<PAGE>
<PAGE> 1
As filed with the Securities and Exchange Commission on August __,
1994.
Registration No. 33-
- ---------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
UNC INCORPORATED
(Exact name of registrant as specified in it charter)
Delaware 54-1078297
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
(Address of Principal Executive Offices)
UNC AVIATION SERVICES SCA
EMPLOYEE INVESTMENT PLAN
(Full Title of the Plan)
Richard H. Lange, Esquire
Vice President, General Counsel and Secretary
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
(410) 266-7333
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount offering aggregate Amount of
Title of securities to be price offering registration
to be Registered Registered per share** price** fee
- --------------------------------------------------------------------
Common Stock,
par value $0.20 100,000 $5.50 $550,000 $189.66
per share *
- ---------------------------------------------------------------------
* In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
** Computed, pursuant to Rule 457, solely for the purpose of
calculating the registration fee.
<PAGE>
<PAGE<> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
------------------
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference and made a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994;
(c) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994; and
(d) The description of the Registrant's Common Stock and the
Registrant's Preferred Share Purchase Rights contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of
1934 (the "Exchange Act"), and any amendment or report filed for the
purpose of updating such descriptions.
All other documents subsequently filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act shall be
deemed incorporated by reference into this Registration Statement and
to be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
-------------------------
Not Applicable
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant has power under Section 145 of the Delaware
General Corporation Law and under Article VII of the By-Laws of the
Registrant to indemnify its officers and directors to the extent
provided therein. Copies of these provisions are contained in
Exhibits 99.A and 99.B, respectively, to this Registration Statement
and are incorporated herein by reference.
<PAGE>
<PAGE> 3
Article Eighth of the Registrant's Certificate of Incorporation
provides that, to the full extent permitted by the Delaware General
Corporation Law, as currently in effect or as subsequently amended, a
director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as
a director. The Delaware General Corporation Law expressly excludes
from such limitation liability for breach of the duty of loyalty,
acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law, the purchase or redemption of
stock or payment of dividends in violation of the statute or the
receipt of improper personal benefits.
The Registrant has in effect directors and officers liability
insurance and reimbursement for directors and officers liability
insurance policies indemnifying the officers and directors of the
Registrant within specified limits for certain liabilities incurred
by them and indemnifying the Registrant within specific limits for
all claims against directors or officers of the Registrant for which
the Registrant shall be required or is permitted to indemnify its
directors or officers pursuant to law, or the Certificate of
Incorporation or the By-Laws of the Registrant.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable
Item 8. Exhibits.
--------
The Registrant will submit or has submitted the UNC Aviation
Services SCA Employee Investment Plan and any amendment thereto to
the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify such
plan.
4. UNC Aviation Services SCA Employee Investment Plan.
23. Consent of KPMG Peat Marwick LLP.
24. Power of Attorney.
99.A. Section 145 of the Delaware General Corporation law
(relating to indemnification of directors and officers)
(filed as Exhibit 28-A to the Registrant's Registration
Statement No. 33-28851 and incorporated herein by
reference).
99.B. Amended and Restated By-Laws of the Registrant (filed as
Exhibit 3-C to the Registrant's Annual Report on Form 10-
K for the year ended December 31, 1991 and incorporated
herein by reference).
<PAGE>
<PAGE> 4
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes that it will:
(1) File, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) 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
together, represent a fundamental change in the information set forth
in the registration statement; and
(iii) Include any additional 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 subparagraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 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.
<PAGE>
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
<PAGE>
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Annapolis,
State of Maryland on this 23 day of August, 1994.
UNC INCORPORATED
By: Dan A. Colussy
-----------------------------
Dan A. Colussy
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
Dan A. Colussy Chairman of the August 23, 1994
- ------------------------- Board, President
Dan A. Colussy and Chief Execu-
tive Officer and
Director
Robert L. Pevenstein Senior Vice President August 23, 1994
- ------------------------- and Chief Financial
Robert L. Pevenstein Officer (Principal Financial
and Accounting Officer)
* Director August 23, 1994
- ------------------------
Beverly B. Byron
<PAGE>
<PAGE> 7
* Director August 23, 1994
- ------------------------
Berl Bernhard
* Director August 23, 1994
- -------------------------
John K. Castle
* Director August 23, 1994
- -------------------------
William C. Hittinger
* Director August 23, 1994
- -------------------------
J.L. Holloway III
* Director August 23, 1994
- -------------------------
George V. McGowan
* Director August 23, 1994
- -------------------------
Jack Moseley
* Director August 23, 1994
- -------------------------
Lawrence A. Skantze
*By:Richard H. Lange
----------------------------
Richard H. Lange
(Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan)
have duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Annapolis, State of Maryland on August 23, 1994.
UNC AVIATION SERVICES SCA EMPLOYEE
INVESTMENT PLAN
By: Richard H. Lange
-----------------------------
Richard H. Lange
Member - Plan Board
<PAGE>
<PAGE> 8
EXHIBIT INDEX
Exhibit
- -------
4 UNC Aviation Services SCA Employee Investment Plan
23 Consent of KPMG Peat Marwick LLP
24 Power of Attorney
<PAGE>
<PAGE> 1
Exhibit 4
UNC AVIATION SERVICES
SCA EMPLOYEE INVESTMENT PLAN
As Amended and Restated as of July 1, 1990
and as Further Amended as of January 1, 1994
<PAGE>
<PAGE> 2
UNC AVIATION SERVICES
SCA EMPLOYEE INVESTMENT PLAN
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.1 "Accounts". . . . . . . . . . . . . . . . . . . . . . 6
1.2 "Actual Deferral Percentage". . . . . . . . . . . . . 6
1.3 "Affiliated Company". . . . . . . . . . . . . . . . . 7
1.4 "Average Actual Deferral Percentage". . . . . . . . . 7
1.5 "Average Contribution Percentage" . . . . . . . . . . 7
1.6 "Before-Tax Contributions". . . . . . . . . . . . . . 7
1.7 "Board of Directors". . . . . . . . . . . . . . . . . 7
1.8 "CFT Employee". . . . . . . . . . . . . . . . . . . . 7
1.9 "Code". . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 "Committee" . . . . . . . . . . . . . . . . . . . . . 7
1.11 "Company" . . . . . . . . . . . . . . . . . . . . . . 7
1.12 "Company Matching Contributions". . . . . . . . . . . 7
1.13 "Compensation". . . . . . . . . . . . . . . . . . . . 7
1.14 "Contract Period" . . . . . . . . . . . . . . . . . . 8
1.15 "Contribution Percentage" . . . . . . . . . . . . . . 8
1.16 "Covered Employee". . . . . . . . . . . . . . . . . . 8
1.17 "Effective Date". . . . . . . . . . . . . . . . . . . 8
1.18 "Eligible Employee" . . . . . . . . . . . . . . . . . 9
1.19 "Employee". . . . . . . . . . . . . . . . . . . . . . 9
1.20 "Employer Contributions". . . . . . . . . . . . . . . 9
1.21 "Employment Commencement Date". . . . . . . . . . . . 9
1.22 "Entry Date". . . . . . . . . . . . . . . . . . . . . 9
1.23 "ERISA" . . . . . . . . . . . . . . . . . . . . . . . 9
1.24 "Fund" or "Trust Fund". . . . . . . . . . . . . . . . 9
1.25 "Highly Compensated Eligible Employee". . . . . . . . 9
1.26 "Hour of Service" . . . . . . . . . . . . . . . . . . 10
1.27 "Investment Fund" . . . . . . . . . . . . . . . . . . 11
1.28 "Limitation Year" . . . . . . . . . . . . . . . . . . 11
1.29 "Non-SCA Employee". . . . . . . . . . . . . . . . . . 11
1.30 "Normal Retirement Age" . . . . . . . . . . . . . . . 11
1.31 "Oklahoma City Employee". . . . . . . . . . . . . . . 11
1.32 "Overhead Employee" . . . . . . . . . . . . . . . . . 11
1.33 "Participant" . . . . . . . . . . . . . . . . . . . . 11
1.34 "Participating Company" . . . . . . . . . . . . . . . 12
1.35 "Plan". . . . . . . . . . . . . . . . . . . . . . . . 12
1.36 "Plan Year" . . . . . . . . . . . . . . . . . . . . . 12
1.37 "Required Beginning Date" . . . . . . . . . . . . . . 12
1.38 "Retirement". . . . . . . . . . . . . . . . . . . . . 12
1.39 "Rollover Savings". . . . . . . . . . . . . . . . . . 12
1.40 "Section 414(s) Compensation" . . . . . . . . . . . . 12
1.41 "Section 415 Compensation". . . . . . . . . . . . . . 12
1.42 "Separation from Service" . . . . . . . . . . . . . . 12
1.43 "Service Contract Act Contributions". . . . . . . . . 12
1.44 "Service Employee". . . . . . . . . . . . . . . . . . 13
1.45 "Spouse". . . . . . . . . . . . . . . . . . . . . . . 13
<PAGE>
<PAGE> 3
1.46 "Total Disability". . . . . . . . . . . . . . . . . . 13
1.47 "Valuation Date". . . . . . . . . . . . . . . . . . . 13
1.48 "Year of Service" . . . . . . . . . . . . . . . . . . 13
ARTICLE II - ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 Eligibility . . . . . . . . . . . . . . . . . . . . . 13
2.2 Participation; Election to Make Before-Tax
Contributions . . . . . . . . . . . . . . . . . . . . 13
2.3 Participation in Company Matching
Contributions . . . . . . . . . . . . . . . . . . . . 14
2.4 Participation in Service Contract Act
Contributions . . . . . . . . . . . . . . . . . . . . 14
2.5 Participation in Employer Contributions . . . . . . . 14
2.6 Participation After Reemployment. . . . . . . . . . . 14
2.7 Data. . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE III - CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Participant Before-Tax Contributions. . . . . . . . . 14
3.2 Change of Percentage Rate . . . . . . . . . . . . . . 15
3.3 Discontinuance of Participant Before-Tax
Contributions . . . . . . . . . . . . . . . . . . . . 15
3.4 Company Matching Contribution . . . . . . . . . . . . 15
3.5 Service Contract Act Contributions. . . . . . . . . . 16
3.6 Employer Contributions. . . . . . . . . . . . . . . . 16
3.7 Deductibility . . . . . . . . . . . . . . . . . . . . 17
3.8 Fund. . . . . . . . . . . . . . . . . . . . . . . . . 17
3.9 Remittance of Contributions . . . . . . . . . . . . . 17
3.10 Limitation on Before-Tax Contributions and
Company Matching Contributions. . . . . . . . . . . . 18
3.11 Prevention of Violation of Limitation on Before-
Tax Contributions and Company Matching
Contributions . . . . . . . . . . . . . . . . . . . . 20
3.12 Maximum Allocation. . . . . . . . . . . . . . . . . . 21
ARTICLE IV - PARTICIPANTS' ACCOUNTS. . . . . . . . . . . . . . . . . . . . 22
4.1 Accounts. . . . . . . . . . . . . . . . . . . . . . . 22
4.2 Investment of Contributions and Accounts. . . . . . . 22
4.3 Valuation . . . . . . . . . . . . . . . . . . . . . . 23
4.4 Apportionment of Gain or Loss . . . . . . . . . . . . 23
4.5 Accounting for Allocations. . . . . . . . . . . . . . 23
ARTICLE V - DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.1 General . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 Normal Retirement . . . . . . . . . . . . . . . . . . 24
5.3 Late Retirement . . . . . . . . . . . . . . . . . . . 24
5.4 Death . . . . . . . . . . . . . . . . . . . . . . . . 24
5.5 Total Disability. . . . . . . . . . . . . . . . . . . 24
5.6 Valuation for Distribution. . . . . . . . . . . . . . 24
5.7 Manner of Making Payments . . . . . . . . . . . . . . 25
5.8 Deadline for Distribution . . . . . . . . . . . . . . 25
5.9 Beneficiary Designation . . . . . . . . . . . . . . . 25
5.10 Effect of Reemployment. . . . . . . . . . . . . . . . 26
<PAGE>
<PAGE> 4
5.11 Other Distributions . . . . . . . . . . . . . . . . . 26
5.12 Direct Transfers. . . . . . . . . . . . . . . . . . . 26
ARTICLE VI - VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Nonforfeitable Amounts. . . . . . . . . . . . . . . . 26
6.2 Treatment of Terminated Vested Participant. . . . . . 26
ARTICLE VII - ROLLOVER SAVINGS . . . . . . . . . . . . . . . . . . . . . . 27
7.1 Rollover Savings. . . . . . . . . . . . . . . . . . . 27
7.2 Vesting and Distribution of Rollover Account. . . . . 28
ARTICLE VIII - WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . 28
8.1 General . . . . . . . . . . . . . . . . . . . . . . . 28
8.2 Withdrawals From Rollover Account, Company
Matching Contribution Account Service Contract
Act and Employer Account. . . . . . . . . . . . . . . 28
8.3 Hardship Withdrawals. . . . . . . . . . . . . . . . . 29
8.4 Withdrawals From Before-Tax Contribution Account
After Age 59 1/2. . . . . . . . . . . . . . . . . . . 30
8.5 Required In-Service Distribution. . . . . . . . . . . 30
8.6 Early Payment to an Alternate Payee.. . . . . . . . . 31
8.7 Restriction on Distribution of Before-Tax
Contribution Account. . . . . . . . . . . . . . . . . 31
8.8 Amount and Payment of Withdrawals . . . . . . . . . . 31
8.9 Withdrawals Not Subject to Replacement. . . . . . . . 31
ARTICLE IX - ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . 31
9.1 The Committee; Plan Administration. . . . . . . . . . 31
9.2 Membership of the Committee . . . . . . . . . . . . . 32
9.3 Powers of the Committee . . . . . . . . . . . . . . . 32
9.4 Responsibilities of the Committee . . . . . . . . . . 33
9.5 Committee Meetings. . . . . . . . . . . . . . . . . . 33
9.6 Recordkeeping . . . . . . . . . . . . . . . . . . . . 33
9.7 Uniform Action. . . . . . . . . . . . . . . . . . . . 33
9.8 Information Furnished to the Committee. . . . . . . . 34
9.9 Indemnification of the Committee. . . . . . . . . . . 34
9.10 Claims Procedures . . . . . . . . . . . . . . . . . . 34
ARTICLE X - THE FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.1 Designation of Trustee. . . . . . . . . . . . . . . . 34
10.2 Exclusive Benefit . . . . . . . . . . . . . . . . . . 35
10.3 No Interest in Fund . . . . . . . . . . . . . . . . . 35
10.4 Expenses. . . . . . . . . . . . . . . . . . . . . . . 35
10.5 Absence of Guaranty . . . . . . . . . . . . . . . . . 35
ARTICLE XI - AMENDMENT OR TERMINATION OF THE PLAN AND
PARTICIPATION BY ADDITIONAL COMPANIES . . . . . . . . . . . . . . . 35
11.1 Power of Amendment and Termination. . . . . . . . . . 35
11.2 Merger. . . . . . . . . . . . . . . . . . . . . . . . 36
11.3 Participation in the Plan . . . . . . . . . . . . . . 36
11.4 Termination of Participating Company. . . . . . . . . 37
11.5 Notice of Amendment or Termination. . . . . . . . . . 37
<PAGE>
<PAGE> 5
ARTICLE XII - TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . 37
12.1 General . . . . . . . . . . . . . . . . . . . . . . . 37
12.2 Definitions . . . . . . . . . . . . . . . . . . . . . 37
"Key Employee". . . . . . . . . . . . . . . . . . . . 37
"Permissive Aggregation Group". . . . . . . . . . . . 37
"Required Aggregation Group". . . . . . . . . . . . . 37
"Top-Heavy Plan Year" . . . . . . . . . . . . . . . . 37
12.3 Top-Heavy Operating Rules . . . . . . . . . . . . . . 38
ARTICLE XIII - GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . 39
13.1 No Employment Rights. . . . . . . . . . . . . . . . . 39
13.2 Source of Benefits. . . . . . . . . . . . . . . . . . 39
13.3 Governing Law . . . . . . . . . . . . . . . . . . . . 39
13.4 Spendthrift Clause. . . . . . . . . . . . . . . . . . 39
13.5 Incapacity. . . . . . . . . . . . . . . . . . . . . . 40
13.6 Unclaimed Benefits. . . . . . . . . . . . . . . . . . 40
13.7 Receipt and Release . . . . . . . . . . . . . . . . . 41
13.8 Effect of Mistake . . . . . . . . . . . . . . . . . . 41
13.9 Notice to Committee . . . . . . . . . . . . . . . . . 41
13.10 Notice to Participants, Etc . . . . . . . . . . . . . 41
<PAGE>
<PAGE> 6
WHEREAS, Lear Siegler Diversified Holdings Corp. adopted the Lear
Siegler Management Services Employee Investment Plan (the "Plan"), an
investment plan for certain employees of Lear Siegler Management
Services Corp., effective as of July 1, 1990 and made certain changes
effective as of January 1, 1993;
WHEREAS, in connection with the acquisition of the stock of Lear
Siegler Management Service Corp. by UNC Incorporated effective as of
October 26, 1993, the sponsorship of the Plan was assumed by UNC
Aviation Services, Inc. (the "Company") effective as of such date;
WHEREAS, the Company wishes to amend the Plan to change the name
of the Plan to the UNC Aviation Services SCA Employee Investment Plan,
to bring the Plan into compliance with certain changes in the law made
by the Tax Reform Act of 1986 and subsequent legislation, and to
provide, effective as of January 1, 1994, for Employer Contributions (as
hereinafter defined);
NOW, THEREFORE, effective as of July 1, 1990 (except as otherwise
herein provided), the Plan hereby is adopted by the Company and is
amended and restated as follows:
ARTICLE I
DEFINITIONS
Except where otherwise clearly indicated by context, the masculine
shall include the feminine and the singular shall include the plural,
and vice versa.
1.1 "Accounts" shall mean the separate entries maintained in the
records representing the Participant's interest in the Fund. "Company
Matching Contribution Account" shall mean the Account to which are
credited or debited Company Matching Contributions and increments
thereon and losses thereto. "Before-Tax Contribution Account" shall
mean the Account to which are credited or debited a Participant's
Before-Tax Contributions and increments thereon and losses thereto.
"Rollover Account" shall mean the Account to which are credited or
debited a Participant's Rollover Savings and increments thereon and
losses thereto. "Service Contract Act Account" shall mean the Account
to which are credited or debited Service Contract Act Contributions and
increments thereon and losses thereto. "Employer Contribution Account"
shall mean the Account to which are credited or debited Employer
Contributions and increments thereon and losses thereto.
1.2 "Actual Deferral Percentage" shall mean the ratio of (a) the
sum of an Eligible Employee's Before-Tax Contributions for any Plan
Year, plus such other amounts required or (at the election of the
Committee) permitted to be taken into account in accordance with section
401(k)(3) of the Code and the regulations issued thereunder, including,
in the case of any Highly Compensated Eligible Employee, his elective
deferrals for the year under any other qualified retirement plan
maintained by the Company or any Affiliated Company, to (b) the Eligible
Employee's Section 414(s) Compensation for the Plan Year.
<PAGE>
<PAGE> 7
1.3 "Affiliated Company" shall mean (a) any corporation which is
a member of a controlled group of corporations with the Company, as
determined under section 414(b) of the Code; (b) any member of an
affiliated service group, as determined under section 414(m) of the
Code, of which the Company is a member; (c) any trade or business under
common control with the Company, as determined under section 414(c) of
the Code; or (d) any other entity which is required to be aggregated
with the Company under section 414(o) of the Code. "50% Affiliated
Company" shall mean an Affiliated Company, but with the phrase "more
than 50%" substituted for the phrase "at least 80%" in section 1563(a)
of the Code.
1.4 "Average Actual Deferral Percentage" shall mean for a
specified group of Eligible Employees for a Plan Year, the average of
the Actual Deferral Percentages for such Eligible Employees for the Plan
Year.
1.5 "Average Contribution Percentage" shall mean for a specified
group of Eligible Employees for a Plan Year, the average of the
Contribution Percentages for such Eligible Employees for the Plan Year.
1.6 "Before-Tax Contributions" shall mean a Participant's
contributions as provided in Section 3.1.
1.7 "Board of Directors" shall mean the board of directors of
the Company or a committee of the Board of Directors to which the Board
of Directors has delegated some or all of its responsibilities and
duties hereunder.
1.8 "CFT Employee" shall mean an Employee of a Participating
Company who is classified for payroll purposes as a "contract field
teams" employee.
1.9 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any predecessor or successor thereto.
1.10 "Committee" shall have the meaning set forth in Article XI
of the Plan.
1.11 "Company" shall mean UNC Aviation Services, Inc. and its
successors for periods after October 25, 1993 and Lear Siegler
Management Services Corp. for periods prior to October 26, 1993.
1.12 "Company Matching Contributions" shall mean the amounts
contributed by a Participating Company pursuant to Section 3.4.
1.13 "Compensation" shall mean the base pay or straight-time
hourly pay (including Before-Tax Contributions and elective deferrals
to any Company or Affiliated Companysponsored plans which are not
includible in the Participant's gross income under sections 125 or
402(e)(3) of the Code or such successor sections thereto) of a
Participant paid by the Participating Company with respect to a given
<PAGE>
<PAGE> 8
Plan Year plus bonuses, shift premium, overtime, commissions, and
incentive pay, but not including amounts received as car allowances or
other business expense reimbursements, moving expenses, tuition
reimbursement, income attributable to grant or exercise of stock
options, imputed income, non-qualified deferred compensation, and
severance pay. In no event shall a Participant's Compensation for any
Plan Year exceed, for purposes of this Plan, $200,000 ($150,000 for Plan
Years beginning after December 31, 1993, or such other amount as may be
applicable for such Plan Year under section 401(a)(17) of the Code).
In determining the Compensation of a Participant for the purposes of the
limit described in the preceding sentence, the rules of section
414(q)(6) of the Code, with respect to treatment of family members of
certain Highly Compensated Eligible Employees, shall apply, except that
"family members" shall include only the Spouse of the Participant and
any lineal descendants who have not attained age 19 before the close of
the Plan Year of reference.
1.14 "Contract Period" shall mean with respect to a Participant
performing services under a government contract, the twelve-month fiscal
period used for recordkeeping and contract renewal purposes under that
government contract.
1.15 "Contribution Percentage" shall mean the ratio of (a) the
sum of Eligible Employee's Company Matching Contributions for the Plan
Year, and such other amounts required or (at the election of the
Committee) permitted to be taken into account in accordance with section
401(m) of the Code and the regulations issued thereunder, including, in
the case of any Highly Compensated Eligible Employee, any employee
contributions and employer matching contributions for the year under any
other qualified retirement plan maintained by the Company or any
Affiliated Company to (b) the Participant's Section 414(s) Compensation
for the Plan Year.
1.16 "Covered Employee" shall mean an Employee of a Participating
Company but excluding: (i) persons covered by a collective bargaining
agreement unless such agreement specifically provides for participation
hereunder; (ii) persons receiving no remuneration from a Participating
Company other than severance pay; (iii) for periods prior to January 1,
1994, Highly Compensated Oklahoma City Employees and for periods after
December 31, 1993, all Oklahoma City Employees; (iv) persons who are
leased employees, whether or not as described in section 414(n) of the
Code; (v) persons who are classified as "seasonal" or "temporary"
employees; and (vi) persons who are nonresident aliens and who receive
no earned income (within the meaning of section 911(d)(2) of the Code)
from the Participating Company or an Affiliated Company which
constitutes income for services within the United States (within the
meaning of section 861(a)(3) of the Code).
1.17 "Effective Date" shall mean July 1, 1990.
<PAGE>
<PAGE> 9
1.18 "Eligible Employee" shall mean a Covered Employee who has
satisfied the eligibility requirements of Section 2.1.
1.19 "Employee" shall mean (a) an individual described in Section
3121(d)(1) of the Code who is employed by a Participating Company or
Affiliated Company and (b) a leased employee described in Section
414(n)(2) of the Code who provides services to a Participating Company
or Affiliated Company.
1.20 "Employer Contributions" shall mean the profit sharing
contributions (within the meaning of section 401(a)(27)) of the Code
contributed by a Participating Company pursuant to Section 3.6.
1.21 "Employment Commencement Date" shall mean the date on which
an employee first performs an Hour of Service for a Participating
Company or an Affiliated Company.
1.22 "Entry Date" shall mean the first day of each month.
1.23 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
1.24 "Fund" or "Trust Fund" shall mean the fund established for
this Plan, administered under the Trust Agreement, out of which benefits
payable under this Plan shall be paid.
1.25 "Highly Compensated Eligible Employee" shall mean an
Eligible Employee who during the current Plan Year or the immediately
preceding Plan Year:
(a) was a five-percent (5%) owner, as defined in Section 416(i)(1)
of the Code;
(b) received more than $75,000 (as indexed) in Section 415
Compensation from the Participating Company or an Affiliated Company;
(c) received more than $50,000 (as indexed) in Section 415
Compensation from the Participating Company or an Affiliated Company and
was among the top twenty percent (20%) of employees of the Company and
Affiliated Companies all ranked by Section 415 Compensation (excluding
employees described in section 414(q)(8) of the Code to the extent (1)
permitted under the Code and regulations thereunder and (2) elected by
the Committee, for purposes of identifying the number of employees in
the top twenty percent (20%)); or
(d) was an officer of the Participating Company or an Affiliated
Company and received Section 415 Compensation of more than fifty percent
(50%) of the dollar limit under section 415(b)(1)(A) of the Code during
such Plan Year; provided, however, if for any Plan Year no officer of
the Participating Company is included in the foregoing, the highest paid
officer for such Plan Year shall be treated as a Highly Compensated
Employee. The number of employees considered to be Highly Compensated
<PAGE>
<PAGE> 10
Eligible Employees under this Subsection (d) shall not exceed the lesser
of (1) fifty (50) or (2) the greater of three (3) or ten percent (10%)
of all Employees (excluding Employees described in section 414(q)(8) of
the Code to the extent permitted under the Code and regulations
thereunder and elected by the Committee, for purposes of identifying the
number of employees in the top twenty percent (20%)).
However, an Eligible Employee, other than a five-percent (5%)
owner, who was not a Highly Compensated Eligible Employee in the
preceding Plan Year is a Highly Compensated Eligible Employee for the
current Plan Year only if he is among the top 100 employees of the
Participating Company and all Affiliated Companies ranked by Section 415
Compensation for the current Plan Year.
In addition, for purposes of this Section, (a) the compensation
of any five percent (5%) owner or any other Highly Compensated Eligible
Employee who is one of the top ten (10) employees of the Company and all
Affiliated Companies ranked by Section 415 Compensation for the year
shall be increased by the amount of Section 415 Compensation of any
employee who is a spouse or lineal ascendant or descendant (or a spouse
thereof) of such Highly Compensated Eligible Employee, and (b) Section
415 Compensation of an Eligible Employee shall be increased by the
elective contributions made by his employer on his behalf under section
125 or section 402(e)(3) of the Code.
1.26 "Hour of Service" shall mean an hour for which:
(a) an employee is directly or indirectly paid or entitled to
payment by the Participating Company or an Affiliated Company for the
performance of employment duties;
(b) back pay, irrespective of mitigation of damages, is either
awarded or agreed to subject to the limitations set forth in U.S.
Department of Labor Reg. 2530.200b-2(a)(3); or
(c) an employee is directly or indirectly paid or entitled to
payment by the Participating Company or an Affiliated Company on account
of a period of time during which no duties are performed due to
vacation, holiday, illness, incapacity (including disability), layoff,
jury duty, military duty, or leave of absence.
There shall be excluded from the foregoing those periods during
which payments are made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation, unemployment
compensation, or disability insurance laws. No more than 501 Hours of
Service shall be credited under Subsection (c) on account of any single
continuous period during which no duties are performed, except to the
extent otherwise expressly provided to the contrary in the Plan. An
Hour of Service shall not be credited where an employee is being
reimbursed solely for medical or medically related expenses.
<PAGE>
<PAGE> 11
Hours of Service shall be credited in accordance with the rules
set forth in U.S. Department of Labor Reg. 2530.200b-2(b) and (c).
Hours of Service shall be credited for any individual who is
considered a leased employee for purposes of this Plan under section
414(n) or 414(o) of the Code.
For any period that includes any hours for which an Hour of
Service would otherwise be credited to an Employee under (a), above, the
Committee may, in accordance with rules applied in a uniform and non-
discriminatory manner, elect instead to credit Hours of Service using
one or more of the following equivalencies:
Basis Upon Which Records
Credit Granted to Individual
Are Maintained For Period
shift actual hours for full shift
day 10 Hours of Service
week 45 Hours of Service
semi-monthly period 95 Hours of Service
month 190 Hours of Service
1.27 "Investment Fund" shall mean any investment fund selected by
the Board of Directors from time to time for the investment of
Participants' accounts.
1.28 "Limitation Year" shall mean the Plan Year or such other 12-
consecutive-month period as may be designated by the Committee.
1.29 "Non-SCA Employee" shall mean a Covered Employee who
performs services under a contract that is exempt from the Service
Contract Act, but whose services are charged directly or indirectly to
a specific contract.
1.30 "Normal Retirement Age" shall mean the date on which a
Participant attains his 65th birthday.
1.31 "Oklahoma City Employee" shall mean an Employee who is (i)
employed by UNC Lear Siegler, Inc. (or its predecessor), and located in
Oklahoma City or (ii) employed by a Participating Company and classified
for payroll purposes as a "supervisor-II" and is engaged in the
performance of a "contract field teams" contract.
1.32 "Overhead Employee" shall mean a Covered Employee who is (i)
not a Service Employee because he is employed in a bona fide executive,
administrative or professional capacity within the meaning of 29 C.F.R.
Part 541 or (ii) engaged in the performance of the contract regarding
the Wright-Patterson Air Force Base.
1.33 "Participant" shall mean any Eligible Employee or any
Employee or former Employee for whom one or more Accounts are maintained
under the Plan.
<PAGE>
<PAGE> 12
1.34 "Participating Company" shall mean UNC Lear Siegler, Inc.
and each other Affiliated Company which is authorized by the Board of
Directors to adopt the Plan by action of its board of directors or other
governing body and has so adopted the Plan.
1.35 "Plan" shall mean the UNC Aviation Services SCA Employee
Investment Plan (formerly known as the Lear Siegler Management Services
Employee Investment Plan), a profit sharing plan, as amended and
restated, effective July 1, 1990, as set forth herein and as hereafter
amended from time to time.
1.36 "Plan Year" shall mean the 6-consecutive-month period from
July 1, 1990 through December 31, 1990 and thereafter each 12-
consecutive-month period which commences January 1 and ends on the next
following December 31.
1.37 "Required Beginning Date" with respect to a Participant,
shall mean the April 1st of the calendar year next following the
calendar year in which the Participant attains age 70 1/2.
1.38 "Retirement" shall mean a Participant's Separation from
Service on or after his Normal Retirement Age.
1.39 "Rollover Savings" shall mean a Participant's rollover
savings as provided in Section 7.1.
1.40 "Section 414(s) Compensation" shall mean, for any period, a
Participant's compensation as defined in section 414(s) of the Code, but
not in excess of $200,000 ($150,00 for Plan Years beginning after
December 31, 1993) or such other amount as may be applicable under
section 401(a)(17) of the Code.
1.41 "Section 415 Compensation" shall mean, for any period, an
individual's current "compensation" from a Participating Company or a
50% Affiliated Company as defined under section 415(c)(3) of the Code
and regulations issued thereunder, including those items listed in
paragraph (2) of Treas. Reg. Section 1.415-2(d) but excluding those
items listed in paragraph (3) thereof.
1.42 "Separation from Service" shall mean the date, as recorded
on the records of the Participating Company or an Affiliated Company,
on which an employee of such company resigns, retires, is discharged,
or dies, or if earlier, the first anniversary of the first day of a
period during which the employee fails to perform an Hour of Service
with the Participating Company and all Affiliated Companies (with or
without pay) for any other reason, except Total Disability.
1.43 "Service Contract Act Contributions" shall mean the profit
sharing contributions (within the meaning of section 401(a)(27) of the
Code) contributed by a Participating Company pursuant to Section 3.5.
<PAGE>
<PAGE> 13
1.44 "Service Employee" shall mean a Covered Employee who is (i)
a "service employee" within the meaning of 41 U.S.C. Section 357(b) and
is not covered by a collective bargaining agreement or (ii) engaged in
the performance of a "contract field teams" contract and classified for
payroll purposes as a "Supervisor-I."
1.45 "Spouse" shall mean the person to whom a Participant is
married on any date of reference.
1.46 "Total Disability" shall mean a disability which has lasted
for a period of 12 months or longer and which prevents the Participant
from engaging in the occupation or fulfilling the duties which he
performed at the time of the occurrence of such disability.
1.47 "Valuation Date" shall mean, effective as of January 1,
1994, each business day.
1.48 "Year of Service" means any 12-consecutive-month period,
beginning with an employee's Employment Commencement Date, if the
employee completes at least 1,000 Hours of Service during such period.
An employee who is not credited with 1,000 Hours of Service during his
initial 12 months of employment shall complete a Year of Service as of
the end of any Plan Year in which he completes 1,000 or more Hours of
Service; provided, however, that the first Plan Year during which such
employee shall have the opportunity to meet such requirement shall be
the Plan Year which includes the first anniversary of his Employment
Commencement Date.
ARTICLE II
ELIGIBILITY
2.1 Eligibility. (a) Each Covered Employee employed by a
Participating Company on the Effective Date shall become an Eligible
Employee in the Plan on the Effective Date. Each Covered Employee whose
Employment Commencement Date occurs after the Effective Date shall
become an Eligible Employee on the Entry Date coincident with or next
following his Employment Commencement Date.
(b) Each Covered Employee who becomes an Eligible Employee shall
be deemed to have agreed to the terms and the requirements of the Plan.
2.2 Participation; Election to Make Before-Tax Contributions.
An Eligible Employee who is an Oklahoma City Employee, and effective
January 1, 1994, any Eligible Employee, may elect to make Before-Tax
Contributions on and after the Entry Date on which he becomes an
Eligible Employee under Section 2.1 or any subsequent Entry Date, by
filing a written notice of such election with the Committee on an
enrollment form provided for that purpose, at least 30 days (or such
shorter time as may be permitted by the Committee) before the Entry Date
on which he wishes to make Before-Tax Contributions. Such form will
authorize the Participating Company to deduct from the Eligible
Employee's Compensation for deposit in the Trust Fund an amount
specified in accordance with Section 3.1. In order to make Before-Tax
Contributions, each Participant must complete an election form.
<PAGE>
<PAGE> 14
2.3 Participation in Company Matching Contributions. An
Eligible Employee who is an Oklahoma City Employee shall be eligible to
share in Company Matching Contributions under Section 3.4 for any Plan
Year during which he contributes Before-Tax Contributions.
2.4 Participation in Service Contract Act Contributions. An
Eligible Employee who is a Service Employee during any Plan Year shall
be eligible to share in the Service Contract Act Contributions under
Section 3.5 for that Plan Year.
2.5 Participation in Employer Contributions. An Eligible
Employee who is an Overhead Employee or a Non-SCA Employee during any
Plan Year shall be eligible to share in the Employer Contributions under
Section 3.6 for that Plan Year.
2.6 Participation After Reemployment. An Eligible Employee who
ceases to be a Covered Employee and who subsequently again becomes a
Covered Employee shall become an Eligible Employee as of his re-
employment as a Covered Employee.
2.7 Data. Each Eligible Employee shall furnish to the Committee
such data as the Committee may consider necessary for the determination
of the Eligible Employee's rights and benefits under the Plan and shall
otherwise cooperate fully with the Committee in the administration of
the Plan.
ARTICLE III
CONTRIBUTIONS
3.1 Participant Before-Tax Contributions.
(a) Each Eligible Employee may elect, on a prospective basis,
subject to Sections 3.10 and 3.11, to contribute between two percent
(2%) and fourteen percent (14%), expressed as a whole percentage, of his
Compensation as a Before-Tax Contribution.
(b) For any calendar year, the Before-Tax Contributions made on
behalf of a Participant under the Plan shall not exceed $7,000, or such
other amount as may be permitted under section 402(g) of the Code. To
the extent necessary to satisfy this limitation for any year, (1)
elections under Subsection (a) shall be prospectively restricted; (2)
after application of clause (1) of this sentence, the excess Before-Tax
Contributions (with earnings thereon) shall be paid to the Participant
on or before the April 15 first following the calendar year during which
such Before-Tax Contributions were made; or (3) the Committee will take
such other corrective action as it deems appropriate. If the Before-Tax
Contributions plus the elective deferrals (as defined in section
402(g)(3) of the Code) under any other plan or plans sponsored by the
Participating Company or any Affiliated Company for any Participant
exceed such limitation for any calendar year, upon the written request
of the Participant made on or before the March 1 following such calendar
<PAGE>
<PAGE> 15
year, the excess, including any earnings attributable thereto for the
Plan Year, shall be paid to the Participant on or before the April 15
first following such calendar year from the Plan or such other plan as
the Participant may designate.
3.2 Change of Percentage Rate.
(a) The percentage of Compensation designated by the Participant
as his contribution rate under Section 3.1 shall continue in effect,
notwithstanding any change in his Compensation, until he elects to
change his percentage.
(b) A Participant may change the percentage of Compensation
designated as his contribution rate under Section 3.1 to any percentage
permitted in Section 3.1(a), subject to Sections 3.10 and 3.11,
effective as of the first day in any calendar quarter, by filing with
the Committee, at least 30 days in advance, the form furnished by the
Committee, in accordance with Committee rules.
3.3 Discontinuance of Participant Before-Tax Contributions.
(a) A Participant may cancel his Before-Tax Contributions at any
time by filing written notice with the Committee at least 30 days in
advance. A Participant's Before-Tax Contributions shall cease as of the
first day of the following pay period.
(b) A Participant who discontinues his Before-Tax Contributions
may resume his Before-Tax Contributions effective as of the first day
in any calendar quarter, by filing with the Committee timely written
notice (generally 30 days prior to the date on which he desires his
Before-Tax Contributions to resume) on a form furnished by the Committee
and in accordance with Committee rules.
(c) A Participant who ceases to be a Covered Employee shall have
his Before-Tax Contributions discontinued as of the date on which he
ceases to be an Employee.
3.4 Company Matching Contribution. The Participating Company
will contribute to the Fund for each month an amount equal to the sum
of fifty percent (50%) of the Before-Tax Contributions of each
Participant who is an Oklahoma City Employee for such month as a Company
Matching Contribution. The Company Matching Contribution shall only
apply to the first six percent (6%) of such a Participant's Compensation
each month. The Company Matching Contribution shall be allocated to
each Participant who is an Oklahoma City Employee and who makes a
Before-Tax Contribution during such month. Notwithstanding the
foregoing, no Company Matching Contributions shall be made for periods
after December 31, 1993.
<PAGE>
<PAGE> 16
3.5 Service Contract Act Contributions.
(a) Subject to the rights of the Participating Company under
Article XI, effective January 1, 1993, a Participating Company shall
make a Service Contract Act Contribution on behalf of Participants who
are Service Employees in an amount determined by the Participating
Company, based on the results of a fringe benefit reconciliation
performed in accordance with 29 C.F.R. section 4.175(b). All Service
Contract Act Contributions by a Participating Company for a Plan Year
shall be allocated to the Service Contract Act Accounts of the Service
Employees as of the last day of each quarter of the Contract Period for
which the profit sharing contribution is made. The amount of the
Service Contract Act Contribution allocated to such a Participant's
Service Contract Act Account with respect to each government service
contract under which the Participant performed services shall be equal
to such Participant's total number of hours worked during such Contract
Period multiplied by the per hour value determined for such contract.
The "per hour value" shall be determined by the Participating Company,
based on the fringe benefit reconciliation performed as of the last day
of each quarter of the Contract Period in accordance with 29 C.F.R.
Section 4.175(b).
(b) Effective with respect to Contract Periods commencing on or
after October 1, 1994, an additional Service Contract Act Contribution
shall be made for each Plan Year on behalf of each Participant who is
a CFT Employee who has one or more unused sick days as of the end of the
Contract Period ending within the Plan Year. This additional Service
Contract Act Contribution shall be allocated to such CFT Employee's
Service Contract Act Account as of the end of the Contract Period. The
amount allocated shall be equal to the number of unused sick days the
CFT Employee has as of the end of the Contract Period multiplied by his
regular day's pay.
3.6 Employer Contributions.
(a) Subject to the rights of the Participating Company under
Article XI, effective January 1, 1994, a Participating Company shall
make an Employer Contribution on behalf of each Participant who was a
Non-SCA Employee at any time during the Plan Year. The Employer
Contribution for any Plan Year shall be allocated to such a
Participant's Employee Contribution Account as of the last day of the
Plan Year. The amount of the Employer Contribution allocated to such
a Participant's Employer Contribution Account shall be equal to the
factor designated in each government contract under which the
Participant performed services during the Plan Year multiplied by the
Participant's Compensation earned for the period during which the
Participant performed services under that government service contract.
(b) Subject to the rights of the Participating Company under
Article XI, effective January 1, 1994, a Participating Company may make
an Employer Contribution on behalf of any Participant who was an
Overhead Employee at any time during the Plan Year. The Employer
<PAGE>
<PAGE> 17
Contribution for any Plan Year shall be allocated to such a
Participant's Employer Contribution Account as of the last day of the
Plan Year. The amount of the Employer Contribution allocated to such
a Participant's Employer Contribution Account shall be equal to that
percentage of the Participant's Compensation for the Plan Year earned
during the period during which the Participant was an Overhead Employee
that the Participating Employer determines in its discretion on a
uniform and nondiscriminatory basis with respect to all Overhead
Employees.
3.7 Deductibility. Notwithstanding any provision of the Plan to
the contrary, the contributions under Sections 3.1, 3.4, 3.5 and 3.6 for
any Plan Year shall not exceed the maximum amount which constitutes an
allowable current deduction under the applicable provisions of the Code.
Contributions for any Plan Year under this Article shall be made no
later than the expiration of the period within which they may be paid
and deducted for the purpose of Federal income taxes. All Company
Matching Contributions and Employer Contribution are expressly
conditioned upon their deductibility for Federal income tax purposes.
3.8 Fund.
(a) The contributions deposited by the Participating Companies in
the Fund in accordance with this Article shall constitute a fund held
for the benefit of Participants and their eligible beneficiaries under,
and in accordance with the Plan. No part of the principal or income of
the Fund shall be used for, or diverted to, purposes other than for the
exclusive benefit of such Participants and their eligible beneficiaries
(including necessary administrative costs); provided, that in the case
of a contribution made by the Participating Company (1) as a mistake of
fact, or (2) for which a tax deduction is disallowed, in whole or in
part, by the Internal Revenue Service, or (3) which is conditioned upon
the initial qualification of the Plan under section 401(a) of the Code
and such initial qualification cannot be obtained, the Participating
Company shall be entitled to a refund of said contributions; provided,
however, no Service Contract Act Contribution for which a tax deduction
is disallowed shall be refunded to a Participating Company.
(b) Any refund of contributions described in Subsection (a) must
be made (1) within one year after payment of a contribution made as a
mistake of fact, or (2) within one year after disallowance of the tax
deduction, to the extent of such disallowance, or (3) within one year
of the date on which the initial qualification of the Plan is denied by
the Internal Revenue Service, as the case may be.
3.9 Remittance of Contributions.
(a) Amounts contributed as Company Matching Contributions or
Employer Contributions will be remitted to the Trustee as soon as
practicable, but no later than the due date, with extensions, for the
Participating Company's income tax return for the Plan Year for which
the contribution is made.
<PAGE>
<PAGE> 18
(b) Amounts contributed as Rollover Savings or deducted as Before-
Tax Contributions will be remitted to the Trustee as soon as
practicable, but in no event later than 90 days after the date on which
such contributions were received or withheld from the Participant's
Compensation.
(c) Amounts contributed as Service Contract Act Contributions
will be remitted on a quarterly basis, as soon as practicable following
the end of each quarter of the Contract Period for which such
contribution is made.
3.10 Limitation on Before-Tax Contributions and Company Matching
Contributions.
(a) For any Plan Year the Average Actual Deferral Percentage for
the Highly Compensated Eligible Employees shall not exceed the greater
of (1) or (2) as follows:
(1) The Average Actual Deferral Percentage of all other
Eligible Employees, multiplied by one hundred twenty-five percent
(125%); or
(2) The Average Actual Deferral Percentage for all other
Eligible Employees, multiplied by two hundred percent (200%); provided,
however, the Average Actual Deferral Percentage for the Highly
Compensated Eligible Employees may not exceed the Average Actual
Deferral Percentage for all other Eligible Employees by more than two
(2) percentage points.
(b) For any Plan Year the Average Contribution Percentage for the
Highly Compensated Eligible Employees shall not exceed the greater of
(1) or (2) as follows:
(1) The Average Contribution Percentage for all other
Eligible Employees, multiplied by one hundred twenty-five percent
(125%); or
(2) The Average Contribution Percentage for all other
Eligible Employees, multiplied by two hundred percent (200%); provided,
however, the Average Contribution Percentage for the Highly Compensated
Eligible Employees may not exceed the Average Contribution Percentage
for all other Eligible Employees by more than two percentage points.
(c) For any Plan Year during which both the Average Actual
Deferral Percentage and the Average Contribution Percentage for the
Highly Compensated Eligible Employees exceed the like percentages for
all other Eligible Employees multiplied by one hundred twenty-five
percent (125%), the sum of the Average Actual Deferral Percentage and
the Average Contribution Percentage for the Highly Compensated Eligible
Employees shall not exceed the greater of:
<PAGE>
<PAGE> 19
(1) the sum of:
(A) one hundred twenty-five percent (125%) multiplied
by the greater of the Average Actual Deferral Percentage or the Average
Contribution Percentage for all other Eligible Employees; plus
(B) the lesser of:
(i) two hundred percent (200%) multiplied by the lesser of the Average
Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees; or
(ii) two (2) percentage points plus the lesser of the Average Actual
Deferral Percentage or the Average Contribution Percentage for all other
Eligible Employees; or
(2) the sum of:
(A) one hundred twenty-five percent (125%) multiplied
by the lesser of the average Actual Deferral Percentage or the Average
Contribution Percentage for all other Eligible Employees; plus
(B) the lesser of:
(i) two hundred percent (200%) multiplied by the greater of the Average
Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees; or
(ii) two (2) percentage points plus the greater of the Average Actual
Deferral Percentage or the Average Contribution Percentage for all other
Eligible Employees.
(d) For purposes of this Section, the Before-Tax Contributions and
Company Matching Contributions, respectively, of any five-percent (5%)
owner or other Highly Compensated Eligible Employee who is one of the
top ten (10) Employees ranked by Section 415 Compensation (without
regard to this sentence) for the Plan or the preceding Plan Year shall
be increased by the amount of the Before-Tax Contributions and Company
Matching Contributions, respectively, of any Employee who is a spouse
or lineal ascendant or descendant (or a spouse thereof) ("family
member") of such Highly Compensated Eligible Employee, and the
Compensation of the former shall include the Compensation of the latter,
and such family member shall not be treated as a separate Eligible
Employee for purposes of applying this Section. The application of this
Section shall be made in accordance with section 414(q) of the Code.
(e) The application of this Section shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.
<PAGE>
<PAGE> 20
(f) In the event that the Plan satisfies the requirements of
sections 401(k), 401(m), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more plans maintained by a Participating Company
or an Affiliated Company, then this Section 3.10 shall be applied by
determining the Actual Deferral Percentages and/or Contribution
Percentages (as appropriate) of Employees as if all such plans were a
single plan.
3.11 Prevention of Violation of Limitation on Before-Tax
Contributions and Company Matching Contributions.
The Committee shall monitor the level of Participants' Before-
Tax Contributions and Company Matching Contributions and elective
deferrals, employee contributions, and employer matching contributions
under any other qualified retirement plan maintained by the Company or
any Affiliated Company to insure against exceeding the limitations of
Section 3.10 for any Plan Year. If the Committee determines that the
limitations of Section 3.10 have been exceeded, it shall take the
appropriate following action for such Plan Year:
(a) (1) The Average Actual Deferral Percentage for the Highly
Compensated Eligible Employees shall be reduced to the extent necessary
to satisfy Section 3.10(a).
(2) The reduction shall be accomplished by reducing the
Before-Tax Contributions and elective deferrals under any other
qualified retirement plan maintained by the Company or any Affiliated
Company of the Highly Compensated Eligible Employees in order of their
Actual Deferral Percentages, beginning with the Highly Compensated
Eligible Employee(s) with the highest Actual Deferral Percentage, until
Section 3.10(a) is satisfied.
(3) To the extent practicable, the Committee shall
prospectively limit a Highly Compensated Eligible Employee's Before-Tax
Contributions to reduce his Actual Deferral Percentage to the extent
necessary to satisfy Section 3.10(a).
(4) In addition, not later than two and one half (2-1/2)
months after the close of the Plan Year for which the Before-Tax
Contributions were made, the remaining difference between a Highly
Compensated Eligible Employee's Actual Deferral Percentage and the
Highly Compensated Eligible Employee's maximum permissible Actual
Deferral Percentage, with earnings attributable thereto through the end
of the Plan Year, shall be paid to the Highly Compensated Eligible
Employee; provided, however, that, for any Participant who is also a
participant in any other qualified retirement plan maintained by the
Company or any Affiliate under which the Participant makes elective
deferrals for such year, the Committee shall coordinate corrective
actions under this Plan and such other plan for the year.
<PAGE>
<PAGE> 21
(b) (1) The Average Contribution Percentage for the Highly
Compensated Eligible Employees shall be reduced to the extent necessary
to satisfy at least one of the tests in Section 3.10(b).
(2) The Company Matching Contributions and employee
contributions and employer matching contributions under any other
qualified retirement plan maintained by the Company or any Affiliated
Company of the Highly Compensated Eligible Employees will be reduced in
order of their Contribution Percentages, beginning with the Highly
Compensated Eligible Employee(s) with the highest Contribution
Percentage, until Section 3.10(b) is satisfied.
(3) Not later than two and one half (2-1/2) months after the
close of the Plan Year for which the Company Matching Contributions were
made, the remaining difference between a Highly Compensated Eligible
Employee's Contribution Percentage and the Highly Compensated Eligible
Employee's adjusted maximum Contribution Percentage, with earnings
attributable thereto through the end of the Plan Year, shall be paid to
the Highly Compensated Eligible Employee; provided, however, that, for
any Participant who is also a participant in any other qualified
retirement plan maintained by the Company or any Affiliated Company
under which the Participant makes employee contributions or is credited
with employer matching contributions for such year, the Committee shall
coordinate corrective actions under this Plan and such other plan for
the year.
(c) The Average Contribution Percentage and/or the Actual Deferral
Percentage for the Highly Compensated Eligible Employees shall be
reduced to the extent necessary to satisfy the test in Section 3.10(c).
The reduction shall be accomplished in the same manner as is set forth
in Sections 3.11(a) and (b), whichever is appropriate, and shall be
charged against the Highly Compensated Eligible Employees' accounts in
the following order of priority: (A) Before-Tax Contribution Accounts;
and (B) Company Matching Contribution Accounts; provided, however, that,
for any Participant who is also a participant in any other qualified
retirement plan maintained by the Company or any Affiliated Company
under which the Participant makes employee contributions or elective
deferrals or is credited with employer matching contributions for such
year, the Committee shall coordinate corrective actions under this Plan
and such other plan for the year.
3.12 Maximum Allocation. The provisions of this Section shall be
construed to comply with section 415 of the Code and regulations issued
thereunder.
(a) Notwithstanding anything in this Article to the contrary, in
no event shall the sum of (1) any Company Matching Contributions,
Before-Tax Contributions, Service Contract Act Contributions and other
employer contributions, (2) any forfeitures, and (3) the Participant's
own contributions, if any, allocated for any Limitation Year to any
Participant under this and any other qualified defined contribution plan
maintained by the Participating Company or any 50% Affiliated Company,
<PAGE>
<PAGE> 22
exceed the lesser of $30,000 or twenty-five percent (25%) of such
Participant's Section 415 Compensation for the Limitation Year. Amounts
described in sections 415(1) and 419A(d)(2) of the Code contributed for
any Plan Year for the benefit of any Participant shall be treated as
"annual additions" to the extent provided in such sections.
(b) If the amount otherwise allocable to the Accounts of a
Participant would exceed the amount described in Section 3.11(a) as a
result of a reasonable error in estimating the Participant's Section 415
Compensation, the Committee shall determine which portion of such excess
amount is attributable to (1) a Participant's Before-Tax Contributions
and (2) Company Matching Contributions.
(c) Such excess amounts will be held in a suspense account by the
Trustee until the following Plan Year, at which time the amounts will
be used first to reduce the Participant's Before-Tax Contributions to
the extent that there are amounts in suspense attributable to Before-Tax
Contributions, and then to reduce Company Matching Contributions
allocable to the account of such Participant. However, if such
Participant is not covered by the Plan in such following Plan Year, then
the excess amounts must be held unallocated in the suspense account for
that Plan Year and allocated in the next Plan Year to all of the
remaining Participants in the Plan.
(d) If in any Limitation Year a Participant in this Plan is also
a participant in one or more qualified defined benefit plans maintained
by the Participating Company or any 50% Affiliated Company, the
projected annual benefit under such qualified defined benefit plan or
plans shall be reduced, if necessary, to comply with Code Section
415(e).
ARTICLE IV
PARTICIPANTS' ACCOUNTS
4.1 Accounts. All contributions and earnings thereon shall be
invested in such Investment Funds as each Participant shall elect under
Section 4.2. The amounts allocated by or on behalf of all Participants
to each Investment Fund shall be commingled for investment purposes.
However, in order that the interest of each Participant may be
accurately determined and computed, separate Accounts shall be
maintained for each Participant. These Accounts shall represent the
Participant's individual interest in the Trust Fund.
4.2 Investment of Contributions and Accounts.
(a) In accordance with uniform and nondiscriminatory procedures
established by the Committee, the Participant shall elect from time to
time, in the manner and at the times permitted under the Committee's
procedures, the Investment Fund or Funds in which his Accounts shall be
invested and the Trustee shall invest the Participant's Accounts in
accordance with the Participant's instructions.
<PAGE>
<PAGE> 23
(b) In the event a Participant fails to make an election pursuant
to this Section 4.2, amounts allocated to a Participant's Accounts shall
be invested in the Investment Fund or Funds designated by the Committee.
(c) If a Participant who has had a Separation from Service and
whose Accounts exceed $3500 elects to defer distribution of his Accounts
under Article V or VI, his Accounts shall be invested in the Investment
Fund or Funds designated by the Committee as soon as practicable
following his Separation From Service.
(d) If a Participant's Accounts are segregated pursuant to a
domestic relations order which is qualified within the meaning of
section 414(p) of the Code, the Accounts of the "alternate payee" as
defined in section 414(p) of the Code under such order shall be invested
in the same manner as the Participant's Accounts unless the alternate
payee directs otherwise.
4.3 Valuation. The value of each Investment Fund in the Trust
Fund shall be computed by the Trustee as of the close of business on
each Valuation Date on the basis of the fair market value of the assets
of the Trust Fund.
4.4 Apportionment of Gain or Loss. The value of each Investment
Fund in the Trust Fund, as computed pursuant to Section 4.3, shall be
compared with the value of each Investment Fund as of the preceding
Valuation Date. Any difference in the value, not including
contributions or withdrawals made since the preceding Valuation Date,
shall be the net increase or decrease of such Investment Fund, and such
amount shall be ratably apportioned among the Participants' Accounts
which are invested in such Investment Fund at the current Valuation
Date.
4.5 Accounting for Allocations. The Committee shall establish
or provide for the establishment of accounting procedures for the
purpose of making the allocations, valuations and adjustments to
Participants' Accounts provided for in this Article. From time to time
such procedures may be modified for the purpose of achieving equitable
and non-discriminatory allocations among the Accounts of Participants
in accordance with the general concepts of the Plan and the provisions
of this Article.
ARTICLE V
DISTRIBUTION
5.1 General. The interest of each Participant in the Fund shall
be distributed in the manner, in the amount, and at the time provided
in this Article, except as provided in Article VI and except in the
event of the termination of the Plan. The provisions of this Article
shall be construed in accordance with section 401(a)(9) of the Code and
regulations thereunder, including, the incidental benefit requirements
of Code section 401(a)(9)(G).
<PAGE>
<PAGE> 24
5.2 Normal Retirement. Each Participant shall have the right to
retire from the Participating Company upon his Normal Retirement Age.
When a Participant retires, his Accounts shall be paid to him or applied
for his benefit in accordance with the provisions of this Article.
5.3 Late Retirement. A Participant who remains in the employ of
the Participating Company beyond his Normal Retirement Age shall
participate in the Plan on the same basis as other Participants. When
such a Participant retires, his Accounts shall be paid to him or applied
for his benefit in accordance with the provisions of this Article.
5.4 Death. If a Participant dies while he is employed by a
Participating Company, his Accounts shall be paid to, or applied for the
benefit of, his beneficiary.
5.5 Total Disability.
(a) If a Participant, prior to his retirement, suffers a Total
Disability, his Accounts shall be paid to him or applied for his benefit
in accordance with the provisions of this Article following the
determination of his Total Disability. If the value of the
Participant's Accounts exceeds $3,500, or at the time of any prior
distribution ever exceeded $3,500, his Accounts shall not be paid to him
or applied for his benefit until (1) he submits his written consent to
such distribution not more than 90 days prior to the benefit
commencement date he elects, (2) he attains his Normal Retirement Age
or (3) he dies.
(b) The Committee shall provide to each such Participant a notice
that he has the right to defer his benefit commencement date until the
earlier of his Normal Retirement Age or his death. Such notice shall
be furnished not less than 30 days nor more than 90 days prior to any
benefit commencement date that occurs prior to the earlier of his Normal
Retirement Age or his death.
(c) Total Disability shall be determined by the Committee, which
may consult with a medical examiner selected by it. The medical
examiner shall have the right to make such physical examinations and
other investigations as may be reasonably required to determine Total
Disability.
5.6 Valuation for Distribution. For the purposes of paying the
amounts to be distributed to a Participant or his beneficiaries under
the provisions of this Article and Article VI, the value of the Fund and
the amount of the Participant's interest shall be determined in
accordance with the provisions of Article IV on the Valuation Date
coincident with the date on which the Participant's Accounts are
liquidated. As of such Valuation Date, there shall be added to the
Participant's Accounts determined as of the preceding Valuation Date the
additional contributions, if any, and earnings thereon which have been
or are to be allocated to the Participant's Accounts since the preceding
Valuation Date.
<PAGE>
<PAGE> 25
5.7 Manner of Making Payments. Distribution of a Participant's
Accounts will be made in a single sum to or for the benefit of the
Participant or, in the case of the Participant's death, his beneficiary,
as soon as practicable after the Valuation Date on or next following the
Participant's Separation from Service.
5.8 Deadline for Distribution. Notwithstanding any other
provision of the Plan, the entire balance of a Participant's Accounts
shall be distributed no later than the April 1 of the calendar year
immediately following the calendar year in which he attains age 70 1/2.
5.9 Beneficiary Designation.
(a) Death benefits under Section 5.4 shall be paid to the
Participant's surviving Spouse (1) unless (A) the Spouse (or the
Spouse's legal guardian if the Spouse is legally incompetent) consents
in writing not to receive such benefit; (B) such consent acknowledges
its own effect; and (C) such consent is witnessed by a Plan
representative or notary public; or (2) unless the Participant
establishes to the satisfaction of a Plan representative that (A) he has
no Spouse; (B) his Spouse cannot be located; or (C) his Spouse's consent
is not required under such other circumstances as are prescribed by
governmental regulations. The Spouse's consent may be in the form of
a consent to a specific designation or may expressly permit the
Participant to change his designation without further consent by the
Spouse.
(b) Subject to Subsection (a), each Participant shall have the
unrestricted right at any time to designate the beneficiary or
beneficiaries who shall receive, on or after his death, his interest in
the Fund. Such designation shall be made by executing and filing with
the Committee a written instrument in such form as may be prescribed by
the Committee for that purpose. Except as provided in this Section, the
Participant shall also have the unrestricted right to revoke and to
change, at any time and from time to time, any beneficiary designations
previously made. Such revocations and/or changes shall be made by
executing and filing with the Committee a written instrument in such
form as may be prescribed by the Committee for that purpose. No
designation, revocation, or change of beneficiaries shall be valid and
effective unless and until filed with the Committee. In the event a
Participant designates a trust as his beneficiary, a change in the
beneficiaries of the trust shall be deemed a change in the Participant's
beneficiary for purposes of Subsection (a), but not for the purposes of
this Subsection (b).
If no designation is made, or if the beneficiaries named in such
designation predecease the Participant, or if the beneficiaries cannot
be located by the Committee, the interest of the deceased Participant
shall be paid to the Participant's Spouse, and if there is no Spouse,
to the Participant's estate.
<PAGE>
<PAGE> 26
5.10 Effect of Reemployment. In the event a Former Participant
is reemployed by the Company or an Affiliated Company before a complete
distribution has been made to him, distribution of his Accounts shall
not be made until he subsequently incurs a Separation from Service.
5.11 Other Distributions.
(a) Upon the sale to an entity, that is not an Affiliated Company,
of substantially all of the assets used by a Participating Company in
a trade or business of such Participating Company, a Participant who
continues employment with the entity acquiring such assets shall be
entitled to have his Accounts paid to him.
(b) Upon the sale by a Participating Company to an entity, that
is not an Affiliated Company, of such Participating Company's interest
in a subsidiary, a Participant who continues employment with such
subsidiary shall be entitled to have his Accounts paid to him.
Distributions to Participants described in Subsections (a) and (b)
above shall be made pursuant to the provisions of this Article or
Article VII, as applicable, as if the Participant's Separation from
Service had occurred on the closing date of the sale.
5.12 Direct Transfers. If a Participant who is entitled to a
distribution of at least $200 which is an "eligible rollover
distribution," as defined in section 402(f)(2)(a) of the Code, elects
in writing on a form provided by the Committee to have such
distribution, or a portion of such distribution equal to at least $500
(or the entire distribution if less than $500) paid directly to a
specified "eligible retirement plan," as defined in section 402(c)(8)(B)
of the Code, which is a defined contribution plan the terms of which
permit the acceptance of rollover distributions, the portion of such
distribution which would otherwise be includible in the Participant's
gross income shall be distributed in the form of a direct trustee-to-
trustee transfer to the eligible retirement plan so specified.
ARTICLE VI
VESTING
6.1 Nonforfeitable Amounts. A Participant shall be fully vested
at all times in his Before-Tax Contribution Account, Company Matching
Contribution Account, Service Contract Act Account and Rollover Account.
6.2 Treatment of Terminated Vested Participant.
(a) In the case of a Participant who has a Separation from Service
(other than by reason of retirement under Article VI, death, or Total
Disability) and whose Account is $3,500 or less and did not exceed
$3,500 at the time of any prior distribution, the Participant's Account,
valued in accordance with Article VI, shall be paid to or applied for
the benefit of such Participant in a single sum as soon as practicable
following the Valuation Date coincident with or next following his
Separation from Service.
<PAGE>
<PAGE> 27
(b) (1) In the case of a Participant who has a Separation from
Service (other than by reason of retirement under Article VI, death, or
Total Disability) and whose Account exceeds $3,500 or at the time of any
prior distribution ever exceeded $3,500, the Participant's Account,
valued in accordance with Article VI, shall be paid to or applied for
the benefit of such Participant as soon as practicable following the
Valuation Date coincident with or next following his Separation from
Service, provided the Participant submits his written consent to the
distribution not more than 90 days prior to the date of the
distribution.
(2) If the written consent of the Participant is not
obtained in accordance with Paragraph (b)(1) of this Section, the
Participant's Account shall remain in the Plan until the earlier of (A)
his attainment of what would have been his Normal Retirement Age, or (B)
his death. Such Participant may elect to have his Account paid to him
within ninety (90) days after any earlier date on which the Participant
submits his written consent to the distribution to the Committee.
(3) The Committee shall notify a Participant that he has the
right to defer distribution until the earlier of what would have been
his Normal Retirement Age or his death, prior to obtaining his written
consent. Such notice shall be furnished not less than thirty (30) days
nor more than ninety (90) days prior to the date of any distribution
that occurs prior to the earlier of what would have been the
Participant's Normal Retirement Age or his death. Notwithstanding the
foregoing, a Participant may receive his distribution less than 30 days
after the notice is received, provided he is clearly informed that he
has the right to a 30 day period to consider his decision to elect the
distribution and he affirmatively elects to do so.
(4) Benefits paid pursuant to this Subsection (b) shall be
paid in the form provided in Article V and subject to the rules of
Article V.
ARTICLE VII
ROLLOVER SAVINGS
7.1 Rollover Savings.
(a) With the consent of the Committee, an Employee may roll over
to the Fund, all or a portion of a distribution to the Participant from
any qualified retirement plan, except that the interest being rolled
over shall not contain nondeductible contributions made to the
distributing plan by the Employee.
(b) In addition, an Employee who has established an individual
retirement account to hold distributions received from qualified
retirement plans of former employers may, with the consent of the
Committee, transfer all of the assets of such individual retirement
account to the Fund. Such individual retirement account shall not
contain nondeductible contributions made by the Employee while he was
a participant in the plans of his former employers.
<PAGE>
<PAGE> 28
(c) The Committee shall not accept a distribution from any other
qualified retirement plan or from an individual retirement account
unless the distribution being transferred comes from the Employee within
sixty (60) days after the Employee receives a distribution from such
other qualified retirement plan or individual retirement account.
7.2 Vesting and Distribution of Rollover Account. The
distributions transferred by an Employee from another qualified
retirement plan or from an individual retirement account shall be
credited to the Employee's Rollover Account. An Employee shall be fully
vested at all times in his Rollover Account.
ARTICLE VIII
WITHDRAWALS
8.1 General. A Participant may make withdrawals from his
Account upon reasonable notice prior to the time determined under
Article VI or VII only in the manner, in the amount, and at the time
provided in this Article. The Committee may in its discretion establish
such rules and regulations regarding withdrawals, including but not
limited to the frequency thereof, as do not conflict with the express
terms of this Article or the Code and applicable regulations thereunder.
8.2 Withdrawals From Rollover Account, Company Matching
Contribution Account Service Contract Act and Employer
Account.
(a) Not more than once in any six-month period, an Employee may
withdraw not more than up to the total value of Rollover Account, his
Company Matching Contribution Account and his Employer Contribution
Account (exclusive of Company Matching Contributions, Service Contract
Act Contributions and Employer Contributions allocated within 24 months
prior to the date of withdrawal, unless the individual has been a
Participant for a period of at least 60 months) by submitting his
written request to the Committee.
(b) Withdrawals under this Section shall be charged against a
Participant's Accounts in the following order of priority:
(1) the balance of the Participant's Rollover Account, if
any, less any amounts previously withdrawn therefrom;
(2) the Participant's Matching Contribution Account, less
any amounts previously withdrawn therefrom;
(3) the Participant's Employer Contribution Account, less
any amount previously withdrawn therefrom;
<PAGE>
<PAGE> 29
(4) the Participant's Service Contract Account, less any
amount previously withdrawn therefrom.
8.3 Hardship Withdrawals.
(a) A Participant who has not attained age 59 1/2 may withdraw up
to the sum of his Rollover Account, Before-Tax Contributions, Service
Contract Act Account, and Employer Account less amounts previously
withdrawn, by submitting his written request to the Committee. In no
event shall, earnings on Before-Tax Contributions and be withdrawn under
this Section.
(b) A withdrawal under Subsection (a) of this Section shall be
permitted only if the Committee finds that:
(1) it is made on account of an immediate and heavy
financial need (as defined in Subsection (c) of this Section) of the
Participant; and
(2) it is necessary (as defined in Subsection (d) of this
Section) to satisfy such immediate and heavy financial need.
(c) A Participant shall be deemed to have an immediate and heavy
financial need if the Participant requests distribution on account of:
(1) expenses for medical care described in section 213(d) of
the Code and incurred by the Participant, his Spouse, or any of the
Participant's dependents (as defined in section 152 of the Code) or
necessary for these persons to obtain medical care described in Section
213(d) of the Code;
(2) the purchase of a principal residence of the
Participant, including the amount of the down payment and any closing
costs but excluding mortgage payments;
(3) the payment of tuition for the next twelve (12) months
of post-secondary education for the Participant, his Spouse, children
or dependents;
(4) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of his principal
residence;
(5) such other circumstances or events as may be prescribed
by the Secretary of the Treasury or his delegate; or
(6) an occurrence that the Committee determines renders the
Participant unable to provide necessary maintenance and support for
himself, his Spouse, or his dependents; impinges on the ability of the
Participant (or his Spouse) to perform his (or the Spouse's) job; or is
an unforeseen emergency.
<PAGE>
<PAGE> 30
(d) A withdrawal shall not be considered necessary to the extent
the amount of the withdrawal exceeds the amount of the Participant's
immediate and heavy financial need that cannot be satisfied from other
resources reasonably available to the Participant. The amount of an
immediate and heavy financial need may include any amounts necessary to
pay any federal, state or local income taxes or penalties reasonably
anticipated from the distribution. The determination as to whether a
withdrawal is necessary shall be made on the basis of all relevant facts
and circumstances, in accordance with applicable governmental
regulations. The withdrawal shall generally be considered necessary if
the Participant reasonably represents that the financial need cannot be
relieved:
(1) through reimbursement or compensation by insurance or
otherwise;
(2) by reasonable liquidation of the Participant's assets
(including those assets of his spouse and minor children that are
available to the Participant), to the extent such liquidation would not
itself cause an immediate and heavy financial need;
(3) by cessation of Before-Tax Contributions; or
(4) by (A) other withdrawals under this Article or under any
other employee benefit plan in which the Participant has an interest,
or (B) loans from commercial sources on reasonable commercial terms.
(e) Notwithstanding the foregoing, the Committee shall have the
power to restrict or expand the conditions under which hardship
withdrawals will be available by adopting a written, uniform and
nondiscriminatory policy that complies with the applicable requirements
of Section 401(k) of the Code and the regulations issued thereunder,
which written policy as in effect from time to time is incorporated in
this Plan by this reference.
8.4 Withdrawals From Before-Tax Contribution Account After Age
59 1/2. Not more than once in any six-month period, a Participant who
has attained age 59 1/2 may withdraw up to the total value of his
Before-Tax Contribution Account and Service Contract Act Account, by
submitting his written request to the Committee.
8.5 Required In-Service Distribution. A Participant who is
still an Employee as of his Required Beginning Date shall receive a
distribution for each "distribution year", as such term is described
under regulations issued under Code Section 401(a)(9), equal to his
"Required Minimum Distribution." Such distributions shall begin no
later than the Participant's Required Beginning Date and shall be made
once each distribution year (or twice in the case of the distribution
year in which the Participant's Required Beginning Date occurs) for as
long as the Participant remains an Employee. As soon as practicable
following the date of the Participant's Separation from Service, the
<PAGE>
<PAGE> 31
entire balance of the Participant's Accounts shall be paid to him in one
single sum payment. The Participant's "Required Minimum Distribution"
shall be the minimum amount required to be distributed to the
Participant for a distribution year under Code Section 401(a)(9) and
regulations issued thereunder. For the purpose of determining the
Participant's Required Minimum Distribution, the life expectancy of the
Participant and, if applicable, the joint life expectancy of the
Participant and his Beneficiary shall not be recalculated each
distribution year. Although a Participant may receive distributions
under this Section before his Separation from Service, he is to continue
to share in contributions and have all other rights and privileges under
this Plan to the same extent as would have applied in the absence of
this Section.
8.6 Early Payment to an Alternate Payee. A lump sum payment
from a Participant's Accounts is permitted to be made to an "alternate
payee" under a "qualified domestic relations order", as such terms are
defined in code Section 414(p), prior to the Participant's Separation
from Service if the order provides for a distribution at that time, even
if the Participant would not then be entitled to a distribution under
this Article.
8.7 Restriction on Distribution of Before-Tax Contribution
Account. Except as otherwise provided in this Section, no amount may
be distributed from the Before-Tax Contribution Account of any
Participant before the earlier of his reaching age 59 1/2, his
"separation from service" within the meaning of Code section
401(k)(2)(b), his death or his Total Disability.
8.8 Amount and Payment of Withdrawals. The amount of any
withdrawal, including any hardship withdrawal under Section 8.3, will
be determined on the basis of the value of the Participant's Accounts
valued as of the Valuation Date coincident with the date the
Participant's Accounts are liquidated in order to make the distribution.
If approved, distribution will occur as soon as is administratively
practicable after the date of the Participant's written application.
8.9 Withdrawals Not Subject to Replacement. A Participant may
not replace any portion of his Accounts withdrawn under the Plan.
ARTICLE IX
ADMINISTRATION
9.1 The Committee; Plan Administration. The general
administration of the Plan and the responsibility for carrying out its
provisions shall be placed in a Committee (the "Committee") of two or
more persons appointed from time to time by the Board of Directors to
serve at its pleasure. Any member of the Committee may resign by
delivering his written resignation to the Board and the secretary of the
Committee. The Committee shall be the Plan Administrator (within the
meaning of section 3 of ERISA and section 414(g) of the Code) with such
<PAGE>
<PAGE> 32
authority, responsibilities and obligations as ERISA and the Code grant
to and impose upon persons so designated. For the purposes of ERISA,
the Committee shall be a "named fiduciary" under the Plan.
9.2 Membership of the Committee. The members of the Committee
may elect a chairman from their number, and shall also elect a secretary
who may be but need not be one of the members of the Committee. No
member of the Committee who is also an Employee receiving regular
compensation as such shall receive any compensation for his services as
a member of the Committee. No bond or other security shall be required
of any member of the Committee in any jurisdiction. No member of the
Committee shall, in such capacity, act or participate in any action
directly affecting his own interest in the Plan other than an action
which affects the interests of Participants generally.
9.3 Powers of the Committee. The powers of the Committee shall
include, but not be limited to, the following:
(a) appointing such committees with such powers as it shall
determine, including an executive committee to exercise all powers of
the Committee between meetings of the Committee;
(b) determining the times and places for holding meetings of the
Committee and the notice to be given of such meetings;
(c) employing such agents and assistants, such counsel (who may
be counsel to the Company) and such clerical, medical, accounting,
actuarial and investment services or advisers as the Committee may
require in carrying out the provisions of the Plan;
(d) authorizing one or more of their number or any agent to make
any payment, or to execute or deliver any instrument, on behalf of the
Committee, except that all requisitions for funds from, and requests,
directions, notifications and instructions to the Trustee shall be
signed either by two members of the Committee or by one member and the
secretary thereof;
(e) fixing and determining the proportion of expenses of the Plan
from time to time to be paid by the Participating Companies and
requiring payment thereof;
(f) directing the Trustee, or appointing one or more investment
managers to direct the Trustee, subject to the conditions set forth in
the Trust Agreement, in all matters concerning the investment of the
Trust Fund; and
(g) amending the Plan to the extent provided in Article XI.
<PAGE>
<PAGE> 33
9.4 Responsibilities of the Committee. The Committee shall have
the general responsibility for administering the Plan and carrying out
its provisions. Subject to the limitations of the Plan, the Committee
from time to time shall establish rules for the administration of the
Plan and the transaction of its business. As to all matters of
administration, interpretation, eligibility and application not reserved
to the Board of Directors, the Committee, in its discretion, shall make
all determinations and such determinations as to any disputed question
shall be conclusive. It shall be the duty of the Committee to notify
the Trustee in writing of the amount of any payments which shall be due
to any Participant and the date such payment shall commence.
9.5 Committee Meetings. A majority of the members of the
Committee at the time in office shall constitute a quorum for the
transaction of business at any meeting. Resolutions or other actions
made or taken by the Committee shall require the affirmative vote of a
majority of the members of the Committee attending a meeting, or by a
majority of members in office by writing without a meeting.
9.6 Recordkeeping. The Committee shall maintain accounts
showing the fiscal transactions of the Plan and shall keep in convenient
form such data as may be necessary for the effective operation of the
Plan. The Committee shall prepare annually a report showing a
reasonable summary of the financial status of the Plan for the past year
and any further information which the Board may require and which the
Committee can reasonably furnish or can obtain from the Trustee. Such
report shall be submitted to the Board and a copy shall be filed in the
office of the secretary of the Committee.
9.7 Uniform Action. Whenever in the administration of the Plan
any discretionary action is required by the Committee, such action shall
be uniform in nature as applied to all persons similarly situated.
9.8 Information Furnished to the Committee. To the extent
permitted by ERISA, the members of the Committee and the Company and its
officers and directors shall be entitled to rely upon all certificates
and reports made by any accountant or by the Trustee, and upon all
opinions given by any legal counsel or investment adviser selected or
approved by the Committee, and the members of the Committee, the Company
and its officers and directors shall be fully protected in respect of
any action taken or suffered by them in good faith in reliance upon any
such certificates, reports, opinions or other advice of any accountant,
Trustee, investment adviser or legal counsel, and all action so taken
or suffered shall be conclusive upon each of them and upon all
Participants and Employees.
<PAGE>
<PAGE> 34
9.9 Indemnification of the Committee. To the extent not
contrary to ERISA, the Company shall indemnify the Committee, each
member of it and any other director, officer or employee of a
Participating Company who is designated to carry out any
responsibilities under the Plan for any liability, joint and/or several,
arising out of or connected with their duties hereunder, except such
liability as may arise from their gross negligence or willful
misconduct.
9.10 Claims Procedures.
(a) In the event that the Committee denies, in whole or in
part, a claim for benefits by a Participant or his beneficiary, the
Committee shall furnish notice of the denial to the claimant, setting
forth (1) the specific reasons for the denial, (2) specific reference
to the pertinent Plan provisions on which the denial is based, (3) a
description of any additional information necessary for the claimant to
perfect the claim and an explanation of why such information is
necessary, and (4) appropriate information as to the steps to be taken
if the claimant wishes to submit his claim for review. Such notice
shall be forwarded to the claimant within 90 days of the Committee's
receipt of the claim; provided, however, that in special circumstances
the Committee may extend the response period for up to an additional
ninety (90) days, provided that the Committee notifies the claimant in
writing of the extension and specifies the reason or reasons for the
extension.
(b) Within sixty (60) days of receipt of a notice of claim
denial, a claimant or his duly authorized representative may petition
the Committee in writing for a full and fair review of the denial. The
claimant or his duly authorized representative shall have the
opportunity to review pertinent documents and to submit issues and
comments in writing to the Committee. The Committee shall review the
denial and shall communicate its decision and the reasons therefor to
the claimant in writing within 60 days of receipt of the petition;
provided, however, that the Committee may extend the 60-day response
period in special circumstances for up to an additional sixty (60) days.
Written notice of the extension shall be sent to the claimant prior to
the commencement of the extension.
ARTICLE X
THE FUND
10.1 Designation of Trustee. The Company shall enter into a
trust agreement (the "Trust Agreement") with the Trustee approved by the
Board of Directors. The Company shall have the power to amend the Trust
Agreement, and the Committee, with the written approval of the Board of
Directors, shall have the power to remove the Trustee, and designate a
successor Trustee, as provided in the Trust Agreement. All of the
assets of the Plan shall be held by the Trustee for use in accordance
with the Plan in providing for the benefits hereunder.
<PAGE>
<PAGE> 35
10.2 Exclusive Benefit. Prior to the satisfaction of all
liabilities under the Plan in the event of termination of the Plan, no
part of the corpus or income of the Trust Fund shall be used for or
diverted to purposes other than for the exclusive benefit of
Participants and their beneficiaries except as expressly provided in
this Plan.
10.3 No Interest in Fund. No person shall have any interest in
or right to any part of the assets or income of the Trust Fund, except
to the extent expressly provided in this Plan and in the Trust
Agreement.
10.4 Expenses. The expenses incident to the operation of the
Plan shall be paid from the Trust Fund, unless paid by the Company. In
addition to Company contributions made pursuant to Sections 3.1, 3.4,
3.5 or 3.6 or 12.3, the Company may, if the Board of Directors in its
absolute discretion so determines, reimburse the Trust Fund for any
expenses paid from the Trust Fund. Such reimbursement amounts shall be
allocated among Participant's Accounts in the same proportion in which
the expenses were deducted from each Participant's Accounts.
10.5 Absence of Guaranty. Each Participant and his beneficiary
assumes all risk connected with any decrease in the market value of any
assets held under the Plan. Neither the Committee, nor the Company in
any way guarantees the Trust Fund from loss or depreciation, or the
payment of any amount that may be or become due to any person from the
Trust Fund.
ARTICLE XI
AMENDMENT OR TERMINATION OF THE PLAN
AND PARTICIPATION BY ADDITIONAL COMPANIES
11.1 Power of Amendment and Termination. It is the intention of
each Participating Company that the Plan will be permanent. However,
each Participating Company reserves the right to terminate its
participation in this Plan at any time by action of its board of
directors or other governing body. Furthermore, the Company reserves
the power to amend or terminate the Plan at any time by action of the
Board of Directors. Each amendment to the Plan will be binding on each
Participating Company. The foregoing right to amend the Plan shall be
exercised only by action of the Board of Directors, except that the
Committee, by a written instrument, duly executed by a majority of its
members, may make (a) any amendment which may be necessary or desirable
to ensure the continued qualification of the Plan and its related trust
under the Code or which may be necessary to comply with the requirements
of ERISA, or any regulations or interpretations issued by the Department
of Labor or the Internal Revenue Service with respect to the
requirements of ERISA or the Code, (b) any amendment which is required
by the provisions of any collective bargaining agreement between the
Company and its employees and (c) any other amendment which will not
involve an estimated annual cost under the Plan (determined at the time
<PAGE>
<PAGE> 36
of the amendment in a manner consistent with the requirements of ERISA)
in excess of $500,000. Except as expressly provided elsewhere in the
Plan, prior to the satisfaction of all liabilities with respect to the
benefits provided under the Plan, no such amendment or termination shall
cause any part of the monies contributed hereunder to revert to the
Participating Companies or to be diverted to any purpose other than for
the exclusive benefit of Participants and their beneficiaries. No
amendment shall have the effect of retroactively depriving Participants
of benefits already accrued under the Plan. Any amendment shall become
effective as of the date designated by the Board of Directors.
+/-V#W Merger. At the election of the Company, the Plan may be
merged with or consolidated with, or transfer assets to or receive a
transfer of assets from, another qualified retirement plan; provided,
however, that the Plan shall not be merged with or consolidated with,
nor shall its assets be transferred to, any other qualified retirement
plan unless each Participant would receive a benefit after such merger,
consolidation, or transfer (assuming the Plan then terminated) which is
of actuarial value equal to or greater than the benefit he would have
received from his Accounts if the Plan had been terminated on the day
before such merger, consolidation, or transfer. No amounts shall be
transferred to this Plan which would cause the Plan to be a direct or
indirect transferee of a plan to which the joint and survivor annuity
and pre-retirement survivor annuity requirements of sections 401(a)(11)
and 417 of the Code apply, unless the Company so directs and the Plan
is amended to comply with such requirements with respect to such
transferred amounts.
11.3 Participation in the Plan.
(a) Participation by Divisions. The Board of Directors may from
time to time extend the Plan to employees of a division of the Company
by resolutions designating one or more groups of employees of such
division as Employees covered under the Plan; thereupon such division
shall become a Participating Company under the Plan with respect to such
group of Employees as of the date specified in such resolutions.
(b) Participation by Affiliates. The Board of Directors may from
time to time extend the Plan to employees of an Affiliated Company by
resolutions designating one or more groups of employees of such
Affiliated Companies as Employees covered under the Plan. Such
Affiliated Company may elect to become a Participating Company by
adopting the Plan for the benefit of such group or groups of its
Employees, effective as of the date specified in such adoption, by
filing with the Company a certified copy of a resolution of its board
of directors, or other written instrument, to that effect and such other
instruments as the Company may require. Beginning with the Plan Year
in which such division or Affiliated Company becomes a Participating
Company, the Participating Company shall be bound by the terms and
conditions of the Plan.
<PAGE>
<PAGE> 37
11.4 Termination of Participating Company. Any Participating
Company may terminate its participation in the Plan by giving the
Committee prior written notice specifying a termination date which shall
be the last day of a month at least sixty (60) days subsequent to the
date such notice is received by the Committee. The Committee may
terminate any Participating Company's participation in the Plan, as of
any termination date specified by the Committee, for the failure of the
Participating Company to make proper contributions or to comply with any
other provision of the Plan and shall terminate a Participating
Company's participation upon complete and final discontinuance of the
contributions.
11.5 Notice of Amendment or Termination. Notice of any
amendment, modification, suspension or termination of the Plan shall be
given by the Board of Directors to the Trustee and all Participating
Companies.
ARTICLE XII
TOP-HEAVY PROVISIONS
12.1 General. The following provisions shall apply automatically
to the Plan, and supersede any contrary provisions for each Plan Year
in which the Plan is a Top-Heavy Plan. It is intended that this Article
shall be construed in accordance with the provisions of section 416 of
the Code.
12.2 Definitions. The following definitions shall supplement
those set forth in Article II of the Plan:
"Key Employee" means, for any Plan Year, a key employee within the
meaning of section 416(i) of the Code. A "Non-Key Employee" is any
Employee or former Employee who does not meet the definition of a Key
Employee as to that Plan Year.
"Permissive Aggregation Group" means the group of qualified
retirement plans maintained by the Company or any Affiliated Company,
which group consists of the Required Aggregation Group and any other
such plan or plans designated by the Company which, considered together
with the Required Aggregation Group, meet the requirements of section
401(a)(4) and 410 of the Code.
"Required Aggregation Group" means the group of qualified
retirement plans maintained by the Company or any Affiliated Company,
including any plan that has been terminated during the five-year period
ending on the last day of the preceding Plan Year (or, in the case of
the first Plan Year, the last day of such Plan Year) which group
consists of each plan in which a Key Employee is a participant (or, in
the case of a terminated plan, was a participant in such five-year
period) and each other plan that enables any such plan to meet the
requirements of section 401(a)(4) or 410 of the Code, but only if such
group includes this Plan. Otherwise, the Required Aggregation Group
consists of this Plan only.
<PAGE>
<PAGE> 38
"Top-Heavy Plan Year" means a Plan Year in which the Plan is top-
heavy. The Plan is top-heavy in any Plan Year if, on the last day of
the preceding year (or, in the case of the first Plan Year, the last day
of such Plan Year), the aggregate of the account balances of
Participants who are Key Employees exceeds sixty percent (60%) of the
aggregate of the account balances of all Participants. The Plan is also
top-heavy for a given Plan Year if for that Plan Year (1) the Required
Aggregation Group is top-heavy, and (2) the Required Aggregation Group
is not part of a Permissive Aggregation Group that is not top-heavy.
The Required Aggregation Group or a Permissive Aggregation Group (the
"Group") is top-heavy for a given Plan Year if the aggregate of the
accounts (or, the present value of cumulative accrued benefits, in the
case of a defined benefit plan included in such Group) of participants
who are key employees exceeds sixty percent (60%) of the like amount
determined for all participants in all plans included in such Group.
For purposes of this definition:
(a) the account or the present value of the accrued benefit of any
participant shall be increased by the amount of any distributions to
such participant during the five-year period ending on the date
described above;
(b) the account or the present value of the accrued benefit of a
participant who has been a Key Employee but no longer is a Key Employee
shall not be taken into account;
(c) any rollover contribution (or fund to fund transfer) initiated
by the employee shall not be taken into account;
(d) the account or the present value of the accrued benefit of a
participant who has not performed services for the Company or any
Affiliated Company at any time during the five-year period ending on the
date described above shall not be taken into account; and
(e) the present value of accrued benefits under all qualified
defined benefit plans included in the Required or Permissive Aggregation
Group shall be determined under the accrual method used for all
qualified defined benefit plans maintained by the Company or any
Affiliated Company, if any single method is used for all such plans, or
otherwise the slowest accrual method permitted under section
411(b)(1)(C) of the Code.
12.3 Top-Heavy Operating Rules. Anything in the Plan to the
contrary notwithstanding, the following rules shall apply in a Top-Heavy
Plan Year:
(a) In any Top-Heavy Plan Year the Company shall make a
contribution for the Plan Year which shall be credited as of the last
day of each Plan Year to the Accounts of Eligible Employees for the Plan
Year, in proportion to the respective Section 415 Compensation for such
Plan Year, until the amount allocated to each such Employee who is a
<PAGE>
<PAGE> 39
Non-Key Employee equals the lesser of three percent (3%) of his Section
415 Compensation, or a percentage of such Section 415 Compensation
contributed by the Company (if any) on behalf of the Key Employee for
whom such percentage is the highest for such Plan Year. For purposes
of determining whether a minimum contribution under this paragraph is
required, all plans included in the Required Aggregation Group or any
Permissive Aggregation Group shall be treated as one plan. Salary
reduction and employer matching contributions made on behalf of Non-Key
Employees shall not be used to meet the minimum contribution
requirements of this Section.
(b) In any Top-Heavy Plan Year, any Non-Key Employee who is an
Eligible Employee will receive a minimum contribution if he has not
separated from service at the end of the Plan Year, regardless of
whether he has 1,000 Hours of Service or the equivalent, without regard
to his level of compensation and regardless of whether he declines to
make a mandatory contribution. If a Non-Key Employee participates in
both a defined benefit plan and a defined contribution plan in the
Required Aggregation Group, the Non-Key Employee shall receive the
minimum benefit provided under the defined benefit Top-Heavy Plan.
ARTICLE XIII
GENERAL PROVISIONS
13.1 No Employment Rights. Neither the action of the Company in
establishing the Plan, nor the action of any Participating Company in
adopting the Plan, nor any provisions of the Plan, nor any action taken
by the Participating Company or by the Committee shall be construed as
giving to any employee of the Participating Company the right to be
retained in its employ, or any right to payment except to the extent of
the benefits provided in the Plan to be paid from the Fund.
13.2 Source of Benefits. All benefits payable under the Plan
shall be paid or provided for solely from the Fund, and the
Participating Company assumes no liability or responsibility therefor.
13.3 Governing Law. Except to the extent superseded by ERISA,
all questions pertaining to the validity, construction, and operation
of the Plan shall be determined in accordance with the laws of Maryland.
13.4 Spendthrift Clause.
(a) No benefit payable at any time under this Plan and no interest
or expectancy herein shall be anticipated, assigned, or alienated by any
Participant or beneficiary, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, except for (1) an amount
necessary to satisfy a Federal tax levy made pursuant to Section 6331
of the Code and (2) any benefit payable pursuant to a domestic relations
order which is determined to be a qualified domestic relations order
within the meaning of Section 414(p) of the Code.
<PAGE>
<PAGE> 40
(b) Any attempt to alienate or assign a benefit hereunder, whether
currently or hereafter payable, shall be void. No benefit shall in any
manner be liable for or subject to the debts or liability of any
Participant or beneficiary. If any Participant or beneficiary shall
attempt to, or shall, alienate or assign his benefit under the Plan or
any part thereof, or if by reason of his bankruptcy or other event
happening at any time such benefit would devolve upon anyone else or
would not be enjoyed by him, then the Committee may terminate payment
of such benefit and hold or apply it for the benefit of the Participant
or beneficiary.
(c) The Committee shall review any domestic relations order to
determine whether it is qualified within the meaning of section 414(p)
of the Code. An order shall not be qualified unless it complies with
all applicable provisions of the Plan concerning mode of payment and
manner of elections. Notwithstanding the preceding sentence and any
restrictions on timing of distributions and withdrawals under the Plan,
an order may provide for distribution at any time permitted under
section 414(p)(4) of the Code.
13.5 Incapacity. If the Committee deems any Participant or
beneficiary who is entitled to receive payments hereunder incapable of
receiving or disbursing the same by reason of age, illness, or infirmity
or incapacity of any kind, the Committee may direct the Trustee to apply
such payments directly for the comfort, support, and maintenance of such
Participant or beneficiary, or to pay the same to any responsible person
caring for the Participant or beneficiary who is determined by the
Committee to be qualified to receive and disburse such payments for the
Participant's or beneficiary's benefit; and the receipt by such person
shall be a complete acquittance for the payment of the benefit.
Payments pursuant to this Section shall be complete discharge to the
extent thereof of any and all liability of the Company, the Committee,
the Trustee, and the Fund.
13.6 Unclaimed Benefits. If the Committee cannot ascertain the
whereabouts of any person to whom a payment is due under the Plan, and
if, after five years from the date such payment is due, a notice of such
payment due is mailed to the last known address of such person, as shown
on the records of a Participating Company, and within three months after
such mailing such person has not made written claim therefor, the
Committee, if it so elects, after receiving advice from counsel to the
Plan, may direct that such payment and all remaining payments otherwise
due to such person be cancelled on the records of the Plan and the
amount thereof applied to reduce Company Matching Contributions or
Employer Contributions, and upon such cancellation, the Plan and the
Trust shall have no further liability therefor except that, in the event
such person later notifies the Committee of his whereabouts and requests
the payment or payments due to him, the amount so applied shall be paid
to him as provided in Article V.
<PAGE>
<PAGE> 41
13.7 Receipt and Release. Subject to the provisions of ERISA and
to the extent permitted by ERISA, any final payments or distribution to
any Participant, his beneficiary or his legal representative in
accordance with the Plan shall be in full satisfaction of all claims
against the Trust Fund, the Trustee, the Committee, and the Company.
The Trustee, the Company, the Committee, or any combination of them may
require a Participant, his beneficiary or his legal representative to
execute a receipt and release of all claims under the Plan upon a final
payment or distribution or a receipt to the extent of any partial
payment or distribution; and the form of any such receipt and release
shall be determined by the Trustee, the Company, the Committee or any
combination of them.
13.8 Effect of Mistake. In the event of any mistake or
misstatement with respect to the age, eligibility, service, Compensation
or participation of a Participant or beneficiary, or the amount of
distribution made or to be made to a Participant or beneficiary, the
Committee shall, to the extent it deems appropriate, cause to be
allocated from future Company Matching Contributions, or cause to be
withheld or accelerated, or otherwise adjust, such amounts as will in
its judgment accord to such Participant or beneficiary the credits to
the Participant's Account or the distributions to which he is entitled
under the Plan.
13.9 Notice to Committee. All elections, designations, requests,
notices, instructions, and other communications from the Company, a
Participating Company, a Participant, beneficiary or other person to the
Committee required or permitted under the Plan shall be in such form as
is prescribed from time to time by such Committee, shall be mailed,
postage prepaid, by first-class mail or shall be delivered to such
location as shall be specified by each such Committee, and shall be
deemed to have been given and delivered only upon actual receipt thereof
by such Committee at such location.
13.10 Notice to Participants, Etc. All notices, statements,
reports and other communications from the Company, a Participating
Company, or Committee to any Employee, Participant, beneficiary or other
person required or permitted under the Plan shall be deemed to have been
duly given when delivered to, or when mailed by first-class mail,
postage prepaid, and addressed to such Employee, Participant,
beneficiary or other person at his address last appearing on the records
of the Committee.
Executed this 22 day of August, 1994.
WITNESS: UNC AVIATION SERVICES, INC.
Herb Frerichs By: David Thaxton
- ----------------------- --------------------------
Herb Frerichs David Thaxton
<PAGE>
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
UNC Incorporated:
We consent to the use of our report incorporated herein by reference. Our
report refers to a change in the method of accounting for income taxes.
KPMG Peat Marwick LLP
Washington, DC
August 22, 1994
<PAGE>
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
We, the undersigned Officers and Directors of UNC Incorporated
(the "Company") hereby constitute and appoint Richard H. Lange and
Robert L. Pevenstein, and each of them, with power of substitution, our
true and lawful attorneys with full power to sign for us, in our names
in capacities indicated below, a Form S-8 Registration Statement under
the Securities Act of 1933, and all amendments thereto (including post-
effective amendments), for the purpose of registering under the
Securities Act of 1933 100,000 shares of the Company's Common Stock
and the associated Preferred Share Purchase Rights that may be purchased
on the open market pursuant to the UNC Aviation Services SCA Employee
Investment Plan (the "Plan") and an indeterminate amount of participant
interests in the Plan.
Signature Title Date
----
Dan A. Colussy
- -------------------
Dan A. Colussy Chairman of the Board,
President and Chief
Executive Officer July 29, 1994
Robert L. Pevenstein
- -------------------
Robert L. Pevenstein Sr. Vice President
Finance, Chief Financial
Officer and Chief
Accounting Officer July 29, 1994
Berl Bernhard
- -------------------
Berl Bernhard Director July 29, 1994
Beverly B. Byron
- -------------------
Beverly B. Byron Director July 29, 1994
John K. Castle
- -------------------
John K. Castle Director July 29, 1994
William C. Hittinger
- -------------------
William C. Hittinger Director July 29, 1994
James L. Holloway III
- -------------------
James L. Holloway III Director July 29, 1994
<PAGE>
<PAGE> 2
George V. McGowan
- -------------------
George V. McGowan Director July 29, 1994
Jack Moseley
- -------------------
Jack Moseley Director July 29, 1994
Lawrence A. Skantze
- -------------------
Lawrence A. Skantze Director July 29, 1994
