As filed with the Securities and Exchange Commission on February 26, 1999
Registration No. 333-_____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
COUNTRYWIDE CREDIT INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4083087
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
4500 Park Granada 91302
Calabasas, CA
(Address of Principal Executive Offices) (Zip Code)
Countrywide Credit Industries, Inc.
Tax Deferred Savings and Supplemental Investment Plan
(As Amended and Restated Effective May 6, 1996) (as subsequently amended)
(Full title of the Plan)
Sandor E. Samuels, General Counsel
4500 Park Granada
Calabasas, CA 91302
(Name and address of agent for service)
(818) 225-3505
(Telephone Number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of securities Number of shares Proposed maximum
offering
to be registered to be registered price per share
- -------------------------------------------------------------------------------
Common Stock, 1,000,000 shares $n/a
$.05 par value per share1
- -------------------------------------------------------------------------------
Proposed maximum aggregate Amount of Registration Fee
offering price2
$ 3,821,875.00 $10,625.00
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information*
ITEM 2. Registrant Information and Employee Plan Annual Information*
*The document(s) containing the employee benefit plan
information required by ITEM 1 of Form S-8 and the statement
of availability of information regarding Countrywide Credit
Industries, Inc. (the "Company") and any other information
required by ITEM 2 of Form S-8 will be sent or given to
employees as specified by Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"). In accordance with
Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the registration statement
or as prospectuses or prospectus supplements pursuant to Rule
424 under the Securities Act. The Company shall maintain a
file of such documents in accordance with the provisions of
Rule 428. Upon request, the Company shall furnish to the
Securities and Exchange Commission (the "Commission") or its
staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Certain Documents by Reference
The following documents previously filed by Countrywide Credit
Industries, Inc. (the "Company") with the Commission are
hereby incorporated by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended February
28, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended May 31,
1998, August 31, 1998 and November 30, 1998; and
(c) The description of the Common Stock contained in the Company's Registration
Statement on Form 8-A, filed with the Commission on November 24, 1982.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this
registration statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by
reference into this registration statement and to be a part
hereof from the date of filing of such document (each such
document, an "Incorporated Document"). Any statement contained
herein or in an Incorporated Document deemed to be
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 Incorporated Document modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides,
in substance, that Delaware corporations shall have the power,
under specified circumstances, to indemnify their directors,
officers, employees and agents in connection with actions,
suits or proceedings brought against them by a third party or
in the right of the corporation, by reason of the fact that
they were or are such directors, officers, employees or
agents, against expenses incurred in any such action, suit or
proceeding. The Delaware General Corporation Law also provides
that the Company may purchase insurance on behalf of any such
director, officer, employee or agent.
Article SIXTH of the Company's Certificate of Incorporation
provides that the Company may indemnify its directors and
officers to the full extent permitted by the laws of the State
of Delaware. Article VIII of the Company's Bylaws provides
that the Company shall indemnify its directors and officers
against any threatened, pending or completed action, suit or
proceeding or investigation brought against such directors and
officers by reason of the fact that such persons were
directors or officers, provided that such persons acted in
good faith and in a manner which they reasonably believed to
be in or not opposed to the best interest of the Company;
except that in the case of actions brought by or in the right
of the Company to procure a judgment in its favor, no
indemnification is permitted in respect of any claim, issue or
matter as to which any such director or officer shall have
been adjudged to be liable to the Company, unless the court in
which the action was brought determines that such person is
entitled to indemnification. The Company's Bylaws further
contemplate that the indemnification provisions permitted
thereunder are not exclusive of any other rights to which the
directors and officers are otherwise entitled by means of
Bylaw provisions, agreements, votes of stockholders or
disinterested directors or otherwise. In addition, the Company
has entered into indemnity agreements with each of its
directors and executive officers, whereby such individuals are
indemnified by the Company up to an aggregate limit of
$5,000,000 for any claims made against such individuals based
on any act, omission or breach of duty committed while acting
as a director or officer, except, among other things, cases
involving dishonesty or improper personal benefit. The Company
also maintains an insurance policy pursuant to which its
directors and officers are insured against certain liabilities
which might arise out of their relationship with the Company
as directors and officers.
Article SEVENTH of the Company's Certificate of Incorporation
provides that a director of the Company shall have no personal
liability to the Company or its stockholders for monetary
damages for breach of his fiduciary duty of care as a director
to the full extent permitted by the Delaware General
Corporation Law, as it may be amended form time to time.
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
The Company has previously submitted the Countrywide Credit
Industries, Inc. Tax Deferred Savings and Supplemental
Investment Plan (the "Plan") to the Internal Revenue Service
(the "IRS") in a timely manner and has made all changes
required by the IRS to qualify the Plan, and the Company
hereby undertakes to continue to submit the Plan and each
amendment thereto to the IRS in a timely manner and will make
all changes required to qualify the Plan.
4.1 Countrywide Credit Industries, Inc. Tax Deferred Savings and Supplemental
Investment Plan.
4.1.1 Amendment One Countrywide Credit Industries, Inc. Tax Deferred Savings and
Supplemental Investment Plan
4.1.2 Amendment Two Countrywide Credit Industries, Inc. Tax Deferred Savings and
Supplemental Investment Plan
4.1.3 Amendment Three Countrywide Credit Industries, Inc. Tax Deferred Savings
and Supplemental Investment Plan
4.2* Certificate of Amendment of Restated Certificate of Incorporation of
Countrywide Credit Industries, Inc. (incorporated by reference to Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q dated August 31, 1987).
4.3* Restated Certificate of Incorporation of Countrywide Credit Industries,
Inc. (incorporated by reference to Exhibit 4.2 to the Company's Quarterly Report
on From 10-Q dated August 31, 1987).
4.4* Bylaws of Countrywide Credit Industries, Inc., as amended and restated
(incorporated by reference to Exhibit 3 to the Company's Current Report on Form
8-K dated February 10, 1988).
4.4.1* Amendment to Bylaws of Countrywide Credit Industries, Inc. dated January
28, 1998.
4.4.2* Amendment to Bylaws of Countrywide Credit Industries, Inc. dated February
3, 1998.
4.5* Rights Agreement, dated as of February 10, 1988, between Countrywide Credit
Industries, Inc. and Bank of America NT & SA, as Rights Agent (incorporated by
reference to Exhibit 4 to the Company's Registration Statement on Form 8-A filed
pursuant to Section 12 of the Securities Exchange Act of 1934 on February 12,
1988).
4.5.1* Amendment No. 1 to Rights Agreement dated as of March 24, 1992
(incorporated by reference to Exhibit 1 to the Company's Form 8 filed with the
SEC on March 27, 1992).
4.6* Specimen Certificate of the Company's Common Stock (incorporated by
reference to Exhibit 4.2 to the Company's Report on Form 8-K dated February 6,
1987).
5 Opinion of Sandor E. Samuels, General Counsel of the Company as to the
legality of securities being registered.
23.1 Consent of Grant Thornton, LLP, Independent Auditors.
23.2 Consent of Sandor E. Samuels (included in Opinion filed as Exhibit 5).
Item 9. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the 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;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that the undertaking set forth in paragraphs (a)(I)(i) and
(a)(I)(ii) above do not apply if the information required to be included in such
post-effective amendment is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial 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.
The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933,
each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Calabasas, State of California, on the 26th day of
February, 1999.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/ David S. Loeb
David S. Loeb
Chairman and President
Signatures Title Date
/s/ David S. Loeb Chairman of the Board February 26, 1999
- ------------------------------
David S. Loeb of Directors and President
(Principal Executive
Officer); Director
/s/ Angelo R. Mozilo Chief Executive Officer February 26, 1999
- ------------------------------
Angelo R. Mozilo and Vice Chairman
of the Board of Directors;
Director
/s/ Carlos M. Garcia Managing Director - Finance February 26, 1999
- ------------------------------
Carlos M. Garcia Chief Financial Officer and
Chief Accounting Officer
(Principal Financial and
Accounting Officer)
/s/ Jeffrey M. Cunningham Director February 26, 1999
- ---------------------------
Jeffrey M. Cunningham
/s/ Robert J. Donato Director February 26, 1999
- ------------------------------
Robert J. Donato
/s/ Michael E. Dougherty Director February 26, 1999
- --------------------------
Michael E. Dougherty
/s/ Ben M. Enis Director February 26, 1999
- ------------------------------
Ben M. Enis
/s/ Edwin Heller Director February 26, 1999
Edwin Heller
/s/ Harley W. Snyder Director February 26, 1999
- --------------------------
Harley W. Snyder
EXHIBIT 4.1
COUNTRYWIDE CREDIT INDUSTRIES, INC.
TAX DEFERRED SAVINGS AND SUPPLEMENTAL INVESTMENT PLAN
As amended and restated
effective May 6, 1996
<PAGE>
TABLE OF CONTENTS
PURPOSE 1
ARTICLE 1 DEFINITIONS....................................................... 2
1.01 "Account"..................................................... 2
1.02 "Administrator"............................................... 2
1.03 "Affiliated Company".......................................... 2
1.04 "Beneficiary"................................................. 2
1.05 "Board of Directors".......................................... 2
1.06 "Code"........................................................ 2
1.07 "Company"..................................................... 2
1.08 "Company Stock"............................................... 2
1.09 "Compensation"................................................ 3
1.10 "Designated Fiduciary"........................................ 3
1.11 "Eligible Employee"........................................... 3
1.12 "Employee".................................................... 3
1.13 "Employer Discretionary Contributions"........................ 3
1.14 "Employer Matching Contributions"............................. 3
1.15 "Entry Date".................................................. 3
1.16 "ERISA"....................................................... 4
1.17 "Investment Fund"............................................. 4
1.18 "Non-affiliated Employer"..................................... 4
1.19 "Participant"................................................. 4
1.20 "Participating Employer"...................................... 4
1.21 "Plan"........................................................ 4
1.22 "Plan Year"................................................... 4
1.23 "Rollover Contribution"....................................... 4
1.24 "Salary Deferral Contributions"............................... 4
1.25 "Subsidiary".................................................. 4
1.26 "Total Disability"............................................ 4
1.27 "Trust Agreement"............................................. 4
1.28 "Trust Fund".................................................. 4
1.29 "Trustee"..................................................... 4
1.30 "Valuation Date".............................................. 4
ARTICLE 2 DEFINITIONS AND RULES FOR DETERMINING SERVICE..................... 5
2.01 "Approved Absence"............................................ 5
2.02 "Break in Service"............................................ 5
2.03 "Eligibility Computation Period".............................. 5
2.04 "Employment Commencement Date"................................ 5
2.05 "Employment Recommencement Date".............................. 5
2.06 "Hours of Service"............................................ 5
2.07 "Maternity or Paternity Leave of Absence"..................... 6
2.08 "Year of Service"............................................. 6
2.09 Rules for Crediting Years of Service After a Break in Service. 6
ARTICLE 3 PARTICIPATION IN THE PLAN......................................... 8
3.01 Eligibility to Participate.................................... 8
3.02 Commencement of Participation................................. 8
3.03 Break in Service.............................................. 8
3.04 Cessation of Eligibility to Participate....................... 8
ARTICLE 4 PARTICIPANT CONTRIBUTIONS......................................... 9
4.01 Salary Deferral Contributions................................. 9
4.02 Rollover Contributions........................................ 9
ARTICLE 5 EMPLOYER CONTRIBUTIONS............................................ 10
5.01 Employer Matching Contributions............................... 10
5.02 Employer Discretionary Contributions.......................... 10
5.03 Time of Payment of Contributions.............................. 10
5.04 Form of Contributions......................................... 11
ARTICLE 6 LIMITATIONS ON CONTRIBUTIONS...................................... 12
6.01 Definitions................................................... 12
6.02 Annual Limitation on Salary Deferral Contributions............ 13
6.03 Limitations on Salary Deferral Contributions Applicable to Highly
Compensated Employees.......... 14
6.04 Limitations on Employer Matching Contributions Applicable to
Highly Compensated Employees........ 14
6.05 Combined Limitations on Salary Deferral Contributions and
Employer Matching Contributions........ 15
6.06 Correction of Excess Salary Deferral Contributions and Excess
Employer Matching Contributions............................... 15
6.07 Forfeiture of Employer Matching Contributions................. 16
6.08 Limitations on Contributions Applicable to All Participants... 16
6.09 Reduction of Excess Annual Additions.......................... 17
6.10 Deduction Limitation Applicable to Employer Contributions..... 17
ARTICLE 7 PARTICIPANTS' ACCOUNTS............................................ 18
7.01 Separate Accounts............................................. 18
7.02 Contributions to Account...................................... 18
7.03 Valuation of Accounts......................................... 18
7.04 Segregated Accounts........................................... 18
ARTICLE 8 TRUST FUND AND INVESTMENT OF ACCOUNTS............................. 19
8.01 Trust Fund and Trustees....................................... 19
8.02 Investment Funds.............................................. 19
8.03 Investment Direction.......................................... 19
8.04 Limitations on Investment in Company Stock.................... 20
8.05 Voting and Tendering of Company Stock......................... 20
ARTICLE 9 VESTING AND FORFEITURE............................................ 21
9.01 Salary Deferral Contribution Account and Rollover
Contribution Account........................... 21
9.02 Employer Contribution Account................................. 21
9.03 Forfeiture.................................................... 21
9.04 Restoration of Forfeitures.................................... 21
9.05 Application of Forfeitures.................................... 22
9.06 Change in Vesting Schedule.................................... 22
9.07 Vesting Upon Termination Following a Change in Control........ 22
ARTICLE 10 LOANS TO PARTICIPANTS............................................ 24
10.01 General...................................................... 24
10.02 Maximum Loan Amount.......................................... 24
10.03 Loan Terms................................................... 24
10.04 Collateral................................................... 25
10.05 Treatment of Loan Payments................................... 25
10.06 Default...................................................... 25
ARTICLE 11 WITHDRAWALS DURING SERVICE....................................... 26
11.01 Financial Hardship........................................... 26
11.02 Withdrawals After Age 59-1/2................................. 27
11.03 General Rules Applying to Withdrawals........................ 27
ARTICLE 12 ESOP ACCOUNT DIVERSIFICATION RIGHTS.............................. 29
12.01 General...................................................... 29
12.02 Diversification of ESOP Account.............................. 29
ARTICLE 13 DISTRIBUTIONS AFTER TERMINATION OF EMPLOYMENT.................... 31
13.01 Termination of Employment Prior to Age 65.................... 31
13.02 Termination of Employment At or After Age 65................. 31
13.03 Death........................................................ 32
13.04 Beneficiary Designation...................................... 32
13.05 Form of Payment.............................................. 32
13.06 Direct Transfer of Eligible Rollover Distribution............ 33
13.07 Mandatory Distribution....................................... 33
ARTICLE 14 ADMINISTRATION................................................... 34
14.01 Administrator................................................ 34
14.02 Administrator's Authority and Powers......................... 34
14.03 Delegation of Duties......................................... 34
14.04 Fiduciary Responsibilities With Respect to Company Stock..... 35
14.05 Charges on Participants' Accounts............................ 35
14.06 Expenses..................................................... 35
14.07 Compensation................................................. 35
14.08 Exercise of Discretion....................................... 35
14.09 Fiduciary Liability.......................................... 35
14.10 Indemnification by Participating Employers................... 36
14.11 Plan Participation by Fiduciaries............................ 36
14.12 Missing Persons.............................................. 36
14.13 Claims Procedure............................................. 36
ARTICLE 15 AMENDMENT AND TERMINATION OF PLAN................................ 38
15.01 Amendment.................................................... 38
15.02 Right to Terminate Plan...................................... 38
15.03 Consequences of Termination.................................. 38
ARTICLE 16 PARTICIPATING EMPLOYERS.......................................... 39
16.01 Adoption by Other Employers.................................. 39
16.02 Delegation of Powers and Authority........................... 39
16.03 Termination of Participation................................. 39
ARTICLE 17 TOP-HEAVY PLAN PROVISIONS........................................ 41
17.01 Applicability................................................ 41
17.02 Definitions.................................................. 41
17.03 Minimum Contribution......................................... 43
17.04 Compensation Limitation...................................... 44
17.05 Aggregate Limit on Contributions and Benefits for Key
Employees........................................................... 44
ARTICLE 18 LIFE INSURANCE................................................... 45
18.01 Purchase of Life Insurance............................... 45
18.02 Policies as Trust Assets..................................... 45
18.03 Payment of Premiums and Use of Proceeds...................... 45
18.04 Distribution of Policies Upon Termination of Employment...... 45
18.05 Maximum Amount of Insurance.................................. 46
ARTICLE 19 GENERAL PROVISIONS............................................... 47
19.01 Trust Fund Sole Source of Payments for Plan.................. 47
19.02 Exclusive Benefit............................................ 47
19.03 Non-Alienation............................................... 47
19.04 Employee Transfers........................................... 47
19.05 Qualified Domestic Relations Order........................... 47
19.06 Employment Rights............................................ 48
19.07 Return of Contributions...................................... 48
19.08 Distribution of Salary Deferral Contributions in Event of Merger
or Sale...................................................... 48
19.09 Merger, Consolidation or Transfer............................ 49
19.10 Action by the Company........................................ 49
19.11 Applicable Law............................................... 49
19.12 Rules of Construction........................................ 49
APPENDIX A RULES APPLYING TO PARTICIPANT LOANS..............................A-1
APPENDIX B DEFINITION OF CHANGE IN CONTROL..................................B-1
<PAGE>
COUNTRYWIDE CREDIT INDUSTRIES, INC.
TAX DEFERRED SAVINGS AND SUPPLEMENTAL INVESTMENT PLAN
As amended and restated
effective May 6, 1996
PURPOSE
The purpose of the Countrywide Credit Industries, Inc. Tax-Deferred Savings and
Supplemental Investment Plan is to provide eligible employees of Countrywide
Credit Industries, Inc. and other participating employers with an opportunity to
increase their savings on a tax-favored basis.
The Plan is intended to (1) qualify as a profit-sharing plan for purposes of
Sections 401(a), 402, 412, and 417 of the Internal Revenue Code of 1986, as
amended (the "Code"), (2) qualify as a cash or deferred arrangement under
Section 401(k) of the Code, and (3) comply with the requirements of the Employee
Retirement Income Security Act of 1974, as amended.
The Plan originally was adopted by Countrywide Credit Industries, Inc. effective
September 1, 1984.
Effective October 1, 1991, the Countrywide Credit Industries, Inc. Profit
Sharing Stock Ownership Plan was merged into this Plan.
The Plan was amended and restated effective January 1, 1992. The Internal
Revenue Service issued a favorable determination letter dated June 1, 1993 (File
Folder Number 950041329) with respect to the Plan as amended and restated,
including amendments adopted on November 15, 1993.
This plan document sets forth the provisions of the Plan as amended and restated
effective May , 1996, except as otherwise specifically provided in the Plan. All
issues arising with respect to participation in the Plan prior to May 6, 1996
shall be determined by the terms and provisions of the Plan as in effect prior
to May 6, 1996 except as otherwise specifically provided in the Plan.
<PAGE>
ARTICLE 1
DEFINITIONS
Wherever used herein, the following terms shall have the following meanings:
1.01 "Account" means the entire interest of a Participant in the Trust Fund and
shall include the following subaccounts:
(a) "Employer Contribution Account" means that portion of the Participant's
Account attributable to the Employer Matching Contributions and
Employer Discretionary Contributions made on the Participant's behalf
by a Participating Employer and the earnings thereon.
(b) "ESOP Account" means that portion of the Participant's Account
attributable to the transfer of the Participant's account under the
Countrywide Credit Industries, Inc. Profit Sharing Stock Ownership
Plan, if any, and the earnings thereon.
(c) "Rollover Contribution Account" means that portion of the Participant's
Account attributable to the Participant's Rollover Contributions, if
any, and the earnings thereon.
(d) "Salary Deferral Contribution Account" means that portion of the
Participant's Account attributable to the Salary Deferral Contributions
made on the Participant's behalf by a Participating Employer and the
earnings thereon.
1.02 "Administrator" means the Company or such other person or committee
designated by the Company to administer the Plan in accordance with Article 14.
1.03 "Affiliated Company" means any corporation which is a member of a
controlled group of corporations (as defined in Section 414(b) of the Code)
which includes the Company; any trade or business (whether or not incorporated)
which is under common control (as defined in Section 414(c) of the Code) with
the Company; any organization (whether or not incorporated) which is a member of
an affiliated service group (as defined in Section 414(m) of the Code) which
includes the Company Employer; and any other entity required to be aggregated
with the Company pursuant to regulations under Section 414(o) of the Code.
1.04 "Beneficiary" means any person entitled to receive payment of a
Participant's Account pursuant to Section 13.04 as a result of the death of the
Participant.
1.05 "Board of Directors" means the Board of Directors of the Company.
1.06 "Code" means the Internal Revenue Code of 1986, as amended.
1.07 "Company" means Countrywide Credit Industries, Inc. or any successor by
merger, consolidation or sale of assets.
1.08 "Company Stock" means the common stock of Countrywide Credit Industries,
Inc.
1.09 "Compensation" means for any Plan Year a Participant's wages as defined in
Section 3401(a) of the Code (for purposes of income tax withholding) determined
without regard to any rules that limit remuneration included in wages based on
the nature or location of the employment or the services performed, subject to
the following inclusions and exclusions:
(a) including employer contributions made pursuant to a compensation
reduction agreement which are not includible in the gross income of a
Participant under Sections 125, 402(a)(8), 402(h) or 403(b) of the
Code;
(b) excluding any amounts paid as commissions, bonuses, moving expenses,
and any other amounts paid on an irregular or discretionary basis as
bonuses or special awards; and
(c) excluding any wages paid by reason of services performed (i) prior to
the effective date of the Participant's participation in the Plan and
(ii) after the Participant ceases to be an Eligible Employee.
The maximum amount of Compensation that may be taken into account in any Plan
Year shall not exceed the dollar limitation contained in Section 401(a)(17) of
the Code in effect as of the beginning of the Plan Year.
1.10 "Designated Fiduciary" means the Trustee or any other person who is
designated by the Company as a "named fiduciary" (within the meaning of Section
403(a)(1) of ERISA) for purposes of the exercise of voting, tender, and other
stockholder rights with respect to Company Stock in accordance with Section
8.05.
1.11 "Eligible Employee" means any Employee employed by a Participating
Employer, but excluding
(a) any individual who is covered by a collective bargaining agreement to
which a Participating Employer is a party, and which agreement does not
provide for participation in the Plan;
(b) any individual who is a "leased employee" within the meaning of
Section 414(n)(2) of the Code; and
(c) any individual who is eligible to participate in a tax-qualified
retirement plan sponsored or maintained by a Non-affiliated Employer.
1.12 "Employee" means any individual who is a common law employee of the
Company, an Affiliated Company or a Non-affiliated Employer.
1.13 "Employer Discretionary Contributions" means the contributions made by a
Participating Employer on behalf of Participants as described in Section 5.02.
1.14 "Employer Matching Contributions" means the contributions made by a
Participating Employer on behalf of Participants as described in Section 5.01.
1.15 "Entry Date" means each January 1, April 1, July 1, and October 1.
1.16 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.17 "Investment Fund" means one or more of the investment vehicles made
available to Participants for investment of their Accounts pursuant to Article
8.
1.18 "Non-affiliated Employer" means a Participating Employer which is not an
Affiliated Company.
1.19 "Participant" means any Eligible Employee or former Eligible Employee who
has met the participation requirements set forth in Article 3.
1.20 "Participating Employer" means (a) the Company, and (b) any other
corporation or entity which has adopted the Plan in accordance with the
requirements of Article 16.
1.21 "Plan" means the Countrywide Credit Industries, Inc. Tax Deferred Savings
and Supplemental Investment Plan.
1.22 "Plan Year" means the calendar year.
1.23 "Rollover Contribution" means the contribution made to the Plan by an
Eligible Employee pursuant to Section 4.02 of all or part of the amount
distributed to the Eligible Employee from another qualified plan.
1.24 "Salary Deferral Contributions" means the contributions made by a
Participating Employer on behalf of a Participant pursuant to the Participant's
election to defer Compensation under Section 4.01.
1.25 "Subsidiary" means any corporation in which the Company or an Affiliated
Company owns, directly or indirectly, stock possessing 50 percent (50%) or more
of the total combined voting power of all classes of stock.
1.26 "Total Disability" means a Participant's total and permanent disability as
determined for purposes of the Company's long term disability benefits plan.
1.27 "Trust Agreement" means the agreement between the Company and the Trustee
under which the assets are held, administered and managed.
1.28 "Trust Fund" means all assets under the Plan held by the Trustee.
1.29 "Trustee" means any person, bank, or such other trustee or trustees under
the Trust Agreement as may be appointed by the Company to hold, invest and
disburse the funds of the Plan.
1.30 "Valuation Date" means the last day of each calendar quarter and such other
dates as may be selected by the Administrator for valuing the Trust Fund.
<PAGE>
ARTICLE 2
DEFINITIONS AND RULES FOR DETERMINING SERVICE
2.01 "Approved Absence" means an Employee's approved leave of absence from
employment because of military service, illness, disability, pregnancy,
educational pursuits, service as a juror, or temporary employment with a
government agency, or other leave of absence approved by the Company, Affiliated
Company, or Non-affiliated Employer. An Approved Absence also includes any leave
of absence in accordance with the requirements of the Family and Medical Leave
Act of 1993. The Company, Affiliated Company, or Non-affiliated Employer shall
determine the first and last days of any Approved Absence.
2.02 "Break in Service" means a 12-consecutive month period during which an
Employee fails to complete more than 501 Hours of Service with the Company,
Affiliated Company, or Non-affiliated Employer.
Solely for purposes of determining whether an Employee has a Break in Service,
Hours of Service shall be recognized during an Approved Absence or a Maternity
or Paternity Leave of Absence. During such absence, the Employee shall be
credited with the Hours of Service which would have been credited but for the
absence, or, if such hours cannot be determined, with eight hours per day.
2.03 "Eligibility Computation Period" means (a) the 12-consecutive month period
beginning on an Employee's Employment Commencement Date, or (b) in the case of
an Employee who fails to complete 1,000 or more Hours of Service during his or
her first Eligibility Computation Period, any Plan Year commencing after the
Employee's Employment Commencement Date.
2.04 "Employment Commencement Date" means the first day on which an Employee
performs an Hour of Service for the Company, Affiliated Company, or
Non-affiliated Employer.
2.05 "Employment Recommencement Date" means the first day on which an Employee
performs an Hour of Service for the Company, Affiliated Company, or
Non-affiliated Employer following a Break in Service.
2.06 "Hours of Service" means
(a) Each hour for which an Employee is directly or indirectly paid, or
entitled to payment, for the performance of duties for the Company,
Affiliated Company, or Non-affiliated Employer. Each such hour shall be
credited to the Employee for the computation period or periods in which
the duties are performed.
(b) Each hour for which an Employee is directly or indirectly paid, or
entitled to payment, by the Company, Affiliated Company, or
Non-affiliated Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military duty, or
leave of absence. Each such hour shall be credited to the Employee for
the computation period or periods in which such period occurs, subject
to the following rules:
(i) No more than 501 Hours of Service shall be credited under this
paragraph (b) to an Employee on account of any single
continuous period during which the Employee performs no duties
(whether or not such period occurs in a single computation
period), and
(ii) Hours of Service will not be credited under this paragraph (b)
for which payment by the Company, Affiliated Company, or
Non-affiliated Employer is made or due under a plan maintained
solely for the purpose of complying with applicable workers'
compensation, unemployment compensation, or disability
insurance laws or where payment solely reimburses the Employee
for medical or medically-related expenses incurred by the
Employee.
(c) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Company, Affiliated Company, or
Non-affiliated Employer. The same Hours of Service shall not be
credited both under paragraph (a) or paragraph (b), as the case may be,
and under this paragraph (c). These hours shall be credited to the
Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the
award, agreement, or payment is made.
(d) Hours of Service will be calculated and credited in a manner consistent
with Section 2530.200b-2 of the Department of Labor Regulations which
is incorporated herein by reference.
2.07 "Maternity or Paternity Leave of Absence" means an absence from work by
reason of the Employee's pregnancy, birth of a child of the Employee, placement
of a child with the Employee in connection with adoption, or any absence for
purposes of caring for such a child for a period immediately following such
birth or placement.
2.08 "Year of Service" means any Plan Year during which an Employee completes at
least 1,000 Hours of Service with the Company, Affiliated Company, or
Non-affiliated Employer.
Except as authorized by the Company, an Employee shall not receive credit for
any Years of Service (a) with an Affiliated Company prior to the date on which
such company first became an Affiliated Company, or (B) with a Non-affiliated
Employer prior to the date on which such employer first became a Participating
Employer.
2.09 Rules for Crediting Years of Service After a Break in Service..09 Rules for
Crediting Years of Service After a Break in Service.
If a Participant is reemployed by the Company, Affiliated Company, or
Non-affiliated Employer after a Break in Service, the following special rules
shall apply in determining the Participant's Years of Service:
a) In the case of a Participant who is reemployed before the occurrence of 5
consecutive Breaks in Service
--
(i) Years of Service completed prior to such break will not be
taken into account until the Participant has completed a Year
of Service following his or her reemployment; and
(ii) both pre-break and post-break Years of Service will count in
vesting his or her pre-break and post-break account balances.
(b) In the case of Participant who is reemployed after the occurrence of 5
or more consecutive Breaks in Service (or who is reemployed prior to
such occurrence but does not make the repayment provided for in Section
9.04) --
(i) separate Employer Contribution Accounts will be maintained to reflect the
Participant's pre-break and post-break account balances; and
(ii) all Years of Service after such Breaks in Service will be
disregarded for the purposes of vesting the pre-break account
balance, but both pre-break and post-break Years of Service
will count for purposes of vesting the account balance that
accrues after such break.
<PAGE>
ARTICLE 3
PARTICIPATION IN THE PLAN3 PARTICIPATION IN THE PLAN
3.01 Eligibility to Participate.01 Eligibility to Participate.
Each Eligible Employee who is employed by a Participating Employer shall be
eligible to participate in the Plan if he or she has
(a) attained age 21; and
(b) completed at least 1,000 Hours of Service during an Eligibility Computation
Period.
3.02 Commencement of Participation.02 Commencement of Participation.
Each Eligible Employee who meets the requirement of Section 3.01 shall become a
Participant in the Plan commencing as of the first Entry Date coinciding with or
next following his or her completion of such requirements.
3.03 Break in Service.03 Break in Service.
(a) If an Eligible Employee incurs a Break in Service before he or she
becomes eligible to participate in the Plan and he or she later is
reemployed as an Eligible Employee, he or she shall be treated as a new
Employee at the time of his or her reemployment for purposes of the
participation requirements.
(b) If an Eligible Employee incurs a Break in Service after he or she
becomes eligible to participate in the Plan and he or she later is
reemployed as an Eligible Employee, he or she shall become a
Participant in the Plan commencing on his or her Employment
Recommencement Date.
3.04 Cessation of Eligibility to Participate.04 Cessation of Eligibility to
Participate.
If a Participant transfers employment to a non-Participating Employer,
terminates employment, or ceases to be an Eligible Employee, his or her
participation in the Plan with respect to Salary Deferral Contributions,
Employer Matching Contributions, Employer Discretionary Contributions, and
Rollover Contributions will cease as of the date he or she ceases to be an
Eligible Employee. After such date, he or she shall continue to be a Participant
only with respect to the allocation of earnings, losses, and expenses made in
accordance with Article 7 until the balance credited to his or her Account is
distributed.
<PAGE>
ARTICLE 4
PARTICIPANT CONTRIBUTIONS
4.01 Salary Deferral Contributions.01 Salary Deferral Contributions.
(a) A Participant may elect to have Salary Deferral Contributions made on
his or her behalf in an amount equal to a full percentage of his or her
Compensation from 1 percent (1%) to 16 percent (16%) or such other
percentage as may be established by the Administrator. Such
contributions shall be made by the Participating Employer as a
reduction in the Compensation that would otherwise be payable to the
Participant.
(b) A Participant may change his or her election with respect to Salary
Deferral Contributions effective as of any Entry Date. A Participant
may revoke his or her election at any time; provided, however, that
such Participant may not again elect to have Salary Deferral
Contributions made on his or her behalf beginning earlier than the
first Entry Date occurring at least 90 days after the date of the
election revocation.
(c) A Participant's election to have Salary Deferral Contributions made on
his or her behalf, or to change or revoke his or her election, shall be
made in the form, manner, and in accordance with the notice
requirements, prescribed by the Administrator.
(d) Salary Deferral Contributions shall be transferred by a Participating
Employer to the Trust Fund as soon as practicable, but in no event
later than ninety (90) days after the day on which a Participant's
Compensation has been reduced with respect to such contribution.
(e) Salary Deferral Contributions shall be subject to the limitations set
forth in Article 6. The Administrator may reject, amend or revoke the
election of any Participant at any time if the Administrator determines
that such change or revocation is necessary to insure that the
limitations of Article 6 are not exceeded.
4.02 Rollover Contributions.
(a) Subject to approval of the Administrator, a Participant may at any time
contribute to the Trust Fund all or a portion of the cash he or she has
received from (i) another qualified plan under circumstances meeting
the rollover requirements of Section 402(c) of the Code, or (ii) a
conduit individual retirement account under circumstances meeting the
requirements of Section 408(d)(3)(A)(ii) of the Code. Such Rollover
Contribution must be made no later than sixty (60) days following the
date on which the Participant receives distribution from such other
plan or conduit individual retirement account.
(b) The Administrator may require such assurances and certifications as it
may deem necessary to determine whether the amounts to be rolled over
in fact meet the rollover treatment requirements of the Code and will
not affect the qualification of the Plan under Section 401(a) of the
Code.
<PAGE>
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.01 Employer Matching Contributions.01 Employer Matching Contributions.
(a) The Company, in its sole discretion, from time to time shall determine
the amount, if any, of Employer Matching Contributions to be made for
any Plan Year on behalf of Participants who are Eligible Employees of
the Company and each Participating Employer. The amount of Employer
Matching Contributions determined by the Company shall continue in
effect for subsequent Plan Years unless and until the Company provides
otherwise.
(b) The amount of the Employer Matching Contribution to be allocated to
each such Participant's Account for a Plan Year shall be equal to such
dollar amount, such percentage of a Participant's Salary Deferral
Contributions, or any combination thereof, as may be determined by the
Company in its sole discretion.
(c) Employer Matching Contributions made on behalf of any Participant shall
be subject to the limitations set forth in Article 6.
5.02 Employer Discretionary Contributions.
(a) For each Plan Year, the Company, in its sole discretion, shall
determine the amount, if any, of Employer Discretionary Contributions
to be made on behalf of Participants who are Employees of the Company
and each Participating Employer.
(b) The amount of the Employer Discretionary Contribution to be allocated
to each such Participant's Account for a Plan Year shall be determined
by either of the following methods, as selected by the Company in its
sole discretion: (i) a uniform dollar amount for each Participant or
(ii) the ratio that such Participant's Compensation for the Plan Year
bears to the Compensation for all such eligible Participants for the
Plan Year.
(c) Employer Discretionary Contributions made on behalf of any Participant
shall be subject to the limitations set forth in Article 6.
5.03 Time of Payment of Contributions.
Employer Matching Contributions and Employer Discretionary Contributions shall
be paid by a Participating Employer to the Trust Fund at such time or times as
may be determined by the Company or Participating Employer, but in no event
later than the due date (including extensions) prescribed by law for filing the
federal income tax return for the Participating Employer's taxable year for
which the Employer Matching Contributions and Employer Discretionary
Contributions are claimed as an income tax deduction.
5.04 Form of Contributions.
(a) Employer Matching Contributions and/or Employer Discretionary
Contributions to be allocated to Participants who are Employees of the
Company or a Participating Employer which is an Affiliated Company or a
Subsidiary may be made, at the discretion of the Company, in cash or in
Company Stock issued by the Company or purchased on a national
securities exchange.
(b) Unless the Company provides otherwise, Employer Matching Contributions
and Employer Discretionary Contributions to be allocated to
Participants who are Employees of a Participating Employer which is a
Non-affiliated Employer but which is not a Subsidiary shall be made in
cash.
(c) For purposes of allocating contributions to Participants, Company Stock
shall be valued as follows:
(i) The value of Company Stock purchased on a national securities
exchange shall be the purchase price of such Company Stock,
exclusive of commissions, which commissions, if any, shall be
paid by the Company.
(ii) The value of Company Stock which is issued by the Company for
the purpose of contributing it to the Plan shall be the
average of the closing price for the last five business days
of the calendar quarter for which the contribution is being
made.
<PAGE>
ARTICLE 6
LIMITATIONS ON CONTRIBUTIONS
6.01 Definitions.
The following definitions shall apply for purposes of this Article 6:
(a) "Annual Addition" means the sum of the following amounts allocated to a
Participant's Account during the Limitation Year:
(i)......employer contributions,
(ii).....employee contributions,
(iii)....forfeitures, and
(iv).....amounts described in Sections 415(l)(1) and 419(A)(d)(2) of the Code.
The amount of a Participant's Annual Additions shall be determined
without regard to the limitations set forth in Sections 6.02, 6.03,
6.04 and 6.05.
(b) "Highly Compensated Employee" means, with respect to any Plan Year,
(i) any Employee of the Company or an Affiliated Company who at any time during
the Look-back Year:
(A) received Section 415 Compensation in excess of the
dollar limitation contained in Section 414(q)(1)(B)
of the Code in effect at the beginning of such year;
(B) received Section 415 Compensation in excess of the
dollar limitation contained in Section 414(q)(1)(C)
of the Code in effect at the beginning of such year
and was a member of the top-paid 20 percent (20%) of
Employees during such year;
(C) was an officer of the Company or an Affiliated
Company and received Section 415 Compensation during
such year greater than 50 percent (50%) of the dollar
limitation in effect under Section 415(b)(1)(A) of
the Code at the beginning of such year; or
(D) was a 5-percent owner.
(ii) The term Highly Compensated Employee also means, with respect
to any Plan Year, any Employee of the Company or an Affiliated
Company who, at any time during such Plan Year, (A) is one of
the 100 employees who received the most Section 415
Compensation from the Company or an Affiliated Company during
the Plan Year, or (B) is a 5-percent owner.
(iii) A family member of a Highly Compensated Employee, or former
Highly Compensated Employee, shall be treated as a Highly
Compensated Employee to the extent required by Section 414(q)
of the Code and the regulations thereunder.
(iv) The Look-back Year shall be the 12-consecutive month period
immediately preceding the Plan Year; provided, however, that
the Administrator may elect for any Plan Year to make the
Look-back Year calculation on the basis of the calendar year
ending with or within such Plan Year in accordance with IRS
Regulation ' 1.414(q)-1T Q&A-14.
(v) The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
employees in the top-paid group, the top 100 employees, the
number of employees treated as officers and the compensation
that is considered, will be made in accordance with Section
414(q) of the Code and the regulations thereunder.
(vi) The determination of who is a Highly Compensated Employee of a
Non-affiliated Employer shall be made separately with respect
to such employers.
(c) "Limitation Year" means the Plan Year.
(d) "Non-highly Compensated Employee" means an Employee who is neither a
Highly Compensated Employee nor a "Family Participant" (within the
meaning of Section 414(q)(6)(B) of the Code).
(e) "Section 415 Compensation" means wages within the meaning of Section
3401(a) of the Code and all other payments of compensation to a
Participant by a Participating Employer (in the course of the
Participating Employer's trade or business) for which the Participating
Employer is required to furnish the employee a written statement under
Sections 6041(d), 6051(a)(3), and 6052 of the Code.
The maximum amount of Section 415 Compensation that may be taken into
account in any Plan Year shall not exceed the dollar limitation
contained in Section 401(a)(17) of the Code in effect as of the
beginning of the Plan Year.
6.02 Annual Limitation on Salary Deferral Contributions.
(a) In no event shall a Participant's Salary Deferral Contributions made
under the Plan, or any other qualified plan maintained by the Company,
Affiliated Company, or Non-affiliated Employer, during any calendar
year exceed the dollar limitation contained in Section 402(g) of the
Code in effect at the beginning of such year.
(b) Notwithstanding any other provision of the Plan, Salary Deferral
Contributions which exceed the dollar limitation in paragraph (a) for a
calendar year, plus any income or minus any loss allocable thereto,
shall be distributed to affected Participants no later than April 15 of
the following calendar year.
6.03 Limitations on Salary Deferral Contributions Applicable to Highly
Compensated Employees.
(a) The Actual Deferral Percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the greater
of:
(i) the Actual Deferral Percentage for Participants who are Non-highly
Compensated Employees for the Plan Year multiplied by 1.25; or
(ii) the Actual Deferral Percentage for Participants who are
Non-highly Compensated Employees for the Plan Year multiplied
by 2.0, provided that the Actual Deferral Percentage for
Participants who are Highly Compensated Employees does not
exceed the Actual Deferral Percentage for Participants who are
Non-highly Compensated Employees by more than two (2)
percentage points.
b) The limitation set forth in this Section 6.03 shall be determined in
accordance with the following rules:
(i) the limitation shall be applied separately to (A) the group of
Participants who are employees of the Company or an Affiliated
Company and (B) the group of Participants who are employees of
a Non-affiliated Company.
(ii) the limitation shall be applied after application of the
annual dollar limitation set forth in Section 6.02.
(c) "Actual Deferral Percentage" means, for a specified group of
Participants for a Plan Year, the average of the ratios (calculated
separately for each Participant in such group) of (i) the amount of
Salary Deferral Contributions actually paid over to the trust on behalf
of such Participant for the Plan Year to (ii) the Participant's Section
415 Compensation for such Plan Year but taking into account only
compensation paid after the employee first became a Participant in the
Plan.
.04 Limitations on Employer Matching Contributions Applicable to Highly
Compensated Employees.
(a) The Actual Contribution Percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the greater
of:
(i) the Actual Contribution Percentage of the Participants who are Non-highly
Compensated Employees for the Plan Year multiplied by 1.25; or
(ii) the Actual Contribution Percentage for Participants who are
Non-highly Compensated Employees for the Plan Year multiplied
by 2.0, provided that the Actual Contribution Percentage for
Participants who are Highly Compensated Employees does not
exceed the Actual Contribution Percentage for Participants who
are Non-highly Compensated Employees by more than two (2)
percentage points.
(b) The limitation set forth in this Section 6.04 shall be applied
separately to (i) the group of Participants who are employees of the
Company or an Affiliated Company and (ii) the group of Participants who
are employees of a Non-affiliated Company.
(c) "Actual Contribution Percentage" means, for a specified group of
Participants for a Plan Year, the average of the ratios (calculated
separately for each participant in such group) of (i) the amount of
Employer Matching Contributions actually paid over to the trust on
behalf of such Participant for the Plan Year to (ii) the Participant's
Section 415 Compensation for such Plan Year, but taking into account
only compensation paid after the employee first became a Participant.
6.05 Combined Limitations on Salary Deferral Contributions and Employer Matching
Contributions.
(a) In no event shall the Actual Deferral Percentage or the Actual
Contribution Percentage for Participants who are Highly Compensated
Employees for the Plan Year exceed the multiple use limitation set
forth in IRS Regulation ' 1.401(m)-2.
b) The limitation set forth in this Section 6.05 shall be determined in
accordance with the following rules:
(i) the limitation shall be applied separately to (A) the group of
Participants who are employees of the Company or an Affiliated
Company and (B) the group of Participants who are employees of
a Non-affiliated Company.
(ii) the limitation shall be applied after application of the limitations set
forth in Sections 6.03 and 6.04.
6.06 Correction of Excess Salary Deferral Contributions and Excess Employer
Matching Contributions.
In the event that any of the limitations set forth in Section 6.03, 6.04, and
6.05 are exceeded for any Plan Year, the Administrator shall take one or more
(either alone or in combination) of the following corrective actions no later
than the last day of the following Plan Year:
(a) Notwithstanding any other provision of this Plan, excess Salary
Deferral Contributions with respect to a Plan Year, plus any income or
minus any loss allocable thereto, shall be distributed to Participants
on whose behalf such excess contributions were made. The amount of a
Participant's excess Salary Deferral Contributions shall be determined
in accordance with Section 401(k)(8)(b) of the Code and the regulations
thereunder.
(b) Notwithstanding any other provision of this Plan, excess Employer
Matching Contributions with respect to a Plan Year, plus any income or
minus any loss allocable thereto, shall be treated as follows:
(i) To the extent not yet vested, such excess contributions shall
be treated as forfeitures with respect to Participants on
whose behalf such excess contributions were made. Amounts
forfeited pursuant to this Section 6.06(b) shall be applied to
reduce employer contributions in accordance with Section 9.05.
(ii) If not forfeitable, such excess contributions shall be
distributed to Participants on whose behalf such excess
contributions were made.
The amount of a Participant's excess Employer Matching Contributions
shall be determined in accordance with Section 401(m)(6)(B) of the Code
and the regulations thereunder.
(c) The Participating Employer may make "Qualified Nonelective
Contributions" (within the meaning of IRS Regulation '
1.401(k)-1(g)(7)) to the Plan on behalf of Participants who are
Non-highly Compensated Employees for such Plan Year. The amount of the
Qualified Nonelective Contributions to be allocated to each such
Participant's Account shall be equal to the ratio that such
Participant's Compensation for the Plan Year bears to the Compensation
for all such Participants who are Non-highly Compensated Employees.
6.07 Forfeiture of Employer Matching Contributions.
Notwithstanding anything in this Plan to the contrary, Employer Matching
Contributions shall be forfeited to the extent that such contributions relate to
excess Salary Deferral Contributions made on behalf of a Participant.
6.08 Limitations on Contributions Applicable to All Participants.
(a) In no event shall the Annual Addition to a Participant's Account for
any Limitation Year exceed the lesser of:
(i) $30,000 (or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1) of the Code
as in effect for the Limitation Year), or
(ii) 25 percent (25%) of the Participant's Section 415 Compensation for the
Limitation Year.
(b) If a Participant also is covered under another defined contribution
plan, a welfare benefit fund (as defined in Section 419(e) of the
Code), or an individual medical account (as defined in Section
415(l)(2) of the Code), maintained by a Section 415 Employer, then the
Annual Addition which may be credited to a Participant's Account under
paragraph (a) above for any Limitation Year shall be reduced by the
Annual Additions credited to the Participant's account under such other
plans and welfare benefit funds for the same limitation year.
(c) If a Participant also participates, or has previously participated, in one
or more defined benefit plans (as defined in Section 414(j) of the Code)
maintained by a Section 415 Employer, then in no event shall the sum of the
Participant's Defined Contribution Fraction (as defined in Section 415(e)(3) of
the Code) and the Participant's Defined Benefit Fraction (as defined in Section
415(e)(2) of the Code) for such Participant exceed 1.0 in any Limitation Year.
If such limitation is exceeded, then Participant's Annual Addition to this Plan
shall be reduced to the extent necessary so that such fraction does not exceed
1.0, but only if the defined benefit plan in which the Participant is
participating does not permit a reduction of the Participant's benefit
thereunder that would reduce such fraction to 1.0.
(d) The limitations set forth in this Section 6.08 shall be applied
separately to (A) the group of Participants who are employees of the
Company or a Section 415 Employer and (B) the group of Participants who
are employees of a Participating Employer which is not a Section 415
Employer.
(e) "Section 415 Employer" means any corporation which is a member of a
controlled group of corporations (as defined in Section 414(b) of the
Code as modified by Section 415(h)) which includes the Company; any
trade or business (whether or not incorporated) which is under common
control (as defined in Section 414(c) of the Code as modified by
Section 414(h)) with the Company; any organization (whether or not
incorporated) which is a member of an affiliated service group (as
defined in Section 414(m) of the Code) which includes the Company; and
any other entity required to be aggregated with the Company pursuant to
regulations under Section 414(o) of the Code.
6.09 Reduction of Excess Annual Additions.
In the event that the Annual Addition credited to a Participant's Account
exceeds the limitations contained in Section 6.08 of the Plan in any Limitation
Year, then such excess Annual Addition shall be reduced as follows:
(a) First, the amount of the Participant's Employer Discretionary
Contributions shall be reduced to the extent that such reduction
results in a reduction of the amount by which a Participant's Annual
Addition exceeds such limitations.
(b) Second, the amount of the Participant's Employer Matching Contributions
shall be reduced to the extent that such reduction results in a
reduction of the amount by which a Participant's Annual Addition
exceeds such limitations.
(c) Third, the amount of the Participant's Salary Deferral Contributions
shall be reduced. Any reduction of Salary Deferral Contributions shall
be paid to the Participant as soon as administratively feasible.
Any reduction of Employer Matching Contributions shall be held unallocated in a
suspense account and applied to reduce employer contributions in succeeding Plan
Years in accordance with Section 9.05.
Notwithstanding anything contained herein or in the Trust Agreement to the
contrary, if the Plan is terminated while there remains a balance in any
suspense account, such amounts shall be paid to the Participating Employer which
contributed said amounts.
6.10 Deduction Limitation Applicable to Employer Contributions.10 Deduction
Limitation Applicable to Employer Contributions.
In no event shall the amount of employer contributions for any Plan Year exceed
the amount deductible with respect to such Plan Year under Section 404 of the
Code.
<PAGE>
ARTICLE 7
PARTICIPANTS' ACCOUNTS
7.01 Separate Accounts
An Account in the Trust Fund shall be established and maintained for each
Participant. The records of each such Account shall reflect the manner in which
each Account is invested and the value of such investments, any withdrawals by
or distributions to the Participant or other persons, any charges or credits
made to such Account, and such other information as the Administrator or the
Trustee may deem appropriate.
7.02 Contributions to Account
All contributions made by a Participating Employer on behalf of a Participant
shall be paid to the Trustee and shall be allocated to the Participant's Account
in accordance with the provisions of this Plan.
7.03 Valuation of Accounts
The value of each Participant's Account shall be determined as of each Valuation
Date, at which time the Administrator shall adjust the balance of each
Participant's Account to reflect any of the following which have occurred since
the last Valuation Date:
(a) contributions, withdrawals, distributions and other charges or credits
attributable to the Participant's Account;
(b) the net earnings, gains, losses and expenses and any appreciation or
depreciation in market value of the Investment Funds selected by the
Participant for investment of his or her Account; and
(c) with respect to any amounts credited to the Participant's Account which
are not invested in any of the Investment Funds, the net increase or
decrease, as the case may be, in the value of the Trust Fund due to
investment earnings, gains or losses and any expenses of the Trust
Fund, which adjustment shall be made in the same proportion that the
balance in the Participant's Account as of the last Valuation Date
(reduced by any withdrawals, distributions or transfers from such
Account since the last Valuation Date and by the principal amount of
all outstanding loans to such Participant) bore to the total balance of
all Participants' Accounts (as so reduced) as of such last Valuation
Date.
7.04 Segregated Accounts
The Administrator may direct the Trustees to establish a segregated account and
to transfer to such segregated account the balance of the Account of any
Participant who pursuant to Article 13 has elected to defer distribution. The
Trustees shall invest such segregated accounts in such Investment Fund(s) or
other investment vehicles as may be selected by the Administrator.
<PAGE>
ARTICLE 8
TRUST FUND AND INVESTMENT OF ACCOUNTS
8.01 Trust Fund and Trustees
The Company may execute a Trust or Trusts with a Trustee or Trustees to
establish a Trust Fund under the Plan. Any Trust Agreement is designated as, and
shall constitute, a part of this Plan and all rights which may accrue to any
person under the Plan shall be subject to the terms and conditions of such Trust
Agreement. The Company may modify the Trust Agreement from time to time to
accomplish the purposes of the Plan.
8.02 Investment Funds
(a) The Administrator shall select such investment vehicles as it
determines appropriate to meet the requirements of Section 404(c) of
ERISA and the regulations thereunder relating to the investment of
Participants' Accounts at the direction of the Participants. The
Administrator may select such additional investment vehicles as it
determines appropriate for the investment of Participants' Accounts,
including, but not limited to Company Stock.
(b) The Administrator may prescribe such rules and restrictions on the
investment of Participants' Accounts in any such investment vehicle as
it deems appropriate.
(c) In the event that the fees of any investment manager or investment
advisor are attributable to a particular investment vehicle, the
Administrator may, in its discretion, determine how such expenses shall
be allocated among Participants' Accounts.
8.03 Investment Direction
(a) The Administrator, or its designees, shall provide Participants with
such information and materials with respect to the Investment Funds as
may be required by Section 404(c) of ERISA.
(b) Subject to the limitations imposed by Section 8.04 on the investment in
Company Stock, a Participant shall have the right to direct the
Administrator to invest his or her Account, including cash dividends
attributable to Company Stock allocated to the Participant's Account,
in any of the Investment Funds. A Participant's investment direction
(or any change in investment direction) shall be made in the manner and
in such form as the Administrator shall direct.
(c) A Participant's investment election shall remain in effect until the
Participant properly makes a change of election in accordance with the
procedures established by the Administrator. In the event that any
Participant shall not have directed the investment of all or a portion
of the balance in his or her account at any time, the Participant shall
be deemed to have directed that such balance be invested in a money
market (or equivalent) fund and such assets shall remain in such
Investment Fund until such time as the Participant directs otherwise.
(d) A Participant may change his or her investment election with respect to
existing investments, new contributions, or both, at such time or times
as may be permitted by the Administrator. Such change must be made in
writing or in accordance with such other methods as may be established
by the Administrator in accordance with the requirements of Section
404(c) of ERISA.
8.04 Limitations on Investment in Company Stock
(a) Except as otherwise provided in this Section 8.04 and in Article 12,
the portion of a Participant's Account which is invested in Company
Stock shall not be eligible for investment in any other Investment
Fund. The investment limitation set forth in this Section 8.04 shall
not apply to cash dividends attributable to Company Stock allocated to
the Participant's Account.
(b) The Administrator, in its sole discretion, may from time to time adopt
rules permitting Participants to elect to invest all or a portion of
the Company Stock held in their Accounts in another Investment Fund.
8.05 Voting and Tendering of Company Stock.
(a) Participants' Stockholder Rights. Each Participant or Beneficiary who
has shares of Company Stock allocated to his or her Accounts shall have
the right to direct the Designated Fiduciary as to the exercise of
voting, tender, and other stockholder rights with respect to such
shares.
(b) Action on Participants' Instructions. The Designated Fiduciary shall
exercise voting, tender, and other stockholder rights in accordance
with the instructions received from Participants with respect to
Company Stock. For this purpose, the Designated Fiduciary shall combine
fractional shares and exercise rights with respect to such shares to
the extent possible to reflect the instructions of the Participants.
(c) Action Where No Timely or Valid Instructions Received. In the event
that a Participant fails to provide timely or valid instructions as to
how rights with respect to Company Stock shall be exercised, the
Designated Fiduciary shall exercise rights with respect to such shares,
as the Designated Fiduciary, in its sole discretion, determines
appropriate and in accordance with its fiduciary obligations under
ERISA.
(d) Treatment of Unallocated Shares. In the case of Company Stock held by
the Trust which are not allocated to Participants' Accounts, the
Designated Fiduciary shall exercise rights with respect to such
unallocated shares as the Designated Fiduciary, in its sole discretion,
determines appropriate and in accordance with its fiduciary obligations
under ERISA.
(e) Confidentiality of Information. All information and instructions
received from Participants or Beneficiaries with respect to the
exercise of voting, tender, and other stockholder rights shall be held
in the strictest confidence by the Administrator and the Designated
Fiduciary, except to the extent necessary to comply with federal laws
or state laws not preempted by ERISA.
<PAGE>
ARTICLE 9
VESTING AND FORFEITURE
9.01 Salary Deferral Contribution Account and Rollover Contribution Account.
A Participant's interest in his or her Salary Deferral Contribution Account and
Rollover Contribution Account, if any, shall be fully vested and nonforfeitable
at all times.
9.02 Employer Contribution Account.
(a) Upon a Participant's Disability, death or attainment of age 65 while an
Employee, the Participant's interest in his or her Employer
Contribution Account, shall be fully vested and nonforfeitable.
(b) If a Participant's termination of employment occurs before age 65 for
any reason other than Disability or death, the Participant's vested
interest in his or her Employer Contribution Account shall be
determined in accordance with the following schedule:
<PAGE>
Years of Service Vested Interest
1 20%
2 40%
3 60%
4 80%
5 100%
<PAGE>
(c) The portion, if any, of a Participant's Account which is attributable
to the Special Contribution allocated effective as of October 1, 1991
shall be fully vested and nonforfeitable on the date on which such
Participant completes one Year of Service following the date of the
Special Contribution.
9.03 Forfeiture.03 Forfeiture.
If (a) a Participant terminates employment and receives (or is deemed to
receive) a distribution of his or her entire vested account balance, or (b) a
Participant incurs 5-consecutive Breaks in Service, then the nonvested portion
of his or her Employer Contribution Account will be treated as a forfeiture. For
purposes of this Section 9.03, if the value of a Participant's vested account
balance is zero, then such Participant shall be deemed to have received a
distribution of his or her entire vested account balance as of the date of his
or her termination of employment.
9.04 Restoration of Forfeitures.04 Restoration of Forfeitures.
(a) In the case of a Participant who received a distribution of his or her
entire vested account balance under the Plan and who again becomes an
Eligible Employee, then the amount forfeited pursuant to Section 9.03
shall be restored if he or she repays the full amount of the
distribution before the earlier of:
(i) 5 years after the first date on which the Participant is subsequently
reemployed; or
(ii) the date the Participant incurs 5 consecutive Breaks in
Service following the date of the distribution.
(b) In the case of a Participant who is deemed to have received a
distribution of his or her entire vested interest under the Plan and
who again becomes an Eligible Employee, then the amount forfeited
pursuant to Section 9.03 shall be restored if the Participant again
becomes an Eligible Employee before the date on which he or she incurs
5 consecutive Breaks in Service.
(c) A Participant who is reemployed after the occurrence of 5 consecutive
Breaks in Service shall not have any restoration rights with respect to
the previously forfeited balance in his or her Employer Contribution
Account.
9.05 Application of Forfeitures.
(a) Forfeitures shall be used, at the discretion of the Administrator, to
pay administrative expenses of the Plan or to reduce the amount of
Employer Matching Contributions and Employer Discretionary
Contributions which are to be made by the Participating Employer for
the current or following Plan Year.
(b) If an amount must be restored to a reemployed Participant's Employer
Contribution Account in accordance with Section 9.04, such restoration
shall be made, as directed by the Participant's Participating Employer,
from forfeitures attributable to, or net income of the Trust which
would otherwise be allocated to Participants employed by such
Participating Employer, and/or from a contribution made by such
Participating Employer for that purpose.
9.06 Change in Vesting Schedule.
If the Plan's vesting schedule is amended, or the Plan is amended in any way
that directly or indirectly affects the calculation of a Participant's vested
interest in his or her Employer Contribution Account, each Participant with at
least three (3) years of Credited Service may elect to have his or her vested
interest calculated under the Plan without regard to such amendment or change. A
Participant's election under this section must be made during the period
beginning with the date the amendment is adopted or deemed to be made and ending
on the latest of:
(a) sixty (60) days after the amendment is adopted;
(b) sixty (60) days after the amendment becomes effective; or
(c) sixty (60) days after the Participant is issued written notice of the
amendment by the Company.
9.07 Vesting Upon Termination Following a Change in Control
(a) Notwithstanding the vesting schedule set forth in Section 9.02 above,
in the event that within the two-year period following a Change in
Control the employment of a Participant who is an employee of the
Company or an Affiliated Company is terminated by the Company or any
Affiliated Company for any reason other than Cause, his or her interest
in the Employer Contribution Account shall be fully vested and
nonforfeitable.
(b) For purposes of this Section 9.07, a Change in Control shall be deemed
to occur upon the occurrence of one the events described in Appendix B.
(c) For purposes of this Section 9.07, an Employee shall be terminated for
Cause if he or she is terminated by the Company or an Affiliated
Company because he or she (a) intentionally failed to perform
reasonable assigned duties, (b) acted dishonestly or engaged in willful
misconduct in the performance of his or her duties, (c) engaged in a
transaction connection with the performance of his duties to the
Company for personal profit to himself or (d) willfully violated any
law, rule or regulation in connection with the performance of his
duties (other than traffic violations or similar offenses).
<PAGE>
ARTICLE 10
LOANS TO PARTICIPANTS
10.01 General.
All Participants who are Eligible Employees shall be eligible to receive loans
from the Plan. The Administrator shall prescribe the terms and conditions for
making loans to Participants from their Accounts consistent with the provisions
of this Article and the prohibited transaction exemption requirements of the
Code and ERISA and other applicable law.
10.02 Maximum Loan Amount.
In no event shall any loan made pursuant to this Article 10 be in an amount
which would cause the outstanding aggregate balance of all loans made to the
Participant under this Plan and all other qualified plans maintained by the
Company or any Affiliated Company to exceed the lesser of (a) or (b):
(a) $50,000 reduced by the excess (if any) of
(i) the highest outstanding balance of loans from the Plan to the
Participant during the one-year period ending on the day
before the date the loan is made, over
(ii) the outstanding balance of loans from the Plan to the
Participant on the date the loan is made; or
(b) 50% of the current balance of the vested portion of the Participant's
Account , determined as of the date on which the loan is approved.
10.03 Loan Terms.
Loans shall be made to Participants in accordance with the following terms:
(a) A loan to a Participant shall be evidenced by the Participant's
recourse promissory note in the form prescribed by the Administrator.
(b) The period for repayment of a loan shall not exceed 5 years; provided,
however, that a loan used to acquire a dwelling unit which within a
reasonable time is to be used (determined at the time the loan is made)
as the Participant's principal residence may be repaid over a period of
up to 15 years.
(c) Interest shall be charged on the loan at a reasonable rate to be
determined by the Administrator at the time the loan is made.
(d) Loan repayments on principal and interest shall be amortized in level
payments over payment periods to be determined by the Administrator in
its discretion, but not less frequently than quarterly, over the term
of the loan.
10.04 Collateral.
Notwithstanding anything to the contrary in Section 18.03, a Participant who
accepts a Plan loan shall be deemed to have assigned to the Trustee, as security
for the loan, all of his or her right, title and interest in the Plan. The
Administrator may require such additional security for the loan as it deems
necessary or prudent.
10.05 Treatment of Loan Payments.
A loan shall be considered to be an investment of the Trust Fund. Any payment to
the Plan of interest on a loan to a Participant, as well as repayments of loan
principal, shall be credited to the Participant's Account and shall be accounted
for as investment earnings or return of principal, as the case may be, on that
Account.
10.06 Default.
(a) If not paid as and when due, in addition to any other remedies
permitted by law, any outstanding Plan loan (including interest accrued
and unpaid thereon) to a Participant may be charged against the
Participant's Account. The outstanding loan balance shall be treated as
repaid to the extent of such charge.
(b) Except as otherwise provided in paragraph (c) below, the Administrator
may elect to charge the unpaid loan balance against the Participant's
Account whether or not the Participant has attained age 59-1/2 or
terminated employment, and whether or not such charge is on account of
any financial hardship of the Participant.
(c) The Administrator may not charge any unpaid loan balance against a
Participant's Salary Deferral Contribution Account unless the
Participant has attained age 59-1/2, has terminated employment, or
qualifies for a financial hardship withdrawal in accordance with
Section 10.03.
<PAGE>
ARTICLE 11
WITHDRAWALS DURING SERVICE
11.01 Financial Hardship.
Upon evidence of "hardship" satisfactory to the Administrator, a Participant
may, in the form and manner prescribed by the Administrator, withdraw in cash
that part of the balance in his or her Salary Deferral Contribution Account (but
excluding any income allocable to Salary Deferral Contributions) which the
Administrator determines is needed by the Participant on account of such
hardship. For this purpose, "hardship" shall mean immediate and heavy financial
need of the Participant that cannot be met by other reasonably available
financial resources of the Participant.
The Administrator's determination as to whether a hardship exists and the amount
necessary to be distributed in the event of such hardship shall be made in
accordance with the following rules:
(a) The determination of whether an immediate and heavy financial need
exists shall be based on all relevant facts and circumstances. As
determined in the Administrator's discretion (which shall be exercised
in a uniform and nondiscriminatory manner), such financial need may
include, but is not limited to:
(i) medical expenses (described in Section 213(d) of the Code)
incurred by the Participant, the Participant's Spouse or
dependents (as defined in Section 152 of the Code);
(ii) purchase (excluding mortgage payments) of a principal residence for the
Participant;
(iii) funeral expenses for a member of the Participant's immediate
family;
(iv) payment of tuition and related educational fees for the next
12 months of post-secondary education for the Participant, the
Participant's Spouse, children, or dependents; or
(v) the need to prevent the eviction of the Participant from his
or her principal residence or foreclosure on the mortgage of
the Participant's principal residence.
(b) The Administrator shall not permit a hardship withdrawal to be made unless
it determines, based upon all relevant facts and circumstances, that the amount
to be distributed is not in excess of the amount required to relieve the
financial need and that such need cannot be satisfied from other resources
reasonably available to the Participant. For this purpose, the Participant's
resources shall be deemed to include those assets of the Participant's Spouse
and minor children that are reasonably available to the Participant. A
distribution may be treated as necessary to satisfy a financial need if the
Administrator relies upon the Participant's written representations, unless the
Employer has actual knowledge to the contrary, that the need cannot be relieved:
(i) through reimbursement or compensation by insurance or otherwise;
(ii) by reasonable liquidation of the Participant's assets, to the
extent such liquidation would not itself cause an immediate
and heavy financial need;
(iii) by cessation of elective deferrals and voluntary contributions
under the Plan; or
(iv) by other distribution or loans from the Plan or any other
qualified retirement plan, or by borrowing from commercial
sources on reasonable commercial terms.
(c) Notwithstanding paragraph (b), the Administrator may permit a hardship
withdrawal to be made if it determines that all of the following
conditions are satisfied:
(i) the distribution is not in excess of the amount to the
immediate and heavy financial need of the Participant
(including any amounts necessary to pay any federal, state, or
local income taxes or penalties which may result from the
distribution);
(ii) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Company and an
Affiliated Company;
(iii) the Participant's Salary Deferral Contributions under this
Plan, and the Participant's elective deferrals and voluntary
employee contributions under all other plans maintained by the
Company and an Affiliated Company, are suspended for at least
12 months after receipt of the hardship distribution; and
(iv) the Participant may not make Salary Deferral Contributions
under this Plan, or elective deferrals under all other plans
maintained by the Company or an Affiliated Company, for the
Participant's taxable year immediately following the taxable
year of the hardship distribution, in excess of:
(A) the applicable limit under Section 402(g) of the Code
for such next taxable year; reduced by
(B) the amount of such Participant's elective deferrals
for the taxable year of the hardship distribution.
11.02 Withdrawals After Age 59-1/2.
A Participant who has attained age 59-1/2 and who is 100% vested in his or her
Employer Contribution Account may, in the form and manner prescribed by the
Administrator, direct payment to himself in cash of part or all of the balance
of the Participant's Account.
11.03 General Rules Applying to Withdrawals.
The following rules shall apply to withdrawals made under this Article 11:
(a) Notwithstanding any other provisions of this Article, no payment shall
be made to a Participant to whom a loan is outstanding under Article 11
if such payment would cause the balance of the Participant's Account to
be less than 250% of the unpaid principal of the loan unless the
Administrator determines, in its sole discretion, that a lower balance
is permissible in the case of a hardship withdrawal.
(b) Distribution of any withdrawal under this Article shall be made as soon
as practicable following the Valuation Date selected by the
Administrator for effecting such payment, unless the Administrator, in
its sole discretion, elects to make payment earlier.
(c) A Participant may not make a withdrawal from his or her Account more
often than once in any twelve (12) month period or at such other times
as may be permitted pursuant to uniform rules prescribed by the
Administrator.
(d) Effective for withdrawals made after December 31, 1992, a Participant
or a designated Beneficiary who is the Participant's spouse may elect
to have all or any portion of the amount withdrawn pursuant to this
Article 11 which is eligible for rollover distribution under Section
402(c) of the Code transferred directly to an eligible retirement plan
(as defined in Section 401(a)(31) of the Code).
<PAGE>
ARTICLE 12
ESOP ACCOUNT DIVERSIFICATION RIGHTS
12.01 General.
(a) Each Participant who
(i) is a Qualified Participant, and
(ii) has Company Stock credited to his or her ESOP Account with a
fair market value of more than $500 as of the Valuation Date
immediately preceding the date on which he or she first
becomes a Qualified Participant,
shall be entitled to have shares of Company Stock credited to his or
her ESOP Account distributed or invested in accordance with the
requirements of this Article 12 during the Diversification Election
Period.
(b) "Diversification Election Period" means the 6-Plan Year period
beginning with the Plan Year in which a Participant first becomes a
Qualified Participant.
(c) "Qualified Participant" means a Participant (i) who has an ESOP Account
and (ii) who has attained age 55 and completed 10 years of
participation in the Plan and the Countrywide Credit Industries, Inc.
Profit Sharing Stock Ownership Plan.
12.02 Diversification of ESOP Account.
(a) A Qualified Participant may elect to have shares of Company Stock
subject to the diversification requirements of this Article 12
distributed or invested in accordance with this Section 12.02 during
the 90-day period following the last day of each Plan Year during the
Diversification Election Period.
(b) The maximum number of shares of Company Stock which a Qualified
Participant may elect to have distributed or invested for any year
during the Diversification Election Period shall be equal to (i)
reduced by (ii) below:
(i) 25 percent (25%), or with respect to the last year of the
Diversified Election Period, 50 percent (50%), of the sum of
(A) the total number of shares allocated to the
Participant's ESOP Account as of the close of the
Plan Year, plus
(B) the number of shares previously distributed or
invested pursuant to this Article 12; reduced by
(ii) the number of shares previously distributed or invested pursuant
to this Article 12.
(c) A Qualified Participant may elect to have shares subject to the
diversification requirements of this Article 12 distributed or invested
as follows:
(i) The Participant may elect to have the shares distributed in a
single lump sum distribution; (ii) The Participant may elect to have
all or any portion of the shares (provided that the such
shares have an aggregate fair market value of $500) which are
eligible for rollover distribution under Section 402(c) of the
Code transferred directly to an eligible retirement plan (as
defined in Section 401(a)(31) of the Code); or
(iii) The Participant may elect to have the shares reinvested in any
of the Investment Funds in accordance with Section 8.03.
(d) Distribution or investment of the shares shall be made within 90 days
after the close of the Participant's 90-day election period.
<PAGE>
ARTICLE 13
DISTRIBUTIONS AFTER TERMINATION OF EMPLOYMENT
13.01 Termination of Employment Prior to Age 65.
In the event a Participant terminates employment with the Company or an
Affiliated Company prior to attaining age 65 for any reason other than death,
the Participant shall be entitled to receive a distribution of the vested
balance in his or her Account as of the Valuation Date coincident with or next
following termination of employment.
(a) If the vested balance of the Participant's Account does not exceed
$3,500, distribution shall be made as soon as practicable following the
earlier of:
(i) the date on which the Administrator receives a properly completed
distribution election form; or
(ii) the expiration of the 90-day period beginning on the date on
which the Administrator provides the notice required by
Section 402(f) of the Code to the Participant.
(b) If the vested balance of a Participant's Account exceeds $3,500, no
distribution will be made without the Participant's prior written
consent. If such consent is not given, distribution shall be made as
soon as practicable following the earlier of:
(i) the date on which the Administrator receives a properly completed
distribution election form; or
(ii) the later of the Participant's attainment of age 65 or the
expiration of the 90-day period beginning on the date on which
the Administrator provides the notices required by Section
402(f) of the Code and IRS Regulation ' 1.411(a)-11(c) to the
Participant.
13.02 Termination of Employment At or After Age 65.
In the event a Participant terminates employment with the Company or an
Affiliated Company at or after attaining age 65, the Participant shall be
entitled to receive a distribution of the balance in his or her Account as of
the Valuation Date coincident with or next following termination of employment.
Distribution shall be made as soon as practicable following the earlier of:
(a) the date on which the Administrator receives a properly completed
distribution election form; or
(b) the expiration of the 90-day period beginning on the date on which the
Administrator provides the notices required by Section 402(f) of the
Code and IRS Regulation ' 1.411(a)-11(c) to the Participant.
13.03 Death.
(a) In the event a Participant dies before payment of his or her Account
begins, the Participant's designated Beneficiary or estate shall be
entitled to receive distribution of the Account as of the Valuation
Date coincident with or next following the Participant's death.
Distribution shall be made as soon as practicable following the earlier
of:
(i) the date on which the Administrator receives a properly completed
distribution election form; or
(ii) the expiration of the 90-day period beginning on the date on
which the Administrator provides the notices required by
Section 402(f) of the Code and IRS Regulation ' 1.411(a)-11(c)
to the designated Beneficiary.
(b) Notwithstanding paragraph (a), in no event shall distribution of the Account
begin later than:
(i) if (A) the designated Beneficiary is the Participant's Spouse
and (B) the balance of the Participant's Account exceeds
$3,500, the date on which the Participant would have attained
age 70-1/2; or
(ii) in any other case, one year after the Participant's death.
13.04 Beneficiary Designation.
(a) Each Participant may designate, in the form and manner prescribed by the
Administrator, one or more persons as the Beneficiary of the Participant's
Account; provided, however, that if the Participant is survived by a spouse,
such spouse shall be the Participant's sole Beneficiary unless the spouse
consents, in writing, to the Participant's designation of one or more other
persons to be the Beneficiary of all or a portion of the Participant's Account.
Any Beneficiary designation made by a Participant may be changed or revoked by
the Participant at any time or from time to time during the Participant's
lifetime; provided, however, that any such change or revocation shall not reduce
the portion of the Account payable to the Participant's spouse without the
written consent of the spouse. Any written consent required of a Participant's
spouse shall acknowledge the effect of the consent and shall be witnessed by a
representative of the Plan or a notary public. The consent of a spouse shall not
be required if the Administrator determines that the spouse cannot be located or
that the Code and ERISA otherwise do not require such consent.
(b) If no Beneficiary is designated or survives the Participant, the
balance of the Participant's Account shall be paid to the Participant's
Spouse, if living; otherwise, to his or her estate.
13.05 Form of Payment.
(a) A Participant's Account shall be distributed to the Participant or the
Participant's Beneficiary in a single lump sum payment.
(b) The portion of a Participant's Account which is invested in the
Investment Funds shall be distributed in cash. The portion of a
Participant's Account which is invested in Company Stock shall be
distributed at the election of the Participant or Beneficiary in the
form of (i) cash or (ii) whole shares of Company Stock which are
attributable to such Account as of the applicable Valuation Date and
the value of any fractional share shall be distributed in cash.
13.06 Direct Transfer of Eligible Rollover Distribution.
Effective for distributions made after December 31, 1992, a Participant or a
designated Beneficiary who is the Participant's spouse may elect to have all or
any portion of his or her Account which is eligible for rollover distribution
under Section 402(c) of the Code transferred directly to an eligible retirement
plan (as defined in Section 401(a)(31) of the Code).
13.07 Mandatory Distribution.
Notwithstanding any other Plan provision, benefit payments to a Participant
shall commence no later than April 1 of the calendar year following the calendar
year in which the Participant attains age 70-1/2.
<PAGE>
ARTICLE 14
ADMINISTRATION
14.01 Administrator.
The Company shall be the "Administrator" of the Plan within the meaning of
Section 3(16)(A) of ERISA and the "Named Fiduciary" for purposes of Section
402(a)(2) of ERISA. Such duties shall be performed on behalf of the Company by
such person or committee as may be appointed by the Board of Directors.
14.02 Administrator's Authority and Powers.
(a) The Administrator shall have full authority and power to administer and
construe the Plan, subject to applicable requirements of law. Without
limiting the generality of the foregoing, the Administrator shall have
the following powers and duties:
(i) To require any person to furnish such information as it may
request for the purpose of the proper administration of the
Plan as a condition to receiving benefits under the Plan;
(ii) To make and enforce such rules and regulations, and to
prescribe such forms, as it deems necessary or proper for the
efficient administration of the Plan;
(iii) To interpret the Plan, and to resolve ambiguities,
inconsistencies and omissions, which determinations shall be
final and conclusive on all persons claiming benefits under
the Plan;
(iv) To decide all questions concerning the Plan, including the
eligibility of any person to participate in the Plan and the
status and rights of any Participant or Beneficiary under the
Plan;
(v) To determine the amount of benefits which shall be payable to
any person in accordance with the provisions of the Plan; and
(vi) To exercise all other powers specified in the Plan.
(b) The Administrator may adopt such rules for the conduct of its affairs as it
deems appropriate.
14.03 Delegation of Duties.
The Administrator may delegate such of its duties and may appoint such
accountants, actuaries, legal counsel, investment advisors, investment managers,
claims administrators, specialists and other persons as the Administrator deems
appropriate in connection with administering the Plan. The Administrator shall
be entitled to rely conclusively upon, and shall be fully protected in any
action taken by them in good faith in reliance upon any opinions or reports
furnished them by any such experts or other persons.
14.04 Fiduciary Responsibilities With Respect to Company Stock.
The Company shall appoint a person to act as the Designated Fiduciary with
respect to all matters affecting Participants' rights with respect to Company
Stock as described in Section 8.05. Such fiduciary shall have full authority and
power to take any such actions as it deems necessary or appropriate to ensure
that such rights are enforced.
14.05 Charges on Participants' Accounts.
To the extent permitted under ERISA, the Administrator may, in its discretion,
charge Participants' Accounts for the reasonable expenses of carrying out a
Participant's investment instructions, distributing benefits from a
Participant's Account, or providing a loan from a Participant's Account.
14.06 Expenses.
All expenses incurred in connection with the administration of the Plan,
including, without limitation, administrative expenses and compensation and
other expenses and charges of any person who shall be employed by the
Administrator pursuant to Section 14.03, shall be paid from the Trust Fund
unless paid separately by the Participating Employers.
14.07 Compensation.
No person or member of a committee serving as the Administrator who is a
full-time employee of a Participating Employer shall receive any compensation
for services as member of the Administrator. Any expenses of the Administrator
shall be paid from the Trust Fund, unless paid by the Participating Employees.
14.08 Exercise of Discretion.
Any person with any discretionary power in the administration of the Plan shall
exercise such discretion in a nondiscriminatory manner and shall discharge his
or her duties with respect to the Plan in a manner consistent with the
provisions of the Plan and with the standards of fiduciary conduct contained in
Title I, Part 4, of ERISA.
14.09 Fiduciary Liability.
In administering the Plan, neither the Administrator nor any person or member of
a committee serving as the Administrator nor any person to whom the
Administrator delegates any duty or power in connection with administering the
Plan shall be liable, except in the case of his or her own willful misconduct,
for:
(a) any action or failure to act,
(b) the payment of any amount under the Plan,
(c) any mistake of judgment made by him or her or on his or her behalf, or
(d) any omission or wrongdoing of any member of the Administrator. No
member of the Administrator shall be personally liable under any
contract, agreement, bond, or other instrument made or executed by him
or her or on his or her behalf as a member of the Administrator.
14.10 Indemnification by Participating Employers.
To the extent not compensated by insurance or otherwise, the Participating
Employers shall indemnify and hold harmless each person and each member of a
committee serving as the Administrator, and each employee of a Participating
Employer designated by the Administrator to carry out fiduciary responsibility
with respect to the Plan from any and all claims, losses, damages, expenses
(including counsel fees approved by the Company) and liabilities (including any
amount paid in settlement with the approval of the Company), arising from any
act or omission of such member, except where the same is judicially determined
to be due to willful misconduct of such member or employee. Anything herein to
the contrary notwithstanding, no assets of the Plan may be used for any such
indemnification.
14.11 Plan Participation by Fiduciaries.
No person who is a fiduciary with respect to the Plan shall be precluded from
being a Participant therein upon satisfying the requirements for eligibility.
14.12 Missing Persons.
In the event that the Administrator is unable to locate a Participant or
Beneficiary within five (5) years after an Account becomes payable, the
Administrator shall take the following actions:
(a) mail notice by registered mail, return receipt requested, to the last known
address;
(b) if no reply is response is received within sixty (60) days, the
Administrator shall take such further diligent effort to ascertain the
whereabouts of such Participant or Beneficiary as the Administrator
deems appropriate under ERISA; and
(c) if such effort is unsuccessful, the Administrator shall invest the
balance of the Participant's Account in an interest bearing savings
account held by the Trustee. The savings account shall be registered in
the name of the person entitled to the distribution. The establishment
of the savings account shall be deemed full payment of any amounts due
from the Plan.
14.13 Claims Procedure.
All claims for benefits under the Plan by a Participant or the Participant's
Beneficiary with respect to benefits not received by such person shall be made
in writing to the Administrator, which shall review such claims. If the
Administrator believes that a claim should be denied, it shall notify the
claimant in writing of the denial within ninety (90) days after its receipt of
the claim. Such notice shall:
(a) set forth the specific reasons for the denial, making reference to the
pertinent provisions of the Plan or the Plan documents on which the
denial is based;
(b) describe any additional material or information that should be received
before the claim may be acted upon favorably, and explain why such
material or information, if any, is needed; and
(c) inform the person making the claim of his or her right pursuant to this
Section to request review of the decision by the Administrator.
Any such person who believes that he or she has submitted all available and
relevant information may appeal a denial of a claim to the Administrator by
submitting a written request for review to the Administrator within sixty (60)
days after the date on which such denial is received. Such period may be
extended by the Administrator for good cause. The person making the request for
review may examine pertinent Plan documents. The request for review may discuss
any issues relevant to the claim. The Administrator shall decide whether or not
to grant the claim within sixty (60) days after receipt of the request for
review, but this period may be extended by the Administrator for up to an
additional sixty (60) days in special circumstances. If such an extension of
time for review is required because of special circumstances, written notice of
the extension shall be furnished to the claimant prior to the commencement of
the extension. The Administrator's decision shall be in writing, shall include
specific reasons for the decision and shall refer to pertinent provisions of the
Plan or of the Plan documents on which the decision is based.
<PAGE>
ARTICLE 15
AMENDMENT AND TERMINATION OF PLAN
15.01 Amendment.
The Company may at any time and from time to time amend the Plan by action of
the Board of Directors without the consent of any Trustee, any other
Participating Employer, or any Participant or Beneficiary. Such amendment may be
adopted by resolution or by such other action permitted by the Company's
charter, by-laws, or such other method permitted by the laws of the state of the
Company's incorporation.
Notwithstanding the foregoing:
(a) no amendment that materially affects the Trustee's duties shall be effective
without the written consent of the Trustee;
(b) no amendment shall cause the Trust Fund to be used other than for the
exclusive benefit of Participants and their Beneficiaries; and
(c) no amendment may reduce or eliminate any benefit which is a "Section
411(d)(6) Protected Benefit" except as permitted under Section
1.411(d)-4 of the Income Tax Regulations.
15.02 Right to Terminate Plan.
The Company intends to maintain the Plan as a permanent tax-qualified retirement
plan. Nevertheless, the Company reserves the right to terminate the Plan (in
whole or in part) at any time, by action of the Board of Directors, without the
consent of any Trustee, any other Participating Employer, or any Participant or
Beneficiary. Such termination may be adopted by resolution or by such other
action permitted by the Company's charter, by-laws, or such other method
permitted by the laws of the state of the Company's incorporation.
15.03 Consequences of Termination.
(a) If the Plan is terminated in whole or in part, the interest of each
Participant affected by the termination in his or her Account will
become fully vested and nonforfeitable as of the date of the
termination.
(b) If the Plan is terminated in whole or in part, the Administrator shall
determine the date and manner of distribution of all Participants'
Accounts.
(c) The Administrator shall give prompt notice to each Participant (or, if
deceased, the Participant's Beneficiary) affected by the Plan's
complete or partial termination.
<PAGE>
ARTICLE 16
PARTICIPATING EMPLOYERS
16.01 Adoption by Other Employers.
Subject to the consent of the Board of Directors, any other corporation or
entity, whether an Affiliated Company or not, may adopt the Plan and join in the
Trust Fund created hereunder. Such Affiliated Company shall become a
Participating Employer upon the filing with the Administrator such duly executed
documents as may be required by the Administrator. All contributions made by
Participating Employers, and the income therefrom, shall be held by the Trustees
as a part of a single Trust Fund without allocation among the Participating
Employers until the Administrator shall notify the Trustees of the termination
of the plan as to any Participating Employer pursuant to Section 16.03(c).
16.02 Delegation of Powers and Authority.
A Participating Employer shall be deemed to appoint the Board of Directors and
the Administrator as its exclusive agent to exercise on its behalf all of the
powers and authority conferred upon the Board of Directors or the Administrator
by the terms of the Plan including, but not by way of limitation, the power to
amend and terminate the Plan and the Trust Fund created hereunder. The authority
of the Board of Directors and the Administrator to act as such agent shall
continue with respect to all funds contributed by each Participating Employer
and the income therefrom unless and until the amount of such funds and income
has been distributed by the Trustees as provided in Section 16.03.
16.03 Termination of Participation.
(a) The Administrator shall notify the Trustees in writing of the
termination of the Plan as to any Participating Employer, and the
Trustees shall not accept any further contributions under the Plan from
such Participating Employer and shall set aside in a separate account
such part of the Trust Fund as the Administrator shall, pursuant to
paragraph (b), determine to be held for the benefit of eligible
employees of the Participating Employer (and their beneficiaries), as
of the last day of the Plan Year which is such Participating Employer's
termination date under the Plan.
(b) The Administrator shall give written directions to the Trustees with respect
to the part of the assets of the Trust Fund segregated in a separate account
pursuant to paragraph (a). Such directions shall specify the amount to be
segregated and shall be in accordance with generally accepted accounting
principles, and, to the maximum extent consistent with ERISA, the determination
of the fair market value of the assets of the Trust Fund in the manner provided
for in the Plan shall be conclusive for the purpose of such segregation. The
Trustees shall follow such directions of the Administrator which shall
constitute a conclusive determination of the amount which should be segregated
for the benefit of the eligible employees of such Participating Employer (and
their beneficiaries).
(c) The Trust shall continue as to any Participating Employer, despite
receipt by the Trustees of notice of termination of the Plan as to such
Participating Employer, for such time as may be necessary to effect
such termination. Upon receipt by the Trustees from the Administrator
of notice to terminate the Trust as to such Participating Employer, the
Trustees shall, with reasonable promptness after receipt of such
notice, arrange for the orderly distribution, in accordance with
written instructions of the Administrator which shall be given in
conformity with the provisions of the Plan and ERISA, of the assets
segregated with respect to such Participating Employer pursuant to this
Article 16.
<PAGE>
ARTICLE 17
TOP-HEAVY PLAN PROVISIONS
17.01 Applicability.
If the Plan is or becomes Top-Heavy in any Plan Year, the provisions of this
Article 17 shall supersede any conflicting provisions of the Plan.
17.02 Definitions.
The following definitions shall apply for purposes of this Article 17:
(a) "Determination Date" means (i) the last day of the preceding Plan Year,
or (ii) in the case of the first Plan Year, the last day of such Plan
Year.
(b) "Key Employee" means any Employee, or former Employee who is a Key
Employee within the meaning of Section 416(i)(1) of the Code and the
regulations thereunder.
(c) "Permissive Aggregation Group" means the Required Aggregation Group of
plans plus any other plan or plans of the Company or any Affiliated
Company which, when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of Sections 401(a)(4)
and 410 of the Code.
(d) "Required Aggregation Group" means (i) each qualified plan of the
Company or any Affiliated Company in which at least one Key Employee
participates or participated at any time during the determination
period (regardless of whether the plan has terminated), and (ii) any
other qualified plan of the Company or any Affiliated Company which
enables a plan described in clause (i) to meet the requirements of
Section 401(a)(4) or 410 of the Code.
(e) "Super Top-Heavy Plan" means a Top-Heavy Plan with respect to which the
Top-Heavy Ratio exceeds 90 percent (90%).
(f) "Top-Heavy Plan" means with respect to any Plan Year, this plan if any of
the following conditions exist:
(i) If the Top-Heavy Ratio for this Plan exceeds 60 percent (60%)
and this Plan is not part of any Required Aggregation Group or
Permissive Aggregation Group of plans;
(ii) If this Plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60 percent
(60%); or
(iii) If this Plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds
60 percent (60%).
(h) "Top-Heavy Ratio" means as follows:
(i) If the Company or any Affiliated Company maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and the
Company or any Affiliated Company has not maintained any defined benefit plan
which during the 5-year period ending on the Determination Date(s) has or has
had accrued benefits, the Top-Heavy Ratio for this Plan alone or for the
Required or Permissive Aggregation Group as appropriate is a fraction, the
numerator of which is the sum of the account balances of all Key Employees as of
the Determination Date(s) (including any part of any account balance distributed
in the 5-year period ending on the Determination Date(s), and the denominator of
which is the sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the Determination Date(s),
both computed in accordance with Section 416 of the Code and the regulations
thereunder. Both the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of the determination
date, but which is required to be taken into account on that date under Section
416 of the Code and the regulations thereunder.
(ii) If the Company or any Affiliated Company maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and the
Company or any Affiliated Company maintains or has maintained one or more
defined benefit plans which during the -year period ending on the Determination
Date(s) has or has had any accrued benefits, the Top-Heavy Ratio for any
Required or permissive Aggregation Group as appropriate is a fraction, the
numerator of which is the sum of account balances under the aggregated defined
contribution plan or plans for all Key Employees, determined in accordance with
clause (i) above, and the present value of accrued benefit under the aggregated
defined benefit plan or plans for all Key Employees as of the Determination
Date(s), and the denominator of which is the sum of the account balances under
the aggregated defined contribution plan or plans for all participants,
determined in accordance with clause (i) above, and the present value of accrued
benefits under the defined benefit plan or plans for all participants as of the
Determination Date(s), all determined in accordance with Section 416 of the Code
and the regulations thereunder. The accrued benefits under a defined benefit
plan in both the numerator and denominator of the Top-Heavy Ratio are increased
for any distribution of any accrued benefit made in the five-year period ending
on the Determination Date.
(iii) For purposes of clauses (i) and (ii) above, the value of account balances
and the present value of accrued benefits will be determined as of the most
recent Valuation Date that falls within or ends with the 12-month period ending
on the Determination Date, except as provided in Section 416 of the Code and the
regulations thereunder for the first and second plan years of a defined benefit
plan. The account balances and accrued benefits of a participant (A) who is not
a Key Employee but who was a Key Employee in a prior year, or (B) who has not
been credited with at least one Hour of Service with any Company or any
Affiliated Company maintaining the plan at any time during the 5-year period
ending on the Determination Date will be disregarded. The calculation of the
Top-Heavy ratio, and the extent to which distributions, rollovers, and transfers
are taken into account will be made in accordance with Section 416 of the Code
and the regulations thereunder. Deductible employee contributions will not be
taken into account for purposes of computing the top-heavy ratio. When
aggregating plans the value of account balances and accrued benefits will be
calculated with reference to the Determination Dates that fall within the same
calendar year.
The accrued benefits of a participant other than a Key Employee shall
be determined under (A) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by the
Company or any Affiliated Company, or (b) if there is no such method,
as if such benefits accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Section 411(b)(1)(C) of the
Code.
17.03 Minimum Contribution.
(a) If a Participant is a non-Key Employee on the last day of a Top-Heavy Plan
Year, and is not a participant in any other plan maintained by an Company or any
Affiliated Company that provides the Participant with such a minimum
contribution or with a comparable minimum accrual, the total of the Company or
any Affiliated Company contribution allocated to such Participant's Account for
such Top-Heavy Plan Year shall not be less than three percent (3%) of the
Participant's Compensation for the Top-Heavy Plan Year, the Company or any
Affiliated Company has no defined benefit plan which designates the Plan to
satisfy Section 401(a)(4) or Section 410 of the Code and the highest percentage
obtained by dividing the sum of the Company or any Affiliated Company
contribution made for the benefit of each Key Employee by the Key Employee's
Compensation for such Year is less than three percent (3%), such highest
percentage shall be substituted therefor in the preceding clause.
(b) In the event a Participant who is a non-Key Employee is covered under
both a defined contribution plan and a defined benefit plan maintained
by an Company or any Affiliated Company, notwithstanding anything
herein to the contrary, the minimum contribution or benefit required by
this Section 17.03 and by Section 416 of the Code shall be deemed
satisfied if any one of the following rules are satisfied:
(i) each such Participant receives the defined benefit minimum as specified in
Section 416(c)(1) of the Code;
(ii) the defined benefit minimum (as defined in clause (i), above)
is provided each such Participant by the defined benefit plan
and is offset by the benefits provided under the defined
contribution plan;
(iii) the defined contribution plan provides aggregate benefits at
least comparable to those provided by the defined benefit
plan; or
(iv) if contributions and forfeitures under the defined
contribution plan equal five percent (5%) of the Compensation
for each Top-Heavy Plan.
17.04 Compensation Limitation.
For any Plan Year in which the Plan is a Top-Heavy Plan, the compensation
limitation described in Section 416(d) of the Code shall apply.
17.05 Aggregate Limit on Contributions and Benefits for Key Employees.
If any one of the following occurs, then 1.0 shall be substituted for 1.25 in
the denominators of the Defined Benefit Plan and Defined Contribution Plan
Fractions used in computing the aggregate limitations set forth in Section 415
of the Code:
(a) A Key Employee participates in both a defined benefit plan and a
defined contribution plan of an Company or any Affiliated Company and
the plans are Super Top-Heavy Plans.
(b) A Key Employee participates in both a defined benefit plan and a
defined contribution plan of an Company or any Affiliated Company and
the plans are Top-Heavy Plans and an Extra Minimum Benefit or Extra
Minimum Contribution is not provided for non-Key Employees.
For purposes of this section, Extra Minimum Benefit or Contribution shall mean
one percent (1%) more than the standard minimum benefit or contribution required
for non-Key Employees under Top-Heavy Plans as prescribed by Section 416(c) of
the Code.
<PAGE>
ARTICLE 18
LIFE INSURANCE
18.01 Purchase of Life Insurance.
(a) The Administrator, at its sole discretion, may provide that
Participants' Accounts may be invested in a term, whole-life, or higher
premium form policy issued by a legal reserve life insurance company on
the lives of electing Participants. The policy may be obtained from an
insurance company or an existing policy may be purchased from the
Participant or another person.
(b) Subject to the limitations imposed by this Article 18, the
Administrator shall prescribe such rules and restrictions on
investments in life insurance as it deems appropriate.
18.02 Policies as Trust Assets.
The Trustee shall apply for and will be the owner of any insurance contract
purchased under the terms of this Plan. The insurance contract(s) must provide
that proceeds will be payable to the Trustee, however the Trustee shall be
required to pay over all proceeds of the contract(s) to the Participant's
designated beneficiary in accordance with the distribution provisions of Article
13. A Participant's spouse will be the designated beneficiary of the proceeds in
all circumstances unless a qualified election has been made in accordance with
Section 13.04. Under no circumstances shall the trust retain any part of the
proceeds. In the event of any conflict between the terms of this plan and the
terms of any insurance contract purchased hereunder, the plan provisions shall
control.
18.03 Payment of Premiums and Use of Proceeds.
The Trustee shall normally pay premiums on any policy subject hereto as such
premiums fall due. The amount of such premiums shall be deducted from the
Account of the Participant on whose life the policy is issued. Dividends or
credits may be used in reduction of any such premium, may be applied in any
other manner permitted by the insurance company, or may be taken in cash by the
Trustee, as it may be instructed by the Administrator from time to time,
provided that such Participant for whose benefit the contract is held is given
due credit in his or her Account for the amount of dividends or credits
applicable to the Participant.
If at any time the Administrator decides that the premium on any policy is not
to be paid in cash from the Participant's Account, the Administrator shall
decide whether such premium is to be paid by policy loan (if the policy contains
such a provision); by use of dividends or dividend accumulations, if any; or
whether the policy is to be continued as a paid-up policy; or use is to be made
of any extended insurance option available thereunder; or some other action is
to be taken under the policy.
18.04 Distribution of Policies Upon Termination of Employment.
The contracts on a Participant's life will be converted to cash or distributed
to the Participant upon commencement of benefits pursuant to Article 13.
18.05 Maximum Amount of Insurance.
The maximum amount of insurance held by the Trustee on the life of any
Participant shall be limited, in addition to any other limitations contained
herein, as follows:
(a) Ordinary life. For purposes of these provisions, ordinary life
insurance contracts are contracts with both nondecreasing death
benefits and nonincreasing premiums. If such contracts are purchased,
less than 1/2 of the aggregate employer contributions allocated to any
Participant will be used to pay the premiums attributable to them.
(b) Term and universal life. No more than 1/4 of the aggregate employer
contributions allocated to any Participant will be used to pay the
premiums on term life insurance contracts, universal life insurance
contracts, and all other life insurance contracts which are not
ordinary life.
(c) Combination. The sum of 1/2 of the ordinary life insurance premiums and
all other life insurance premiums will not exceed 1/4 of the aggregate
employer contributions allocated to any Participant.
<PAGE>
ARTICLE 19
GENERAL PROVISIONS
19.01 Trust Fund Sole Source of Payments for Plan.
The Trust Fund shall be the sole source for the payment of all Participants'
Accounts, and the Plan's liability to make payment to any Participant or the
Participant's Beneficiary shall be limited to the extent that the balance in
such Participant's Account is sufficient to make such payment. In no event shall
assets of the Company, any Affiliated Company, or any Non-affiliated Employer be
applied for the payment of Plan benefits.
19.02 Exclusive Benefit.
The Plan is established for the exclusive benefit of the Participants and their
Beneficiaries, and the Plan shall be administered in a manner consistent with
the provisions of Section 401(a) of the Code and ERISA.
19.03 Non-Alienation.
Except as is permitted under Section 401(a)(13) of the Code in the case of a
qualified domestic relations order (as defined in Section 414(p) of the Code)
and in accordance with Article 10, no Participant or Beneficiary shall have the
right to alienate or assign his or her benefits under the Plan, and no Plan
benefits shall be subject to attachment, execution, garnishment, or other legal
or equitable process. If a Participant or Beneficiary attempts to alienate or
assign benefits under the Plan, or if his or her property or estate should be
subject to attachment, execution, garnishment or other legal or equitable
process, the Administrator may direct the Trustee to distribute the
Participant's (or Beneficiary's) benefits under the Plan to members of his or
her family, or may use or hold such benefits for his or her benefit or for the
benefit of members of his or her family as the Administrator deems appropriate
under the circumstances.
19.04 Employee Transfers.
The transfer of an employee between the Company, an Affiliated Company, or a
Non-affiliated Employer shall not be considered to be a termination of
employment for purposes of this Plan.
19.05 Qualified Domestic Relations Order.
(a) All rights and benefits, including elections, provided to a Participant
in this Plan shall be subject to the rights afforded to any alternate
payee (as defined in Section 414(p)(8) of the Code) under a qualified
domestic relations order (as defined in Section 414(p) of the Code).
(b) Notwithstanding anything in the Plan to the contrary, a distribution to
an alternate payee shall be permitted if such distribution is
authorized by the qualified domestic relations order without regard as
to whether the affected Participant is currently entitled to receive a
distribution.
19.06 Employment Rights.
Each Participating Employer's right to discipline or discharge its employees
shall not be affected by reason of any of the provisions of the Plan.
19.07 Return of Contributions.
(a) Except as specifically provided in the Plan, under no circumstances
shall any funds contributed to the Trust Fund or any assets of the
Trust Fund ever revert to, or be used by, the Company, any Affiliated
Company, or any Non-affiliated Employer.
(b) Any contributions made by any Participating Employer may be returned to the
Participating Employer if:
(i) the contribution is made by reason of a mistake of fact; or
(ii) the contribution is conditioned on its deductibility for
federal income tax purposes (each contribution shall be deemed
to be so conditioned unless otherwise stated in writing by the
Participating Employer) and such deduction is disallowed;
provided such contribution is returned within one year of the discovery
of the mistake of fact, the disallowance of the deduction for federal
income tax purposes or the receipt of written notice from the Internal
Revenue Service (in response to the request for its favorable
determination) that the Plan fails to qualify under Section 401(a) of
the Code, as the case may be. The amount of contribution that may be
returned shall be reduced to reflect its proportionate share of any net
investment loss in the Trust Fund. In the event clause (iii) applies,
the returned contribution may include any net investment earnings or
gain in the Trust Fund.
19.08 Distribution of Salary Deferral Contributions in Event of Merger or Sale.
Notwithstanding anything in the Plan to the contrary, Salary Deferral
Contributions, and income attributable thereto, may be distributed to
Participants or their beneficiaries as soon as administratively practicable
after any of the following events:
(a) The termination of the Plan, provided that neither the Company nor any
Affiliated Company maintains another defined contribution plan (other
than an employee stock ownership plan within the meaning of Section
4975(e)(7) of the Code) at such time or establishes a successor defined
contribution plan (other than an employee stock ownership plan within
the meaning of Section 4975(e)(7) of the Code) during the period ending
12 months after the distribution of all assets of the Plan;
(b) The sale or other disposition, to an entity that is not an Affiliated
Company, of substantially all of the assets used by the Company or an
Affiliated Company in the trade or business in which the Participant is
employed, but only with respect to Participants who continue employment
with the acquiring entity; or
(c) The sale or other disposition, to an entity that is not an Affiliated
Company, of the Company's or an incorporated Affiliated Company's
interest in a subsidiary, but only with respect to Participants who
continue employment with such subsidiary.
19.09 Merger, Consolidation or Transfer.
The Plan shall not be merged or consolidated with, nor shall any Plan assets or
liabilities be transferred to, any other qualified plan, unless each Participant
(if the other plan then terminated) would receive a benefit that is equal to or
greater than the benefit he or she would have been entitled to receive
immediately before the merger, consolidation or transfer (if the Plan had then
terminated).
19.10 Action by the Company.
Whenever the Company under the terms of the Plan is permitted or required to do
or perform any act or matter or thing, it shall be done by a person duly
authorized by the Company's legally constituted authority.
19.11 Applicable Law.
Except as otherwise expressly required by ERISA, this Plan shall be construed
and governed in accordance with the laws of the State of California.
19.12 Rules of Construction.
Section headings are used for convenience of reference only and shall not affect
the meaning of any provisions of this Plan.
<PAGE>
BHS\M-SC:N1700896
A-1
May 1996
APPENDIX A
RULES APPLYING TO PARTICIPANT LOANS
The Administrator has adopted the rules and procedures set forth below with
respect to plan loans under Article 10 of the Plan.
MAY I BORROW MONEY FROM MY PLAN ACCOUNTS?
Yes, if you currently are an employee of Countrywide Credit Industries, Inc. or
any of its affiliated companies, and if your application for a loan is approved
by the Administrator, you may borrow money from your Plan accounts. Loans will
be made on a uniform and nondiscriminatory basis.
HOW DO I APPLY FOR A LOAN?
You may apply for a loan by completing the loan application form(s) provided by
the Administrator.
ARE THERE ANY RESTRICTIONS ON THE AMOUNT I CAN BORROW?
The minimum amount you may borrow is $1,000. The maximum amount you may borrow
is determined by the vested amount of your Plan account balance as determined as
of the date on which your loan is approved. The following table shows the
Maximum Loan Amount that is permitted based on your vested Plan account balance:
<PAGE>
Your Vested Maximum Loan
Account Balance Amount
$ 0 - $ 1,999 No loans allowed
$ 2,000 - $ 99,000 50% of your vested account balance
$ 100,000 or more $ 50,000
<PAGE>
If you have had a loan outstanding during the previous 12 months, that loan
amount must be taken into account in determining the maximum amount you can
borrow.
MAY I SPECIFY THE INVESTMENT FUND FROM WHICH I WANT TO BORROW?
No. The loan amount will be divided on a pro rata basis across the investment
funds in your account.
MAY I HAVE MORE THAN ONE LOAN OUTSTANDING AT A TIME?
Yes. You may have up to two loans outstanding.
WHAT WILL THE INTEREST RATE BE?
The annual interest rate on loans will be Two Percent (2%) Plus the Prime
Lending Rate stated in the Money Rates section of The Wall Street Journal on the
last business day of the calendar month prior to the date your loan application
is approved by the Administrator.
WHAT IS THE TERM OF THE LOAN?
In general, loans must be repaid within five (5) years or less. However, if at
the time the loan is made you intend to use the loan to acquire a house,
apartment, or condominium which within a reasonable time will be used as your
principal residence, the loan will have a maximum repayment period of fifteen
(15) years. The Administrator may require you to furnish information verifying
your use of the loan to purchase your principal residence.
DO I HAVE TO GIVE ANY SECURITY FOR THE LOAN?
Yes. The loan is secured by your vested Plan account balances. In addition, you
will be personally liable for the amount of the loan.
HOW DO I REPAY THE LOAN?
While you are an employee, payments of principal and interest are made through
payroll deductions.
If you take an approved leave of absence, you will be able to continue to repay
the loan through monthly payments of principal and interest.
The payments will begin with the first month following the month in which you
receive the loan. The repayment amounts will be equal, except for the final
payment.
WHAT HAPPENS TO LOAN REPAYMENTS UNDER THE PLAN?
Repayments of principal and interest on your loan will be allocated to your Plan
account. Each repayment will be invested according to your current investment
selection when the repayment is made.
CAN I PREPAY THE LOAN?
Yes. There is no penalty if you want to prepay all of the unpaid balance on your
loan. However, your minimum prepayment must be at least multiple of your current
loan payment amount or, if smaller, the outstanding balance of the loan.
WHAT HAPPENS IF I DEFAULT ON LOAN PAYMENTS?
You will be considered to be in default if you miss any scheduled loan
repayment.
Once the loan is declared in default it will become immediately due and payable
as of the last day of the month in which it is declared in default. If you do
not cure the default within 60 days, in addition to any other remedies permitted
by law, any outstanding loan balance (including accrued, but unpaid, interest)
may be charged against your Account under the Plan.
If and to the extent the outstanding loan balance is charged against your Plan
account, the amount of such charge shall be deemed to be a taxable distribution
to you from your Plan account. The Administrator may elect to charge the unpaid
loan balance against your Plan account, as described above, whether or not you
would otherwise be entitled to a distribution from the Plan.
If the unpaid loan amount is treated as a distribution, the taxable portion of
this distribution will be reported to the IRS. You will be responsible for any
taxes due as a result of treating the unpaid amount as a distribution.
If the unpaid balance of the loan cannot be satisfied from your Plan accounts or
wages, the Administrator will have the same legal rights and remedies as a
creditor to collect the remaining amount.
WHAT HAPPENS IF I TERMINATE EMPLOYMENT?
If your Plan account balance is distributed to you at the time of your
termination, the amount to be distributed to you from the Plan reduced by the
unpaid loan balance (including accrued interest) UNLESS you elect to repay the
loan in full.
If you decide to delay distribution, you may continue to repay the loan through
monthly payments of principal and interest.
<PAGE>
APPENDIX B
DEFINITION OF CHANGE IN CONTROL
B.01 Definition of Change Control As In Effect Prior to May , 1996.
A Change in Control shall be deemed to occur when the first of the following
events occurs:
(a) When the Company acquires actual knowledge that any person or group (as such
terms are used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act"), other than an employee benefit plan established or
maintained by the Company or any of its subsidiaries, is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly, of securities of the Company representing 20 percent (20%) or more
of the combined voting power of the Company then outstanding securities (a
"Control Person"), provided, however, that no person or group shall be
considered a Control Person if the -------- ------- acquisition, transaction or
other circumstance giving rise to the beneficial ownership by such person or
group of outstanding securities representing 20 percent (20%) or more of the
combined voting power of the Company (and any increase in the beneficial
ownership after the occurrence of such acquisition, transaction or other
circumstance by such person or group) was approved in advance by a vote of at
least two-thirds of the Continuing Directors (as hereinafter defined) then in
office;
(b) upon the approval by the Company's stockholders of (i) a merger or
consolidation of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the surviving
corporation and which does not result in any capital reorganization or
reclassification or other change in the Company's then outstanding
shares of common stock), (ii) a sale or disposition of all or
substantially all of the Company's assets, (C) a plan of liquidation or
dissolution of the Company; or
(c) if, at any time, two-thirds (2/3rds) of the members of the Board of
Directors are not Continuing Directors. For purposes of this Section
B.01, the term "Continuing Directors" means the members of the Board of
Directors as of July 26, 1988, and any individual who becomes a member
of the Board of Directors thereafter if his or her election or
nomination for election as a director was approved by a vote of at
least two-thirds (2/3rds) of the Continuing Directors then in office.
B.02 Definition of Change in Control As In Effect On and After May , 1996.
A Change in Control shall be deemed to occur when the first of the following
events occurs:
(a) An acquisition (other than directly from the Company of any common stock or
other "voting Securities" (as hereinafter defined) of the Company by any
"person" (as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty five percent
(25%) or more of the then outstanding shares of the Company's common stock or
the combined voting power of the Company's then outstanding Voting Securities;
provided, however in determining whether a -------- ------- Change in Control
has occurred, Voting Securities which are acquired in a "Non-Control
Acquisition." (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control. For purposes of this Agreement, (i) "Voting
Securities" shall mean the Company's outstanding voting securities entitled to
vote generally in the election of directors and (ii) a "Non-Control Acquisition"
shall mean an acquisition by (A) an employee benefit plan (or a trust forming a
part thereof) maintained by (I) the Company or (II) any corporation or other
Person of which a majority of its voting power or its voting equity securities
or equity interest if owned, directly or indirectly, by the Company (for
purposes of this definition, a "Subsidiary"), (B) the Company or any of its
Subsidiaries, or (C) any Person in connection with a "Non-control Transaction"
(as hereinafter defined);
(b) The individuals who, as of May , 1996, are members of the Board of Directors
(the ---- "Incumbent Board"), cease for any reason to constitute at least
two-thirds of the members of the Board; provided, however, that if the election,
or nomination for election by the Company's -------- ------- common
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered as a member of the Incumbent Board; provided further however, that
no individual shall be -------- ------- -------- considered a member of the
Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or the actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization involving the
Company, unless such merger, consolidation or reorganization
is a "Non-Control Transaction." A Non-Control Transaction"
shall mean a merger, consolidation or reorganization of the
Company where:
(A) the stockholders of the Company, immediately before such merger,
consolidation or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at least seventy percent
(70%) of the combined voting power of the outstanding Voting Securities of the
corporation resulting from such merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation or
reorganization;
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Corporation, or in the event that, immediately
following the consummation of such transaction, a
corporation beneficially owns, directly or
indirectly, a majority of the Voting Securities of
the Surviving Corporation, the board of directors of
such corporation; and
(C) no Person other than (I) the Company, (II) any Subsidiary, (III) any
employee benefit plan (or any trust forming a part thereof) maintained by the
Company, the Surviving Corporation, or any Subsidiary, or (IV) any Person who,
immediately prior to such merger, consolidation or reorganization had Beneficial
Ownership of twenty five percent (25%) or more of the then outstanding Voting
Securities or common stock of the Company, has Beneficial Ownership of twenty
five percent (25%) or more of the combined voting power of the Surviving
Corporation's then outstanding Voting Securities or its common stock;
(ii) A complete liquidation or dissolution of the Company, or
(iii) The sale or other disposition of all or substantially all of
the assets of the Company to any Person (other than a transfer
to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding common stock or Voting
Securities as a result of the acquisition of common stock or Voting Securities
by the Company which, by reducing the number of shares of common stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons; provided, however, that if a Change
in Control would occur (but for the operation of this sentence) as a result of
the acquisition of common stock or Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional common stock or Voting Securities which increases the
percentage of the then outstanding common stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall occur.
EXHIBIT 4.1.1
AMENDMENT ONE
COUNTRYWIDE CREDIT INDUSTRIES, INC.
TAX DEFERRED SAVINGS AND SUPPLEMENTAL
INVESTMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MAY 6, 1996)
Whereas, Countrywide Credit Industries, Inc., desires to amend the Countrywide
Credit Industries, Inc., Tax Deferred Savings and Supplemental Investment Plan
(as amended and restated effective May 6, 1996) to enhance certain benefits and
clarify participation in the "Plan". Now, therefore, the "Plan" is hereby
amended as follows:
A. Section 1.09(b) shall be amended in its entirety, effective April 1,
1997, to read as follows:
(b) excluding any amounts paid as moving expenses and any other amounts paid on
an irregular or discretionary basis as bonuses or special awards; and
B. Section 1.11(b) shall be amended in its entirety, effective
September 1, 1984, to read as follows:
(b) Any individual who (i) is a "leased employee" within the
meaning of Section 414 (n)(2) of the Code or (ii) is
treated as a leased employee by a Participating Employer
in accordance with its usual employment policies and
procedures; and
C. Section 1.12 shall be amended in its entirety, effective September
1, 1984, to read as follows:
"Employee" means any individual who is treated as a common law
employee of a Participating Employer in accordance with its
usual employment policies and procedures. Solely for this
purpose, "Employee" shall also mean a "leased employee" within
the meaning of Section 414(n)(2) of the Code.
D. Section 1.15 shall be amended in its entirety, effective April 1, 1997, to
read as follows:
Entry Date shall mean the first day of each calendar
month.
A new Section 2.10 shall be added effective March 1, 1997, to read as
follows:
2.10 Special Rule in Connection with Certain Acquisition
Transactions. Notwithstanding any other provision hereof to
the contrary, to the extent specified in a resolution of the
Board of Directors, the service of any Employee with a
corporation or other trade or business prior to its
acquisition by the Company, affiliated Company, or
Nonaffiliated Employer shall be recognized hereunder as though
such service were rendered for a Participating Employer
hereunder. The name of the corporation or other trade or
business whose preacquisition service and the purposes for
which such preacquisition service is recognized (e.g.,
eligibility, vesting, etc.)
shall be set forth in Appendix C hereof.
F. Section 1.19 shall be amended, effective April 1, 1997, by the addition of
the following at the end thereof.
"Participant" shall, solely for purposes of Articles 7, 8, 13,
14, 15, 16, 18, and 19 and Appendix A and Sections 3.04, 4.02,
9.01, 11.02, 11.03, and 17.02 hereof (and any other
definitions in this Article 1 pertinent thereto), also include
individuals who have made Rollover Contributions or otherwise
established Rollover Accounts hereunder without regard to
whether such individuals have satisfied the criteria for
eligibility under Article 3 hereof.
G. The first sentence of Section 4.02(a) shall be amended, effective
April 1, 1997, to read as follows:
Subject to the approval of the Administrator, an Eligible
Employee may, 90 days after such person's Employment
Commencement Date (determined without regard to any
preacquisition service recognized pursuant to Section 2.10
hereof), contribute to the Trust Fund all or a portion of the
(i) cash; (ii) Company stock or, (iii) Countrywide Funds that
are also Investment Funds he or she has received from (x)
another qualified plan under circumstances meeting the
rollover requirements of Section 402(c) of the Code, or (y) a
conduit individual retirement account under circumstances
meeting the requirements of Section 408(d)(3)(A)(ii) of the
Code.
IN WITNESS WHEREOF, the Company has caused this Amendment One
to be executed this 24th day of March, 1997.
.........COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/ Gerald A. Healy
Gerald A. Healy
Vice President, Human Resources
EXHIBIT 4.1.2
AMENDMENT TWO
COUNTRYWIDE CREDIT INDUSTRIES, INC.
TAX DEFERRED SAVINGS AND SUPPLEMENTAL INVESTMENT PLAN
Countrywide Credit Industries, Inc. desires to amend the Countrywide Credit
Industries, Inc. Tax Deferred Savings and Supplemental Investment Plan (the
"Savings Plan") to allow for the transfer of certain assets and liabilities to a
new trustee and 401(k) plan for participants who are Transferred Employees as
contemplated in the Agreement and Plan of Merger Dated January 20, 1997 among
CWM Mortgage Holdings, Inc., Countrywide Asset Management Corporation and
Countrywide Credit Industries, Inc. and related agreements.
Pursuant to Section 19.09 of the Savings Plan, the Compensation Committee of the
Board of Directors has determined that Savings Plan assets to be transferred
will provide a benefit that is equal to the benefit that each participant who is
a transferred employee would have been able to receive immediately before the
transfer of plan assets. The Savings Plan is hereby amended as follows:
1. A new Section 2.11 shall be added effective June 30, 1997, to read as
follows:
2.11 Special Rule in Connection with Certain Spinoffs and Mergers.
Notwithstanding any other provision hereof to the contrary, to the extent
specified in a resolution of the Board of Directors, assets and liabilities of
Accounts may be transferred to the trustee of another company's qualified plan.
The names of the company qualified plan and trustee accepting the transfer, as
well as the nature of the assets, shall be set forth in Appendix D hereof.
Thereafter, each Account shall be governed by the terms and conditions of the
qualified plan accepting the transfer. Transfer of a Participants Account and
assets related to such Account shall completely discharge all obligations of the
Company and Plan to a Participant, a company to which the participant was
transferred and a plan and trust to which the assets were transferred.
APPENDIX D
CERTAIN MERGER AND SPINOFF TRANSACTIONS
The following table sets forth certain corporations or other
trades or businesses and the qualified plan and trustee who shall receive the
assets specified in resolutions of the Board of Directors.
Name of Plan ......... Trustee Assets
- ------------ ------- ------
INMC Mortgage Holdings, Inc......... Scudder Trust Co. Employer Contribution
401(k) Plan ......... Account: ESOP
......... Account: Rollover
......... Contribution Account:
......... Salary Deferral
......... Contribution Account:
......... Plan Loans
* All Accounts containing shares of Countrywide Credit Industries, Inc. common
stock shall be transferred in kind.
EXHIBIT 4.1.3
AMENDMENT THREE
COUNTRYWIDE CREDIT INDUSTRIES, INC.
TAX DEFERRED SAVINGS AND SUPPLEMENTAL
INVESTMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MAY 6, 1996)
WHEREAS, Countrywide Credit Industries, Inc. desires to amend the Countrywide
Credit Industries, Inc. Tax Deferred Savings and Supplemental Investment Plan
(as amended and restated effective May 6, 1996) (the "Plan") to provide for an
alternative method of allocating Qualified Nonelective Contributions in the
event that the Plan is unable to satisfy the Average Deferral Percentage test
under sections 401(k) or 401(m) of the Internal Revenue Code.
NOW, THEREFORE, the Plan shall be amended as follows effective January 1, 1997:
A. Section 6.06 of the Plan, "Correction of Excess Salary Deferral
Contributions and Excess Employer Matching Contributions," subparagraph (c)
is hereby deleted and new subparagraph is inserted in its place to read as
follows:
"(c) The Participating Employer may make "Qualified Nonelective
Contributions: (within the meaning of Treasury Regulation 1.401(k)-1(g)(7) to
the Plan on behalf of Participants who are Non-highly Compensated Employees for
such Plan Year. The amount of the Qualified Nonelective Contributions shall be
determined at the discretion of the Company on behalf of the group of Non-highly
Compensated Participants who were actively employed on the last day of the Plan
Year and who were eligible to participate in the Plan for the entire Plan Year.
The Qualified Nonelective Contribution will be allocated as follows:
(i) The lowest paid Participant in the group will be
allocated an amount equal to the lowest of (1) 25% of
the Participant's Compensation for the Plan Year; (2)
the Maximum Permissible Amount applicable to the
Participant, or (3) the full amount of the Qualified
Nonelective Contribution.
(ii) The next lowest paid Participant will be allocated an
amount equal to the lowest of (1) 25% of the
Participant's Compensation for the Plan Year; (2) the
Maximum Permissible Amount applicable to the
Participant; or (3) the balance of the Qualified
Nonelective contribution after the above allocation.
(iii) The allocation in step (iii) will be applied
individually to each remaining Participant in the
group, in ascending order of Compensation, until the
Qualified Nonelective Contribution is fully
allocated. Once the Qualified Nonelective
Contribution is fully allocated, no further
allocation will be made to the remaining Participants
in the group.
IN WITNESS WHEREOF, the Company has caused this Amendment Three to be
executed this ____, day of July, 1998.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
......... By: /s/ Anne D. McCallion
EXHIBIT 5
February 26, 1999
Countrywide Credit Industries, Inc.
4500 Park Granada
Calabasas, California 91302
Ladies and Gentlemen:
I have acted as counsel to Countrywide Credit Industries, Inc. (the "Company")
in connection with the preparation of the Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, relating to the
registration of Countrywide Credit Industries, Inc. Tax Deferred Savings and
Supplemental Investment Plan (As Amended and Restated Effective May 6, 1996), as
amended, (the "Plan") and the offer of up to 1,000,000 shares of common stock
(the "Common Stock") of the Company, par value $.05, to be issued under the
terms and conditions of the Plan.
In connection with rendering this opinion I have examined originals, or copies
identified to my satisfaction as being true copies of originals of such
documents as I have deemed appropriate. In such examination, I have assumed that
all signatures on original documents were genuine and that all documents were
duly executed and delivered, where due execution and delivery are requisite to
the effectiveness thereof. I have also assumed that the Common Stock will be
issued for proper and sufficient consideration, in accordance with the terms of
the Plan, and that the certificates representing the Common Stock will be
properly issued.
On the basis of the foregoing examination and assumptions, and in reliance
thereon, and upon consideration of applicable law, I am of the opinion that the
Common Stock covered by the Registration Statement, when issued and paid for in
accordance with the Plan, will be validly issued, fully paid and non-assessable.
I hereby consent to the inclusion of this opinion as an exhibit in the
Registration Statement. This opinion may not be used or relied upon by any other
person or for any other purpose without my prior written consent.
Very truly yours,
/s/ Sandor E. Samuels
Sandor E. Samuels
General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated May 4, 1998, accompanying the consolidated
financial statements and schedules of Countrywide Credit Industries, Inc. and
Subsidiaries appearing in the Annual Report on Form 10-K for the year ended
February 28, 1998, which is incorporated by reference in this Registration
Statement on Form S-8 (the "Registration Statement"). We consent to the
incorporation by reference in this Registration Statement of the aforementioned
report.
GRANT THORNTON LLP
/s/ Grant Thornton LLP
Los Angeles, California
February 26, 1999
