment to an unrelated third party in connection
with a sale by the Company or a Participating Company of a business to such
third party shall not be treated as having a Separation from Service in
connection with such transfer of employment unless such transfer of employment
is in connection with a transaction described in section 401(k)(10) of the Code.
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"Severance from Service Date" means the date, as recorded on the
records of a Participating Company or an Affiliated Company, on which an
Employee of such company quits, retires, is discharged, or dies, or, if earlier,
the first anniversary of the first day of a period during which the Employee
remains absent from service with all Participating Companies and Affiliated
Companies (with or without pay) for any other reason, except:
(a) Solely for purposes of determining whether a One-Year Period
of Severance has occurred, if the Employee is absent from work beyond the first
anniversary of the first day of absence by reason of pregnancy, childbirth, or
placement in connection with adoption, or for purposes of the care of such
Employee's child immediately after birth or placement in connection with
adoption, such Employee's Separation from Service shall be the second
anniversary of the first day of such absence; or
(b) If the Employee is absent for military service under leave
granted by the Participating Company or Affiliated Company or required by law,
the Employee shall not be considered to have a Separation from Service, provided
the absent Employee returns to service with the Participating Company or
Affiliated Company within 90 days of his release from active military duty or
any longer period during which his right to reemployment is protected by law.
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"Special Employee" means an Employee whose regularly scheduled paid
work week does not exceed 24 hours, or whose employment is classified as
"temporary" or "intermittent," both in accordance with uniformly applied
personnel policies.
"Special Share" means the Company's Class A Special Common Stock.
"Storer Plan" means the Storer Communications, Inc. Retirement Savings
Plan.
"Total Disability" means, with respect to any Participant, a
disability of a potentially permanent character that prevents him from engaging
in the occupation or fulfilling the duties which he performed at the time of the
occurrence of such disability.
"Trust Agreement" means any agreement and declaration of trust
executed under this Plan.
"Trustee" means the corporate trustee or trustees or one or more
individuals collectively appointed and acting under a Trust Agreement.
"Valuation Date" means the last business day of each calendar quarter
and each interim date on which the Committee determines that a valuation of the
Fund shall be made.
"Year of Eligibility Service" means, for any Special Employee, a
credit used to determine his eligibility to participate under the Plan, as
further described in Section 2.2.
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"Year of Service" means, for any Employee, a credit used to determine
his vested status under the Plan, as further described in Section 6.2.
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ARTICLE II
TRANSITION AND ELIGIBILITY TO PARTICIPATE
2.1 Rights Affected and Preservation of Accrued Benefit. Except as provided
to the contrary herein, the provisions of this amended and restated Plan shall
apply only to Employees who complete an Hour of Service on or after the
Effective Date. The rights of any other individual shall be governed by the Plan
as in effect upon his Separation from Service, except to the extent expressly
provided in any amendment adopted subsequently thereto. Additional rules
regarding service credit are set forth in Article XV.
2.2 Year of Eligibility Service for Special Employees.
2.2.1 A Special Employee shall be credited with a Year of Eligibility
Service as of the close of the 12-consecutive-month period that begins on his
Employment Commencement Date if he is credited with 1,000 or more Hours of
Service during such period.
2.2.2 A Special Employee who is not credited with 1,000 Hours of
Service during such period shall be credited with a Year of Eligibility Service
as of the close of the first Plan Year in which he is credited with 1,000 or
more Hours of Service.
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2.3 Eligibility to Participate - Salary Reduction Contributions.
2.3.1 Each Covered Employee as of the Effective Date who was eligible
to participate in the Plan immediately prior to the Effective Date shall
continue to be an Eligible Employee as of the Effective Date.
2.3.2 Each Covered Employee who was not eligible to participate
immediately prior to the Effective Date shall become an Eligible Employee on the
Entry Date next following his completion of one Year of Eligibility Service, if
he is a Special Employee, or his completion of a Period of Service of at least
one year, if he is other than a Special Employee.
2.3.3 If an individual is not a Covered Employee on the Entry Date
next following the date he meets the requirements of Section 2.3.2 , he shall
become an Eligible Employee as of the first date thereafter on which he is a
Covered Employee.
2.3.4 An Eligible Employee who ceases to be a Covered Employee, by
Separation from Service or otherwise, and who later becomes a Covered Employee,
shall become an Eligible Employee as of the date on which he first again
completes an Hour of Service as a Covered Employee.
2.4 Election to Make Salary Reduction Contributions Each Eligible Employee
may elect to make Salary Reduction Contributions and become an Active
Participant by filing a
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written notice of such election with the Committee on a form provided for that
purpose. Such notice shall authorize the Participating Company to reduce such
Eligible Employee's cash remuneration by an amount determined in accordance with
Section 3.1 and to make Salary Reduction Contributions on such Eligible
Employee's behalf in the amount of such reduction. Such election shall be
effective on the first day of the Payroll Period following receipt of his
election by the Committee.
2.5 Participation in Matching Contributions. An Active Participant shall
share in Matching Contributions under Section 3.4 for any Plan Year if Salary
Reduction Contributions are made on his behalf in such Plan Year.
2.6 Participation in Vision Contributions. An Eligible Employee who enrolls
in the Plan in accordance with procedures established by the Committee shall
share in Vision Contributions under Section 3.5, and become an Active
Participant, in accordance with Section 3.5.
2.7 Data. Each Employee shall furnish to the Committee such data as the
Committee may consider necessary for the determination of the Employee's rights
and benefits under the Plan and shall otherwise cooperate fully with the
Committee in the administration of the Plan.
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ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 Salary Reduction Contributions.
3.1.1 When an Eligible Employee files an election under Section 2.4 to
have Salary Reduction Contributions made on his behalf, he shall elect the
percentage by which his Compensation shall be reduced on account of such Salary
Reduction Contributions. Subject to Section 3.8, this percentage may be between
one percent (1%) and seventeen percent (17%) of such Compensation, rounded to
the nearer whole percentage. The Participating Company shall contribute an
amount equal to such percentage of the Eligible Employee's Compensation to the
Fund for credit to the Eligible Employee's Salary Reduction Account provided
that such contributions may be prospectively limited as provided in Section 3.9.
3.1.2 Salary Reduction Contributions made on behalf of an Eligible
Employee under this Plan together with elective deferrals under any other plan
or arrangement maintained by any Participating Company or Affiliated Company
shall not exceed $8,994 (as adjusted in accordance with section 402(g) of the
Code and regulations thereunder) for any calendar year. To the extent necessary
to satisfy this limitation for any year:
(a) elections under Section 3.1.1 shall be prospectively
restricted; and,
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(b) after application of this Section 3.1.2(a), the excess Salary
Reduction Contributions and excess elective deferrals under any other plan or
arrangement maintained by any Participating Company or Affiliated Company (with
earnings thereon, but reduced by any amounts previously distributed under
Section 3.9.1 for the year) shall be paid to the Participant on or before the
April 15 first following the calendar year in which such contributions were
made. If the Salary Reduction Contributions plus elective deferrals described
above do not exceed such limitation, but Salary Reduction Contributions, plus
the elective deferrals, as defined in section 402(g)(3) of the Code, under any
other plan for any Participant exceed such limitation for any calendar year,
upon the written request of the Participant made on or before the March 1 first
following such calendar year, the excess, including any earnings attributable
thereto, designated by the Participant to be distributed from the Plan shall be
paid to the Participant on or before the April 15 first following such calendar
year.
3.2 Change of Percentage Rate. A Participant may without penalty change the
percentage of Compensation designated by him as his contribution rate under
Section 3.1.1, to any percentage permitted by such Section, and such percentage
shall remain in effect until so changed. Any such change shall become effective
as of the first day of the Payroll Period next following receipt of the change
by the Committee.
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3.3 Discontinuance of Salary Reduction Contributions. A Participant may
discontinue his Salary Reduction Contributions at any time. Such discontinuance
shall become effective as of the first day of the Payroll Period next following
receipt of the discontinuance by the Committee.
3.4 Matching Contributions. Subject to Sections 3.8 and 3.10, with respect
to each Participant who is an Employee of a Participating Company during a Plan
Year, such Participating Company shall contribute to the Fund for such payroll
period an amount equal to the sum of:
3.4.1 one hundred percent (100%) of such Participant's Salary
Reduction Contributions for such payroll period not in excess of one percent
(1%) of his Compensation for such payroll period; plus
3.4.2 fifty percent (50%) of such Participant's Salary Reduction
Contributions for such payroll in excess of one percent (1%) but not in excess
of six percent (6%) of his Compensation for such payroll period. The
Participating Companies' matching contribution obligation for a Plan Year shall
be offset by the amount, if any, of the sum of Matching Contributions and Vision
Contributions forfeited during such Plan Year by Participants who were Employees
of such Participating Company, provided that such contributions may be
prospectively limited as provided in Section 3.9. Notwithstanding the foregoing,
the contributions under this Section for any Plan Year shall not cause the total
contributions
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by the Participating Company to exceed the maximum allowable current deduction
under the applicable provisions of the Code.
3.5 Vision Contributions.
(a) Eligible Employees Prior to the Effective Date. The Company
established a Vision Account for each Employee of a Participating Company who,
as of April 1, 1991, or any subsequent Entry Date preceding the Effective Date,
had satisfied the requirements for participation under the terms of the Plan as
in effect at such time. The Company allocated 10 Special Shares to each such
Vision Account.
(b) Employees who Become Eligible Employees on or after the
Effective Date. The Company shall also establish a Vision Account for each
Employee of a Participating Company who, as of any Entry Date on or after the
Effective Date, first satisfies the requirements for participation under Article
II hereof. The Company shall allocate 10 Special Shares to each such Vision
Account for the Plan Year in which the Employee first satisfies the requirements
for participation under Article II hereof.
3.6 Timing and Deductibility of Contributions. Matching and Vision
Contributions for any Plan Year under this Article shall be made no later than
the last date on which amounts so paid may be deducted for Federal income tax
purposes for the taxable year of the employer in which the Plan Year ends. All
Participating Company contributions are expressly conditioned upon their
deductibility for Federal income tax purposes.
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Amounts contributed as Salary Reduction Contributions or Rollover Contributions
will be remitted to the Trustee as soon as practicable, but no later than 90
days after the date on which such contributions were received or withheld from
the Participant's Compensation.
3.7 Fund. The contributions deposited by the Participating Company in the
Fund in accordance with this Article shall constitute a fund held for the
benefit of Participants and their eligible beneficiaries under and in accordance
with this Plan. No part of the principal or income of the Fund shall be used
for, or diverted to, purposes other than for the exclusive benefit of such
Participants and their eligible beneficiaries (including necessary
administrative costs); provided, that in the case of a contribution made by the
Participating Company as a mistake of fact, or for which a tax deduction is
disallowed, in whole or in part, by the Internal Revenue Service, the
Participating Company shall be entitled to a refund of said contributions, which
must be made within one year after payment of a contribution made as a mistake
of fact, or within one year after disallowance.
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3.8 Limitation on Salary Reduction Contributions and Matching
Contributions.
3.8.1 For any Plan Year, the Average Actual Deferral Percentage for
the Highly Compensated Eligible Employees Shall not exceed the greater of:
(a) one hundred twenty-five percent (125%) of the Average Actual
Deferral Percentage for all other Eligible Employees; or
(b) the lesser of:
(1) two hundred percent (200%) of the Average Actual
Deferral Percentage for all other Eligible Employees; or
(2) two percent (2%) plus the Average Actual Deferral
Percentage for all other Eligible Employees.
3.8.2 For any Plan Year, the Average Contribution Percentage for the
Highly Compensated Eligible Employees shall not exceed the greater of:
(a) one hundred twenty-five (125%) of the Average Contribution
Percentage for all other Eligible Employees; or
(b) the lesser of:
(1) two hundred percent (200%) of the Average Contribution
Percentage for all other Eligible Employees; or
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(2) two percent (2%) plus the Average Contribution
Percentage for all other Eligible Employees.
3.8.3 For any Plan Year, the sum of the Average Actual Deferral
Percentage and the Average Contribution Percentage for the Highly Compensated
Eligible Employees shall not exceed the greater of:
(a) the sum of:
(1) one hundred twenty-five percent (125%) of the greater of
the Average Actual Deferral Percentage or the Average Contribution Percentage
for all other Eligible Employees; plus
(2) the lesser of:
(i) two hundred percent (200%) of the lesser of the
Average Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees; or
(ii) two percent (2%) plus the lesser of the Average
Actual Deferral Percentage or the Average Contribution Percentage for all other
Eligible Employees; or
(b) the sum of:
(1) one hundred twenty-five percent (125%) of the lesser of
the Average Actual Deferral Percentage or the Average Contribution Percentage
for all other Eligible Employees; plus
(2) the lesser of:
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(i) two hundred percent (200%) of the greater of the
Average Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees; or
(ii) two percent (2%) plus the greater of the Average
Actual Deferral Percentage or the Average Contribution Percentage for all other
Eligible Employees.
3.8.4 For purposes of this Section, the Salary Reduction
Contributions and Matching Contributions, respectively, of any five-percent
owner or other Highly Compensated Employee who is one of the top 10 Employees
ranked by pay (without regard to this sentence) for the Plan Year or the
preceding Plan Year shall be increased by the amount of the Salary Reduction
Contributions and Matching Contributions, respectively, of any Employee who is a
spouse or lineal ascendant or descendant (or a spouse thereof) ("family member")
of such Highly Compensated Employee, and the Compensation of the former shall be
increased by the Compensation of the latter, and such family member and such
Highly Compensated Employee shall be treated as a single Highly Compensated
Eligible Employee and such family member shall not be treated as a separate
Eligible Employee for purposes of applying this Section. The application of this
Section 3.8.4 and the determination of the Actual Deferral Percentage and
Contribution Percentage of such single Highly Compensated Eligible Employee
shall be made in accordance with sections 414(q), 401(k) and 401(m) of the Code
and regulations thereunder.
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3.8.5 If the Plan and any other plan(s) maintained by a Participating
Company or an Affiliated Company are treated as a single plan for purposes of
section 401(a)(4) or section 410(b) of the Code, the limitations in Sections
3.8.1 through 3.8.4 shall be applied by treating the Plan and such other plan(s)
as a single plan.
3.8.6 The application of this Section shall satisfy sections 401(k)
and 401(m) of the Code and regulations thereunder and such other requirements as
may be prescribed by the Secretary of the Treasury.
3.8.7 The test set forth in Section 3.8.1 must be satisfied separately
with respect to (1) Eligible Employees who are not covered by a collective
bargaining agreement and (2) Eligible Employees who are covered by a collective
bargaining agreement. The tests set forth in Sections 3.8.2 and 3.8.3 must be
satisfied only with respect to Eligible Employees who are not covered by a
collective bargaining agreement.
3.9 Prevention of Violation of Limitation on Salary Reduction Contributions
and Matching Contributions. The Committee shall monitor the level of
Participants' Salary Reduction Contributions and Matching Contributions and
elective deferrals, employee contributions, and employer matching contributions
under any other qualified retirement plan maintained by a Participating Company
or any Affiliated Company to insure against exceeding the limits of Section 3.8.
To the extent practicable, the Plan Administrator may prospectively
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limit (i) some or all of the Highly Compensated Eligible Employees' Salary
Reduction Contributions to reduce the Average Actual Deferral Percentage of the
Highly Compensated Eligible Employees to the extent necessary to satisfy Section
3.8.1 and/or (ii) some or all of the Highly Compensated Eligible Employees'
Matching Contributions to reduce the Average Contribution Percentage of the
Highly Compensated Eligible Employees to the extent necessary to satisfy Section
3.8.2 of and/or (iii) some or all of the Highly Compensated Eligible Employees'
Salary Reduction Contributions and Matching Contributions to the extent
necessary to satisfy Section 3.8.3. If the Committee determines after the end of
the Plan Year that the limits of Section 3.8 may be or have been exceeded, it
shall take the appropriate following action for such Plan Year:
3.9.1 (a) The Average Actual Deferral Percentage for the Highly
Compensated Eligible Employees shall be reduced to the extent necessary to
satisfy Section 3.8.1.
(b) The reduction shall be accomplished by reducing the maximum
Actual Deferral Percentage for any Highly Compensated Eligible Employee to an
adjusted maximum Actual Deferral Percentage, which shall be the highest Actual
Deferral Percentage that would cause one of the tests in Section 3.8.1 to be
satisfied, if each Highly Compensated Eligible Employee with a higher Actual
Deferral Percentage had instead the adjusted maximum Actual Deferral Percentage,
reducing the Highly Compensated Eligible Employee's Salary Reduction
Contributions
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and elective deferrals under any other qualified retirement plan maintained by
the Participating Company or any Affiliated Company (less any amounts previously
distributed under Section 3.1 for the year) in order, beginning with the Highly
Compensated Eligible Employee(s) with the highest Actual Deferral Percentage;
provided, however, that excess contributions shall be allocated to Eligible
Employees who are subject to the family member aggregation rules of section
414(q)(6) of the Code in the manner prescribed by regulations.
(c) Not later than the end of the Plan Year following the close
of the Plan Year for which the Salary Reduction Contributions were made, the
difference between a Highly Compensated Eligible Employee's Actual Deferral
Percentage and the Highly Compensated Eligible Employee's adjusted maximum
actual Deferral Percentage shall be paid to the Highly Compensated Eligible
Employee, with earnings attributable thereto (as determined in accordance with
applicable Treasury Regulations); provided, however, that for any Participant
who is also a participant in any other qualified retirement plan maintained by
the Participating Company or any Affiliated Company under which the Participant
makes elective deferrals for such year, the Committee shall coordinate
corrective actions under this Plan and such other plan for the year.
3.9.2 (a) The Average Contribution Percentage for the Highly
Compensated Eligible Employees shall be reduced to
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the extent necessary to satisfy at least one of the tests in Section 3.8.2.
(b) The reduction shall be accomplished by reducing the maximum
Contribution Percentage for any Highly Compensated Eligible Employee to an
adjusted maximum Contribution Percentage, which shall be the highest
Contribution Percentage that would cause one of the tests in Section 3.8.2 to be
satisfied, if each Highly Compensated Eligible Employee with a higher
Contribution Percentage had instead the adjusted maximum Contribution
Percentage, reducing, in the following order of priority, the Highly Compensated
Eligible Employees' Matching Contributions and employee contributions and
employer matching contributions under any other qualified retirement plan
maintained by the Participating Company or an Affiliated Company, in order
beginning with the Highly Compensated Eligible Employee(s) with the highest
Contribution Percentage; provided, however, that excess contributions shall be
allocated to Eligible Employees who are subject to the family member aggregation
rules of section 414(q)(6) of the Code in the manner prescribed in regulations.
(c) Not later than the end of the Plan Year following the close
of the Plan Year for which such contributions were made, the difference between
a Highly Compensated Eligible Employee's Contribution Percentage and the Highly
Compensated Eligible Employee's adjusted maximum Contribution Percentage, with
earnings attributable thereto (as
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determined in accordance with applicable Treasury Regulations) shall be treated
as a forfeiture of the Highly Compensated Eligible Employee's Matching
Contributions for the Plan Year to the extent such contributions are forfeitable
(which forfeiture shall be used to reduce future Matching Contributions), or
paid to the Highly Compensated Eligible Employee to the extent such
contributions are nonforfeitable; provided, however, that, for any Participant
who is also a participant in any other qualified retirement plan maintained by
the Participating Company or any Affiliated Company under which the Participant
makes employee contributions or is credited with employer matching contributions
for the year, the Committee shall coordinate corrective actions under this Plan
and such other plan for the year.
3.9.3 (a) The Average Contribution Percentage and/or the Average
Actual Deferral Percentage (as determined under Section 3.9.3(b)) for the Highly
Compensated Eligible Employees shall be reduced to satisfy the test in Section
3.8.3 in a manner and to the extent determined by the Committee.
(b) The reduction(s) shall be accomplished in the same manner as
is set forth in Sections 3.9.1 and 3.9.2, whichever is appropriate. A reduction
to the Average Actual Deferral Percentage shall be charged against the
appropriate Highly Compensated Eligible Employees' Salary Reduction Accounts. A
reduction to the Average Contribution Percentage shall be charged against the
appropriate Highly Compensated Eligible Employees' Matching Contribution
Accounts.
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Notwithstanding the foregoing, for any Participant who is also a participant in
any other qualified retirement plan maintained by a Participating Company or any
Affiliated Company under which the Participant makes employee contributions or
elective deferrals or is credited with employer matching contributions for such
year, the Committee shall coordinate corrective actions under this Plan and such
other plan for the year.
3.9.4 If the Plan and any other plan maintained by a Participating
Company or an Affiliated Company are treated as a single plan pursuant to
Section 3.8.5, the Committee shall coordinate corrective actions under the Plan
and such other plan for the year.
3.10 Maximum Allocation.
3.10.1 Notwithstanding anything in this Plan to the contrary, in no
event shall amounts allocated to a Participant's Account under the Plan exceed
the limitations set forth in section 415 of the Code, which are hereby
incorporated into the Plan.
3.10.2 If the amounts otherwise allocable to a Participant's Account
under the Plan would exceed the limitations set forth in section 415(c) of the
Code as a result of the reallocation of forfeitures, a reasonable error in
estimating the Participant's Compensation, a reasonable error in determining the
amount of Salary Reduction Contributions that may be made with respect to the
Participant under the limits , or such other circumstances as permitted by law,
the Committee shall
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determine which portion, if any, of such excess amount is attributable to the
Participant's Salary Reduction Contributions or Matching Contributions, until
such amount has been exhausted, and shall take the following steps to correct
such violation:
(a) Excess Salary Reduction Contributions and earnings thereon
shall be paid to the Participant as soon as is administratively feasible.
(b) (1) While the Participant remains a Covered Employee, his
excess Matching Contributions shall be held in a suspense account (which shall
share in investment gains and losses of the Fund) by the Trustee until the
following Limitation Year (or any succeeding Plan Years), at which time such
amounts shall be allocated to the Participant's Account before any Contributions
are made on his behalf for such Plan Year; and
(2) When the Participant ceases to be a Covered Employee,
his excess Matching Contributions, along with earnings thereon, held in the
suspense account shall be allocated in the following Plan Year (or any
succeeding Plan Year) to the Accounts of other Participants in the Plan.
3.10.3 If, in any Limitation Year, a Participant is a participant in
one or more defined benefit plans sponsored by a Participating Company or a 50%
Affiliated Company, the annual additions of the Participant under the Plan shall
not be reduced unless the annual benefit under the defined benefit
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plan(s) is not reduced to the extent necessary to meet the combined plan limits
of section 415(e) of the Code.
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ARTICLE IV
PARTICIPANTS' ACCOUNTS
4.1 Accounts. All contributions and earnings thereon may be invested in one
commingled Fund for the benefit of all Participants. However, in order that the
interest of each Participant may be accurately determined and computed, separate
Accounts shall be maintained for each Participant and each Participant's
Accounts shall be made up of subaccounts reflecting his investment elections
pursuant to Section 11.5. These Accounts shall represent the Participant's
individual interest in the Fund. All contributions shall be credited to
Participants' Accounts as set forth in Article III.
4.2 Valuation. The value of each Investment Medium in the Fund shall be
computed by the Trustee or the Insurance Company as of the close of business on
each Valuation Date on the basis of the fair market value of the assets of the
Fund.
4.3 Apportionment of Gain or Loss. The value of each Investment Medium in
the Fund, as computed pursuant to Section 4.2, shall be compared with the value
of such Investment Medium in the Fund as of the preceding Valuation Date. Any
difference in the value, not including contributions or distributions made since
the preceding Valuation Date, shall be the net increase or decrease of such
Investment Medium in the Fund, and such amount shall be ratably apportioned by
the Trustee or the Insurance Company on its books, among the Participants'
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Accounts which are invested in such Investment Medium at the current Valuation
Date.
4.4 Accounting for Allocations.
4.4.1 In General. The Committee shall establish or provide for the
establishment of accounting procedures for the purpose of making the
allocations, valuations and adjustments to Participants' Accounts provided for
in this Article. From time to time such procedures may be modified for the
purpose of achieving equitable and non-discriminatory allocations among the
Accounts of Participants in accordance with the general concepts of the Plan and
the provisions of this Article.
4.4.2 Accounting and Other Procedures Regarding Company Stock.
(a) Company Stock required for purposes of the Plan shall either
be transferred or sold to the Trustee by the Company, or if not so transferred
or sold shall be acquired by the Trustee on the market.
(b) As of each Valuation Date, all amounts to be invested in
Company Stock shall be allocated to Participants' Accounts as additional shares
in accordance with this Section 4.4.2(b). First, the Committee shall determine
the number of shares to be allocated under the Plan as of such Valuation Date.
Second, the number of shares to be allocated to each Participant's Account shall
be equal to the total number of shares to be allocated under the Plan as of such
Valuation Date
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multiplied by the ratio of the sum of the items listed below for each
Participant entitled to share in such allocation that are to be invested in
Company Stock to the sum of such items for all such Participants. The items
referenced in the preceding sentence are (i) all Salary Reduction Contributions,
(ii) all Matching Contributions, (iii) all Rollover Contributions, (iv) all
repayments of loans pursuant to Article IX of the Plan, (v) funds that were to
be invested in Company Stock as of the preceding Valuation Date but were not and
(vi) income earned with respect to such funds.
(c) The cost basis for crediting shares to Participants' Accounts
shall be the average cost to the Trustee of shares of Company Stock purchased
since the last preceding Valuation Date.
(d) Shares of Company Stock shall be converted to cash for
purposes of distributions, withdrawals, loans and elections to reallocate the
investment of amounts held in an Investment Medium that holds Company Stock
based on the closing market price of Company Stock as reported on the NASDAQ
National Market System (or such other exchange where such Company Stock may be
listed) as of the last trading day coinciding with or prior to the last
Valuation Date.
(e) Shares of Company Stock shall be allocated to Participants'
Accounts as results of elections to reallocate the investment of funds held in
Participants' Accounts to the Investment Medium that holds Company Stock based
on the
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average cost to the Trustee of shares of Company Stock purchased since the last
Valuation Date.
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ARTICLE V
DISTRIBUTION
5.1 General. The interest of each Participant in the Fund shall be
distributed in the manner, in the amount, and at the time provided in this
Article, except as provided in Article VIII and except in the event of the
termination of the Plan. The provisions of this Article shall be construed in
accordance with section 401(a)(9) of the Code and regulations thereunder,
including, effective for distributions that commence on or after January 1,
1989, the incidental death benefit requirements of section 401(a)(9)(G) of the
Code.
5.2 Separation from Service. A Participant who has a Separation from
Service for reasons other than death or Total Disability shall have his
nonforfeitable interest in his Account paid to him or applied for his benefit in
accordance with the provisions of this Article.
5.3 Death. If a Participant dies before his Benefit Commencement Date, or
if the Participant dies after his Benefit Commencement Date and before his
entire nonforfeitable interest in his Account has been paid to him, his
remaining nonforfeitable interest in his Account shall be paid to, or applied
for the benefit of, his beneficiary in accordance with the provisions of this
Article.
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5.4 Total Disability.
5.4.1 If a Participant who is an Employee suffers a Total Disability
and has a Separation from Service due to his Total Disability, his Account shall
be paid to him or applied for his benefit in accordance with the provisions of
this Article following the determination of his Total Disability and his
Separation from Service.
5.4.2 Total Disability shall be determined by the Committee, which may
consult with a medical examiner selected by it. The medical examiner shall have
the right to make such physical examinations and other investigations as may be
reasonably required to determine Total Disability.
5.5 Valuation for Distribution. For the purposes of paying the amounts to
be distributed to a Participant or his beneficiaries under the provisions of
this Article, the value of the Fund and the amount of the Participant's
nonforfeitable interest shall be determined in accordance with the provisions of
Article IV as of the Valuation Date coincident with or immediately preceding the
date of any payment under this Article. Such amount shall be adjusted to take
into account any additional contributions which have been or are to be allocated
to the Participant's Account since that Valuation Date, and any distributions or
withdrawals made since that date. Notwithstanding the above, the Participant's
Account shall be reduced by the amount necessary to repay any outstanding loan
from the Plan and interest thereon to the date the Committee
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declares such loan satisfied, unless such loan is repaid as provided in Section
9.4.5.
5.6 Timing of Distribution. Any Participant who has a Separation from
Service for any reason other than death shall be entitled to receive his
nonforfeitable interest in his Account, pursuant to the following rules:
5.6.1 Except as provided in Section 5.6.2, if the Participant's
nonforfeitable interest in his Account is $3,500 or less, or the Participant has
reached Normal Retirement Age, the Participant's Benefit Commencement Date shall
be the earliest practicable date following the Valuation Date coincident with or
next following his Separation from Service.
5.6.2 If the participant has not reached Normal Retirement Age and his
nonforfeitable interest exceeds, or has ever exceeded at the time of any prior
distribution, $3,500, his Benefit Commencement Date shall be the earliest
practicable date following the Valuation Date coincident with or next following
his Separation from Service, except that, if the Participant does not consent to
such distribution, distribution of his benefits shall commence on any later date
elected by the Participant, that is not later than his Normal Retirement Date,
at which time his nonforfeitable interest shall be automatically paid to him. A
Participant's election to receive payment prior to his Normal Retirement Date
may be made no earlier than 90 days prior to the Benefit Commencement Date
elected by the Participant. The Committee shall supply to each Participant who
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is subject to this Section 5.6.2, written information relating to (1) his right
to defer distribution; (2) the material features of the modes of payment
available to him; and (3) the relative values of such modes of payment. Such
notice shall be furnished not less than 30 days nor more than 90 days prior to
the date of any distribution that occurs prior to the earlier of his death or
his Normal Retirement Date.
5.6.3 Notwithstanding the foregoing, the Participant's Benefit
Commencement Date shall be no later than the 60th day following the close of the
Plan Year in which the Participant reaches his Normal Retirement Age or has a
Separation from Service, whichever occurs last. In no event, however, shall a
Participant's Benefit Commencement Date be later than his Required Beginning
Date. In the event the Participant defaults on an outstanding loan such that the
unpaid balance becomes due and payable pursuant to Article IX and the
Participant fails to repay the loan in accordance with Section 9.4.5, that
portion of the Participant's Account pledged as security for the loan shall be
applied to repay the loan and shall be deemed distributed to the Participant
within 60 days of the default; in which case, the Participant may defer
commencement of the balance of his Account as described above.
5.6.4 This Section shall apply to all Participants, including
Participants who had a Separation from Service or ceased to be Covered Employees
prior to January 1, 1989.
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5.7 Mode of Distribution of Retirement or Disability Benefits.
5.7.1 Except as provided to the contrary in this Article, a
Participant may elect in writing to have his nonforfeitable interest in his
Account paid to him or applied for his benefit in accordance with any of the
following modes of payment:
(a) in the case of a Participant whose nonforfeitable interest in
his Account exceeds $3,500, approximately equal annual installments over a
period not to exceed the lesser of:
(1) the life expectancy of the Participant or the joint and
survivor life expectancy of the Participant and his beneficiary (with such life
expectancy to be determined in accordance with applicable regulations under the
Code); or
(2) unless the sole beneficiary is the Participant's spouse,
the maximum number of years determined under Schedule A;
(b) a single sum payment;
(c) in the case of a Participant whose nonforfeitable interest in
his Account exceeds $3,500, a single life annuity with equal monthly
installments payable to the retired Participant for his lifetime, which annuity
shall be the Actuarial Equivalent of the Participant's Account; or
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(d) in the case of a Participant whose nonforfeitable interest in
his Account exceeds $3,500, a joint and survivor annuity with the Participant's
spouse, payable in monthly installments to the Participant for his lifetime and
with fifty percent (50%) of the amount of such monthly installment payable after
the death of the Participant to the surviving spouse of such Participant, if
then living, for the life of such surviving spouse, which annuity shall be the
Actuarial Equivalent of the Participant's Account.
5.7.2 If a Participant fails to make a valid election under this
Section in accordance with the rules described in Section 5.8, the value of his
Account shall be distributed to him as a single sum payment.
5.7.3 Modes of payment in the form of a life annuity shall be provided
through the purchase of annuity contracts from an insurance company.
5.8 Rules for Election of Optional Mode of Retirement or Disability
Benefit. A Participant may elect an optional mode of payment under Section 5.7
by filing a written notice with the Committee in the form and manner prescribed
by the Committee and in no other. The following rules shall be applied in a
uniform and non-discriminatory manner with respect to the election of optional
modes of payments.
5.8.1 A Participant may elect an optional mode of payment at any time
during the period that begins 90 days prior to his Benefit Commencement Date and
ends on his Benefit
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Commencement Date. If a Participant elects a life annuity form of benefit under
Section 5.7.1(c) or (d), and if the Participant's Benefit Commencement Date is
less than 90 days after the date on which the Participant notifies the Committee
of his intent to begin receiving benefits, the election period shall end 90 days
after the date such notice is given, and benefit payments shall begin on the
first day of the month coincident with or next following the end of such
election period, with benefit payments made retroactively to the Participant's
Benefit Commencement Date.
5.8.2 A Participant who does not establish to the satisfaction of the
Committee that he has no spouse on his Benefit Commencement Date may elect to
receive the optional mode described in Section 5.7.1(c) only if:
(a) (1) his spouse (or the spouse's legal guardian if the spouse
is legally incompetent) executes a written instrument whereby such spouse:
(i) consents not to receive the joint and survivor
annuity described in Section 5.7.1(d);
(ii) consents to the specific optional mode elected by
the Participant or to the Participant's right to choose any optional mode
without any further consent by the spouse; and
(iii) if applicable, consents either (a) to the
specific beneficiary or beneficiaries designated by the Participant pursuant to
his election of an
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optional mode or (b) to the Participant's right to designate any beneficiary or
beneficiaries without further consent by the spouse; and
(2) such instrument acknowledges the effect of the election
to which the spouse's consent is being given and is witnessed by a Plan
representative or a notary public; or
(b) the Participant:
(1) establishes to the satisfaction of the Committee that
his spouse cannot be located; or
(2) furnishes a court order to the Committee establishing
that the Participant is legally separated or has been abandoned (within the
meaning of local law), unless a qualified domestic relations order pertaining to
such Participant provides that the spouse's consent must be obtained; or
(c) the spouse has previously given consent in accordance with
this Section and consented to the Participant's right to choose any optional
mode and to designate any beneficiary without further consent by the spouse. The
consent of a spouse in accordance with this Section 5.8.2 shall not be effective
with respect to other spouses of the Participant prior to the Participant's
Benefit Commencement Date, and an election to which Section 5.8.2(b) applies
shall become void if the circumstances causing the consent of the spouse not to
be required no longer exist prior to the Participant's Benefit
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Commencement Date. A Participant who has made an election in accordance with
this Section 5.8.2 shall not be eligible to receive a loan under Article IX or
make a withdrawal under Article VIII.
5.8.3 A Participant may revoke an election under Section 5.8.2 . Such
revocation may be made at any time during the election period in which such
election can be made. Such revocation shall not void any prospectively effective
consent given by his spouse in connection with the revoked election.
5.8.4 If a Participant's spouse dies before the Participant's Benefit
Commencement Date, but after an election of a joint and survivor annuity has
been made hereunder, the election shall be automatically revoked. Any annuity
contracts purchased by the Committee to provide a joint and survivor annuity
shall so provide.
5.9 Death Benefits.
5.9.1 (a) A beneficiary entitled to benefits under Section 5.3 upon
the death of a Participant prior to his Benefit Commencement Date shall receive
a single sum payment equal to the Participant's nonforfeitable interest in his
Account.
(b) If a Participant dies after his Benefit Commencement Date
while in receipt of installment payments described in Section 5.7.1(a), and
before his entire nonforfeitable interest in his Account has been paid to him,
his
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beneficiary may elect in writing to have the remaining nonforfeitable interest
in the Participant's Account paid in accordance with either of the following
modes of payment:
(1) a single sum payment; or
(2) approximately equal annual installments over the
remainder of the period over which the Participant had elected to receive
installment payments (with such remainder to be determined in accordance with
applicable regulations under the Code); provided, however, that this form of
payment shall not be available to a beneficiary that is not an individual. A
beneficiary may elect the mode of payment under this Section at any time prior
to his Benefit Commencement Date. Such election shall be on a form prescribed by
the Committee. In the event that a beneficiary fails to make a valid election
under this Section, the value of the Participant's Account will be distributed
as a single sum payment.
5.9.2 Payment of death benefits payable under Section 5.3 shall
commence as soon as practicable following the death of the Participant.
5.9.3 Notwithstanding the foregoing, in the event that the
Participant's death constitutes a default on an outstanding loan such that the
unpaid balance becomes due and payable pursuant to Article IX and the
beneficiary fails to repay the loan in accordance with Section 9.4.5, that
portion of the Participant's Account pledged as security for the loan shall be
applied to repay the loan and shall be deemed distributed to the
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beneficiary within 60 days of the default; in which case, the beneficiary may
elect to receive the balance of the Participant's Account in accordance with
this Section.
5.10 Explanations to Participants.
5.10.1 The Committee shall provide to each Participant no less than 30
days and no more than 90 days before his Benefit Commencement Date a written
explanation of:
(a) the terms and conditions of each optional mode of payment,
including information explaining the relative values of each mode of benefit, in
accordance with applicable governmental regulations under section 401(a)(11) of
the Code;
(b) the Participant's right to elect an optional mode of payment
and the effect of such an election;
(c) the rights of the Participant's spouse with respect to the
Participant's election of certain optional modes of payment; and
(d) the Participant's right to revoke an election to receive an
optional mode of payment and the effect of such revocation.
5.10.2 The Committee shall also provide to each Participant who elects
an optional life annuity form described in Section 5.7.1(c) or (d) at the time
he makes such election, a written explanation of:
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(a) the terms and conditions of the qualified preretirement
survivor annuity described in Section 5.8.3;
(b) the Participant's and the spouse's rights to waive such
annuity and the effect of such waiver; and
(c) the rights of the Participant's spouse with respect to the
Participant's waiver of such annuity; and
(d) the Participant's right to revoke a waiver of such annuity
and the effect of such revocation. 5.11 Beneficiary Designation.
5.11.1 Except as provided in Section 5.11.1 and Section 5.8, a
Participant may designate the beneficiary or beneficiaries who shall receive, on
or after his death, his interest in the Fund, provided that the designation of a
beneficiary under a joint and survivor annuity shall be fixed and may not be
changed on or after the date on which benefit payments commence. Such
designation shall be made by executing and filing with the Committee a written
instrument in such form as may be prescribed by the Committee for that purpose.
Except as provided in Section 5.11.1 and Section 5.8, the Participant may also
revoke or change, at any time and from time to time, any beneficiary
designations previously made. Such revocations and/or changes shall be made by
executing and filing with the Committee a written instrument in such form as may
be prescribed by the Committee for that purpose. If a Participant names a
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trust as beneficiary, a change in the identity of the trustees or in the
instrument governing such trust shall not be deemed a change in beneficiary.
5.11.2 No designation, revocation, or change of beneficiaries shall be
valid and effective unless and until filed with the Committee.
5.11.3 A Participant who does not establish to the satisfaction of the
Committee that he has no spouse may not designate someone other than his spouse
to be his beneficiary under Section 5.3 unless:
(a) (1) such spouse (or the spouse's legal guardian if the spouse
is legally incompetent) executes a written instrument whereby such spouse
consents not to receive such benefit and consents either:
(i) to the specific beneficiary or beneficiaries
designated by the Participant; or
(ii) to the Participant's right to designate any
beneficiary without further consent by the spouse;
(2) such instrument acknowledges the effect of the election
to which the Spouse's consent is being given; and
(3) such instrument is witnessed by a Plan representative or
notary public;
(b) the Participant:
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(1) establishes to the satisfaction of the Committee that
his spouse cannot be located; or
(2) furnishes a court order to the Committee establishing
that the Participant is legally separated or has been abandoned (within the
meaning of local law), unless a qualified domestic relations order pertaining to
such Participant provides that the spouse's consent must be obtained; or
(c) the spouse has previously given consent in accordance with
this Section and consented to the Participant's right to designate any
beneficiary without further consent by the spouse. The consent of a spouse in
accordance with this Section 5.11.3 shall not be effective with respect to other
spouses of the Participant prior to the Participant's Benefit Commencement Date,
and an election to which Section 5.11.3(b) applies shall become void if the
circumstances causing the consent of the spouse not to be required no longer
exist prior to the Participant's Benefit Commencement Date.
5.11.4 If a Participant has no beneficiary under Section 5.11.1 or
Section 5.11.2, if the Participant's beneficiary(ies) predecease the
Participant, or if the beneficiary(ies) cannot be located by the Committee, the
interest of the deceased Participant shall be paid to the Participant's estate.
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5.12 Recalculation of Life Expectancy. If a Participant's Account is
payable over the life expectancy of the Participant and/or his spouse and/or
another beneficiary, the determination of whether such life expectancy shall be
recalculated, in accordance with regulations issued under section 401(a)(9) of
the Code, shall be made as follows:
5.12.1 If the Account is payable over the life expectancy of the
Participant or the joint and survivor life expectancy of the Participant and his
spouse, the Participant shall elect, on a form supplied by the Committee,
whether or not such life expectancy shall be recalculated.
5.12.2 If the Account is payable over the life expectancy of the
Participant's spouse, such spouse shall elect, on a form supplied by the
Committee, whether or not such life expectancy will be recalculated.
5.12.3 If the Account is payable over the joint and survivor life
expectancy of the Participant and a beneficiary other than the Participant's
spouse, the Participant shall elect, on a form supplied by the Committee,
whether or not the Participant's own life expectancy shall be recalculated. The
life expectancy of the beneficiary shall not be recalculated after the Benefit
Commencement Date.
5.12.4 If the Account is payable over the life expectancy of a
beneficiary other than the Participant's spouse, such life expectancy shall not
be recalculated after the Benefit Commencement Date.
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5.12.5 If a Participant or a Participant's spouse fails to make an
election under this Section, his life expectancy shall not be recalculated after
his Benefit Commencement Date.
5.13 Transfer of Account to Other Plan.
5.13.1 Effective January 1, 1993, except to the extent otherwise
provided by section 401(a)(31) of the Code and regulations thereunder, a
Participant or beneficiary entitled to receive a distribution from the Plan,
either pursuant to this Article or pursuant to Article VIII, may direct the
Committee to have the Trustee or Insurance Company transfer the amount to be
distributed directly to:
(a) an individual retirement account described in section 408(a)
of the Code,
(b) an individual retirement annuity described in section 408(b)
of the Code (other than an endowment contract),
(c) a qualified retirement plan described in section 401(a) of
the Code, the terms of which permit the acceptance of rollover contributions, or
(d) an annuity plan described in section 403(a) of the Code.
5.13.2 The Participant must specify the name of the plan to which the
Participant wishes to have the amount transferred, on a form and in a manner
prescribed by the committee.
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5.13.3 Section 5.13.1 shall not apply to the following distributions:
(a) any distribution of Prior Plan Contributions,
(b) any distribution which is made pursuant to the Participant's
election of installments over either (1) a period of 10 years or more, or (2) a
period equal to the life or life expectancy of the Participant or the joint
lives or life expectancy of the Participant and his beneficiary,
(c) that portion of any distribution after the Participant's
Required Beginning Date that is required to be distributed to the Participant by
the minimum distribution rules of section 401(a)(9) of the Code, or
(d) such other distributions as may be exempted by applicable
statute or regulation from the requirements of section 401(a)(31) of the Code.
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ARTICLE VI
VESTING
6.1 Nonforfeitable Amounts.
6.1.1 A Participant shall have a 100% nonforfeitable interest at all
times in his Pension, Salary Reduction and Rollover Accounts.
6.1.2 (a) A Participant shall have a nonforfeitable interest in his
Matching Contribution and Vision Accounts determined in accordance with the
following schedule:
Years of Service Nonforfeitable Interest
less than 1 year 0 percent
1 year 20 percent
2 years 40 percent
3 years 60 percent
4 years 80 percent
5 years or more 100 percent
(b) Notwithstanding the foregoing, a Participant shall have a
100% nonforfeitable interest in his Matching Contribution and Vision Accounts
upon his attainment of his Normal Retirement Date, his death, or his suffering a
Total Disability while an Employee.
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6.2 Years of Service for Vesting.
6.2.1 For the purposes of this Article, an Employee shall be credited
with Years of Service equal to the number of whole years in all of the
Employee's Periods of Service. To determine the number of whole years in all of
an Employee's Periods of Service, non-contiguous periods shall be aggregated.
6.2.2 Years of Service shall be calculated on the basis that 30 days
equals a completed month or one-twelfth (1/12) of a year and twelve completed
months equal one year.
6.2.3 If a former Employee is reemployed by a Participating Company or
an Affiliated Company before he incurs a One-Year Period of Severance and if
such Employee's Period of Severance commenced with a quit, discharge or
retirement, the Employee shall be credited with Years of Service for the Period
of Severance.
6.2.4 If an Employee severs from service by reason of a quit,
discharge, or retirement during an absence from service for 12 months or less
for any reason other than a quit, discharge or retirement, and if he then
performs an Hour of Service within 12 months of the date on which he was first
absent from service, he shall be credited with Years of Service for his Period
of Severance.
6.2.5 Notwithstanding any provision of the Plan to the contrary, an
Employee shall not be credited with Years of Service for the same period twice.
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6.3 Breaks in Service and Loss of Service. An Employee's Years of Service
shall be cancelled if he incurs a One-Year Period of Severance before his Normal
Retirement Date and at a time when he has no Accounts under the Plan.
6.4 Restoration of Service. The Years of Service of an Employee whose Years
of Service have been cancelled pursuant to Section 6.3 shall be restored to his
credit if he thereafter completes an Hour of Service at a time when the number
of his consecutive One-Year Periods of Severance is less than the greater of (a)
the number of Years of Service to his credit when the first such One-Year Period
of Severance occurred, or (b) five.
6.5 Forfeitures and Restoration of Forfeited Amounts upon Reemployment.
6.5.1 If a Participant who has had a Separation from Service does not
thereafter complete an Hour of Service before the end of the Plan Year in which
occurs the earlier of:
(a) the date on which he receives or is deemed to receive a
distribution of his entire nonforfeitable interest in his Account, which is less
than 100%; or
(b) the date on which he incurs his fifth consecutive One-Year
Period of Severance, his Vision Account and Matching Contribution Account shall
be closed, and the forfeitable amount held therein shall be forfeited. For
purposes 6.5.1, a Participant who has a Separation from Service
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at a time when his nonforfeitable interest in the Plan is zero shall be deemed
to have received a distribution described in Section 6.5.1(a) on the date of
such Separation from Service.
6.5.2 Amounts forfeited from a Participant's Matching Contribution
Account and Vision Account under Section 6.5.1 shall be used to reduce future
Matching Contributions.
6.5.3 If a Participant who has received (or is deemed to have
received) a distribution described in Section 6.5.1(a), whereby any part of his
Account has been forfeited, again becomes a Covered Employee prior to incurring
five consecutive One-Year Periods of Severance, the amount so forfeited shall be
restored to his new Vision Account and Matching Contribution Account, if, and
only if, he repays the full amount of such distribution (if any) prior to the
earlier of (1) the fifth anniversary of the date on which he subsequently
becomes a Covered Employee or (2) the first date the Participant incurs five
consecutive One-Year Periods of Severance following the date of the
distribution; provided, however, that a Participant described in the preceding
sentence who is deemed to receive a distribution of his entire nonforfeitable
interest shall be deemed to repay such distribution on the date he again becomes
a Covered Employee. Amounts restored under this Section shall be charged against
the following amounts in the following order of priority: (A) forfeitures for
the Plan Year, (B) income or gains to the Plan, and (C) Company contributions
for the Plan
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Year. If the foregoing amounts are insufficient, the Participating Company by
whom such Participant is reemployed shall make any additional contribution
necessary to accomplish the restoration.
6.5.4 If a Participant has received a distribution under the Plan,
other than a distribution of his entire nonforfeitable interest in his Account
upon his Separation from Service, at a time when he has less than a 100%
nonforfeitable interest in his entire Account and prior to the date on which he
incurs his fifth consecutive One-Year Period of Severance, his nonforfeitable
interest in his Account at all times prior to the date on which he incurs his
fifth consecutive One-Year Period of Severance, shall be the difference between:
(a) the amount his nonforfeitable interest would have been if he
had not received the distribution; and
(b) the amount to which the distribution would have increased or
decreased if it had remained in the Fund. Immediately after the Participant has
five consecutive One-Year Periods of Severance, his nonforfeitable interest
determined under this Section, if in excess of zero, shall be established as a
separate account, and he shall at all times have a nonforfeitable interest
therein. If the Participant is later reemployed as a Covered Employee, any
allocations to him shall be credited to a new account, and his nonforfeitable
interest therein shall be determined under Section 6.1.
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6.5.5 If a Participant has had five consecutive One-Year Periods of
Severance and again becomes a Covered Employee, the amount forfeited under
Section 6.5.1 shall not be restored to his new Account under any circumstances.
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ARTICLE VII
ROLLOVER CONTRIBUTIONS
7.1 Rollover Contributions.
7.1.1 Subject to the restrictions set forth in Section 7.1.2, a
Covered Employee may transfer or have transferred directly to the Fund, from any
qualified retirement plan of a former employer, all or a portion of his interest
in the distributing plan. In addition, a Covered Employee who has established an
individual retirement account to hold distributions received from qualified
retirement plans of former employers may transfer all of the assets of such
individual retirement account to the Fund. Such individual retirement account
shall not contain nondeductible contributions made by the Employee while he was
a participant in such plans.
7.1.2 The Trustee or Insurance Company shall not accept a distribution
from any other qualified retirement plan or from an individual retirement
account unless the following conditions are met:
(a) (1) the distribution being transferred must come directly
from the fiduciary of the plan of the former employer, or
(2) it must come from the Employee within 60 days after the
Employee receives a distribution from such other qualified retirement plan or
individual retirement
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account and must comply with the provisions of section 402(a)(5), 403(a)(4), or
408(d)(3) of the Code, whichever applies;
(b) distributions from a plan for a self-employed person shall
not be transferred to this Plan, unless the transfer is directly to the Fund
from the funding agent of the distributing plan;
(c) the interest being transferred shall not include assets from
any plan to the extent that the Committee determines that the transfer of such
interest (i) would impose upon this Plan requirements as to form of distribution
that would not otherwise apply hereunder, or (ii) would otherwise result in the
elimination of Code section 411(d)(6) protected benefits, or (iii) would cause
the Plan to be a direct or indirect transferee of a plan to which the joint and
survivor annuity requirements of sections 401(a)(11) and 417 of the Code apply;
and
(d) the interest being transferred shall not contain
nondeductible contributions made to the distributing plan by the Employee unless
the transfer to the Fund is directly from the funding agent of the distributing
plan.
7.2 Vesting and Distribution of Rollover Account.
7.2.1 The distributions transferred by or for a Covered Employee from
another qualified retirement plan or from an individual retirement account shall
be credited to the Employee's Rollover Account. An Employee shall be fully
vested at all times in his Rollover Account.
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7.2.2 An Employee's Rollover Account shall be distributed as otherwise
provided under the Plan.
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ARTICLE VIII
WITHDRAWALS
8.1 Withdrawals Not Subject to Section 401(k) Restrictions. A Participant
may withdraw, in accordance with rules prescribed by the Committee and uniformly
applied, up to the total value of the amount in his Prior Plan Account.
8.2 Withdrawals Subject to Section 401(k) Restrictions.
8.2.1 In addition to the withdrawals permitted under Section 8.1, a
Participant who is an active Employee may withdraw, under the rules set forth in
Sections 8.2.2 through 8.2.5 and such other rules as may be prescribed by the
Committee and uniformly applied, the following amounts:
(a) his Salary Reduction Account as of December 31, 1988; plus
(b) the sum of his Salary Reduction Contributions made after
December 31, 1988; plus
(c) the nonforfeitable portion of his Matching Contribution
Account; plus
(d) the nonforfeitable portion of his Vision Account; plus
(e) his Rollover Account.
8.2.2 A withdrawal under Section 8.2.1 shall be permitted only if the
Committee finds that:
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(a) it is made on account of the Participant's immediate and
heavy financial need (as defined in Section 8.2.3); and
(b) it is necessary (as defined in Section 8.2.4) to satisfy such
immediate and heavy financial need.
8.2.3 A withdrawal under Section 8.2.1 will be deemed to be on account
of an immediate and heavy financial need if the Participant requests such
withdrawal on account of:
(a) expenses for medical care described in section 213(d) of the
Code and previously incurred by the Participant, his spouse, or any of the
Participant's dependents (as defined in section 152 of the Code) or necessary
for such individuals to obtain such medical care;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence of the Participant;
(c) the payment of tuition and related educational fees for the
next 12 months of post-secondary education for the Participant, his spouse,
children, or dependents (as defined in section 152 of the Code);
(d) the need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of his principal residence;
or
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(e) such other circumstances or events as may be prescribed by
the Secretary of the Treasury or his delegate.
8.2.4 A withdrawal under Section 8.2.2(a) shall be deemed to be
necessary if:
(a) the amount of the withdrawal does not exceed the amount of
the Participant's immediate and heavy financial need, including any amounts
necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the withdrawal;
(b) the Participant has obtained all currently permissible
distributions (other than hardship distributions) and non-taxable loans, if any,
under this and all other plans maintained by the Participating Company and all
Affiliated Companies; and
(c) the Participant agrees in writing to be bound by the rules of
Section 8.2.5.
8.2.5 If a Participant withdraws any amount from his Salary Reduction
Account pursuant to Section 8.2.1, or withdraws any elective deferrals under any
other qualified retirement plan maintained by the Participating Company or any
Affiliated Company, which other plan conditions such withdrawal upon the
Participant's being subject to rules similar to those stated in this Section
8.2.5 and Section 8.2.4, such Participant:
(a) may not make Salary Reduction Contributions under this Plan
or employee contributions (other
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than mandatory contributions under a defined benefit plan) or elective deferrals
under any other qualified or non-qualified plan of deferred compensation (which
does not include any health or welfare plan, including a health or welfare plan
that is part of a cafeteria plan described in section 125 of the Code)
maintained by the Participating Company or an Affiliated Company for a period of
12 months commencing on the date of his receipt of the withdrawal; and
(b) in the calendar year next following the calendar year of such
withdrawal, may not make Salary Reduction Contributions or elective deferrals
under any other qualified retirement plan maintained by the Participating
Company or an Affiliated Company in excess of:
(1) the dollar amount described in Section 3.1.2 for such
year, minus
(2) the total Salary Reduction Contributions under this Plan
and elective deferrals under any other qualified plan made by the Participant
during the calendar year of the withdrawal.
8.2.6 If a Participant withdraws any elective deferrals under any
other qualified retirement plan maintained by the Participating Company or any
Affiliated Company, which other plan conditions such withdrawal upon the
Participant's being subject to rules similar to those stated in this Section
8.2.6, such Participant:
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(a) may not make Salary Reduction Contributions under this Plan
or employee contributions (other than mandatory contributions under a defined
benefit plan) or elective deferrals under any other qualified or non-qualified
plan of deferred compensation (which does not include any health or welfare
plan, including a health or welfare plan that is part of a cafeteria plan
described in section 125 of the Code) maintained by the Participating Company or
an Affiliated Company for a period of 12 months commencing on the date of his
receipt of the withdrawal; and
(b) in the calendar year next following the calendar year of such
withdrawal, may not make Salary Reduction Contributions or elective deferrals
under any other qualified retirement plan (other than a plan described under
section 125 of the Code) maintained by the Participating Company or an
Affiliated Company in excess of:
(1) the dollar amount described in Section 3.1.2 for such
year, minus
(2) the total Salary Reduction Contributions under this Plan
and elective deferrals under any other qualified plan made by the Participant
during the calendar year of the withdrawal.
8.3 Withdrawals On and After Attainment of Age 59-1/2. Upon his attainment
of Age 59-1/2, a Participant may withdraw, in accordance with rules prescribed
by the committee and uniformly applied, up to the vested portion in his Account
(other than his
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Pension Account), less amounts previously withdrawn therefrom, by submitting his
written request to the Committee.
8.4 Amount and Payment of Withdrawals. The amount of any withdrawal will be
determined on the basis of the value of the Participant's Account valued as of
the Valuation Date coincident with or immediately preceding the date of the
withdrawal. Any withdrawal requested under this Section shall be paid as soon as
practicable following the Committee's determination that the requested
withdrawal complies with the terms and conditions set forth in this Section.
8.5 Withdrawals Not Subject to Replacement. A Participant may not replace
any portion of his Accounts withdrawn under this Plan.
8.6 Pledged Amounts. No amount that has been pledged as security for a loan
under Article IX may be withdrawn under this Article.
8.7 Investment Medium to be Charged with Withdrawal. Any withdrawal by a
Participant under this Article shall be charged against the Investment Media in
which such Participant's Accounts are invested in such priority as shall be
established by the Committee.
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ARTICLE IX
LOANS TO PARTICIPANTS
9.1 Loan Application. Each Participant who is an Employee of a
Participating Company and any other Participant or beneficiary who is a party in
interest as defined in ERISA and who has withdrawn all amounts from his Prior
Plan Account may apply for a loan from the Plan. All applications shall be made
to the Committee on forms which it prescribes, and the Committee shall rule upon
such applications in a uniform and nondiscriminatory manner in accordance with
the rules and guidelines established in this Article.
9.2 Loan Approval.
9.2.1 Except with respect to applications submitted after June 30,
1993 and before April 1, 1994, no application for a loan shall be approved for
any Participant unless at least six months have elapsed since the date he has
repaid in full any prior loan from the Plan.
9.2.2 The Committee shall have the right to reject a loan application
if the Participant has the present intention to take a personal leave of absence
during the period of loan repayment or on the basis of a Participant's credit
worthiness or such other factors as would be considered in a normal commercial
setting by an entity in the business of making loans and as the Committee
determines necessary to safeguard the Fund.
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9.3 Amount of Loan.
9.3.1 In no event shall a Participant be permitted to have more than
one loan outstanding at any time from this Plan. The minimum amount of any loan
shall be $500. The amount of any loan must be an even multiple of $100.
9.3.2 The amount of any loan, when added to the amount of a
Participant's outstanding loans under all other plans qualified under section
401(a) of the Code which are sponsored by the Participating Company or any
Affiliated Company shall not exceed the lesser of:
(a) $50,000, reduced by the excess (if any) of:
(1) the Participant's highest outstanding balance of loans
during the one-year period ending on the day before the date on which such loan
is made to the Participant, over
(2) the outstanding balance of loans made to the Participant
on the date such loan is made to the Participant; or
(b) fifty percent (50%) of the value of the Participant's
nonforfeitable Account, determined as of the Valuation Date immediately
preceding the date on which the loan application is received by the Committee.
9.4 Terms of Loan.
9.4.1 The interest rate on loans shall be: (a) determined by the
Committee, (b) at least commensurate with
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rates charged for similar loans by entities in the business of making loans, and
(c) adjusted from time to time as circumstances warrant. Security for each loan
granted pursuant to this Article shall be, to the extent necessary, the
currently unpledged portion of, first, the Participant's Prior Plan Account,
next, the Participant's Rollover Account, next, the vested portion of the
Participant's Matching Contribution Account and Vision Account, and finally the
Participant's Salary Reduction Account. In no event shall more than fifty
percent (50%) of the Participant's vested Account as of the date the loan is
made be used as security for the loan. In its sole discretion, the Committee may
require such additional security as it deems necessary.
9.4.2 Each loan shall be evidenced by the Participant's execution of a
personal demand note on such form as shall be supplied by the Committee. Each
such note shall specify that, to the extent repayment is not demanded sooner,
repayment shall be included in installments over a period of not less than 6 nor
more than 60 months from the date on which the loan is distributed. All loans
from the Plan shall be non-renewable. Each note shall also specify the interest
rate as determined by the Committee at the time the loan is approved.
9.4.3 All loans shall be repaid in approximately equal installments
(not less frequently than quarterly) through payroll deductions or in such other
manner as the Committee may determine. A Participant may repay the
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outstanding balance of any loan in one lump sum at any time by notifying the
Committee of his intent to do so and by forwarding to the Committee payment in
full of the then outstanding balance, plus interest accrued to the date of
payment. The amount of principal and interest repaid by a Participant shall be
credited to a Participant's Account as each repayment is made.
9.4.4 Notwithstanding the above, in the event a Participant who has an
outstanding loan (a) takes a personal leave of absence approved by the Company
(including a leave of absence for military service) for a period of not more
than one year or (b) any periodic loan repayment is not made in full due to a
temporary reduction in the Participant's Compensation that is not expected to
continue for a period of more than one year, the Committee shall waive payment
on the loan during the leave of absence or the period during which the
Participant's Compensation is reduced. In such case, (1) if the loan is for a
period of less than 60 months, the period of repayments shall be extended for
the period necessary to permit repayment, or (2) otherwise, the loan shall be
reamortized over its remaining term; provided, however, that the period of
repayment for any loan shall not exceed a total of 60 months.
9.4.5 If, and only if:
(a) the Participant dies;
(b) except as otherwise provided in Section 9.4.6, the
Participant (other than a Participant who continues to be a party in interest)
has a Separation from Service;
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(c) the Compensation of a Participant who is an Employee is
discontinued or decreased below the amount necessary to amortize the loan and
such status continues for more than one year;
(d) the loan is not repaid by the time the note matures including
any extensions pursuant to Section 9.4.4;
(e) the Participant attempts to revoke any payroll deduction
authorization for repayment of the loan without the consent of the Committee;
(f) the Participant fails to pay any installment of the loan when
due and the Committee elects to treat such failure as default; or
(g) any other event occurs which the Committee, in its sole
discretion, believes may jeopardize the repayment of the loan; before a loan is
repaid in full, the unpaid balance thereof, with interest due thereon, shall
become immediately due and payable. The Participant (or his beneficiary, in the
event of the Participant's death) may satisfy the loan by paying the outstanding
balance of the loan within such time as may be specified in the note. If the
loan and interest are not repaid within the time specified, the Committee shall
satisfy the indebtedness from the amount of the Participant's vested interest in
his Account as provided in Section 9.5 before making any
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payments otherwise due hereunder to the Participant or his beneficiary.
9.4.6 For purposes of Section 9.4.5, if:
(a) a Participant's employment with the Company and all
Participating Companies terminates as a result of the sale of the Sound Division
to Muzak, and such Participant is hired by Muzak immediately following such
sale;
(b) such Participant has an outstanding loan balance due to the
Plan as of such termination of employment; and
(c) such Participant and Muzak mutually agree with each other and
the Plan to have the remaining installments of the loan withheld from such
Participant's paycheck and remit such amounts to the Plan until the loan is
repaid in full; such Participant shall not be treated as having a Separation
from Service upon his termination of employment with the Company and all
Participating Companies. Upon Participant's termination of employment from Muzak
for any reason, or upon the occurrence of any other event described in Section
9.4.5, or upon Muzak's failure to remit the loan repayments as described in
Section 9.4.6(c) for any reason, the unpaid balance thereof, with interest due
thereon, shall become immediately due and payable, and the rules of Section
9.4.5 regarding repayment of such loans shall apply.
9.5 Enforcement. The Committee shall give written notice to the Participant
(or his beneficiary in the event of the
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Participant's death) of an event of default described in Section 9.4(d). If the
loan and interest are not paid within the time period specified in the notice,
the amount of the Participant's vested interest in his Account, to the extent
such Account is security for the loan, shall be reduced by the amount of the
unpaid balance of the loan, with interest due thereon, and the Participant's
indebtedness shall thereupon be discharged to the extent of the reduction. In
addition, if the value of the Participant's total vested interest in his Account
pledged as security for the loan is insufficient to discharge fully the
Participant's indebtedness, the Participant's Salary Reduction Account shall be
used to reduce the Participant's indebtedness at such time as the Participant is
entitled to a distribution under Article V or a withdrawal under Article VIII
from his Salary Reduction Account, and any remaining amounts in his Matching
Contribution Account and/or Vision Account shall be used to reduce the
Participant's indebtedness at such time as the Participant has a Separation from
Service. Such action shall not operate as a waiver of the rights of the Company,
the Committee, the Insurance Company, the Trustee, or the Plan under applicable
law. The Committee also shall be entitled to take any and all other actions
necessary and appropriate to foreclose upon any property other than the
Participant's Account pledged as security for the loan or to otherwise enforce
collection of the outstanding balance of the loan.
9.6 Additional Rules. The Committee may establish additional rules relating
to Participant loans under the Plan, which rules shall be applied on a uniform
and non-discriminatory basis.
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ARTICLE X
ADMINISTRATION
10.1 Committee. If the Company designates one or more individuals as the
Committee, the powers and duties of the Committee under the Plan shall be
exercised by the Committee; otherwise all such powers and duties shall be
exercised by the Company. The Committee shall be the named fiduciary which shall
control and manage the operation of the Plan and shall administer the Plan. The
Committee members may, but need not, be Employees, and they shall serve at the
pleasure of the Company. They shall be entitled to reimbursement of expenses,
but those members of the Committee who are also Employees of a Participating
Company shall receive no compensation for their service on the Committee. Any
reimbursement of expenses of the Committee members shall be paid directly by the
Company. The Committee shall be responsible for the general administration of
the Plan under the policy guidance of the Company.
10.2 Duties and Powers of Committee. In addition to the duties and powers
described elsewhere hereunder, the Committee shall have the following specific
duties and powers:
10.2.1 to retain such consultants, accountants and attorneys as may be
deemed necessary or desirable to render statements, reports, and advice with
respect to the Plan and to assist the Committee in complying with all applicable
rules and
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regulations affecting the Plan; any consultants, accountants and attorneys may
be the same as those retained by the Company;
10.2.2 to decide appeals under this Article;
10.2.3 to enact uniform and nondiscriminatory rules and regulations to
carry out the provisions of the Plan;
10.2.4 to resolve questions or disputes relating to eligibility for
benefits or the amount of benefits under the Plan;
10.2.5 to construe and interpret and supply omissions with respect to
the provisions of the Plan;
10.2.6 to determine whether any domestic relations order received by
the Plan is a qualified domestic relations order as provided in section 414(p)
of the Code;
10.2.7 to evaluate administrative procedures; and
10.2.8 to delegate such duties and powers as the Committee shall
determine from time to time to any person or persons. To the extent of any such
delegation, the delegate shall have the duties, powers, authority and discretion
of the Committee. Any decisions and determinations made by the Committee
pursuant to its duties and powers described in the Plan shall be conclusive and
binding upon all parties. The Committee shall have sole discretion in carrying
out its responsibilities. The expenses incurred by the Committee in connection
with the operation of the Plan, including, but not limited to, the
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expenses incurred by reason of the engagement of professional assistants and
consultants, shall be expenses of the Plan and shall be payable from the Fund at
the direction of the Committee. The Participating Companies shall have the
option, but not the obligation, to pay any such expenses, in whole or in part,
and, by so doing, to relieve the Fund from the obligation of bearing such
expenses. Payment of any such expenses by a Participating Company on one
occasion shall not bind that Participating Company to pay any similar expenses
on any subsequent occasion.
10.3 Functioning of Committee. The Committee and those persons or entities
to whom the Committee has delegated responsibilities shall keep accurate records
and minutes of meetings, interpretations, and decisions. The Committee shall act
by majority vote of the members, and such action shall be evidenced by a written
document.
10.4 Disputes.
10.4.1 If the Committee denies, in whole or in part, a claim for
benefits by a Participant or his beneficiary, the Committee shall furnish notice
of the denial to the claimant, setting forth:
(a) the specific reasons for the denial;
(b) specific reference to the pertinent Plan provisions on which
the denial is based;
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(c) a description of any additional information necessary for the
claimant to perfect the claim and an explanation of why such information is
necessary; and
(d) appropriate information as to the steps to be taken if the
claimant wishes to submit his claim for review. Such notice shall be forwarded
to the claimant within 90 days of the Committee's receipt of the claim;
provided, however, that in special circumstances the Committee may extend the
response period for up to an additional 90 days, in which event it shall notify
the claimant in writing of the extension, and shall specify the reason or
reasons for the extension.
10.4.2 Within 60 days of receipt of a notice of claim denial, a
claimant or his duly authorized representative may petition the Committee in
writing for a full and fair review of the denial. The claimant or his duly
authorized representative shall have the opportunity to review pertinent
documents and to submit issues and comments in writing to the Committee. The
Committee shall review the denial and shall communicate its decision and the
reasons therefor to the claimant in writing within 60 days of receipt of the
petition; provided, however, that in special circumstances the Committee may
extend the response period for up to an additional 60 days, in which event it
shall notify the claimant in writing prior to the commencement of the extension.
The appeals procedure set forth
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in this Section 10.4.2 shall be the exclusive means for contesting a decision
denying benefits under the Plan.
10.5 Indemnification. Each member of the Committee, and any other person
who is an Employee or director of a Participating Company or an Affiliated
Company shall be indemnified and held harmless by the Company against and with
respect to all damages, losses, obligations, liabilities, liens, deficiencies,
costs and expenses, including without limitation, reasonable attorney's fees and
other costs incident to any suit, action, investigation, claim or proceedings to
which he may be a party by reason of his performance of administrative functions
and duties under the Plan, except in relation to matters as to which he shall be
held liable for an act of gross negligence or willful misconduct in the
performance of his duties. The foregoing right to indemnification shall be in
addition to such other rights as the Committee member or other person may enjoy
as a matter of law or by reason of insurance coverage of any kind. Rights
granted hereunder shall be in addition to and not in lieu of any rights to
indemnification to which the Committee member or other person may be entitled
pursuant to the by-laws of the Participating Company.
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ARTICLE XI
THE FUND
11.1 Designation of Trustee and/or Insurance Company. The Company, by
appropriate resolution of its Board of Directors, if any, shall name and
designate a Trustee and/or an Insurance Company and shall enter into a Trust
Agreement and/or a Contract. The Company shall have the power, by appropriate
resolution of its Board of Directors, to amend the Trust Agreement or Contract,
remove the Trustee or Insurance Company, and designate a successor Trustee or
Insurance Company, as provided in the Trust Agreement or the Contract. All of
the assets of the Plan shall be held by the Trustee and/or the Insurance Company
for use in accordance with the Plan.
11.2 Exclusive Benefit. Prior to the satisfaction of all liabilities under
the Plan in the event of termination of the Plan, no part of the corpus or
income of the Fund shall be used for or diverted to purposes other than for the
exclusive benefit of Participants and their beneficiaries except as expressly
provided in this Plan and in the Trust Agreement.
11.3 No Interest in Fund. No person shall have any interest in or right to
any part of the assets or income of the Fund, except to the extent expressly
provided in this Plan and in the Trust Agreement or the Contract.
11.4 Trustee. The Trustee shall be the named fiduciary with respect to
management and control of Plan assets
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held by it and shall have exclusive and sole responsibility for the custody and
investment thereof in accordance with the Trust Agreement.
11.5 Investments.
11.5.1 Except as provided in Section 11.5.5, the Trustee or Insurance
Company shall invest Salary Reduction Contributions, Prior Plan Contributions,
Rollover Contributions, Matching Contributions and Vision Contributions paid to
it and income thereon in such Investment Media as each Participant may select in
accordance with this Section, which may include Company Stock. Such investments
acquired in the manner prescribed by the Plan shall be held by or for the
Trustee or Insurance Company.
11.5.2 Except as provided in Sections 11.5.5 and 11.5.6, a Participant
shall select one or more of the Investment Media in which his Accounts shall be
invested, and the percentage thereof that shall be invested in each Investment
Medium selected. In the event a Participant fails to make an election pursuant
to this Section, amounts allocated to his Account shall be invested in the most
conservative of the Investment Media as determined by the Committee.
Notwithstanding the foregoing, in the absence of a Participant's contrary
written election of Investment Medium, amounts allocated to a Participant's
Vision Account shall be held in the Fund in the form of Special Shares. A
Participant may amend such selection by prior notice to the Committee, effective
as of such dates determined by the Committee, by giving prior notice to the
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Committee. Such amendments will be subject to the other requirements .
11.5.3 A Participant may transfer, effective as of such dates
determined by the Committee, such portion of the value of his interest in any
Investment Medium to another Investment Medium, as may be permitted by the
Committee.
11.5.4 The amounts contributed by all Participants to each Investment
Medium shall be commingled for investment purposes.
11.5.5 The Trustee and the Insurance Company may hold assets of the
Fund and make distributions therefrom in the form of cash without liability for
interest, if for administrative purposes it becomes necessary or practical to do
so.
11.5.6 The Committee may limit the right of a Participant (a) to
increase or decrease his contribution to a particular Investment Medium, (b) to
transfer amounts to or from a particular Investment Medium, or (c) to transfer
amounts between particular Investment Media, if such limitation is required
under the terms establishing an Investment Medium or to facilitate the merger of
any other plan with and into this Plan, or the transfer or rollover of benefits
into this Plan.
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ARTICLE XII
AMENDMENT OR TERMINATION OF THE PLAN
12.1 Power of Amendment and Termination.
12.1.1 It is the intention of each Participating Company that this
Plan will be permanent. However, each Participating Company reserves the right
to terminate its participation in this Plan at any time by action of its board
of directors or other governing body. Furthermore, the Company reserves the
power to amend or terminate the Plan at any time by action of the Board of
Directors.
12.1.2 Each amendment to the Plan shall be binding on each
Participating Company if such Participating Company:
(a) consents to such amendment at any time; or
(b) fails to object thereto within thirty days after receiving
notice thereof.
12.1.3 Any amendment or termination of the Plan shall become effective
as of the date designated by the Board of Directors. Except as expressly
provided elsewhere in the Plan, prior to the satisfaction of all liabilities
with respect to the benefits provided under this Plan, no amendment or
termination shall cause any part of the monies contributed hereunder to revert
to the Participating Companies or to be diverted to any purpose other than for
the exclusive benefit of Participants and
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their beneficiaries. Upon termination or partial termination of the Plan, or
upon complete discontinuance of contributions, the rights of all affected
persons to benefits accrued to the date of such termination shall be
nonforfeitable. Upon termination of the plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in section 4975(e)(7) of the Code or a simplified
employee pension plan as defined in Section 408(k) of the Code), Accounts shall
be distributed in accordance with applicable law.
12.2 Merger. The Plan shall not be merged with or consolidated with, nor
shall its assets be transferred to, any other qualified retirement plan unless
each Participant would receive a benefit after such merger, consolidation, or
transfer (assuming the Plan then terminated) which is of actuarial value equal
to or greater than the benefit he would have received from his Account if the
Plan had been terminated on the day before such merger, consolidation, or
transfer.
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ARTICLE XIII
TOP-HEAVY PROVISIONS
13.1 General. The following provisions shall apply automatically to the
Plan and shall supersede any contrary provisions for each Plan Year in which the
Plan is a Top-Heavy Plan (as defined below). It is intended that this Article
shall be construed in accordance with the provisions of section 416 of the Code.
13.2 Definitions. The following definitions shall supplement those set
forth in Article I of the Plan:
13.2.1 "Aggregation Group" means this plan and each other qualified
retirement plan (including a frozen plan or a plan which has been terminated
during the 60-month period ending on the Determination Date) of a Participating
Company or an Affiliated Company:
(a) in which a Key Employee is a participant; or
(b) which enables any plan in which a Key Employee participates
to meet the requirements of sections 401(a)(4) or 410 of the Code; or
(c) without the inclusion of which, the plans in the Aggregation
Group would be Top-Heavy Plans, but, with the inclusion of which, the plans in
the Aggregation Group are not Top-Heavy Plans and, taken together, meet the
requirements of sections 401(a)(4) and 410 of the Code.
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13.2.2 "Determination Date" means, for any Plan Year, the last day of
the preceding Plan Year.
13.2.3 "Key Employee" means, with respect to any Plan Year:
(a) any Employee or former Employee who at any time during the
60-month period ending on the Determination Date was:
(1) an officer of a Participating Company having
Compensation for a Plan Year during such period greater than fifty percent (50%)
of the amount in effect under section 415(b)(1)(A) of the Code for the calendar
year in which such Plan Year ends; provided, that no more than 50 Employees (or,
if less, the greater of three Employees or ten percent (10%) of the greatest
number of Employees employed by all Participating Companies and all Affiliated
Companies during such 60-month period, but excluding employees described in
section 414(q)(8) of the Code) shall be treated as officers; or
(2) one of the 10 Employees having Compensation greater than
the amount described in section 415(c)(1)(A) of the Code and owning (or are
considered as owning, within the meaning of section 318 of the Code) the largest
interests in any Participating Company or Affiliated Company, provided that such
interest exceeds one-half of one percent (0.5%) of the total share ownership of
the Participating Company or Affiliated Company, the total number of individuals
described
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in this Section 13.3(a)(2) being limited to 10 for the entire 60-month period;
or
(3) a five-percent (5%) owner of a Participating Company; or
(4) a one-percent (1%) owner of a Participating Company
having Compensation in excess of $150,000; or
(b) a beneficiary of an individual described in Section 13.3(a).
For purposes 13.3(4), Compensation shall include elective deferrals under
sections 125, 402(a)(8), 402(h) and 403(b) of the Code. Determinations under
this Section shall be made in accordance with section 416(i) of the Code.
13.2.4 "Key Employee Ratio" means, for any Determination Date, the
ratio of the amount described in Section 13.4(a) to the amount described in
Section 13.4(b), after deducting from each such amount any portion thereof
described in Section 13.4(c), where:
(a) the amount described in this Paragraph is the sum of:
(1) the present value of all accrued benefits of Key
Employees under all qualified defined benefit plans included in the Aggregation
Group;
(2) the balances in all of the accounts of Key Employees
under all qualified defined contribution plans included in the Aggregation
Group; and
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(3) the amounts distributed from all plans in such
Aggregation Group to or on behalf of any Key Employee during the period of five
Plan Years ending on the Determination Date, except any benefit paid on account
of death to the extent it exceeds the accrued benefits or account balances
immediately prior to death;
(b) the amount described in this Paragraph is the sum of:
(1) the present value of all accrued benefits of all
participants under all qualified defined benefit plans included in the
Aggregation Group;
(2) the balances in all of the accounts of all participants
under all qualified defined contribution plans included in the Aggregation
Group; and
(3) the amounts distributed from all plans in such
Aggregation Group to or on behalf of any participant during the period of five
Plan Years ending on the Determination Date; and
(c) the amount described in this Paragraph is the sum of:
(1) all rollover contributions (or fund to fund transfers)
to the Plan by an Employee after December 31, 1983 from a plan sponsored by an
employer which is not a Participating Company or an Affiliated Company;
(2) any amount that is included in Sections 13.4(a) or
13.4(b) for a person who is a Non-Key
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Employee as to the Plan Year of reference but who was a Key Employee as to any
earlier Plan Year; and
(3) for Plan Years beginning after December 31, 1984, any
amount that is included in Sections 13.4(a) or 13.4(b) for a person who has not
performed any services for any Participating Company during the five-year period
ending on the Determination Date. The present value of accrued benefits under
any defined benefit plan shall be determined under the method used for accrual
purposes for all plans maintained by all Participating Companies and Affiliated
Companies if a single method is used by all such plans, or, otherwise, the
slowest accrual method permitted under section 411(b)(1)(C) of the Code.
13.2.5 "Non-Key Employee" means, for any Plan Year:
(a) an Employee or former Employee who is not a Key Employee with
respect to such Plan Year; or
(b) a beneficiary of an individual described in Section 13.5(a).
13.2.6 "Super Top-Heavy Plan" means, for any Plan Year, each plan in
the Aggregation Group for such Plan Year if, as of the applicable Determination
Date, the Key Employee Ratio exceeds ninety percent (90%).
13.2.7 "Top-Heavy Compensation" means, for any Participant for any
Plan Year, the average of his annual Compensation over the period of five
consecutive Plan Years (or,
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if shorter, the longest period of consecutive Plan Years during which the
Participant was in the employ of any Participating Company) yielding the highest
average, disregarding:
(a) Compensation for Plan Years ending prior to January 1, 1984;
and
(b) Compensation for Plan Years after the close of the last Plan
Year in which the Plan was a Top-Heavy Plan.
13.2.8 "Top-Heavy Plan" means, for any Plan Year, each plan in the
Aggregation Group for such Plan Year if, as of the applicable Determination
Date, the Key Employee Ratio exceeds sixty percent (60%).
13.2.9 "Year of Top-Heavy Service" means, for any Participant, a Plan
Year in which he completes 1,000 or more Hours of Service, excluding:
(a) Plan Years commencing prior to January 1, 1984; and
(b) Plan Years in which the Plan is not a Top-Heavy Plan.
13.3 Minimum Contribution for Non-Key Employees.
13.3.1 In each Plan Year in which the Plan is a Top-Heavy Plan, each
Eligible Employee who is a Non-Key Employee (except an Eligible Employee who is
a Non-Key Employee as to the Plan Year of reference but who was a Key Employee
as to any earlier Plan Year) and who is an Employee on the last day of such Plan
Year will receive a total minimum Participating Company or
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Affiliated Company contribution (including forfeitures) under all plans
described in Sections 13.2.1(a) and (b) of not less than three percent (3%) of
the Eligible Employee's Compensation for the Plan Year. Elective deferrals to
such plans made on behalf of a Participant in plan years beginning after
December 31, 1984 but before January 1, 1989 shall be deemed to be Company
contributions for the purpose . Elective deferrals and employer matching
contributions to such plans in plan years beginning on or after January 1, 1989
shall not be used to meet the minimum contribution requirements .
13.3.2 The percentage set forth in Section 13.3.1 shall be reduced to
the percentage at which contributions, including forfeitures, are made (or are
required to be made) for a Plan Year for the Key Employee for whom such
percentage is the highest for that Plan Year. This percentage shall be
determined for each Key Employee by dividing the contribution for such Key
Employee by his Compensation for the Plan Year. All defined contribution plans
required to be included in an Aggregation Group shall be treated as one plan for
the purpose; however, this Section shall not apply to any plan which is required
to be included in the Aggregation Group if such plan enables a defined benefit
plan in the group to meet the requirements of section 401(a)(4) or section 410
of the Code.
13.3.3 If a Non-Key Employee described in Section 13.3.1 participates
in both a defined benefit plan and a defined contribution plan described in
Sections 13.2.1(a) and
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(b), the Participating Company is not required to provide such Employee with
both the minimum benefit under the defined benefit plan and the minimum
contribution. In such event, the Non-Key Employee shall not receive the minimum
contribution described in this Section if he has the minimum benefit required by
section 416 of the Code under the defined benefit Top-Heavy Plan.
13.4 Social Security. The Plan, for each Plan Year in which it is a
Top-Heavy Plan, must meet the requirements of this Article without regard to any
Social Security or similar contributions or benefits.
13.5 Adjustment to Maximum Benefit Limitation.
13.5.1 For each Plan Year in which the Plan is (a) a Super Top-Heavy
Plan or (b) a Top-Heavy Plan and the Board of Directors does not make the
election to amend the Plan to provide the minimum contribution described in
section 415(e) of the Code shall be reduced to 1.0. The adjustment described in
this Section shall not apply to a Participant during any period in which the
Participant earns no additional accrued benefit under any defined benefit plan
and has no employer contributions, forfeitures, or voluntary nondeductible
contributions allocated to his accounts under any defined contribution plan.
13.5.2 In the case of any Top-Heavy Plan to which section 415(e)(6) of
the Code applies, "$41,500" shall be substituted for "$51,875" in the
calculation of the numerator of the transition fraction.
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13.5.3 If, in any Plan Year in which the Plan is a Top-Heavy Plan but
not a Super Top-Heavy Plan, the Aggregation Group also includes a defined
benefit plan, the Board of Directors may elect to use a factor of 1.25 in
computing the denominator of the defined benefit and defined contribution
fractions described in section 415(e)(3) of the Code. In the event of such
election, the minimum contribution described in Section 13.3.1 for each Non-Key
Employee who is not covered under a defined benefit plan shall be increased to
four percent (4%), and the minimum Company contribution described in Section
13.3.3 for each Non-Key Employee who is covered under a defined benefit plan
(but who does not have a minimum benefit under the defined benefit plan equal to
the lesser of (1) three percent (3%) of his Top-Heavy Compensation multiplied by
his Years of Top-Heavy Service or (2) thirty-percent (30%) of his Top-Heavy
Compensation) shall be increased to seven and one-half percent (7-1/2%).
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ARTICLE XIV
GENERAL PROVISIONS
14.1 No Employment Rights. Neither the action of the Company in
establishing the Plan, nor of any Participating Company in adopting the Plan,
nor any provisions of the Plan, nor any action taken by the Company, any
Participating Company or the Committee shall be construed as giving to any
Employee the right to be retained in the employ of the Company or any
Participating Company, or any right to payment except to the extent of the
benefits provided in the Plan to be paid from the Fund.
14.2 Governing Law. Except to the extent superseded by ERISA, all questions
pertaining to the validity, construction, and operation of the Plan shall be
determined in accordance with the laws of the state in which the principal place
of business of the Company is located.
14.3 Severability of Provisions. If any provision of this Plan is
determined to be void by any court of competent jurisdiction, the Plan shall
continue to operate and, for the purposes of the jurisdiction of that court
only, shall be deemed not to include the provisions determined to be void.
14.4 No Interest in Fund. No person shall have any interest in, or right
to, any part of the principal or income of the Fund, except as and to the extent
expressly provided in this Plan and in the Trust Agreement or the Contract.
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14.5 Spendthrift Clause. No benefit payable at any time under this Plan and
no interest or expectancy herein shall be anticipated, assigned, or alienated by
any Participant or beneficiary, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, except for (1) a Federal tax
levy made pursuant to section 6331 of the Code and (2) any benefit payable
pursuant to a qualified domestic relations order. Any attempt to alienate or
assign a benefit hereunder, whether currently or hereafter payable, shall be
void. The Committee shall review any domestic relations order to determine
whether it is qualified within the meaning of section 414(p) of the Code. An
order shall not be qualified unless it complies with all applicable provisions
of the Plan concerning mode of payment and manner of elections. Notwithstanding
the preceding sentence and any restrictions on timing of distributions and
withdrawals under the Plan, an order may provide for distribution at any time
permitted under section 414(p)(10) of the Code.
14.6 Incapacity. If the Committee deems any Participant who is entitled to
receive payments hereunder incapable of receiving or disbursing the same by
reason of Age, illness, infirmity, or incapacity of any kind, the Committee may
direct the Trustee or the Insurance Company to apply such payments directly for
the comfort, support, and maintenance of such Participant, or to pay the same to
any responsible person caring for the Participant who is determined by the
Committee to
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be qualified to receive and disburse such payments for the Participant's
benefit; and the receipt of such person shall be a complete acquittance for the
payment of the benefit. Payments pursuant to this Section shall be complete
discharge to the extent thereof of any and all liability of the Participating
Companies, the Committee, the Administrator, the Trustee, the Insurance Company,
and the Fund.
14.7 Withholding. The Committee and the Trustee and the Insurance Company
shall have the right to withhold any and all state, local, and Federal taxes
which may be withheld in accordance with applicable law.
14.8 Missing Persons. Neither the Trustee, the Insurance Company nor any
Participating Company shall be obliged to search for or ascertain the
whereabouts of any individual entitled to benefits under the Plan. Any
individual entitled to benefits under the Plan who does not file a timely claim
for his benefits will be allowed to file a claim at any later date, and payment
of his benefits will commence after that later date, except that, in the event
the Participating Company is satisfied that a Participant has no spouse or that
a Participant's spouse cannot be located (as described in Section 5.11), and the
Participant is in fact married or the spouse is later located, whichever is
applicable, such spouse shall not be deemed an individual entitled to benefits
under the Plan.
14.9 Determination of Highly Compensated Employees. For the purpose of
identifying highly compensated employees
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within the meaning of section 414(q) of the Code, the Participating Companies
and all Affiliated Companies may elect to make the look-back year calculation
for a determination year on the basis of the calendar year ending with or within
the applicable determination year; provided, however, that, if such election is
made with respect to the Plan, such election shall also apply with respect to
all other plans, entities or arrangements of the Participating Companies and
Affiliated Companies.
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ARTICLE XV
ADDITIONAL SERVICE CREDIT FOR FORMER EMPLOYEES OF
CERTAIN ACQUIRED BUSINESSES
15.1 Additional Service Credit. Notwithstanding any provision of the Plan
to the contrary, each Employee who is described in Section 15.2 shall, for the
purpose of determining his eligibility to participate in the Plan under Article
II, and his vested status under Article VI, receive credit for his period of
employment with a Listed Employer (as designated in Schedule B to the Plan), as
if such Listed Employer had been a Participating Company during such period of
employment.
15.2 Applicability. This Article shall apply to any individual who:
(a) was an Employee of a Participating Company as of June 1, 1992 and
came to employment with such Participating Company directly from
a Listed Employer named in Schedule B to the Plan; or
(b) becomes an employee of a Participating Company after May 31, 1992
directly from a Listed Employer named in Schedule B to the Plan.
15.3 Limitation. Notwithstanding any provision of this Article to the
contrary, the application of this Article shall not cause any Employee to become
a Participant in the Plan
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prior to the effective date specified in Schedule B to the Plan for the Listed
Employer with which he was employed, unless he would have become a Participant
at an earlier date without regard to this Article.
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ARTICLE XVI
PARTICIPATION BY EMPLOYEES OF
PHILADELPHIA CABLE ADVERTISING
16.1 General. The partnership known as Philadelphia Cable Advertising (the
Greater Philadelphia Interconnect) (hereinafter, "PCA") which became a
Participating Company effective August 1, 1992, shall continue as a
Participating Company on and after the Effective Date. Notwithstanding any
provisions of the Plan to the contrary, eligible Employees of PCA may
participate in the Plan pursuant to its terms, as expressly modified in
accordance with this Article.
16.2 Eligibility and Vesting Service. For purposes of determining an
employee's eligibility to participate and his vested status under the Plan, an
Employee's period of employment with PCA credited as of the Effective Date shall
be counted as part of his Period of Service.
16.3 Separate Identification of Highly Compensated Employees. The
identification of Highly Compensated Employees shall be determined with respect
to the group consisting of PCA and all entities which are Affiliated Companies
with respect to PCA separately from the identification of Highly Compensated
Employees for other Participating Companies and Affiliated Companies.
16.4 Separate Application of Nondiscrimination Tests. The nondiscrimination
tests of Section 3.8 shall be applied with
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respect to the group consisting of PCA and all entities which are Affiliated
Companies with respect to PCA, separately from the application of such tests to
other Participating Companies and Affiliated Companies.
16.5 Separate Testing for Top-Heaviness. For purposes of Article XIII, the
rules governing the determination of whether the Plan is a top-heavy plan, and
the application of the rules which apply to a top-heavy plan, shall be applied
with respect to the group consisting of PCA and all entities which are
Affiliated Companies with respect to PCA separately from the application of such
rules to other Participating Companies and Affiliated Companies.
16.6 No Vision Contribution for Employees of Inter- Connect. Participants
who are Employees of PCA shall not be eligible to receive the contributions
described in Section 3.5, and Vision Accounts shall not be established for such
Participants with respect to their periods of service as Employees of PCA.
16.7 No Investment in Company Stock. No Participant who is an Employee of
PCA shall be permitted to direct the investment of any portion of his Account
into an Investment Medium that includes Company Stock for any period of service
during which such Participant is an Employee of PCA.
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ARTICLE XVII
PARTICIPATION BY EMPLOYEES OF AWACS, INC.
17.1 General. The corporation known as Awacs, Inc. (hereinafter, "AWACS")
shall become a Participating Company effective January 1, 1993. AWACS became an
Affiliated Company on June 24. 1994. Notwithstanding any provision of the Plan
to the contrary, eligible Employees of AWACS may participate in the Plan
pursuant to its terms, as expressly modified in accordance with this Article.
17.2 Eligibility and Vesting Service. For purposes of determining an
employee's eligibility to participate and his vested status under the Plan, an
Employee's period of employment with AWACS before January 1, 1993 shall be
counted as part of his Period of Service. Each employee of AWACS who was
eligible to participate in the AWACS Plan (as hereinafter defined) as of
December 31, 1992 shall be eligible to participate in the Plan as of January 1,
1993. Each other AWACS employee shall be eligible to participate in accordance
with the provision of Article II.
17.3 Merger with AWACS 401(k) Plan. Effective January 1, 1993, the AWACS
401(k) Plan, which is known as Metrophone's 401(k) Plan (the "AWACS Plan"),
shall be merged with and into this Plan. All individual participant accounts
under the AWACS Plan shall be transferred to this Plan. In making such a
transfer, (a) the value of any AWACS Plan participant's sub-
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account which contained salary reduction contributions and related earnings
shall be credited to a Salary Reduction Account in such individual's name, and
(b) the value of any AWACS Plan participant's sub-account containing employer
matching contributions and related earnings shall be credited to a Matching
Contribution Account in such individual's name.
17.4 Temporary Suspension of Distributions, Withdrawals, and Loans.
Notwithstanding any provision of the Plan to the contrary, in order to
facilitate the merger of the AWACS Plan into this Plan, any Participant for whom
an account is transferred from the AWACS Plan to this Plan shall, prior to March
1, 1993, be prohibited from receiving any distribution, withdrawal, or loan from
the Plan under Article V, VIII, and IX respectively.
17.5 Eligibility to Participate. Notwithstanding any provision of Article
II to the contrary:
17.5.1 Any Employee for whom an account is transferred from the AWACS
Plan to this Plan pursuant to the merger of such plans shall become an Eligible
Employee as of January 1, 1993.
17.5.2 Each Covered Employee who was not eligible to participate in
the AWACS Plan but who, as of January 1, 1993, had completed at least six months
of service as an employee of AWACS, shall become an Eligible Employee as of
January 1, 1993.
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17.5.3 Each Covered Employee not described in Section 17.5.1 or 17.5.2
above shall become an Eligible Employee in accordance with the provisions of
Article II.
17.6 Normal Retirement Date for Certain Employees. Notwithstanding any
provision of the Plan to the contrary, with respect to any Participant for whom
an account under the AWACS Plan is transferred to this Plan pursuant to the
merger of the plans, the term "Normal Retirement Date" means the date on which
he reaches Age 59 1/2.
17.7 Vision Contribution for Employees of AWACS.
17.7.1 Each person who, as of January 1, 1993, has been credited with
a period of service as an employee of AWACS of at least one year, and who is an
Eligible Employee of AWACS on January 1, 1993, shall receive an immediate
allocation to his Vision Account of 10 Special Shares.
17.7.2 Each Eligible Employee of AWACS who is not described in Section
17.7.1 above shall receive an allocation to his Vision Account of 10 Special
Shares. Such allocation shall be made as of the later of (a) the date on which
he becomes an Eligible Employee, or (b) the Entry Date next following his
completion of one year of Eligibility Service, if he is a Special Employee, or
his completion of a Period of Service of at least one year, if he is other than
a Special Employee.
17.8 Separate Identification of Highly Compensated Employees. For the 1993
Plan Year, the identification of Highly Compensated Employees shall be
determined with respect to the
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group consisting of AWACS and all entities which are Affiliated Companies with
respect to AWACS separately from the identification of Highly Compensated
Employees for other Participating Companies and Affiliated Companies.
17.9 Separate Application of Nondiscrimination Tests. For the 1993 Plan
Year, the nondiscrimination tests of Section 3.8 shall be applied with respect
to the group consisting of AWACS and all entities which are Affiliated Companies
with respect to AWACS, separately from the application of such tests to other
Participating Companies and Affiliated Companies.
17.10 Separate Testing for Top-Heaviness. For the 1993 Plan Year, for
purposes of Article XIII, the rules governing the determination of whether the
Plan is a top-heavy plan, and the application of the rules which apply to a
top-heavy plan, shall be applied with respect to the group consisting of AWACS
and all entities which are Affiliated Companies with respect to AWACS separately
from the application of such rules to other Participating Companies and
Affiliated Companies.
COMCAST CORPORATION
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SCHEDULE A
MINIMUM DISTRIBUTION INCIDENTAL BENEFIT TABLE
Age of Participant
in calendar year
preceding Required
Beginning Date Maximum Years Remaining
70...................................26.2
71...................................25.3
72...................................24.4
73...................................23.5
74...................................22.7
75...................................21.8
76...................................20.9
77...................................20.1
78...................................19.2
79...................................18.4
80...................................17.6
81...................................16.8
82...................................16.0
83...................................15.3
84...................................14.5
85...................................13.8
86...................................13.1
87...................................12.4
88...................................11.8
89...................................11.1
90...................................10.5
91................................... 9.9
92................................... 9.4
93................................... 8.8
94................................... 8.3
95................................... 7.8
96................................... 7.3
97................................... 6.9
98................................... 6.5
99................................... 6.1
100.................................. 5.7
101.................................. 5.3
102.................................. 5.0
103.................................. 4.7
104.................................. 4.4
105.................................. 4.1
106.................................. 3.8
107.................................. 3.6
108.................................. 3.4
<PAGE>
109.................................. 3.2
110.................................. 2.8
111.................................. 2.6
112.................................. 2.4
113.................................. 2.2
114.................................. 2.0
115 and older........................ 1.8
A-2
<PAGE>
SCHEDULE B
The following entities are designated as Listed Employers for purposes of
Article XV of the Plan, as of such date as may be indicated on this Schedule):
As of June 1, 1992:
CAT Partnership
ARP Partnership
Garden State Cable L.P.
SCI Holdings (Storer)
Cable Advert. Prtnrs/Ad Link
Cellular one - Harrisburg
C-SW Partnership
Faroudja Research Enterprises
Heritage Communications, Inc.
PRIMESTAR Partners L.P.
E! Entertainment Television, Inc.
National Cable Advertising, L.P.
QVC Network Inc.
Turner Broadcasting System, Inc.
Pay-Per-View Network, Inc.
Philadelphia Cable Advertising
(The Greater Philadelphia Interconnect)
Grosse Pointe Cable, Inc.
Nucable Resources Corporation
Sunshine Network
Birmingham Cable Corporation Limited
Cable London PLC Limited
Cambridge Cable Limited
Heritage Cablevision of Philadelphia (Area 3)
American Cellular Network Corp.
AWACS, Inc.
Calvert Telecommunications, Inc.
Citizens Cable Communications, Inc.
Miami Data Center
Maclean Hunter
Indianapolis Power & Light (IPALCO)
Mid-America Capital Resources, Inc.
Indianapolis Cablevision, Inc.
Comcast U.K. Consulting, Inc.
B-1
<PAGE>
Group W. Cable, Inc.
This includes the following Systems:
Alabama
-------
Dothan
Florence
Gadsden
Huntsville
Mobile
Tuscaloosa
California
-----------
Inland Valley
Lompoc
Orange County
San Bernardino
Santa Maria
Simi Valley
Connecticut
-----------
Danbury
Middletown
Florida
-------
Boca Raton
Marianna
Panama City
Perry
Quincy
Tallahassee
West Palm Beach
Michigan
---------
Grosse Pointe
Western Regional Office
-----------------------
As of January 1, 1993:
American Mobile Systems
Kennedy Cable (Wakulla System only)
B-2
EXHIBIT 10.2
DEFINED CONTRIBUTION PLANS
MASTER TRUST AGREEMENT
Between
COMCAST CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
PAGE
1. TRUST FUND . . . . . . . . . . . . . . . . . . 2
1.1 Receipt of Assets . . . . . . . . . . . . 2
1.2 Employers . . . . . . . . . . . . . . . . 3
1.3 Plans . . . . . . . . . . . . . . . . . . 3
1.4 Accounting for a Plan's Undivided Interest
in the Trust Fund. . . . . . . . . . . . 4
1.5 Appointment of Recordkeeper. . . . . . . . 5
1.6 No Trustee Duty Regarding Contributions. . 6
2. DISBURSEMENTS FROM THE TRUST FUND. . . . . . . 6
3. COMPANY SELECTED INVESTMENT FUNDS. . . . . . . 7
3.1 In General. . . . . . . . . . . . . . . . 7
3.2 Participant-Directed Brokerage Accounts . 9
3.3 Company Managed Stock Investment
Accounts. . . . . . . . . . . . . . . . 9
3.4 Company Managed Investment Accounts . . . 10
3.5 Trustee Managed Investment Accounts . . . 11
3.6 Investment Manager Accounts . . . . . . . 11
4. POWERS OF THE TRUSTEE. . . . . . . . . . . . . . . 14
4.1 Investment Power of the Trustee . . . . . 14
4.2 Administrative Powers of the Trustee. . . 20
5. INDEMNIFICATION. . . . . . . . . . . . . . . . 21
6. SECURITIES OR OTHER PROPERTY . . . . . . . . . 21
7. SECURITY CODES . . . . . . . . . . . . . . . . 22
8. TAXES AND TRUSTEE COMPENSATION . . . . . . . . 22
9. ACCOUNTS OF THE TRUSTEE. . . . . . . . . . . . 23
10. RELIANCE ON COMMUNICATIONS . . . . . . . . . . 26
11. RESIGNATION AND REMOVAL OF TRUSTEE . . . . . . 27
12. AMENDMENT. . . . . . . . . . . . . . . . . . . 27
13. TERMINATION. . . . . . . . . . . . . . . . . . 27
<PAGE>
TABLE OF CONTENTS
(cont.)
PAGE
14. PARTICIPATION OF OTHER EMPLOYERS . . . . . . . . . 28
14.1 Adoption by Other Employers;
Withdrawals. . . . . . . . . . . . . . 28
14.2 Powers and Authorities of Other
Employers to be Exercised
Exclusively by Company . . . . . . . . 30
15. MISCELLANEOUS. . . . . . . . . . . . . . . . . 30
15.1 Governing Law . . . . . . . . . . . . . 30
15.2 No Reversion to Employers . . . . . . . 31
15.3 Non-Alienation of Benefits. . . . . . . 32
15.4 Duration of Trust . . . . . . . . . . . 32
15.5 No Guarantees . . . . . . . . . . . . . 33
15.6 Duty to Furnish Information . . . . . . 33
15.7 Withholding . . . . . . . . . . . . . . 33
15.8 Parties Bound . . . . . . . . . . . . . 33
15.9 Necessary Parties to Disputes . . . . . 34
15.10 Unclaimed Benefit Payments. . . . . . . 34
15.11 Severability. . . . . . . . . . . . . . 35
15.12 References. . . . . . . . . . . . . . . 35
15.13 Headings. . . . . . . . . . . . . . . . 35
15.14 No Liability for Acts of Predecessor
and Successor Trustees. . . . . . . . 35
15.15 Counterparts. . . . . . . . . . . . . . 35
<PAGE>
DEFINED CONTRIBUTION PLANS
MASTER TRUST AGREEMENT
Agreement (hereinafter referred to as the "Trust Agreement") made as of
September 29, 1995, by and between COMCAST CORPORATION a corporation organized
under the laws of Pennsylvania (hereinafter referred to as the "Company") and
STATE STREET BANK AND TRUST COMPANY, a trust company organized under the laws of
the Commonwealth of Massachusetts (hereinafter referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company maintains a certain tax-qualified plan known as the
Comcast Corporation Retirement Investment Plan (hereinafter referred to as the
"Plan") for the exclusive benefit of certain of its employees and the employees
of certain of its affiliates and subsidiaries;
WHEREAS, the Company has by Agreement dated February 28, 1989 with PNC Bank
established a trust to serve as the funding vehicle for the Plan;
WHEREAS, certain affiliates and subsidiaries of the Company may in the
future maintain separate tax-qualified employee benefit plans for certain of
their employees and may adopt the trust and Trust Agreement to serve as the
funding vehicle for such plans (hereinafter together with the Plan referred to
collectively as the "Plans");
WHEREAS, the authority to conduct the general operation and administration
of the Plans is vested in the Company, acting
1
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through its officers and employees and its Board or Committee, each as defined
and as provided in the Plan, as "Administrator" of the Plans, who shall have the
authorities and shall be subject to the duties with respect to the trust
specified in the Plans and in this Trust Agreement;
WHEREAS, the Company has appointed State Street Bank and Trust Company as
successor trustee to PNC Bank, effective September 29, 1995; and
WHEREAS, the Company has appointed William H. Mercer Inc. to provide
recordkeeping and other administrative services other than those the
Administrator continues to perform for the Plan (in such capacity, and any other
person or entity hereafter engaged by the Company to provide such services,
being hereinafter referred to as the "Recordkeeper";
WHEREAS, the Company and the Trustee desire to amend and restate the said
Agreement in its entirety.
NOW, THEREFORE, the Company and the Trustee do hereby amend and restate the
said Trust Agreement and continue the trust as the funding vehicle for the Plan,
upon the terms and conditions hereinafter set forth:
1. TRUST FUND
1.1 Receipt of Assets. The Trustee shall receive and accept for the
purposes hereof all sums of money and other property paid to it by or at the
direction of the Company or any Employer, and shall hold, invest, reinvest,
manage, administer
2
<PAGE>
and distribute such monies and other property and the increments, proceeds,
earnings and income thereof pursuant to the terms of this Trust Agreement and
for the exclusive benefit of participants in the Plans and their beneficiaries.
The Trustee need not inquire into the source of any money or property
transferred to it nor into the authority or right of the transferor of such
money or property to transfer such money or property to the Trustee. All Plan
assets held by the Trustee in the trust pursuant to the provisions of this Trust
Agreement at the time of reference are referred to herein as the "Trust Fund."
1.2 Employers. For purposes of this Trust Agreement the term "Employer"
means the Company or any corporation (or other trade or business) which is a
member of a controlled group of corporations of which the Company is a member as
determined under Section 414(b) or (c) of the Internal Revenue Code of 1986, as
amended (hereinafter referred to as the "Code"), or any other employer which is
a "Participating Company," as defined in the Plan, which has adopted this Trust
Agreement in accordance with the provisions of Section 15.1.
1.3 Plans. References in this Trust Agreement to the "Plan" or the "Plans"
shall, mean the tax-qualified employee benefit plan or plans of the Company or
the tax-qualified employee benefit plan or plans of any Employer that has
adopted the trust as the funding vehicle for such plan or plans as the case may
be.
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The Company shall be responsible for verifying that while any assets of the
Plan are held in the Trust Fund, the Plan (i) is "qualified" with the meaning of
Section 401(a) of the Code and, as a defined contribution plan either (x) the
Plan provides that each participant is a "named fiduciary" (as described in
Section 402(a)(2) of the provisions of the Employee Retirement Income Security
Act of 1974, as amended (referred to herein as "ERISA") who is duly authorized
under the Plan to provide investment direction to the Company, acting as agent
for such participant, for conveyance to the Trustee or (y) the Plan is duly
qualified as an "ERISA Section 404(c) Plan" described in 29 C.F.R. 2550.404c
under which each participant is authorized to provide investment direction to
the Company, acting as agent for such Participant, for conveyance to the
Trustee; (ii) is permitted by existing or future ruling of the United States
Treasury Department to pool its funds in a group trust; (iii) permits its assets
to be commingled for investment purposes with the assets of other such plans by
investing such assets in this Trust Fund whether or not its assets will in fact
be held in a separate investment fund; and (iv) the Plan does not prohibit the
Company from appointing the Recordkeeper to perform daily recordkeeping services
as described herein, and provides that the Company is the fiduciary responsible
for carrying out participant investment directions.
1.4 Accounting for a Plan's Undivided Interest in the Trust Fund. All
transfers to, withdrawals from, and other transactions
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regarding the Trust Fund shall be conducted in such a way that the proportionate
interest in the Trust Fund of each Plan and the fair market value of that
interest may be determined at any time. Whenever the assets of more than one
Plan are commingled in the Trust Fund or in any Investment Fund, the undivided
interest therein of that Plan shall be debited or credited (as the case may be)
(i) for the entire amount of every contribution received on behalf of that Plan,
every benefit payment, or other expense attributable solely to that Plan, and
every other transaction relating only to that Plan; and (ii) for its
proportionate share of every item of collected or accrued income, gain or loss,
and general expense; and other transactions attributable to the Trust Fund or
that Investment Fund as a whole. As of each date when the fair market value of
the investments held in the Trust Fund or an Investment Fund are determined as
provided for in Article 10, the Trustee shall adjust the value of each Plan's
interest therein to reflect the net increase or decrease in such values since
the last such date. For all of the foregoing purposes, fractions of a cent may
be disregarded.
1.5 Appointment of Recordkeeper. Under the Plan, the Company is the
fiduciary responsible for carrying out participant investment directions and in
order to effect this, the Company has appointed Recordkeeper to perform certain
services including but not limited to maintaining participant accounts for all
contributions, loans and loan repayments, rollovers, and other deposits made for
the purpose of determining how such deposits
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are to be allocated to the Investment Funds of the Plan, for determining
requirements for disbursements from or transfers among Investment Funds in
accordance with the terms of the Plan, for maintaining participant records for
the purpose of voting or tendering shares in an Investment Fund as described in
Section 4.1 herein, for distributing information about the Investment Funds
provided for under the Plan, and for distributing participant statements at
periodic intervals.
1.6 No Trustee Duty Regarding Contributions. The Trustee shall not be under
any duty to require payment of any contributions to the Trust Fund or determine
that a contribution is in compliance with a participant investment direction, or
to see that any payment made to it is computed in accordance with the provisions
of the Plans, or otherwise be responsible for the adequacy of the Trust Fund to
meet and discharge any liabilities under the Plans.
2. DISBURSEMENTS FROM THE TRUST FUND.
The Trustee shall from time to time on the directions of the Administrator
or Recordkeeper make payments out of the Trust Fund to such persons, including
the Administrator or Recordkeeper, in such manner, in such amounts and for such
purposes as may be specified in the directions of the Recordkeeper or Committee.
The Recordkeeper or Administrator shall be responsible for insuring that
any payment directed under this Article conforms to the provisions of the Plans,
this Trust Agreement, and the provisions of the Employee Retirement Income
Security Act of
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1974, as amended (hereinafter referred to as "ERISA"). Each direction of the
Recordkeeper or Administrator shall be in writing and shall be deemed to include
a certification that any payment or other distribution directed thereby is one
which the Recordkeeper or Administrator is authorized to direct, and the Trustee
may conclusively rely on such deemed certification without further
investigation. Payments by the Trustee may be made by its check to the order of
the payee. Payments or other distributions hereunder may be mailed to the payee
at the address last furnished to the Trustee by the Recordkeeper or if no such
address has been so furnished, to the payee in care of the Recordkeeper. The
Trustee shall not incur any liability or other damage on account of any payments
or other distributions made by it in accordance with the written directions of
the Recordkeeper or Administrator.
3. COMPANY SELECTED INVESTMENT FUNDS.
3.1 In General. The Company from time to time and in accordance with
provisions of the Plan, may direct the Trustee to establish one or more separate
investment accounts within the Trust Fund, each separate account being
hereinafter referred to as an "Investment Fund" which may be invested in (i)
shares of investment companies registered under the Investment Company Act of
1940, (ii) collective funds maintained by a bank or trust company, (iii) various
classes of common stock of the Company, (iv) Participant directed brokerage
accounts, (v) pools of insurance contracts, (vi) funds managed by a registered
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investment manager, bank or insurance company, (vii) accounts managed by named
fiduciaries for the Plan; and (viii) other investment options available from
time to time under the Plan (specifically the Investment Funds described on
Attachment "A" to this Trust Agreement, as amended from time to time by the
Committee and with the consent of the Trustee). The Trustee shall have no
liability for any loss of any kind which may result by reason of the manner of
division of the Trust Fund into Investment Funds, or for the investment
management of these accounts, except as provided for in Section 3.4 respecting a
Trustee managed investment account, if any. The Trustee shall transfer to each
such Investment Fund such portion of the assets of the Trust Fund as the Company
or the Recordkeeper directs. The Trustee shall not incur any liability on
account of following any direction of the Company or the Recordkeeper and the
Trustee shall be under no duty to review the investment guidelines, objectives
and restrictions so established. To the extent that directions from the Company
or Recordkeeper to the Trustee represent investment instructions of the Plans'
participants, the Trustee shall have no responsibility for such investment
elections and shall incur no liability on account of the direct and necessary
results of investing the assets of the Trust Fund in accordance with such
participant investment instructions.
All interest, dividends and other income received with respect to, and any
proceeds received from the sale or other disposition of, securities or other
property held in an
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Investment Fund shall be credited to and reinvested in such Investment Fund. All
expenses of the Trust Fund which are allocable to a particular Investment Fund
shall be so allocated and charged. Subject to the provisions of the Plans, the
Company may direct the Trustee to eliminate an Investment Fund or Funds, and the
Trustee shall thereupon dispose of the assets of such Investment Fund and
reinvest the proceeds thereof in accordance with the directions of the
Administrator.
3.2 Participant-Directed Brokerage Accounts. The Trustee shall, if so
directed by the Company segregate all or a portion of the Trust Fund held by it
into one or more separate investment accounts to be known as Participant
Directed Brokerage Accounts. Whenever a Participant is directing the investment
and reinvestment of a Participant Directed Brokerage Account, the Participant
shall have the powers and duties which an Investment Manager would have under
this Trust Agreement if an Investment Manager were then serving and the Trustee
shall be protected to the same extent as it would be protected under this Trust
Agreement as to directions or the absence of directions of an Investment
Manager. Participant shall be entitled to give orders directly to the broker for
the purchases and sale of securities as defined in Section 7 of this Agreement.
The broker shall provide confirmation of each order to the Administrator or
Recordkeeper which shall maintain records in such form as to satisfy reporting
requirements of the Plan.
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3.3 Company Managed Stock Investment Accounts. If, and to the extent
specifically authorized by the Plans, the Company may direct the Trustee to
establish one or more Investment Funds substantially all of the assets of which
shall be invested in securities which constitute "qualifying employer
securities" or "qualifying employer real property" within the meaning of Section
407 of ERISA. It shall be the duty of the Company to determine that such
investment is not prohibited by Sections 406 or 407 of ERISA. In addition,
during any time when there is no Investment Manager with respect to a Company
Managed Stock Account (such as before an investment management agreement takes
effect or after it terminates), the Administrator shall direct the investment
and reinvestment of such Company Managed Stock Account.
3.4 Company Managed Investment Accounts. The Trustee shall, if so directed
in writing by the Company, segregate all or a portion of the Trust Fund held by
it into one or more separate investment accounts to be known as Company Managed
Investment Accounts. The Company, by written notice to the Trustee, may at any
time relinquish its powers under this Section 3.4 and direct that a Company
Managed Investment Account shall no longer be maintained. Whenever the
Administrator or named fiduciary is directing the investment and reinvestment of
an Investment Account or a Company Managed Investment Account, the Administrator
or named fiduciary shall have the powers and duties which an Investment Manager
would have under this Trust Agreement if an Investment Manager were then serving
and the Trustee shall
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be protected to the same extent as it would be protected under this Trust
Agreement as to directions or the absence of directions of an Investment
Manager.
3.5 Trustee Managed Investment Accounts. The Trustee shall have no duty or
responsibility to direct the investment and reinvestment of the Trust Fund, any
Investment Fund or any Investment Account unless expressly agreed to in writing
between the Trustee and the Company. In the event that the Trustee enters into
such an agreement, it shall have the powers and duties of an Investment Manager
under this Trust Agreement with regard to such Investment Account.
3.6 Investment Manager Accounts.
The Company or named fiduciary, from time to time and in accordance with
the provisions of the Plans, may appoint one or more independent Investment
Managers, pursuant to a written investment management agreement describing the
powers and duties of the Investment Manager, to direct the investment and
reinvestment of all or a portion of the Trust Fund or an Investment Fund
(hereinafter referred to as an "Investment Account").
The Company or named fiduciary shall be responsible for ascertaining that
while each Investment Manager is acting in that capacity hereunder, the
following requirements are satisfied:
(a) The Investment Manager is either (i) registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, (ii) a bank
as defined in that Act or (iii) an insurance company qualified to perform
the services described in (b) below under the laws of more than one state;
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(b) The Investment Manager has the power to manage, acquire or dispose of
any assets of the Plans for which it is responsible hereunder;
(c) The Investment Manager has acknowledged in writing to the Administrator
and the Trustee that he or it is a fiduciary with respect to the Plans
within the meaning of Section 3(21)(A) of ERISA.
The Company or named fiduciary shall furnish the Trustee with written
notice of the appointment of each Investment Manager hereunder, and of the
termination of any such appointment. Such notice shall specify the assets which
shall constitute the Investment Account of such Investment Manager. The Trustee
shall be fully protected in relying upon the effectiveness of such appointment
and the Investment Manager's continuing satisfaction of the requirements set
forth above until it receives written notice from the Company or named fiduciary
to the contrary.
The Trustee shall conclusively presume that each Investment Manager, under
its investment management agreement, is entitled to act, in directing the
investment and reinvestment of the Investment Account for which it is
responsible, in its sole and independent discretion and without limitation,
except for any limitations which from time to time the Company or named
fiduciary and the Trustee agree (in writing) shall modify the scope of such
authority.
The Trustee shall have no liability (i) for the acts or omissions of any
Investment Manager (except to the extent the Trustee itself is serving as
Investment Manager); (ii) for following directions, including investment
directions of an Investment Manager (other than the Trustee) or the Company or
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named fiduciary, which are given in accordance with this Trust Agreement; (iii)
for failing to act in the absence of Investment Manager direction; or (iv) for
any loss of any kind which may result by reason of the manner of division of the
Trust Fund or Investment Fund into Investment Accounts.
An Investment Manager shall certify, at the request of the Trustee, the
value of any securities or other property held in any Investment Account managed
by such Investment Manager, and such certification shall be regarded as a
direction with regard to such valuation. The Trustee shall be entitled to
conclusively rely upon such valuation for all purposes under this Trust
Agreement.
Except as otherwise provided in this Trust Agreement, the Investment
Manager of an Investment Account shall have the power and authority, to be
exercised in its sole discretion at any time and from time to time, to issue
orders for the purchase or sale of securities directly to a broker. Written
notification of the issuance of each such order shall be given promptly to the
Trustee by the Investment Manager and the confirmation of each such order shall
be confirmed to the Trustee by the broker. The broker shall promptly provide
confirmation of each such order to the Recordkeeper, which shall maintain all
participant level accounts. The Recordkeeper shall provide to the Trustee all
information reasonably required by the Trustee to fulfill its accounting and
reporting obligations with respect to assets held in the Participant Directed
Brokerage Accounts. Unless otherwise
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directed by the Investment Manager, such notification shall be authority for the
Trustee to pay for securities purchased or to deliver securities sold as the
case may be. Upon the direction of the Investment Manager, the Trustee will
execute and deliver appropriate trading authorizations, but no such
authorization shall be deemed to increase the liability or responsibility of the
Trustee under this Trust Agreement.
4. POWERS OF THE TRUSTEE.
4.1 Investment Powers of the Trustee. The Trustee shall have and exercise
the following powers and authority (i) over Investment Accounts where it has
express investment management discretion as provided in Section 3.4 or (ii) upon
direction of the Investment Manager of an Investment Account or (iii) upon
direction of a Participant with respect to a Participant Directed Brokerage
Account or (iv) upon direction of the Administrator: (x) for a Company Managed
Account; or (y) for voting and tendering of qualified employer securities; or
(z) for lending to participants in the Plans:
(a) To purchase, receive, or subscribe for any securities or other property
and to retain in trust such securities or other property.
(b) To acquire and hold qualifying employer securities and qualifying
employer real property, as such investments are defined in Section 407(d)
of ERISA.
(c) To sell for cash or on credit, to grant options, convert, redeem,
exchange for other securities or other property, to enter into standby
agreements for future investment, either with or without a standby fee, or
otherwise to dispose of any securities or other property at any time held
by it.
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(d) To settle, compromise or submit to arbitration any claims, debts, or
damages, due or owing to or from the trust, to commence or defend suits or
legal proceedings and to represent the trust in all suits or legal
proceedings in any court of law or before any other body or tribunal.
(e) To trade in financial options and futures, including index options and
options on futures and to execute in connection therewith such account
agreements and other agreements including contracts for the exchange of
interest rates, or investment performance, currencies or other notional
principal contracts in such form and upon such terms as the Investment
Manager or the Administrator shall direct.
(f) Subject to Section 4.1(g), to exercise all voting rights, tender or
exchange rights, any conversion privileges, subscription rights and other
rights and powers available in connection with any securities or other
property at anytime held by it; to oppose or to consent to the
reorganization, consolidation, merger, or readjustment of the finances of
any corporation, company or association, or to the sale, mortgage, pledge
or lease of the property of any corporation, company or association any of
the securities which may at any time be held by it and to do any act with
reference thereto, including the exercise of options, the making of
agreements or subscriptions and the payment of expenses, assessments or
subscriptions, which may be deemed necessary or advisable by the Investment
Manager or Administrator in connection therewith, and to hold and retain
any securities or other property which it may so acquire; and to deposit
any property with any protective, reorganization or similar committee, and
to pay and agree to pay part of the expenses and compensation of any such
committee and any assessments levied with respect to property so deposited.
(g) To exercise all voting or tender or exchange offer rights with respect
to all qualifying employer securities held by it except that portion, if
any, for which it has received voting or tender or exchange offer
instructions from participants in the Plans as provided in this paragraph.
If the Plan provides, each participant may direct the Trustee,
confidentially, how to vote or whether or not to tender or exchange the
qualifying employer securities representing his proportionate interest in
the assets of the Plans. The Recordkeeper shall furnish the Trustee with
the name of each participant and the number of shares held for the
participant's account as near as practicable to the record date fixed for
the determination of shareholders entitled to vote, tender or exchange, and
shall provide the Trustee with all other information and
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assistance which the Trustee may reasonably request. Shares for which the
Trustee has not received timely voting or tender or exchange instructions
shall be voted or tendered by the Trustee to the extent permitted by the
Plans or, if required by applicable law, in its sole discretion.
(h) To lend to participants in the Plans such amounts and upon such terms
and conditions as the Administrator or Recordkeeper may direct. Any such
direction shall be deemed to include a certification by the Administrator
or Recordkeeper that such lending is in accordance with the provisions of
ERISA and the Plans.
(i) To borrow money in such amounts and upon such terms and conditions as
shall be deemed advisable or proper by the Administrator or Investment
Manager to carry out the purposes of the trust and to pledge any securities
or other property for the repayment of any such loan.
(j) To invest all or a portion of the Trust Fund in contracts issued by
insurance companies, including contracts under which the insurance company
holds Plan assets in a separate account or commingled separate account
managed by the insurance company. The Trustee shall be entitled to rely
upon any written directions of the Administrator or the Investment Manager
under this Section 5.1, and the Trustee shall not be responsible for the
terms of any insurance contract that it is directed to purchase and hold or
for the selection of the issuer thereof or for performing any functions
under such contract (other than the execution of any documents incidental
thereto on the instructions of the Administrator or the Investment
Manager).
(k) To manage, administer, operate, lease for any number of years, develop,
improve, repair, alter, demolish, mortgage, pledge, grant options with
respect to, or otherwise deal with any real property or interest therein at
any time held by it, and to hold any such real property in its own name or
in the name of a nominee, with or without the addition of words indicating
that such property is held in a fiduciary capacity, all upon such terms and
conditions as may be deemed advisable by the Investment Manager or
Administrator.
(l) To renew, extend or participate in the renewal or extension of any
mortgage, upon such terms as may be deemed advisable by the Investment
Manager or Administrator, and to agree to a reduction in the rate of
interest on any mortgage or of any guarantee pertaining thereto in any
manner and to any extent that may be deemed advisable by the Investment
Manager or Administrator for the protection of the Trust Fund or the
preservation of the value of the investment; to waive any default, whether
in the performance of any
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covenant or condition of any mortgage or in the performance of any
guarantee, or to enforce any such default in such manner and to such extent
as may be deemed advisable by the Investment Manager or Administrator; to
exercise and enforce any and all rights of foreclosure, to bid on property
on foreclosure, to take a deed in lieu of foreclosure with or without
paying consideration therefor, and in connection therewith to release the
obligation on the bond secured by such mortgage, and to exercise and
enforce in any action, suit or proceeding at law or in equity any rights or
remedies in respect to any such mortgage or guarantee.
(m) To hold part or all of the Trust Fund uninvested.
(n) To employ suitable agents and counsel and to pay their reasonable and
proper expenses and compensation.
(o) To purchase and sell foreign exchange and contracts for foreign
exchange, including transactions entered into with State Street Bank and
Trust Company, its agents or subcustodians.
(p) To form corporations and to create trusts to hold title to any
securities or other property, all upon such terms and conditions as may be
deemed advisable by the Investment Manager or Administrator.
(q) To register any securities held by it hereunder in its own name, in the
name of its nominee, in the name of its agent, or in the name of its
agent's nominee with or without the addition of words indicating that such
securities are held in a fiduciary capacity, and to hold any securities in
bearer form and to deposit any securities or other property in a depository
or clearing corporation.
(r) To make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases, or other instruments in writing
necessary or desirable for the accomplishment of any of the foregoing
powers.
(s) To invest at any bank including State Street Bank and Trust Company (i)
in any type of interest bearing investments (including, but not limited to
savings accounts, money market accounts, certificates of deposit and
repurchase agreements) and (ii) in noninterest bearing accounts (including
but not limited to checking accounts).
(t) To invest in collective investment funds maintained by State Street
Bank and Trust Company or by other banks for the investment of the assets
of employee benefit plans qualified under Section 401(a) of the Code,
whereupon the instruments establishing such funds, as amended, shall be
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deemed a part of this Trust Agreement and incorporated by reference herein.
The Trustee shall transmit promptly to the Administrator or the Investment
Manager, as the case may be, all notices of conversion, redemption, tender,
exchange, subscription, class action, claim in insolvency proceedings or other
rights or powers relating to any of the securities in the Trust Fund, which
notices are received by the Trustee from its agents or custodians, from issuers
of the securities in question and from the party (or its agents) extending such
rights. The Trustee shall have no obligation to determine the existence of any
conversion, redemption, tender, exchange, subscription, class action, claim in
insolvency proceedings or other right or power relating to any of the securities
in the Trust Fund of which notice was given prior to the purchase of such
securities by the Trust Fund, and shall have no obligation to exercise any such
right or power unless the Trustee is informed of the existence of the right or
power.
The Trustee shall not be liable for any untimely exercise or assertion of
such rights or powers described in the paragraph immediately above in connection
with securities or other property of the Trust Fund at any time held by it
unless (i) it or its agents or custodians are in actual possession of such
securities or property and (ii) it receives directions to exercise any such
rights or powers from the Administrator or the Investment Manager, as the case
may be, and both (i) and (ii) occur at least
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three business days prior to the date on which such rights or powers are to be
exercised.
If the Trustee is directed by the Administrator or an Investment Manager to
purchase securities issued by any foreign government or agency thereof, or by
any corporation or other entity domiciled outside of the United States, it shall
be the responsibility of the Administrator or Investment Manager, as the case
may be, to advise the Trustee in writing with respect to any laws or regulations
of any foreign countries or any United States territory or possession which
shall apply in any manner whatsoever to such securities, including, without
limitation, receipt by the Trustee of dividends, interest or other distributions
on such securities.
All Investment Company Shares shall be registered in the name of the
Trustee or its nominee. Subject to any requirement of applicable law, the
Trustee will transmit to Recordkeeper or the Administrator, as the case may be,
copies of any notices of shareholders' meetings, proxies and proxy-soliciting
materials, prospectuses and the annual or other reports to shareholders, with
respect to Investment Company Shares held in the Trust. The Trustee shall act in
accordance with appropriate directions received from Recordkeeper or the
Administrator, as the case may be, with respect to matters to be voted upon by
the shareholders of the Investment Company. Such directions must be in writing
on a form approved by the Trustee, signed by the addressee and delivered to the
Trustee within the time prescribed by it. The
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Trustee will not vote Investment Company shares as to which it receives no
written directions. For the purposes of this Section, Investment Company means a
registered investment company provided that its prospectus offers its shares
under the Plan.
4.2 Administrative Powers of the Trustee. Notwithstanding the appointment
of an Investment Manager, the Trustee shall have the following powers and
authority, to be exercised in its sole discretion, with respect to the Trust
Fund:
(a) To employ suitable agents, custodians and counsel and to pay their
reasonable expenses and compensation.
(b) To appoint ancillary trustees to hold any portion of the assets of the
trust and to pay their reasonable expenses and compensation.
(c) To register any securities held by it hereunder in its own name, in the
name of its nominee, in the name of its agent, or in the name of its
agent's nominee with or without the addition of words indicating that such
securities are held in a fiduciary capacity, and to hold any securities in
bearer form and to deposit any securities or other property in a depository
or clearing corporation.
(d) To make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or desirable for the accomplishment of any of the foregoing
powers.
(e) Generally to do all ministerial acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable in carrying
out its duties under this Trust Agreement.
Notwithstanding anything in the Plans or this Trust Agreement to the
contrary, the Trustee shall not be required by the Company, the Administrator,
Recordkeeper or any Investment Manager to engage in any action, nor make any
investment which constitutes a prohibited transaction or is otherwise contrary
to
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the provisions of ERISA or which is otherwise contrary to law or to the terms of
the Plans or this Trust Agreement.
The Trustee may consult with legal counsel concerning any question which
may arise with reference to this Trust Agreement and its powers and duties
hereunder. The written opinion of such counsel shall be full and complete
protection of the Trustee in respect to any action taken or suffered by the
Trustee hereunder in good faith reliance on said opinion.
5. INDEMNIFICATION.
To the extent permitted by applicable law, the Company shall indemnify and
save harmless the Trustee for and from any loss or expense (including reasonable
attorneys' fees) arising (a) out of an authorized action hereunder taken in good
faith by the Trustee or any matter as to which this Trust Agreement provides
that the Trustee is directed, protected, not liable, or not responsible, or (b)
by reason of any breach of any statutory or other duty owed to the Plans by the
Company, any Employer, the Administrator, the Recordkeeper or any Investment
Manager or any delegate of any of them (and for the purposes of this sentence
the Trustee shall not be considered to be such a delegate), whether or not the
Trustee may also be considered liable for that other person's breach under the
provisions of Section 405(a) of ERISA.
6. SECURITIES OR OTHER PROPERTY.
The words "securities or other property", used in this Trust Agreement,
shall be deemed to refer to any property, real or
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personal, or part interest therein, wherever situated, including, without
limitation, governmental, corporate or personal obligations, trust and
participation certificates, partnership interests, annuity or investment
contracts issued by an insurance company, leaseholds, fee titles, mortgages and
other interests in realty, preferred and common stocks, certificates of deposit,
financial options and futures or any other form of option, evidences of
indebtedness or ownership in foreign corporations or other enterprises or
indebtedness of foreign governments, and any other evidences of indebtedness or
ownership, including securities or other property of the Company, even though
the same may not be legal investment for trustees under any law other than
ERISA.
7. SECURITY CODES.
If the Trustee has issued to the Company, or to any Investment Manager
appointed by the Company, security codes or passwords in order that the Trustee
may verify that certain transmissions of information, including directions or
instructions, have been originated by the Company or the Investment Manager, as
the case may be, the Trustee shall be kept indemnified by and be without
liability to the Company for any action taken or omitted by it in reliance upon
receipt by the Trustee of transmissions of information with the proper security
code or password, including communications purporting to be directions or
instructions, which the Trustee reasonably believes to be from the Company or
Investment Manager.
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8. TAXES AND TRUSTEE COMPENSATION.
The Trustee shall pay out of the Trust Fund all real and personal property
taxes, income taxes and other taxes of any and all kinds levied or assessed
under existing or future laws against the Trust Fund. Until advised to the
contrary by the Administrator, the Trustee shall assume that the Trust is exempt
from Federal, State and local income taxes, and shall act in accordance with
that assumption. The Administrator shall timely file all Federal, State and
local tax and information returns relating to the Plans and Trust.
The Trustee shall be paid such reasonable compensation as shall from time
to time be agreed upon by the Company and the Trustee in writing. Such
compensation and all reasonable and proper expenses of administration of the
Trust, including counsel fees, shall be withdrawn by the Trustee out of the
Trust Fund unless paid by the Company, but such compensation and expenses shall
be paid by the Company if the same cannot by operation of law be withdrawn from
the Trust Fund.
All payments from the Trust Fund under this Article 9 may be made without
approval or direction.
9. ACCOUNTS OF THE TRUSTEE.
The Trustee shall maintain or cause to be maintained suitable records, data
and information relating to its functions hereunder.
The Trustee shall keep accurate and detailed accounts of all investments,
receipts, disbursements, and other actions
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hereunder, and such other records as the Administrator shall from time to time
direct, as agreed to by the Trustee. Its books and records relating thereto
shall be open to inspection and audit at all reasonable times by the Company or
its duly authorized representatives and each Investment Manager. The Trustee
shall be entitled to reasonable compensation and reimbursement of its reasonable
expenses incurred in connection with such audits or inspections.
Within sixty days after the close of each fiscal year of the trust and at
more frequent intervals if agreed to by the parties hereto, and within sixty
days after the removal or resignation of the Trustee as provided hereunder, the
Trustee shall render to the Company a written statement and account showing in
reasonable summary the investments, receipts, disbursements, and other
transactions engaged in during the preceding fiscal year or period, and setting
forth the assets and liabilities of the trust. Accounts maintained by the
Administrator or Recordkeeper, such as participant directed brokerage accounts,
may be incorporated into Trustee reports. Unless the Company shall have filed
with the Trustee written exceptions or objections to any such statement and
account within sixty days after receipt thereof and except as otherwise required
or provided by applicable law, the Company shall be deemed to have approved such
statement and account, and in such case or upon written approval by the
Administrator of any such statement and account, the Trustee shall be released
and discharged with respect to all
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matters and things embraced in such statement and account as though it had been
settled by a decree of a court of competent jurisdiction in an action or
proceeding in which the Company, all other necessary parties and all persons
having any beneficial interest in the Trust Fund were parties.
The Trustee shall determine the fair market value of assets of the Trust
Fund based upon valuations provided by Investment Managers, information and
financial publications of general circulation, statistical and valuation
services, records of security exchanges, appraisals by qualified persons,
transactions and bona fide offers in assets of the type in question and other
information customarily used in the valuation of property.
The Company or its delegate, each Investment Manager, and the Trustee shall
file such descriptions and reports and make such other publications,
disclosures, registrations and other filings as are required of them
respectively by ERISA.
Nothing contained in this Trust Agreement or in the Plans shall deprive the
Trustee of the right to have a judicial settlement of its account. In any
proceeding for a judicial settlement of the Trustee's accounts or for
instructions in connection with the trust, the only necessary party thereto in
addition to the Trustee shall be the Company, and no participant or other person
having or claiming any interest in the Trust Fund shall be entitled to any
notice or service of process (except as required by law). Any judgment, decision
or award entered in any
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such proceeding or action shall be conclusive upon all interested persons.
10. RELIANCE ON COMMUNICATIONS.
The Trustee may rely upon a certification of the Administrator (or any
member of the Board, Board Committee or the Committee, if applicable) or the
Recordkeeper with respect to any instruction, direction or approval of such
Administrator (or any member of the Board, Board Committee or the Committee, if
applicable) or the Recordkeeper and may rely upon a certification of the Company
as to the membership of the Board, Board Committee or the Committee as it then
exists, and may continue to rely upon such certification until a subsequent
certification is filed with the Trustee.
The Trustee shall be fully protected in acting upon any instrument,
certificate, or paper of the Company, its Board of Directors, the Administrator
(or any member of the Board, Board Committee or the Committee, if applicable) or
the Recordkeeper, believed by it to be genuine and to be signed or presented by
any authorized person, and the Trustee shall be under no duty to make any
investigation or inquiry as to any statement contained in any such writing but
may accept the same as fully authorized by the Company, the Board, Board
Committee, Committee or the Recordkeeper, if applicable, as the case may be.
The Trustee shall be further protected in relying upon a certification from
any Investment Manager appointed by the Company as to the person or persons
authorized to give
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instructions or directions on behalf of such Investment Manager and may continue
to rely upon such certification until a subsequent certification is filed with
Trustee.
11. RESIGNATION AND REMOVAL OF TRUSTEE.
Any Trustee acting hereunder may resign at any time by giving thirty days'
prior written notice to the Company, which notice may be waived by the Company.
The Company may remove the Trustee at any time upon thirty days' prior written
notice to the Trustee, which notice may be waived by the Trustee. In case of the
resignation or removal of the Trustee, the Company shall appoint a successor
trustee. Any successor trustee shall have the same powers and duties as those
conferred upon the Trustee named in this Trust Agreement. The removal of a
Trustee and the appointment of a new Trustee shall be by a written instrument
delivered to the Trustee. Upon the appointment of a successor trustee, the
resigning or removed Trustee shall transfer or deliver the Trust Fund to such
successor trustee.
12. AMENDMENT.
This Trust Agreement may be amended by agreement between the Trustee and
the Company at any time or from time to time and in any manner, and the
provisions of any such amendment may be applicable to the Trust Fund as
constituted at the time of the amendment as well as to the part of the Trust
Fund subsequently acquired.
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13. TERMINATION.
This Trust Agreement and the trust created hereby may be terminated at any
time by the Company, and upon such termination or upon the dissolution or
liquidation of the Company, in the event that a successor to the Company by
operation of law or by the acquisition of its business interests shall not elect
to continue the Plans and the trust, the Trust Fund shall be paid out by the
Trustee when directed by the Administrator. Notwithstanding the foregoing, the
Trustee shall not be required to pay out any assets of the Trust Fund upon
termination of the Trust until the Trustee has received written certification
from the Administrator that all provisions of law with respect to such
termination have been complied with. The Trustee shall rely conclusively on such
written certification, and shall be under no obligation to investigate or
otherwise determine its propriety.
14. PARTICIPATION OF OTHER EMPLOYERS.
14.1 Adoption by Other Employers; Withdrawals. The Trust is maintained by
the Company for use as the funding vehicle for the Plans which it maintains for
various groups of employees and for use as the funding vehicle for the Plans of
any Employer.
(a) Any Employer which has been certified to the Trustee by the Company as
being authorized and as having adopted this Trust with the consent of the
Company as a funding vehicle for its own Plans may, at any time thereafter,
become a party to this Trust Agreement by filing with the Trustee a
certified copy of a resolution of its Board of Directors evidencing its
election so to do; and
(b) Any Employer which is a party to this Trust Agreement and which has
been certified to the Trustee by the Company as having adopted one or more
other Plans and as
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being authorized to adopt this Trust as the funding medium for such other
Plan or Plans may, at any time thereafter, adopt this Trust for the
purposes of such other Plan or Plans by filing with the Trustee a certified
copy of a resolution of its Board of Directors evidencing its election so
to do.
Thereafter, the Trustee shall receive and hold as a part of the Trust Fund,
subject to the provisions of this Trust Agreement, any deposits made to it under
such Plans by or at the direction of such Employer. Should this paragraph become
operative:
(a) In the event of the withdrawal of a Plan from the trust or in the event
of the Company's or an Employer's election to terminate or to fund
separately the benefits provided under any of its Plans, the Company shall
cause a valuation to be made of the share of the Trust Fund which is held
for the benefit of persons having an interest therein under such Plans. The
Trustee shall thereupon segregate and dispose of such share in accordance
with the written direction of the Company accompanied by its certification
to the Trustee that such segregation and disposition is in accordance with
the terms of the Plans and the requirements of the law.
(b) If the Company or any Employer receives notice that one or more of its
Plans is no longer qualified under the provisions of Section 401 of the
Code or the corresponding provisions of any future Federal revenue act, the
Company shall immediately cause a valuation to be made of the share of the
Trust Fund which is held for the benefit of such persons having an interest
under such disqualified Plan or Plans. The Trustee shall thereupon
segregate, withdraw from the Trust Fund, and dispose of such share in
accordance with the terms of the disqualified Plan or Plans. The Company
may direct the Trustee to dispose of such share by the transfer and
delivery of such share to itself as trustee of a separate trust, the terms
and conditions of which shall be identical with those of this Trust
Agreement, except that either the Company or the Employer maintaining such
disqualified Plan or Plans and the Trustee shall be the only parties
thereto.
(c) In the event that any group of employees covered by a Plan is withdrawn
from such Plan, the Company shall, if required by the terms of such Plan,
cause a valuation to be made of the share of the Trust Fund which is held
for the
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benefit of such group of employees. The Trustee shall thereupon segregate
and dispose of such share in accordance with the direction of the Company
accompanied by its certification to the Trustee that such segregation and
disposition is in accordance with the terms of such Plan and the
requirements of the law.
The Trustee shall have no duty to see that the valuation of any share in
accordance with the provisions of this Section 15.1 is caused to be made by the
Company, nor to segregate and dispose of any such share in the absence of the
written direction of the Company to do so.
14.2 Powers and Authorities of Other Employers to be Exercised Exclusively
by Company. Each Employer, other than the Company, which is or shall become a
party to this Trust Agreement, hereby irrevocably gives and grants to the
Company full and exclusive power and authority to exercise all of the powers
conferred upon it by the terms of this Trust Agreement and to take or refrain
from taking any and all action which such Employer might otherwise take or
refrain from taking with respect to this Trust Agreement, including the sole and
exclusive power to exercise, enforce or waive any rights whatsoever which such
Employer might otherwise have with respect to the Trust Fund, and each such
Employer, by becoming a party to this Trust Agreement, irrevocably appoints the
Company its agent for such purposes. The Trustee shall have no obligation to
account to any such Employer or to follow the instructions of or otherwise deal
with any such Employer, the intention being that the Trustee shall deal solely
with the Company as if the Trustee and the Company were the only parties in this
Trust Agreement.
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15. MISCELLANEOUS.
15.1 Governing Law. To the extent not inconsistent with ERISA, as
heretofore or hereafter amended, the provisions of this Trust Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. The Company hereby submits to the jurisdiction of the State and
Federal Courts located in the Commonwealth of Massachusetts including any
appellate courts thereof.
15.2 No Reversion to Employer. Except as provided herein, no portion of the
principal or the income of the Trust Fund shall revert to or be recoverable by
the Company or any Employer or ever be used for or diverted to any purpose other
than for the exclusive benefit of participants in the Plans and persons claiming
under or through them pursuant to the Plans, provided, however, that:
(a) all contributions are conditioned upon the deductibility of the
contributions under Section 404(a) of the Code, and, to the extent
determined to be nondeductible, the Trustee shall, upon written request of
the affected Company, return such amount as may be permitted by law to such
Company, as appropriate, within one year after the determination of
nondeductibility or within such other period as is permitted by applicable
law; and
(b) if a contribution or any portion thereof is made by the Company by a
mistake of fact, the Trustee shall, upon written request of the Company,
return such amounts as may be permitted by law to the Company, as
appropriate, within one year after the date of payment to the Trustee or
within such other period as is permitted by applicable law; and
(c) if a contribution is conditioned upon the qualification of the Plans
and Trust under Section 401 and 501 of the Code, the contributions of the
Company to the Trust for all Plans Years, with the gains and losses
thereon, shall be
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returned by the Trustee to the Company, as appropriate, within one year in
the event that the Commissioner of Internal Revenue fails to rule that the
Plans and Trust were as of such date qualified and tax-exempt (within the
meaning of Sections 401 and 501 of the Code); and
(d) in the event that a Plan whose assets are held in the Trust Fund is
terminated, assets of such Plan may be returned to the Employer if all Plan
liabilities to participants and beneficiaries of such Plan have been
satisfied; and
(e) assets may be returned to the Employer to the extent that the law
permits such transfer.
The Trustee shall be under no obligation to return any part of the Trust
Fund as provided in this Section 15.2 until the Trustee has received a written
certification from the Administrator that such return is in compliance with this
Section 15.2, the Plans and the requirements of applicable law. The Trustee
shall rely conclusively on such written certification and shall be under no
obligation to investigate or otherwise determine its propriety.
15.3 Non-Alienation of Benefits. No benefit to which a participant or his
beneficiary is or may become entitled under a Plan shall at any time be subject
in any manner to alienation or encumbrance, nor be resorted to, appropriated or
seized in any proceeding at law, in equity or otherwise. No participant or other
person entitled to receive a benefit under a Plan shall, except as specifically
provided in such Plan, have power in any manner to transfer, assign, alienate or
in any way encumber such benefit under such Plan, or any part thereof, and any
attempt to do so shall be void.
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15.4 Duration of Trust. Unless sooner terminated, the trust created under
this Trust Agreement shall continue for the maximum period of time which the
laws of the Commonwealth of Massachusetts shall permit.
15.5 No Guarantees. Neither the Company, nor any Employer, nor the Trustee
guarantees the Trust Fund from loss or depreciation, nor the payment of any
amount which may become due to any person under the Plans or this Trust
Agreement.
15.6 Duty to Furnish Information. Both the Company and the Trustee shall
furnish to the other any documents, reports, returns, statements, or other
information that the other reasonably deems necessary to perform its duties
imposed under the Plans or this Trust Agreement or otherwise imposed by law.
15.7 Withholding. The Administrator or the Recordkeeper shall withhold any
tax which by any present or future law is required to be withheld from any
payment under the Plans, unless the Trustee shall have agreed in writing to do
so. The Administrator or the Recordkeeper shall provide all information
reasonably requested by the Trustee to enable the Trustee to so withhold.
15.8 Parties Bound. This Trust Agreement shall be binding upon the parties
hereto, all participants in the Plans and persons claiming under or through them
pursuant to the Plans, and, as the case may be, the heirs, executors,
administrators, successors, and assigns of each of them. The provisions of
Articles 5 and 7 shall survive termination of the Trust created
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under this Trust Agreement or resignation or removal of the Trustee for any
reason.
In the event of the merger or consolidation of the Company or any Employer
or other circumstances whereby a successor person, firm or company shall
continue to carry on all or a substantial part of its business, and such
successor shall elect to carry on the provisions of the Plan or Plans applicable
to such business, as therein provided, such successor shall be substituted
hereunder for the Company or such Employer, as the case may be, upon the filing
in writing of its election so to do with the Trustee. The Trustee may, but need
not, rely on the certification of an officer of the Company, and a certified
copy of a resolution of the Board of Directors of such successor, reciting the
facts, circumstances and consummation of such succession and the election of
such successor to continue the said Plan or Plans as conclusive evidence
thereof, without requiring any additional evidence.
15.9 Necessary Parties to Disputes. Necessary parties to any accounting,
litigation or other proceedings shall include only the Trustee, the Company and
any appropriate Employers and the settlement or judgment in any such case in
which the Company, the appropriate Employers and the Trustee are duly served or
cited shall be binding upon all participants in the Plans and their
beneficiaries and estates, and upon all persons claiming by, through or under
them.
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15.10 Unclaimed Benefit Payments. If any check or share certificate in
payment of a benefit hereunder which has been mailed by regular US mail to the
last address of the payee furnished the Trustee by the Company or Recordkeeper
is returned unclaimed, the Trustee shall notify the Company or Recordkeeper and
shall discontinue further payments to such payee until it receives the further
instruction of the Company or Recordkeeper.
15.11 Severability. If any provisions of this Trust Agreement shall be held
by a court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions of this Trust Agreement shall continue to be fully
effective.
15.12 References. Unless the context clearly indicates to the contrary, a
reference to a statute, regulation, document or provision shall be construed as
referring to any subsequently enacted, adopted or executed counterpart.
15.13 Headings. Headings and subheadings in this Trust Agreement are
inserted for convenience of reference only and are not to be considered in the
construction of its provisions.
15.14 No Liability for Acts of Predecessor and Successor Trustees. The
Trustee shall have no liability for the acts or omissions of any predecessors or
successors in office.
15.15 Counterparts. This Trust Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of the day and year first above
written.
ATTEST: COMCAST CORPORATION
/s/ Arthur R. Block BY:/s/ Joseph J. Euteneuer
Assistant Secretary TITLE: Vice President and
Corporate Controller
ATTEST: STATE STREET BANK AND TRUST COMPANY
________________ BY:_______________________________
Vice President
36
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Comcast Corporation on Form S-8 of our reports dated February 21, 1995 and June
7, 1995, appearing in the Annual Report on Form 10-K of Comcast Corporation for
the year ended December 31, 1994 and in the Annual Report on Form 11-K of
Comcast Corporation for the year ended December 31, 1994, respectively, and to
the references to us under the heading "Experts" in this Registration Statement.
/s/ Deloitte & Touche LLP
Philadelphia, Pennsylvania
October 4, 1995
<PAGE>
Exhibit 23.1 (Continued)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Comcast Corporation on Form S-8 of our report dated February 28, 1995, except
for Note 7 as to which the date is April 20, 1995, relating to the financial
statements of Comcast MHCP Holdings, L.L.C. (an indirect majority owned
subsidiary of Comcast Corporation), appearing in the Current Report on Form 8-K
of Comcast Corporation filed on April 25, 1995, and to the reference to us under
the heading "Experts" in this Registration Statement.
/s/ Deloitte & Touche LLP
Philadelphia, Pennsylvania
October 4, 1995
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
Comcast Corporation:
We consent to the use of our report dated February 12, 1993, relating to the
consolidated statement of operations, stockholders' equity (deficit) and of cash
flows and all related schedules of Storer Communications, Inc. and subsidiaries
(formerly, SCI Holdings, Inc. and Storer Communications, Inc. and subsidiaries)
for the year ended December 31, 1992, which report is incorporated by reference
in the December 31, 1994 annual report on Form 10-K of Comcast Corporation, and
to the reference to our firm under the heading "Experts" in this Registration
Statement.
/s/ KPMG Peat Marwick LLP
Fort Lauderdale, Florida
October 4, 1995
<PAGE>
Exhibit 23.2 (Continued)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
QVC, Inc.:
We consent to the use of our report dated March 3, 1995, with respect to the
consolidated balance sheets of QVC, Inc. and subsidiaries as of January 31,
1995 and 1994, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-year
period ended January 31, 1995, which report appears in the Current Report on
Form 8-K of Comcast Corporation filed on April 25, 1995, which Form 8-K is
incorporated by reference in this Registration Statement on Form S-8 of Comcast
Corporation, and to the reference to our firm under the heading "Experts" in
this Registration Statement. Our report refers to a change in accounting for
income taxes in the year ended January 31, 1994.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
October 4, 1995
Exhibit 23.3
AUDITORS' CONSENT
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement (Form S-8) pertaining to the Comcast Corporation
Retirement-Investment Plan of Comcast Corporation and to the incorporation by
reference therein of our report dated August 5, 1994, with respect to the
combined financial statements of the U.S. Cable Television Operations of Maclean
Hunter, Inc. as at December 31, 1993 and 1992 and for the years ended December
31, 1993, 1992 and 1991 incorporated by reference in Comcast Corporation's
December 31, 1994 Annual Report on Form 10-K, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young
October 4, 1995 Chartered Accountants
Toronto, Canada
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Comcast Corporation
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report on Garden State
Cablevision L.P., dated February 6, 1995 included in Comcast Corporation's Form
10-K for the year ended December 31, 1994 and to all references to our firm
included in the Registration Statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.
October 4, 1995
<PAGE>
Exhibit 23.4 (Continued)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Comcast Corporation
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report on Comcast
International Holdings, Inc. and Subsidiaries, dated February 17, 1995 included
in Comcast Corporation's Form 10-K for the year ended December 31, 1994 and to
all references to our firm included in the Registration Statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.
October 4, 1995
