As filed with the Securities and Exchange Commission on March 23, 1999
Registration Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------
OMNICOM GROUP INC.
(Exact name of registrant as specified in its charter)
New York 13-1514814
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
437 Madison Avenue
New York, New York 10022
(Address of Principal Executive Offices) (Zip Code)
DDB NEEDHAM/TLP JOINT SAVINGS PLAN
(Full title of the plan)
Barry J. Wagner, Esq.
Secretary and General Counsel
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
(212) 415-3600
(Name, address and telephone number,
including area code, of agent for service)
----------
Copies to:
Linda E. Ransom, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-6570
----------
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Title of Proposed Maximum
Securities to Maximum Aggregate Amount of
be Registered Amount to be Offering Price Offering Registration
(1) Registered Per Share (2) Price (2) Fee (2)
- --------------------------------------------------------------------------------
Common Stock of
Omnicom Group
Inc., par value
$.50 per share..... 1,000,000 $71.50 $71,500,000 $19,877
================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated for the sole purpose of computing the registration fee. Pursuant
to Securities Act Rules 457(c) and (h), the proposed maximum offering
price per share is calculated as the average of the high and low prices,
reported by the New York Stock Exchange, Inc., of the common stock of the
registrant as of March 18, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Omnicom Group Inc. (the
"Company") (File No. 1-10551) with the Securities and Exchange Commission (the
"Commission") and are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
(c) the Company's Current Reports on Form 8-K dated January 20, 1998,
March 4, 1998 and March 6, 1998; and
(d) the description of the Company's Common Stock contained in the
Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any amendment or report filed for purposes of updating that
description.
All documents filed by the Company or the DDB Needham/TLP Joint
Savings Plan (the "Plan") with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this Registration
Statement.
The consolidated financial statements and financial statement
schedules of the Company and its subsidiaries included in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 have been
incorporated herein by reference in reliance on the reports, also incorporated
herein by reference, of Arthur Andersen LLP, independent certified public
accountants, given on their authority as experts in auditing and accounting.
II-1
<PAGE>
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 Company's Certificate of Incorporation contains a provision
limiting the liability of directors (except for approving statutorily prohibited
dividends, share repurchases or redemptions, distributions of assets on
dissolution or loans to directors) to acts or omissions in bad faith, involving
intentional misconduct or a knowing violation of the law, or resulting in
personal gain to which the director was not legally entitled. The Company's
By-Laws provide that an officer or director will be indemnified against any
costs or liabilities, including attorneys fees and amounts paid in settlement
with the consent of the Company in connection with any claim, action or
proceeding to the fullest extent permitted by the New York Business Corporation
Law.
Section 722(a) of the New York Business Corporation Law provides
that a corporation may indemnify any officer or director made, or threatened to
be made, a party to an action other than one by or in the right of the
corporation, including an action by or in the right of any other corporation or
other enterprise which any director or officer of the corporation served in any
capacity at the request of the corporation, because he was a director or officer
of the corporation, or served such other corporation or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees actually and necessarily incurred as a
result of such action, or any appeal therein, if such director or officer acted,
in good faith, for a purpose which he reasonably believed to be in, or in the
case of service for any other corporation or other enterprise, not opposed to,
the best interests of the corporation and, in criminal actions, in addition, had
no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the New York Business Corporation Law provides
that a corporation may indemnify any officer or director made, or threatened to
be made, a party to an action by or in the right of the corporation by reason of
the fact that he is or was an officer or director of the corporation, or is or
was serving at the request of the corporation as a director or officer of any
other corporation, or other enterprise, against amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for another corporation or other enterprise, not opposed to, the best
interests of the corporation. The corporation may not, however, indemnify any
officer or director pursuant to Section 722(c) in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such
II-2
<PAGE>
person shall have been adjudged to be liable to the corporation, unless and only
to the extent that the court in which the action was brought or, if no action
was brought, any court of competent jurisdiction, determines in its discretion,
that the person is fairly and reasonably entitled to indemnity for such portion
of the settlement and expenses as the court deems proper.
Section 723 of the New York Business Corporation Law provides that
an officer or director who has been successful on the merits or otherwise in the
defense of a civil or criminal action of the character set forth in Section 722
is entitled to indemnification as permitted in such section. Section 724 of the
New York Business Corporation Law permits a court to award the indemnification
required by Section 722.
The Company has entered into agreements with its directors to
indemnify them for liabilities or costs arising out of any alleged or actual
breach of duty, neglect, errors or omissions while serving as a director. The
Company also maintains and pays premiums for directors' and officers' liability
insurance policies.
Section 11.14 of the Plan provides that members of the
Administrative Committee appointed to administer the Plan (the "Committee") may
be indemnified, to the extent permitted by the Employee Retirement Income
Security Act of 1974, as amended (or any successor statute), against all loss
and/or expense arising out of their actions and omissions in that capacity.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4.1 DDB Needham/TLP Joint Savings Plan.
4.2 Trust Agreement.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
The Company has caused or will cause the Plan and any amendments
thereto to be submitted to the Internal Revenue Service ("IRS") in a timely
manner and
II-3
<PAGE>
has caused or will cause to be made all changes required by the IRS in order to
qualify such plan.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a
II-4
<PAGE>
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, 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 New York, State of New
York, on March 23, 1999.
OMNICOM GROUP INC.
By: /s/ John Wren
------------------------------------
John Wren
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated. Each person whose signature appears
below does hereby constitute and appoint John Wren and Barry J. Wagner, and each
of them, with full powers of substitution, his or her true and lawful
attorneys-in-fact and agents to do any and all acts and things and to execute
any and all instruments which said attorneys-in-fact and agents may deem
necessary or advisable to enable the registrant to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under said Act of shares of Common Stock and interests registered
pursuant hereto, including specifically, but without limitation thereof, power
and authority to sign his or her name, in any and all capacities set forth
beneath his or her name, to any amendment to this Registration Statement in
respect of said shares and interests and to any documents filed as part of or in
connection with said Registration Statement or amendments; and the undersigned
does hereby ratify and confirm all that said attorneys-in-fact and agents shall
do or cause to be done by virtue hereof.
Date: March 23, 1999 By: /s/ John Wren
------------------------------------
John Wren
Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 23, 1999 By: /s/ Randall Weisenburger
------------------------------------
Randall Weisenburger
Chief Financial Officer
(Principal Financial Officer)
<PAGE>
Date: March 23, 1999 By: /s/ Philip J. Angelastro
------------------------------------
Philip J. Angelastro
Controller
(Principal Accounting Officer)
Date: March 23, 1999 By: /s/ Bernard Brochand
------------------------------------
Bernard Brochand
Director
Date: March 23, 1999 By: /s/ Robert J. Callander
------------------------------------
Robert J. Callander
Director
Date: March 23, 1999 By: /s/ James A. Cannon
------------------------------------
James A. Cannon
Director
Date: March 23, 1999 By: /s/ Leonard S. Coleman, Jr.
------------------------------------
Leonard S. Coleman, Jr.
Director
Date: March 23, 1999 By: /s/ Bruce Crawford
------------------------------------
Bruce Crawford
Director
Date: March 23, 1999 By: /s/ Susan S. Denison
------------------------------------
Susan S. Denison
Director
Date: March 23, 1999 By: /s/ John R. Murphy
------------------------------------
John R. Murphy
Director
Date: March 23, 1999 By: /s/ John R. Purcell
------------------------------------
John R. Purcell
Director
<PAGE>
Date: March 23, 1999 By: /s/ Keith L. Reinhard
------------------------------------
Keith L. Reinhard
Director
Date: March 23, 1999 By: /s/ Allen Rosenshine
------------------------------------
Allen Rosenshine
Director
Date: March 23, 1999 By: /s/ Gary L. Roubos
------------------------------------
Gary L. Roubos
Director
Date: March 23, 1999 By: /s/ Quentin I. Smith, Jr.
------------------------------------
Quentin I. Smith, Jr.
Director
Date: March 23, 1999 By: /s/ Egon P.S. Zehnder
------------------------------------
Egon P.S. Zehnder
Director
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Administrative Committee for the Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on March 23, 1999.
DDB NEEDHAM/TLP JOINT SAVINGS PLAN
By: /s/ Phil Krieger
------------------------------------
Name: Phil Krieger
Title: Authorized Signatory for the
Administrative Committee
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
4.1 DDB Needham/TLP Joint Savings Plan.
4.2 Trust Agreement.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
Exhibit 4.1
DDB NEEDHAM
JOINT SAVINGS PLAN
<PAGE>
DDB NEEDHAM
JOINT SAVINGS PLAN
TABLE OF CONTENTS
Page No.
--------
ARTICLE 1 NAME, PURPOSE AND EFFECTIVE DATE ........................... 1
ARTICLE 2 DEFINITIONS AND CONSTRUCTION ............................... 2
ARTICLE 3 PARTICIPATION AND COMPUTATION OF SERVICE ................... 7
ARTICLE 4 CONTRIBUTIONS .............................................. 9
ARTICLE 5 BENEFITS ................................................... 13
ARTICLE 6 HARDSHIP WITHDRAWALS ....................................... 14
ARTICLE 7 METHODS OF DISTRIBUTION .................................... 15
ARTICLE 8 INTERNAL REVENUE SERVICE QUALIFICATION ..................... 16
ARTICLE 9 TRUST ...................................................... 17
ARTICLE 10 AMENDMENT AND TERMINATION .................................. 18
ARTICLE 11 ADMINISTRATION AND THE COMMITTEE ........................... 19
ARTICLE 12 MULTI-EMPLOYER PROVISIONS .................................. 22
ARTICLE 13 TOP HEAVY PROVISIONS ....................................... 24
ARTICLE 14 MISCELLANEOUS .............................................. 26
<PAGE>
DDB NEEDHAM
JOINT SAVINGS PLAN
W I T N E S S E T H:
WHEREAS, DDB NEEDHAM WORLDWIDE INC. (hereinafter referred to as the
"Company") desires to promote in its employees the strongest interest in their
work and the assurance that they will share in the prosperity of the enterprise;
and
WHEREAS, the Company also desires to provide, through diverse means,
for the future economic security of its employees and their beneficiaries and/or
more adequate resources for the said employees and their beneficiaries from and
after the time when they cease to be employees of the Company; and
WHEREAS, for these purposes the Company has formulated the within
Joint Savings Plan; and
WHEREAS, the Board of Directors of the Company has heretofore and on
the 27th day of April, 1989 adopted the within Joint Savings Plan for its
employees;
NOW, THEREFORE, in consideration of the premises, the Company has
established the following as its Joint Savings Plan:
ARTICLE 1
NAME, PURPOSE AND EFFECTIVE DATE
1.1 Name. This Plan is designated as the DDB Needham Joint Savings Plan
(hereinafter "Plan").
1.2 Purpose. The purpose of the Plan is to provide retirement benefits and,
prior to retirement, certain death and termination benefits, for eligible
employees through a fund created solely by contributions of both said employees
and the Company. The Plan shall be for the exclusive benefit of the employees
and their beneficiaries, as a plan which qualifies under Sections 401(a) and
501(a) of the Internal Revenue Code of 1954, as same may be hereafter amended.
1.3 Non-Applicability. Nothing in the Plan shall be deemed an agreement,
consideration, inducement or condition of employment, nor shall the rights or
obligations of the Employer, or any employee employed by the Employer, to
continue or terminate employment at any time be affected hereby.
1.4 Effective Date. The Effective Date of the Plan shall be May 1, 1989, and the
date of the latest amendment hereto is October 9, 1992.
<PAGE>
ARTICLE 2
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. The following words and phrases as used in this Plan shall have
the following meaning, unless a different meaning is clearly required by the
context:
(a) Act - The Employee Retirement Income Security Act of 1974, as it may
be amended from time to time, or any successor statute.
(b) Age - The age at last birthday.
(c) Beneficiary - Any person, estate, or trust entitled to receive any
payments due under this Plan upon the death of a Participant. Each unmarried
Participant may advise the Committee, in the manner and by the form specified by
the Committee, of the name of the Beneficiary or Beneficiaries to receive
benefits, if any, payable under the Plan after the death of the Participant;
each such Participant may similarly change his primary and contingent
Beneficiaries. With respect to a married Participant, the Beneficiary shall
automatically be the surviving spouse, unless such spouse consents, in a manner
prescribed by the Code, to another beneficiary (or unless such consent cannot be
obtained because the spouse cannot be located, or because of such other
circumstances as may be prescribed by regulation under the Code), and in the
event of such consent (or other circumstance which obviates the need for
consent), the Participant may designate a Beneficiary pursuant to the preceding
sentence and such consent (if any). If any Participant, eligible to designate a
Beneficiary, shall fail to designate a Beneficiary, or such Beneficiary shall
not be living at the Participant's death, the Committee shall be empowered to
designate a Beneficiary or Beneficiaries on his behalf, but only from among the
following, and in the order named: (1) his descendants in equal shares per
stirpes, and (2) estate of the Participant, or in the discretion of the
Committee, those entitled to his estate in accordance with the intestacy laws of
the state of which the Participant dies a resident.
(d) Break in Service - A 12 consecutive month period measured from an
Employee's Severance From Service Date, or any anniversary thereof, during which
the Employee does not perform an Hour of Service.
A Participant's absence by reason of her pregnancy or childbirth, or
by reason of adoption of a child, or caring for the Participant's child for a
period beginning immediately following birth or adoption shall not be deemed a
Break in Service in the year in which the absence begins if the Participant,
because of such absence, does not work more than 500 hours; otherwise, such
absence shall not be deemed a Break in Service in the immediately following
year.
All Participants under similar circumstances shall be treated alike.
-2-
<PAGE>
A transfer of an Employee from the service of one participating
company to the service of another participating company shall not be deemed to
be a Break in Service or termination of employment hereunder.
(e) Code - The Internal Revenue Code, as it may be amended from time to
time.
(f) Company - DDB Needham Worldwide Inc. and any successor thereto by
consolidation, merger, reorganization, transfer of assets, or otherwise, which
shall, as hereinafter provided, continue this Plan. The term shall also apply,
as the sense of the Plan shall require, to any corporation or business
organization which, as hereinafter provided, shall assume the obligations of the
Plan and Trust with respect to its employees, or any affiliated or subsidiary
corporation or business organization of the Company which shall agree to become
a party to this Plan and Trust, but the capitalized term "Company", as used in
Articles 9, 10 and 11, shall apply only to the corporation named in the first
sentence of this paragraph (f).
(g) Compensation - All regular salary payments (excluding bonuses and
overtime) made to or accrued for the Employee by the Company for the Employee's
services for the Fiscal Year including contributions made to a cash or deferred
arrangement that qualifies under Section 402(a)(8) of the Code and any
non-taxable benefits provided as compensation under a plan qualifying under
Section 125 of the Code, but excluding deferred compensation, contributions made
under this or any other plan qualified under the Internal Revenue Code, imputed
income and other costs of fringe benefits. A Participant's compensation in
excess of $200,000 (as indexed as provided in the Code) shall not be considered
for purposes of Article 4 or Article 13 below. If an Employee is employed by
more than one participating company, "Compensation" as above defined shall
include the aggregate compensation received from all participating companies in
that Fiscal Year.
Notwithstanding the foregoing, for the Plan Year ending December 31,
1989, compensation shall be computed as amounts earned from May 1, 1989.
(h) Committee - The Administrative Committee as constituted under Article
11, which shall be the named fiduciary for purposes of the Act.
(i) Employee - Any employee who is in the service and employ of the
Company, including, but only to the extent required by the Code, leased
employees.
(j) Employment Commencement Date - The date on which an Employee is first
credited with an Hour of Service.
(k) Employment Recommencement Date - The date on which an Employee is
credited with an Hour of Service after incurring a Break in Service.
-3-
<PAGE>
(l) Entry Date - (i) The first day of any Plan Year, or (ii) with respect
to a company which, pursuant to article 12 below, adopts this Plan, then the
first day of the calendar quarter following such adoption for the employees of
such company who would have been eligible, pursuant to Section 3.1 hereof, as of
the immediately preceding Entry Date (as defined in subsection (i) hereof), had
such company then been a participating employer hereunder.
(m) Fiscal Year - The fiscal year of the Company.
(n) Fund or Trust Fund - All money and property paid to the Trustee
pursuant to this Plan, together with all investments purchased by the Trustee
pursuant to the provisions of the Trust, and all interest or other income
thereon, less all proper disbursements therefrom, at any particular time.
(o) Highly Compensated Employee - A Highly Compensated Active Employee and
Highly Compensated Former Employee. A "Highly Compensated Active Employee"
includes any Employee who performs service for the Company during the
Determination Year and who, during the Look-Back Year:
(i) received Compensation from the Company in excess of $75,000 (as
adjusted pursuant to Section 415(d) of the Code);
(ii) received Compensation from the Company in excess of $50,000 (as
adjusted pursuant to Section 415(d) of the Code) and was a member of the
top-paid group for such year; or
(iii) was an officer of the Company and received Compensation during
such year that is greater than fifty percent (50%0 of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code.
If no officer has satisfied the compensation requirement of (iii)
above during either Determination Year or Look-Back Year, the highest paid
officer for such year shall be treated as a Highly Compensated Employee.
The term "Highly Compensated Active Employee" also includes:
(i) Employees who are both described in the preceding definition of
Highly Compensated Active Employee if the term "Determination Year" is
substituted for the term "Look-Back Year" and the Employee is one of the
one hundred (100) Employees who received the most Compensation from the
Company during the Determination Year; and
(ii) Employees who are five percent (5%) owners at any time during
the Look-Back Year or Determination Year.
-4-
<PAGE>
For this purpose the "Determination Year" shall be the Plan Year.
The "Look-Back Year" shall be the twelve (12) month period immediately preceding
the Determination Year.
A "Highly Compensated Former Employee" includes any Employee who
separated from service (or was deemed to have separated) prior to the
Determination Year, performs no service for the Company during the Determination
Year, and was a highly Compensated Active Employee for either the separation
year or any Determination Year ending on or after the Employee's 55th birthday.
If an Employee is, during a Determination Year or Look-Back Year, a
family member of either a five percent (5%) owner who is an active or former
Employee or a Highly Compensated Employee who is one of the ten (10) most highly
compensated Employees ranked on the basis of Compensation paid by the Company
during such year, then the family member and the five percent (5%) owner or
top-ten (10) highly compensated Employee shall be aggregated. In such cash, the
family member and five percent (5%) owner or top ten (10) highly compensated
Employee shall be treated as a single employee receiving Compensation and plan
contributions or benefits equal to the sum of such Compensation and
contributions or benefits equal to the sum of such Compensation and
contributions or benefits of the family member and five percent (5%) owner or
top-ten (10) highly compensated Employee, for purposes of this section, a family
member includes the spouse, lineal ascendants and descendants of the Employee or
former Employee and the spouses of such lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the top-paid
group, the top one hundred (100) Employees, the number of Employees treated as
officers and the Compensation that is considered, will be made in accordance
with Section 414(g) of the code and the regulations thereunder.
(p) Hours - Hours of employment or service for the purposes of the minimum
participation and vesting standards of the Act, as defined in Section 3.3.
(q) Limitation Year - For purposes of Section 415 of the Internal Revenue
Code, as same may be hereafter amended, shall be the Plan Year.
(r) Matching Account - That part of a Participant's Account which is
credited with matching contributions pursuant to Section 4.4 below.
(s) Non-highly Compensated Employee - Any Employee who is not a Highly
Compensated Employee.
(t) Normal Retirement Age - The Participant's 60th birthday.
-5-
<PAGE>
(u) Normal Retirement Date - The day of the attainment by the Participant
of his Normal Retirement Age, or any day thereafter.
(v) Participant - An Employee who is eligible to be and becomes covered
under this Plan as provided in Article 3 hereof, who files an election as
required under Section 4.3 and who is not in an ineligible class of employment
for participation in this Plan, or a former Participant or Beneficiary whose
benefits hereunder have not been fully distributed.
(w) Participant's Account or Account - Referring to a Participant's
interest, shall mean at any time the portion of the Trust Fund which equals the
sum of the balances in the Participant's Salary Reduction Account and Matching
Account.
(x) Period of Service - The period between an Employee's Employment
Commencement Date (or Employment Recommencement Date, if applicable,) and the
Employee's Severance From Service Date.
(y) Plan - DDB Needham Joint Savings Plan established by this instrument
as it may be amended from time to time.
(z) Plan Administrator - The corporation named in the first sentence of
paragraph (f) above, which shall also be the agent for service of legal process
upon the Plan.
(aa) Plan Year - The twelve month period coinciding with the Fiscal Year,
except that the first Plan Year shall be a short year, commencing May 1, 1989,
and ending December 31, 1989.
(bb) Salary Reduction Account - That part of a Participant's Account which
is credited with salary reduction contributions pursuant to Section 4.2 below.
(cc) Severance From Service Date - The date on which an Employee
terminates employment with the Employer. Such date shall be the earlier of:
(a) the date of termination, death, retirement, or discharge; or
(b) the date on which absence occurs due to any other reason for
more than one year, unless the Employee has been granted a
Leave of Absence by the Company in excess of one year;
provided, however a Severance From Service Date shall occur if
an Employee fails to return to active employment with the
Employer within fifteen (15) days after the authorized Leave
of Absence expires.
(dd) Trust or Trust Agreement - Any agreement or agreements now or
hereafter executed with the Trustee selected by the Company, to implement the
Plan, which may
-6-
<PAGE>
include any agreement so executed by the Company to implement any other plan,
established by it and qualified under Section 401 of the Internal Revenue Code.
(ee) Trustee - The trustee or trustees named in the Trust Agreement, to
which the Company is a party, to implement the Plan, and any duly appointed
successor trustee or trustees.
(ff) Valuation Date - March 31st, June 30th, September 30th and December
31st of each Plan Year.
2.2 Plurals and Genders. The masculine gender shall include the feminine and
neuter genders, and the singular, the plural, and vice versa, unless the context
clearly indicates a different meaning.
ARTICLE 3
PARTICIPATION AND COMPUTATION OF SERVICE
3.1 (a) An Employee shall be eligible to become a Participant when he has
completed six (6) months of continuous employment, commencing on his Employment
Commencement Date.
(b) An Employee, who has satisfied the eligibility requirements of
paragraph (a) above, shall become a Participant on the first Entry Date
subsequent to the satisfaction of those requirements, provided that he shall
have filed a participant election as required under Section 4.3.
(c) (i) A person who falls into any of the following categories shall be
admitted to Participant status (as of the date of his reemployment if he
previously was a Participant, and otherwise on the first Entry Date following
his reemployment) as follows:
(1) A person who satisfied the requirements of paragraph (a) above
for Participant status, who experienced a termination of employment prior
to the Entry Date on which he would have assumed Participant status and
was not in the employ of the Company on that Entry Date, and who
subsequently again becomes an Employee without experiencing a Break in
Service.
(2) A person who experienced a Break in Service, but who had a
vested interest in his account by reason of a prior period of
participation.
provided, however, that such person may not file a participant election which is
effective prior to the first day of the calendar quarter following his
reemployment.
-7-
<PAGE>
(ii) Any other individual, upon reemployment, shall be considered a
new Employee and shall be required to satisfy the requirements of paragraph (a)
above without regard to service prior to a Break in Service or employment
termination.
(d) In the event a Participant becomes ineligible to participate because
he is no longer a member of an eligible class of Employees, but has not incurred
a Break in Service, such Employee shall participate immediately upon his return
to an eligible class of Employees, but may not file a participant election which
is effective prior to the first day of the calendar quarter following such
return.
3.2 The Committee shall notify each Employee of the date on which he will be
eligible for participation in the Plan. The Committee shall adopt and pursue
uniform policies and rules applicable to all Employees. The adoption of such
policies and rules shall be within the exclusive discretion of the Committee.
3.3 An "hour worked" or "hour of service" as used in computing Breaks in Service
and in computing Credited Service for benefit accrual, vesting, and all other
purposes of this Plan shall mean:
(a) each hour for which an Employee is directly or indirectly paid, or
entitled to payment by the Company for the performance of duties.
These hours shall be credited to the Employee for the computation
period in which the duties are performed; and
(b) each hour for which an Employee is directly or indirectly paid, or
entitled to payment, by the Company on account of a period of time
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), lay-off, jury duty,
military duty or leave of absence. These hours shall be calculated
and credited pursuant to Section 2530.200b-2 of the Department of
Labor regulations; and
(c) each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Company. These hours shall be
credited to the Employee for the computation period or periods to
which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made,
provided however, that in each case, the number hours to be credited shall be
the minimum required under applicable regulation of the Department of Labor at
the relevant time.
The definition herein contained shall at all times be construed in a manner
consonant with, and no more broadly than required by, Section 2530.200b-2 of the
Department of
-8-
<PAGE>
Labor regulations, or any regulations amendatory thereof or supplementary
thereto, all of which regulations are incorporated into this Plan by reference.
3.4 If an Employee is transferred to an ineligible class of employment for
participation in this Plan, but remains employed by the Company or is, upon
leaving the employ of the Company, immediately employed by a subsidiary,
affiliated or related corporation of the Company (within the meaning of Section
1563(a) of the Internal Revenue Code), he shall no longer accrue Credited
Service for benefit accrual purposes under this Plan. No such transfer or
reemployment shall be deemed to be a termination of employment with the Company,
requiring a distribution, but such reemployment may be deemed a termination of
employment in the discretion of the Committee.
If an Employee is transferred from an ineligible class to an eligible
class of employment for participation in this Plan, he shall not receive
Credited Service for any of his prior service with the Company for benefit
accrual purposes under this Plan, which service, as well as his compensation,
shall be deemed to commence upon said transfer. He shall, however, receive
Credited Service as defined in this Article 3 for his prior service with the
Company for purposes of thereafter determining his eligibility for benefits.
3.5 Notwithstanding anything contained in this Plan to the contrary, if
Employees are in a unit which now or hereafter is covered by a collective
bargaining agreement between an employee representative and the Company, and if
retirement benefits for Employees in such a unit have been the subject of good
faith bargaining between said employee representative and the Company, the
Employees in such unit shall not be eligible to be and/or remain Participants in
this Plan without agreement of Company and employee representative.
ARTICLE 4
CONTRIBUTIONS
4.1 Each year, the Company shall make a contribution to the Trustee equal to the
sum of the Salary Reduction Contributions plus the Matching Contributions herein
required for all Participants.
4.2 Salary Reduction Contributions. Each Participant may authorize the Company
to reduce his Compensation by an amount equal to the lesser of: (a) $7,000 (as
adjusted under Section 402(g)(5)) of the Code), or (b) any whole percentage
between 1% and 4% of such Compensation, and to have such amount deposited to
the Plan as a Salary Reduction Contribution hereunder, provided, however, that
the amount of the aforesaid reduction, together with any other deferrals by the
Participant under any other similar plans maintained by the Company, shall not
exceed the limitation contained in (a) above. Any deferrals in excess of such
limitation shall be distributed to the Participant who has exceeded such
limitation no later than April 15th of the immediately succeeding year,
-9-
<PAGE>
adjusted by income or loss allocable thereto up to the last day of the taxable
year in respect of which such deferrals were made, determined as provided under
Section 4.11 below.
4.3 Each Participant shall, to effectively participate herein, file a written
election form with the Committee, specifying the portion of his Compensation to
be contributed to the Plan as a Salary Reduction Contribution. The portion
contributed shall be deposited to the Participant's Account. Such election shall
remain in effect until a new election is filed with the Committee.
4.4 Matching Contributions - The Company shall make a Matching Contribution as
of the last day of each Plan Year with respect to each Participant who is in its
employ as of such date, or who was in its employ, but who has transferred into
the employ of a subsidiary, affiliated or related corporation during such year,
or who, during such year, died, or terminated employment with the Company either
on or after attaining his Normal Retirement Date, or on account of disability,
as determined by the Committee in a uniform and non-discriminatory manner. Said
Matching Contribution shall be equal to the Participant's Salary Reduction
Contribution, up to 2% of his Compensation, plus 50% of his Salary Reduction
Contribution in excess thereof. Notwithstanding the foregoing, the Company shall
not be obligated to make Matching Contributions with respect to any Plan Year in
which the Company does not have current or accumulated net profits, determined
without giving effect to federal, state or local income taxes, or to
contributions made by the Company to this Plan or to any other plan which
qualifies under Section 401 of the Code. However, the Company may make the
contributions as called for under the first sentence of this section, or may
make lesser contributions in a non-discriminatory manner.
4.5 The maximum Salary Reduction Contribution percentage and the amount of
Matching Contributions may be increased or decreased at the discretion of the
Board, provided that no such adjustment may be made without at least thirty (30)
days written notice to all Participants.
4.6 Pursuant to uniform, non-discriminatory rules adopted by the Committee, a
Participant may, once in each Plan Year, change the rate of, or cease making,
Salary Reduction Contributions. The Committee's rules shall specify the
effective date of and the conditions for any such change or cessation, and shall
govern the effective date of resumption of salary contributions hereunder.
4.7 The actual deferral percentage under Section 4.2 for Highly Compensated
Employees shall not exceed the greater of a) or b) as follows: (a) the actual
deferral percentage of Non-Highly Compensated Employees, times 1.25, or (b) the
actual deferral percentage of Non-Highly Compensated Employees times 2, provided
however, that the actual deferral percentage of Highly Compensated Employees may
not exceed the actual deferral percentage of Non-Highly Compensated Employees by
more than two (2) percentage points.
-10-
<PAGE>
4.8 The actual deferral percentage for a specified group of Participants for a
Plan Year shall be the average of the percentages, calculated separately for
each Participant in such group, arrived at by dividing (a) the amount of Salary
Reduction and Matching Contributions actually paid to the Plan on behalf of such
Participants for such Plan Year, by (b) such Participant's Compensation for such
Plan Year.
The Committee shall determine no later than the end of the Plan Year
whether the actual deferral percentage results satisfy either of the tests
contained in Section 4.7. In the event neither test is satisfied the Company may
elect either of the following:
(i) to make an additional Salary Reduction Contribution for Non-Highly
Compensated Employees. The additional Salary Reduction Contribution shall be a
uniform percentage of Compensation for each such Participant. Such additional
Salary Reduction Contribution shall be deposited to the Account of each such
Participant within the time period required by any applicable law and/or
regulation; or
(ii) to reduce the allowable Salary Reduction Contribution deferral
percentage of Highly Compensated Employees, and return such excess to such
employees, adjusted by income or loss allocable thereto, determined as provided
under Section 4.11 below. Any such distribution shall be completed within 2 1/2
months after the last day of the Plan Year in which such excess amounts arose.
The amount of the additional Salary Reduction Contribution for Non-Highly
Compensated Employees, or the reduction in the allowable Salary Reduction
Contribution deferral percentage for Highly Compensated Employees, shall be such
that at least one of the tests contained in Section 4.7 is satisfied.
The provisions of this section shall always be interpreted and effected in
accordance with Section 401(k)(3) of the Code, and regulations promulgated
thereunder.
4.9 For purposes of the nondiscrimination tests set forth in Sections 4.7 and
4.8, and of Section 4.10 below, "Compensation" means wages as defined in Section
3401(a) of the Code and all other payments of compensation to an Employee by the
Company for which the Company is required to furnish the Employee a written
statement under Section 6041(d) and 6051(a)(3) of the Code, determined without
regard to any rules under Section 3401(a) that limit the remuneration included
in wages based on the nature or location of the employment or the services
performed.
4.10 Notwithstanding any other provisions of the Plan, annual additions as a
result of contributions to each Participant under this Plan for each Limitation
Year shall not exceed the lesser of $30,000 (as increased by cost of living
adjustment permitted by applicable governmental regulation), or 25% of a
Participant's total annual compensation, as defined in regulations issued
pursuant to Section 415 of the Code. Annual additions mean the sum for any Plan
Year of Salary Reduction Contributions and Matching Contributions made pursuant
to this Article.
-11-
<PAGE>
Notwithstanding the foregoing, the otherwise permissible annual additions
for any Participant under this Plan may be further reduced to the extent
necessary, as determined by the Committee, to prevent disqualification of the
Plan under Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may be
participating in another tax-qualified pension, profit sharing, savings or stock
bonus plan maintained by the Company or any of the members of the controlled
group of corporations of which the Company is a part (hereinafter collectively
"employers"). If an individual is a Participant at any time in both a defined
benefit plan and a defined contribution plan maintained by the employers, the
sum of the defined benefit plan fraction and the defined contribution plan
fraction for any Plan Year may not exceed 1.0. The defined benefit plan fraction
for any Plan Year is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan (determined at the close of the Plan
Year) and the denominator of which is the lesser of 1.25 multiplied by $90,000
or such greater amount permitted by Internal Revenue Service regulations to
reflect cost-of-living adjustments; or 1.4 multiplied by 100% of the
Participant's average monthly compensation, as defined pursuant to Section 415
of the Code, during the three consecutive years when the total compensation
paid to him was highest. The defined contribution plan fraction for any Plan
Year is a fraction, the numerator of which is the sum of the annual additions to
the Participant's accounts in such Plan Year and for all prior Plan Years and
the denominator of which is the sum of the applicable maximum amounts of annual
additions which could have been made under Section 415(c) of the Code for such
Plan Year and for all prior years of such Participant's employment (assuming for
this purpose, that said Section 415(c) had been in effect during such prior
years). The applicable maximum amount for any Plan Year shall be equal to the
lesser of 1.25 multiplied by the dollar limitation in effect for such Plan Year
under Subsection 415(c)(1)(A) of the Code, or 1.4 multiplied by 25% of the
Participant's Compensation for such Plan Year.
For purposes of this limitation, all defined benefit plans of the
employers, whether or not terminated, are to be treated as one defined benefit
plan and all defined contribution plans of the employers, whether or not
terminated, are to be treated as one defined contribution plan. The extent to
which annual additions under the Plan shall be reduced as compared with the
extent to which the annual benefit under any defined benefit plans shall be
reduced in order to achieve compliance with the limitations of Section 415 of
the Code shall be determined by the Committee in such a manner so as to maximize
the aggregate benefits payable to such Participant. If such reduction is under
this Plan, the Committee shall advise affected Participants of any additional
limitation on their annual benefits required by this paragraph.
The above limitations are intended to comply with the provisions of
Section 415 of the Code as amended, so that the maximum benefits provided by
plans of the employers shall be exactly equal to the maximum amounts allowed
under Section 415 and regulations thereunder. If there is any discrepancy
between the provisions of this Section and the
-12-
<PAGE>
provisions of Section 415, such discrepancy shall be resolved in such a way as
to give full effect to the provisions of Section 415 of the Code.
4.11 (a) The Trustee, as of each Valuation Date, shall determine the net value
of the Trust Fund assets and the amount of net income or net loss and shall
report such value to the Committee in writing. In determining such value the
Trustee shall value all assets at fair market value as of such Valuation Date.
The determination of such net income or net loss shall not include any
contributions made by the Company or Participants since the prior Valuation
Date. The resulting net income or loss of the Trust Fund shall then be credited
or debited to each Participant's Account in the same ratio as each Account bears
to the aggregate of all such Accounts, and then contributions made since the
last Valuation Date shall be credited, provided however that, if the timing of
the contributions made hereunder would, in the opinion of the Committee, result
in an inequitable allocation under the foregoing formula, then the Trustee
shall, at the direction of the Committee, ascribe such weight to such timing as
will result in a more equitable allocation, and provided further that such
directions by the Committee shall be given in a nondiscriminatory manner. After
such crediting or debiting, contributions, shall be allocated to each Account.
(b) Each trust fund maintained pursuant to a separate Trust Agreement, and
each investment fund therein, shall be treated separately, and the increase or
decrease in each such fund shall be computed separately.
(c) The net increase or decrease as of any Valuation Date in any
investment fund shall be credited or debited to each Participant proportionately
in accordance with the ratio which the amount in the Account of each Participant
invested in said investment fund as of the prior Valuation Date (less any
amounts paid from each such Account so invested to the Participant or his
Beneficiary since said date) bears to the aggregate amount in the Accounts of
all such Participants invested in said investment fund as of such date (less the
aggregate amounts paid from all such Accounts so invested to the respective
Participants or their Beneficiaries since said date).
(d) Increases or decreases shall be allocated as otherwise provided in the
Plan, subject however to all of the requirements of this section for separate
allocations in respect of all the investment funds. Such allocations to so much
of any Participant's Account as may be invested in any investment fund shall be
determined only by the performance of that investment fund.
4.12 The Company shall deposit the Salary Reduction Contributions to the Trust
under the terms hereof no later than 30 days after the end of the month during
which such amounts would otherwise have been paid to the Employee or such other
time period permitted by applicable regulations. All other Company contributions
under the Plan shall be deposited to the Trust prior to the due date for filing
the Company's federal income tax return for the Fiscal Year, including any
extension thereto. In no event shall contributions be made in excess of the
amount deductible under applicable law limiting the allowable
-13-
<PAGE>
deduction for contributions to profit sharing plans. The contributions to this
Plan when taken together with all other contributions made by the Company to
other qualified retirement plans shall not exceed the maximum amount deductible
under Section 404(a) of the Code.
ARTICLE 5
BENEFITS
5.1 A Participant's Account shall at all times be nonforfeitable and fully
vested in him, and shall become payable to him in the event of his retirement,
death, or any other termination of his employment with the Company whatsoever.
The value of the Participant's Account shall be determined as of the Valuation
Date coincident with or immediately following said retirement, death or other
termination of employment, as the case may be.
5.2 Notwithstanding anything to the contrary contained in any of the other
provisions of this Plan, should a Participant remain in the Company's service
after his Normal Retirement Date, he shall for all purposes of this Plan
continue as a Participant. The Committee, in its sole discretion, may direct the
Trustee to defer payments to the Participant until his actual retirement or
death, or it may direct the Trustee to make payments to him as though he had
actually retired.
5.3 Any death benefit shall be distributed by the Trustee to the person entitled
thereto.
5.4 (a) If any vesting schedule under this Plan is amended, each Participant who
has completed at least three (3) years of Service with the Company may elect,
during the election period specified below, to have the vested percentage of his
Account determined without regard to such amendment.
(b) For purposes hereof, the election period shall begin as of the date on
which the amendment changing the vesting schedule is adopted, and shall end on
the latest of the following dates:
(1) The date occurring sixty (60) days after the Plan
amendment is adopted; or
(2) The date which is sixty (60) days after the day on which
the Plan amendment becomes effective; or
(3) The date which is sixty (60) days after the day the
Participant is issued written notice of the Plan amendment by the
Company; or
(4) Such later date as may be specified by the Committee.
-14-
<PAGE>
The election provided hereinabove shall be made in writing and shall
be irrevocable when made.
ARTICLE 6
HARDSHIP WITHDRAWALS
6.1 A Participant may apply to the Committee for a hardship withdrawal. An
application will not be considered on account of hardship unless made on account
of the Participant's immediate and heavy financial need, and unless the
withdrawal is necessary to satisfy such need. No such withdrawal may exceed the
lesser of (i) the amount necessary to meet said need, or (ii) the balance
standing in the Participant's Account as of the Valuation Date immediately
preceding his application, or (iii) the aggregate amount of the Participant's
Salary Reduction Contributions, plus Matching Contributions made in conjunction
therewith, plus income allocable to both Salary Reduction and Matching
Contributions.
6.2 A distribution can be deemed to be on account of immediate and heavy
financial need if made for:
(i) medical expenses incurred or to be incurred by the Participant, his
spouse, or dependents;
(ii) purchase (excluding mortgage payments) of a principal residence for
the Participant;
(iii) payment of tuition for the next twelve months of post-secondary
education for the Participant, his spouse, children or dependents;
(iv) the need to prevent the eviction of the Participant from his
principal residence or foreclosure of the mortgage on said residence;
(v) such other circumstances as the Committee may determine, in a uniform
and non-discriminatory manner, to be within the intent of Section 6.1 above.
(vi) the payment of income and penalty taxes in respect of any amounts
distributed pursuant to Section 6.1 above.
6.3 A distribution will be deemed necessary to satisfy the said immediate and
heavy financial need if the Participant shall establish and represent to the
Committee, in such manner as the Committee shall specify, that said need cannot
be relieved by:
(i) reimbursement or compensation by insurance or otherwise;
-15-
<PAGE>
(ii) reasonable liquidation of the Participant's assets, to the extent
such liquidation would not itself cause an immediate and heavy financial need;
(iii) cessation of salary reduction contributions hereunder;
(iv) other distributions or non-taxable loans from other plans of the
Company or other employers, or loans on reasonable commercial terms from
lenders.
6.4 A participant may make only one hardship withdrawal hereunder in any
twelve-month period and may not for a period of twelve months after receipt of
such withdrawal, and thereafter until the day following the next Valuation Date,
make Salary Reduction Contributions hereunder.
ARTICLE 7
METHODS OF DISTRIBUTION
7.1 The Committee shall, upon the occurrence of the event requiring payment of a
benefit hereunder, direct the Trustee to make payment to the Participant of such
benefit at such time as the Committee determines to be administratively
feasible, but no later than the 60th day after the latest of the close of the
Plan Year in which (i) the Participant reaches his Normal Retirement Date
(regardless of whether he is still then in the employ of the Company), or (ii)
the Participant terminates service with the Company.
Notwithstanding anything hereinabove contained to the contrary in this
section, no distribution hereunder shall commence later than April 1 following
the calendar year in which the Participant attains age seventy and one half
(70-1/2), whether or not his employment terminated in such year.
All distributions under this Article 7 shall be at least equal to the
required minimum distributions under the Code.
7.2 The Participant's benefit shall be distributed by the Trustee in a lump sum
cash payment.
7.3 Any final payment or distribution to any Participant or his Beneficiary or
other person to whom payment is made in accordance with this 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 of
them may require a Participant or his Beneficiary to execute a receipt and
release of all claims under this Plan upon a final payment or distribution, or a
receipt to the extent of any partial payment or distribution. The form of any
such receipt and release shall be determined by the Trustee, the
-16-
<PAGE>
Company, the Committee or any of them that are concerned with the payment or
distribution to which the receipt and release is applicable.
7.4 Notwithstanding anything herein contained to the contrary, no distribution
of a Participant's Account, which is in excess of $3,500, may be made without
his consent, unless he has reached his Normal Retirement Date.
ARTICLE 8
INTERNAL REVENUE SERVICE QUALIFICATION
8.1 The Company shall promptly submit this Plan and all necessary supporting
documents to the Internal Revenue Service, with a request for a determination
letter that the Plan and Trust meet the qualification requirements of Sections
401(a) and 501(a) of the Internal Revenue Code.
8.2 It is expressly understood, however, that the contribution made for the year
ending December 31, 1989 and any and all other payments made by the Company to
the Trustee shall be held by the Trustee and no Employee, Participant or
Beneficiary shall have any benefits or rights in respect thereof until the
Internal Revenue Service determines that this Plan initially meets the
requirements of Section 401(a) of the Internal Revenue Code and that the Trust
is exempt under Section 501(a) of the Internal Revenue Code. If the Internal
Revenue Service does not rule that the Plan qualifies and that the Trust is
exempt then, upon written certification to the Trustee by the Company to that
effect, the Trustee shall return to the Company, in cash or in kind, all
property and assets then held by it under this Plan and the separate Trust
Agreement, provided, however, that such contribution shall not be returned later
than one year after any denial of qualification by the Internal Revenue Service.
This Plan and such Trust Agreement shall thereupon terminate with the same force
and effect as if they had never existed, and the Trustee shall be discharged
from all obligations under the Plan and Trust.
ARTICLE 9
TRUST
9.1 This Plan and the Trust shall be construed according to the Act and, to the
extent not preempted thereby, in accordance with the laws of the State of New
York, where they are made and where they shall be enforced.
9.2 The Fund shall be held in trust by the Trustee under a Trust Agreement,
entered into by the Company and the Trustee. No person shall have any right to
or interest in the Fund except as provided in this Plan and the separate Trust
Agreement.
-17-
<PAGE>
9.3 The Trustee is explicitly empowered, at the direction of the Committee, to
invest any or all of the Fund, as the Committee may determine, in "qualifying
employer securities" (as defined in the Act) of the Company.
9.4 The Committee may, at such time as it may determine, separate the Fund for
investment purposes into investment funds to be known and designated
respectively as "Fund I", "Fund II", and "Fund III" and into such other
investment funds as it may, in its discretion, determine. Fund I will follow a
more conservative investment policy than Fund II, with a view toward achieving
the preservation of capital together with a reasonable return thereon. Fund I in
general will therefore invest in those securities and through those
instrumentalities which will secure those purposes, including, but not limited
to, preferred stocks, fixed income securities, mortgages, certificates of
deposit and plans offered by insurance companies and regulated investment
companies. The investment emphasis of Fund II will, as a general rule, be on
common stocks, subject however, to the direction of the Committee. Fund III
will, in general, be invested as an indexed stock fund. Until such separation of
funds, the Fund will be entirely invested in Fund I.
On or before the end of each Plan Year, on a date selected by the
Committee, each Participant may notify the Committee in writing as to whether he
wishes his account held in one or more investment funds for the next succeeding
plan year. When such written designation is filed by a Participant with the
Committee, it shall remain effective until changed in writing by the
Participant, provided however that the Committee shall determine, by uniform
nondiscriminatory rules, the allowable frequency of such changed within each
Plan Year. In the absence of an effective designation, the account of a
Participant shall be placed in Fund I. Each annual designation shall become
effective on the first day of the Plan Year following the designation, provided
however, that the Committee may, in its discretion, transfer funds among the
funds in a non-discriminatory manner over such period of time as it may
determine to be desirable to preserve the value of the funds from which transfer
is to be made, and the interest of each Participant shall be subject to the
effect of any delays thus occurring in the actual transfers among funds.
The account of a Participant may be partly in more than one investment
fund, provided however that the Committee may, by uniform nondiscriminatory
rules, require that a Participant's election to participate in one of the funds
involve a stated minimum or maximum amount, or minimum or maximum percentage of
his Account, and/or be in multiples of a stated amount or percentage of his
Account. In the event of the death of a Participant, his Account will remain in
the fund or funds in which it was at the time of his death until distribution
shall commence, or until his Beneficiary shall otherwise elect in accordance
with this section.
-18-
<PAGE>
ARTICLE 10
AMENDMENT AND TERMINATION
10.1 The Company shall have the right to amend this Plan in any and all respects
at any time and from time to time, including the right to reduce or suspend
contributions, subject to the limitations below, provided however:
(a) that no amendment shall increase the duties or liabilities of the
Trustee and/or Committee without their consent;
(b) that no amendment shall deprive any Participant of any of the accrued
vested benefits to which he is entitled under this Plan;
(c) that no amendment shall provide for the use of the Fund other than for
the benefit of Participants and Beneficiaries, and the amounts contributed under
the Plan and the Fund held by the Trustee shall, under no circumstances, revert
to the Company, except as contemplated by Article 13 below;
(d) that, subject to the foregoing, any amendment may be made
retroactively.
10.2 Any such amendment shall be by resolution of the Board of Directors of the
Company, or the Board may delegate the power to amend to the Committee, in which
event the resolution shall be the resolution of the Committee, and a copy of
such amendment shall be filed with the Trustee and all participating employers.
Any amendment shall be effective as of the date specified therein.
10.3 The Company reserves the right to terminate the Plan at any time. Such
termination shall be effected by a resolution of its Board of Directors, and a
copy of this resolution shall be delivered to the Trustee, Committee and all
participating employers.
10.4 If this Plan shall be terminated, the Committee shall, if permitted by
applicable regulation under the Code, direct the Trustee to distribute to each
Participant the total value of his allocated share, in cash, or in kind. Said
payment or payments shall be made or begin in such manner as the Committee may
determine, but no later than his Normal Retirement Date or termination of
employment, whichever shall occur last.
10.5 The Plan shall also terminate upon the happening of any of the following
events:
(a) legal adjudication of the Company as a bankrupt; a general assignment
by the Company to or for the benefit of creditors; liquidation or dissolution of
the Company.
(b) in the event of the merger, consolidation, reorganization (divisive or
otherwise) or sale of all or substantially all of the assets of the Company
without the adoption of this Plan within one hundred eighty (180) days
thereafter by such merged,
-19-
<PAGE>
consolidated, reorganized or purchasing corporation or other business entity,
unless such an adoption is legally unnecessary by operation of law. Upon
agreement with the Committee and the Trustee within such one hundred eighty
(180) day period, such corporation or other business entity shall become the
Company for purposes of this Plan, provided that the original Company may, if it
so desires, also continue as such for the purposes of this Plan.
10.6 Complete discontinuance of contributions shall not terminate the Trust as
to the funds then held by the Trustee, nor operate to accelerate any payments or
distributions to or for the benefit of Participants or their Beneficiaries or
estates, but the Trustee shall continue to administer the Trust in accordance
with the provisions thereof, and specifically, no distribution shall be made of
any amount except upon the occurrence of any of the events which would have
controlled such distributions if there had been no discontinuance of
contributions. Upon the resumption of contributions by the Company,
contributions thereafter made shall be governed by the terms of the Plan without
regard to the prior discontinuance.
However, in the event the Company also terminates the Trust, the Trustee,
at the direction of the Committee and if permitted by applicable regulation
under the Code, shall distribute all assets remaining in the Trust, after
payment of any expense properly chargeable against the Trust, to the
Participants or their Beneficiaries in accordance with the value of the Accounts
credited to such Participants as of the date of such termination, in cash or in
kind and in such manner as the Committee shall determine. The Committee's
determination shall be conclusive upon all persons.
From and after the date of the termination of the Trust and until the
final distribution of the Fund, the Trustee shall continue to have all the
powers provided under the Trust as are necessary and expedient for the orderly
liquidation and distribution of the Trust.
ARTICLE 11
ADMINISTRATION AND THE COMMITTEE
11.1 The Board of Directors of the Company shall appoint an Administrative
Committee (herein referred to as the "Committee") to administer the Plan. This
Committee shall consist of such number as the Board may determine, who may be
officers, or other employees of the Company, or any other individuals, and who
shall serve at the pleasure of the Board. Any member may resign by delivering
his written resignation to the Company. Vacancies in the Committee arising by
resignation, death, removal or otherwise, may be filled only by the Board.
11.2 The Committee shall administer the Plan in accordance with its terms, and
shall have all powers necessary to carry out its duties hereunder, which powers
it may exercise
-20-
<PAGE>
in its sole discretion, and its decisions shall be conclusive and binding.
Such powers shall include, but shall not be limited to the powers to:
(a) Construe and interpret the Plan;
(b) Resolve any ambiguity, supply any omission, and resolve any
inconsistency;
(c) Determine all questions affecting the eligibility of any Employee to
participate herein;
(d) Maintain account records for each Participant;
(e) Compute the amount of benefits payable hereunder to any Participant or
Beneficiary;
(f) Make rules and regulations for the implementation, administration and
interpretation of the Plan. Such rules and regulations as are adopted by the
Committee shall be binding upon any persons having an interest in or under the
Plan;
(g) Establish and communicate the funding policy to the Trustee and/or
other investment managers whose duties are to determine the investment policy of
the Fund;
(h) Appoint investment advisers, as provided in Section 11.8.
(i) Determine the validity of any qualified domestic relations order.
11.3 The Committee shall act by unanimous vote if their number is fewer than
three and by majority vote if their number is three or more, and such action may
be taken either by a vote at a meeting, in writing without a meeting, or in such
other manner as the Committee may determine.
11.4 The Committee may authorize any one or more of its members to execute any
document on behalf of the Committee, in which event the Committee shall notify
the Trustee in writing of such action and the name or names of its member or
members so designated. The Trustee thereafter shall accept and rely upon any
document executed by such member or members as representing action by the
Committee until the Committee shall file with the Trustee a written revocation
of such designation.
11.5 The members of the Committee may inspect the books and records of the
Company to the extent that it may reasonably be necessary for them to determine
any fact in connection with acts to be performed by them under this Plan, but
the members of the Committee shall not be required to make such inspection but
may rely conclusively upon any written statement or other communication believed
by them to be genuine and furnished by the Company. In this connection, the
Company shall furnish the Committee
-21-
<PAGE>
with such information and data relative to the Plan as is necessary for the
proper administration thereof and of the Trust.
11.6 The duties, powers and responsibilities reserved to the Committee may be
allocated among the members (if there be more than one), in which case, except
as may be required by the Act, no member of the Committee shall have any
liability with respect to any duties, powers or responsibilities not allocated
to him, or for the acts or omissions of any other member.
11.7 The Committee shall have full power and authority to delegate powers and
duties and to delegate and appoint any persons or firms (including but not
limited to, accountants, counsel, actuaries, physicians, appraisers,
consultants, professional plan administrators and other specialists), or
otherwise act to secure specialized advice or assistance, as it deems necessary
or desirable in connection with the management of the Plan; to the extent not
prohibited by the Act, the Committee shall be entitled to rely conclusively upon
them, and shall be fully protected in any action taken, or omission to act by
them, in good faith reliance upon the advice or opinion of such persons or
firms, provided such persons or firms were prudently chosen by the Committee.
11.8 Unless precluded by the Trust Agreement, the Committee shall have the power
to retain the services of one or more persons or firms for the management,
investment and reinvestment (including the power of acquisition and disposition)
of all or any part of the Trust assets, provided that each of any such persons
or firms so retained is registered as an investment adviser under the Investment
Advisers Act of 1940, or is a bank, as defined in that Act, or is an insurance
company qualified to manage, acquire or dispose of trust assets under the laws
of more than one state, and provided that each of the persons or firms has
acknowledged in writing that he or it is a fiduciary with respect to the Plan.
The Committee shall have full power and authority to delegate to any such
investment adviser complete discretionary authority to direct the Trustee with
respect to the investment and reinvestment of the funds, without any requirement
that the Committee be consulted prior to the giving of any such directions to
the Trustee or the carrying out of any such directions by the Trustee. To the
extent not prohibited by the Act, the Committee shall be entitled to rely
conclusively upon them, and shall be fully protected in any action taken, or
omission to act by them, in good faith reliance on any such investment adviser,
provided said investment adviser was prudently chosen by the Committee.
11.9 The Committee shall keep a record of all its proceedings and acts, and
shall keep all such books of account, records, and other data as may be
necessary for proper administration of the Plan. The Committee shall, as
necessary, notify the Trustee and the Company of any action taken by the
Committee, and, when required, shall notify any other interested person or
persons.
11.10 Unless otherwise determined by the Company, the Committee shall serve
without compensation for services as such. However, the expenses of
administering the Plan,
-22-
<PAGE>
including, but not limited to, the printing of literature and forms related
thereto, the disbursement of benefits thereunder, the compensation of
professional plan administrative organizations, agents, appraisers, actuary,
consultants, counsel, investment advisers, the Trustee or other specialists
shall be paid by the Trust Fund, unless first paid by the Company.
11.11 The members of the Committee shall use ordinary care and reasonable
diligence in the performance of their administrative duties.
11.12 In the event that the members of the Committee then serving are the same
as the Trustee then serving, references in this Plan to "Committee" shall also
include the Trustee, and vice versa, and such references shall be construed so
that such identical persons shall have all the powers, duties and exonerations
conferred herein upon them in both functions.
11.13 In the event that any dispute shall arise as to any act to be performed by
the Committee, the Committee may postpone the performing of such act until
actual adjudication of such dispute shall have been made in a court of competent
jurisdiction or until they shall be indemnified by the Company against loss to
their satisfaction.
11.14 The Company may indemnify, to the extent permitted by the Act, the members
of the Committee against all loss and/or expense arising out of their actions
and omissions in that capacity.
ARTICLE 12
MULTI-EMPLOYER PROVISIONS
12.1 Any company which is designated by the Company as a subsidiary, affiliated
or associated company, may adopt this Plan by resolution of its Board of
Directors, and by separate resolution of the Company's Board approving such
adoption, and may participate hereunder and make contributions to the Trustee.
12.2 The concept of "employment" shall be deemed to refer equally to employment
by the Company, any participating company, or any subsidiary, affiliated or
associated company of the Company, whether domestic or foreign, so that, for
purposes of measuring the Credited Service of a Participant, or for any other
purpose, other than benefit accrual, under this Plan, employment by any such
company shall be deemed to be the equivalent of employment by a participating
company, provided however that such employment shall be subject to the
provisions of Article 3 hereof, and provided further that no service, rendered
prior to the time that any such company became a subsidiary, affiliated or
associated company of the Company, shall be counted for any purpose hereunder,
unless the Board of Directors of the Company shall otherwise determine. It is
intended that the Plan shall treat all employees of all companies which are
members of a controlled group of corporations (as defined in Section 414(b) of
the Code), all employees of all trades or
-23-
<PAGE>
businesses (whether or not incorporated) which are under common control (as
defined in Section 414(c) of the Code), all employees of an affiliated service
group (as defined in Section 414(m) of the Code) and all employees of any other
entity required to be aggregated (pursuant to Section 414(o) of the Code) as
employed by a single employer.
12.3 The terms "Company" and "Committee" as used in this Plan, pertaining to
administration, refer only to the Company and the Committee appointed by the
Board of Directors of the Company. Unless the Company otherwise so states in its
instructions to the Trustee, the Committee's directive to the Trustee shall
apply to the entire Trust Fund, without distinction as to the portion thereof
contributed by any one participating company.
12.4 The Board of Directors of the Company shall be vested with the sole power
to amend this Plan and Trust in any manner, except as provided in Sections 12.5
and 12.6, by an instrument in writing delivered to the Trustee, the Committee
and each participating company, which amendment shall be binding on all
participating companies, provided, however, that no such amendment shall bind
any participating company which shall, upon ninety (90) days after its receipt
of notice of such amendment from the Company, have given notice pursuant to
Section 12.5 or 12.6 of its transfer of participation or termination of the
Plan.
12.5 With the consent of the Board of the Company, the board of directors of any
other participating company shall have the right to amend the Plan and Trust in
any manner which affects the Plan and Trust only as to that participating
company and in no way affects the Plan and Trust as to any other participating
company.
12.6 By instrument in writing, duly executed and delivered to the Trustee, the
Committee and the Company (if such terminating company shall not be the
Company), the board of directors of any participating company shall have the
right, without the necessity of obtaining the consent of the Board of Directors
of the Company, to amend the Plan and Trust in such a way as to withdraw its
participation in the Plan and Trust. In such event, said company (hereinafter
referred to as the "Other Employer") shall forthwith cease to be a party to this
Plan and Trust, except that, in respect of the share of the assets allocable to
its employees, such Other Employer shall direct the Trustee to either (a) hold
such assets aside for the exclusive benefit of its Participants (subject to the
approval of the Company); or (b) deliver such assets to the Trustee(s) to be
selected by such Other Employer; or (c) distribute such assets to its
Participants in a manner provided herein.
12.7 Any termination of the Plan or discontinuance of contributions by any one
participating company shall operate only as to the Participants employed by that
participating company.
-24-
<PAGE>
ARTICLE 13
TOP HEAVY PROVISIONS
13.1 For purposes of applying the provisions of this Article 18:
(a) "Key Employee" shall mean, as of any Determination Date, any employee
who is a "key employee", as defined under Section 416(i) of the Code, and
regulations promulgated thereunder.
(b) "Non-Key Employee" is an employee who does not meet the definition of
Key Employee.
(c) "Compensation" shall mean the first $200,000 or such larger amount as
the Commissioner of Internal Revenue may prescribe) of compensation.
(d) "Required Aggregation Group" means:
(1) each qualified plan of the Company (whether or not terminated)
in which at least one (1) Key Employee participates; and
(2) any other qualified plan of the Company which enables a plan
described in (1) to meet the requirements of Code Section 401(a)(4) or
Code Section 410.
(e) "Permissive Aggregation Group" is the Required Aggregation Group plus
any other qualified plans maintained by the Company, but only if such group
would satisfy in the aggregate the requirements of Code Section 401(a)(4) and
Code Section 410. The Committee shall determine which plan to take into account
in determining the Permissive Aggregation Group.
(f) "Determination Date" for any Plan Year is the Valuation Date occurring
on the last day of the preceding Plan Year or, in the case of the first Plan
Year of the Plan, the said Valuation Date of that Plan Year.
13.2 If the Plan is "top heavy" (as hereinafter defined) in any Plan Year the
Company shall make a minimum contribution of three percent (3%) of compensation
for each Non-Key Employee who is a Participant on the Valuation Date of the Plan
Year, determined without regard to his salary reduction contributions and to the
number of hours completed during the Plan Year. The Plan shall satisfy these
conditions for the Non-Key Employee if the Non-Key Employee's contribution rate
is at least equal to the minimum contribution. For purposes of this paragraph, a
Non-Key Employee Participant includes any employee otherwise eligible to
participate in the Plan but who is not a Participant because his compensation
does not exceed a specified level.
-25-
<PAGE>
If the contribution rate for the Key Employee with the highest
contribution rate is less than three percent (3%), the minimum contribution for
Non-Key Employees shall equal the highest contribution rate received by a Key
Employee. The contribution rate for said Key Employee is the sum of Company
contributions (including salary reduction contributions but excluding Company
contributions to Social Security) allocated to his Account for the Plan Year
divided by his compensation for the Plan Year. To determine the contribution
rate for all Participants, the Committee shall consider all qualified defined
contribution plans maintained by the Company, and included in a required
aggregation group, as a single plan. [Notwithstanding the preceding provisions
of this Section if a defined benefit plan maintained by the Company which
benefits a Key Employee depends on this Plan to satisfy the anti-discrimination
rules of Code Section 401(a)(4) or the coverage rules of Code Section 410 (or
another plan benefiting the Key Employee so depends on such defined benefit
plan), the minimum contribution for a Non-Key Employee shall be three percent
(3%) of his compensation regardless of the contribution rate for the Key
Employee.]
13.3 If the contribution rate for the Plan Year with respect to a Non-Key
Employee is less than the minimum contribution, the Company will increase its
contribution for such Employee to the extent necessary so his contribution rate
for the Plan Year will equal the minimum contribution. The Committee shall
allocate the additional contribution to the Account of the Non-Key Employee for
whom the Company makes the contribution.
13.4 The Plan will be top heavy for a Plan Year if the top heavy ratio as of the
Determination Date exceeds sixty percent (60%). The top heavy ratio is a
fraction, the numerator of which is the sum of the present value of the accounts
and voluntary contribution accounts of all Key Employees as of the Determination
Date, the contributions due as of the Determination Date, and distributions made
within the five (5) year period ending on the Determination Date (except that
there shall be excluded from the calculation the value of accounts of and
distributions to any individual who has not performed services for the Company
at any time during the five-year period ending on the Determination Date), and
the denominator of which is a similar sum determined for all employees. The
Committee shall calculate the top heavy ratio without regard to any Non-Key
Employee who was formerly a Key Employee. The Committee shall calculate the top
heavy ratio, including the extent to which it must take into account
distributions, rollovers and transfers, in accordance with Code Section 416 and
the regulations thereunder.
If the Company maintains other plans qualified under the Code, this Plan
is top heavy only if it is part of the Required Aggregation Group, and the top
heavy ratio for both the Required Aggregation Group and the Permissive
Aggregation Group exceeds sixty percent (60%). The Committee will calculate the
top heavy ratio in the same manner as required by the first paragraph of this
Section taking into account all plans within the aggregation group. The
Committee shall calculate the present value of accrued benefits and the other
amounts the Committee must take into account, under defined benefit plans or
simplified employee pension plans included within the group in accordance with
the terms of those plans, Code Section 416 and the regulations under that
section. The
-26-
<PAGE>
Committee shall calculate the top heavy ratio with reference to the
Determination Dates that fall within the same calendar year.
1 3.5 For any Plan Year in which the Plan is a top-heavy plan, Section 4.9 shall
be read by substituting the number "1.00" for the number "1.25" wherever it
appears therein, except such substitution shall not have the effect of reducing
any benefit accrued under a defined benefit plan prior to the first day of the
Plan Year in which this provision becomes applicable.
ARTICLE 14
MISCELLANEOUS
14.1 This Plan is created for the exclusive benefit of Employees and shall be
interpreted in the manner consistent with its status as a qualified Plan, as
defined in Section 401(a) of the Internal Revenue Code of 1954, or under any
statute of similar import.
14.2 (a) Under no circumstances shall any contributions made under the Plan be
used other than for the benefit of Participants hereunder, and except as
otherwise provided specifically in the Plan, the Fund shall not revert to the
Company.
(b) If a contribution by Company is expressly conditioned on the initial
qualification of the Plan under Section 401 of the Internal Revenue Code of
1954, as amended, and if the Plan does not initially qualify, then paragraph (a)
above shall not prohibit the return to the Company at the direction of the
Committee of such contribution within one (1) year after the date of denial of
qualification of the Plan.
(c) If a contribution by Company is expressly conditioned upon the
deductibility of the contribution under Section 404 of the Internal Revenue Code
of 1954, as amended, then, to the extent the deduction is disallowed, paragraph
(a) above shall not prohibit the return to the Company of such contribution (to
the extent disallowed) within one (1) year after the disallowance of its
deduction.
(d) In the case of a contribution that is made by the Company by a mistake
of fact, paragraph (a) above shall not prohibit the return to the Company, at
the direction of the Committee, of such contribution within one (1) year after
the payment of the contribution.
14.3 In case it becomes impossible for the Company, the Trustee or the Committee
to perform any act under this Plan, that act shall be performed which in the
judgment of the Committee will most nearly carry out the intent and purposes of
this Plan. All parties to and all persons having any interest in this Plan or in
any way interested herein shall be bound by acts performed under such
conditions.
-27-
<PAGE>
14.4 All persons claiming any interest whatsoever hereunder agree to perform any
and all acts and execute any and all documents and papers which may be necessary
for the carrying out of this Plan or any of its provisions.
14.5 This Plan shall be binding upon the heirs, executors, administrators,
successors and assigns of any and all parties hereto or interested herein,
present and future.
14.6 No participant shall have the right to alienate or assign benefits provided
under this Plan. If any participant shall attempt to alienate or assign his
benefits or should anyone attempt to subject his benefits to attachment,
execution, garnishment or other legal or equitable process, the Committee shall
direct the Trustee to take the necessary steps so that such benefits shall not
be available to the Participant, but shall be used by the Trustee for the
benefit of the Participant as the Committee deems necessary for his maintenance,
support, comfort, education, medical care, emergency and general welfare.
However, a Participant who is receiving benefits under the Plan may voluntarily
assign up to 10% of any benefit payment provided such assignment is revocable by
the Participant and is not for the purpose of defraying Plan expenses.
Notwithstanding the foregoing provisions of this section, the prohibitions
against assignment and alienation contained herein shall not apply with respect
to a qualified domestic relations order, as defined in the Code, and the
Committee shall direct payment of benefits to an alternate payee in accordance
with applicable requirements of such an order.
14.7 The Committee shall make a reasonable effort to locate all persons entitled
to benefits under the Plan. Should the Committee be unable to locate any
Participant entitled to benefits, such benefits will remain in the Trust and
shall be payable to such Participant at any future date that such Participant is
located by the Committee. Before the Committee can deem that a Participant
cannot be located, the Committee shall send a certified letter to such
Participant at his last known address advising him that benefit payments shall
be suspended unless the Participant responds to such certified letter. If the
Committee deems any person entitled to receive any amount under the provisions
of this Plan incapable of receiving or disbursing the same by reason of
minority, illness or infirmity, mental incompetency, or incapacity of any kind,
the Committee may, in its discretion, direct the Trustee to take any one or more
of the following actions:
(a) To apply such amount directly for the comfort, support and maintenance
of such person;
(b) To reimburse any person for any such support theretofore supplied to
the person entitled to receive any such payment;
(c) To pay such amount to any person selected by the Committee to disburse
it for such comfort, support and maintenance, including without limitation, any
relative who had undertaken, wholly or partially, the expense of such person's
comfort, care and
-28-
<PAGE>
maintenance, or any institution in whose care or custody the person entitled to
the amount may be. The Committee may, in its discretion, deposit any amount due
to a minor to his credit in any savings or commercial bank of the Committee's
choice.
14.8 Should this Plan be merged or consolidated with any other plan, or should
its assets or liabilities be transferred to any other plan, then each
Participant's accrued and vested benefit immediately after such merger or
consolidation or transfer must be equal to or greater than each Participant's
accrued and vested benefit immediately prior to the merger or consolidation or
transfer, assuming, in order to compute the various benefits, that this Plan was
terminated prior to the merger, consolidation or transfer and that the surviving
plan is terminated subsequent to the merger, consolidation or transfer.
14.9 (a) If a claim for benefits of a Participant or Beneficiary (hereinafter
referred to as "Claimant") is denied either partially or totally, the Committee
shall advise the Claimant, in writing within 90 days, of the computation of his
benefit, if any, and the specific reasons therefor. The Committee shall also
furnish in writing to the Claimant at that time:
(i) A specific reference to pertinent Plan provisions.
(ii) An explanation of any additional material or information
necessary for the Claimant to perfect his claim, if possible,
and an explanation of why such material or information is
needed.
(iii) An explanation of the Plan's claim review procedure.
If special circumstances require an extension of the aforesaid 90
day period, written notice thereof, not to exceed another 90 days, shall be
given to the Claimant before the expiration of the first 90 day period.
(b) Within sixty (60) days after receipt of the information stated in (a)
above, the Claimant shall, if he desires further review, file a written request
for consideration with the Committee.
(c) So long as the Claimant's request for review is pending (including the
sixty (60) day period in (b) above), the Claimant or his duly authorized
representative may review pertinent Plan documents and may submit issues and
comments in writing to the Committee.
(d) A final and binding decision shall be made by the Committee within
sixty (60) days of the filing by the Claimant of his request for
reconsideration, provided, however, that if the Committee, in its discretion,
determines that special circumstances require an extension of the aforesaid 60
day period, said period may be extended by a
-29-
<PAGE>
period not exceeding an additional sixty (60) days, and written notice thereof
shall be given to the Claimant prior to the commencement of said extension
period.
(e) The Committee's decision shall be conveyed to the Claimant in writing
and shall include specific reasons for the decision, written in a manner
calculated to be understood by the Claimant, with specific references to the
pertinent Plan provisions on which the decision is based.
(f) This section shall always be construed so as to comply with their
applicable governmental regulation.
14.10 This Plan shall not be construed as creating or changing any contract of
employment between the Company and its employees, whether participants hereunder
or not; and the Company retains the right to deal with employees, and to
terminate their respective employments at any time, to the same extent as though
this Plan had not been created.
14.11 The headings and sub-headings in this Plan are inserted for the
convenience of reference only, and are to be ignored in any construction and the
provisions thereof.
14.13 In case any provisions of this Plan shall be held illegal or void, such
illegality or invalidity shall not affect the remaining provisions of this Plan,
but shall be fully severable, and the Plan shall be construed and enforced as if
said illegal or invalid provisions had never been inserted herein.
IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its duly authorized officers, and its Corporate seal to be affixed
hereto on this 27th day of April, 1989.
DDB NEEDHAM WORLDWIDE INC.
By: /s/ R. Huntington
-------------------------------
-30-
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT made this 23rd day of April, 1993, by DDB Needham Worldwide
Inc. (hereinafter referred to as the "Company"), in accordance with Section 10.1
of the DDB Needham Joint Savings Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
The first Sentence of Section 4.2 of the DDB Needham Joint Savings Plan is
amended, effective July 1, 1993, by deleting therefrom the phrase "...between 1%
and 4% of such Compensation...", and by substituting therefor the phrase "...
between 1% and 6% of such Compensation...".
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
DDB NEEDHAM WORLDWIDE INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DOB NEEDHAM
JOINT SAVINGS PLAN
THIS AMENDMENT is made by DDB Needham Worldwide Inc. (hereinafter
referred to as the "Company"), in accordance with Section 10.1 of the DDB
Needham Joint Savings Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right, under Section 10.1 to amend
the Plan; and
WHEREAS, the Company wishes to amend the Plan (1) to comply with
certain rollover distribution rules mandated by Section 401(a)(31) of the
Internal Revenue Code of 1986, as amended (the "Code"), which became effective
with respect to distributions made under the Plan after December 31, 1992, (2)
to comply with changes to the compensation limitation of Section 401(a)(17) of
the Code which became effective for Plan years beginning on and after January 1,
1994, (3) to provide for "pass-through voting" rules with respect to "qualifying
employer securities" held under the Plan, and (4) as otherwise provided herein;
NOW, THEREFORE, the Plan is hereby amended as follows:
FIRST
Section 2.1(g) of the Plan is hereby amended by adding the following
at the end thereof:
In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary,
for Plan Years beginning on or after January 1, 1994. the annual
Compensation of each Employee taken into account under the Plan
shall not exceed the "OBRA '93 annual compensation limit". The OBRA
'93 annual compensation limit is $150,000, as adjusted by the
<PAGE>
Commissioner of Internal Revenue for increases in the cost of living
in accordance with section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies to
any period, not exceeding 12 months, over which Compensation is
determined (determination period) beginning in such calendar year.
If a determination period consists of fewer than 12 months, the OBRA
'93 annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference
in this Plan to the limitation under section 401(a)(17) of the Code
shall mean the OBRA '93 annual compensation limit set forth in this
provision.
SECOND
Effective immediately, Section 3.1(c) of the Plan is hereby amended
in its entirety, to read as follows:
(c) (1) A Participant who is rehired as an Employee following a
termination of employment shall again be a Participant as of the
first day of the calendar quarter coincident with or next following
his date of reemployment.
(2) An Employee who terminates employment after having
completed six (6) months continuous employment, but before becoming
a Participant, shall become a Participant on the Entry Date
coincident with or next following his date of rehire.
(3) An Employee who terminates employment before completing
six (6) months continuous employment and is rehired as an Employee
prior to incurring a Break in Service shall become a Participant on
the Entry Date coincident with or next following his completion of
six (6) months employment, including any period of employment prior
to his termination of employment.
(4) Any other Employee who is rehired following a termination
of employment shall be required to satisfy the requirements of
paragraphs (a) and (b) above without regard to service prior to his
rehire date or date of employment termination.
-2-
<PAGE>
THIRD
Effective immediately, Section 7.4 of the Plan is hereby amended by
substituting "age 62" for "his Normal Retirement Date" where the latter appears
therein.
FOURTH
Section 7.5 is hereby added to the Plan, to read as follows:
7.5 Eligible Rollover Distributions:
(a) General: This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a "distributee's" election under
this Section, a distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an "eligible
rollover distribution" paid directly to an "eligible retirement
plan" specified by the distributee in a "direct rollover".
(b) Definitions:
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
-3-
<PAGE>
(2) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in section 408(a)
of the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or former
Employee. In addition. the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's
spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in section
414(p) of the Code, are distributees with regard to the
interest of the spouse or former spouse.
(4) Direct rollover: A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
FIFTH
Section 9.5 is hereby added to the Plan, to read as follows:
9.5 Voting Rights
(a) Notwithstanding anything contained herein to the contrary,
effective with respect to voting issues presented to stockholders of
the Company having a record date after December 31, 1994, each
Participant shall be given the opportunity to direct the Trustee as
to the manner in which any "qualifying employer securities" of the
Company allocated to such Participant's account as of the relevant
record date are to be voted on each matter brought before an annual
or special shareholders' meeting.
(b) Before each such meeting of shareholders, the Committee
and/or the Trustee shall furnish to each
-4-
<PAGE>
Participant a copy of the proxy solicitation material, together with
a form requesting directions on how such shares of "qualifying
employer securities" allocated to such Participant's account shall
be voted. Upon timely receipt of such directions, the Trustee shall
vote as directed, and the Trustee shall have no discretion to vote
otherwise. The Trustee shall vote "qualifying employer securities"
for which it has not received directions from Participants and any
unallocated "qualifying employer securities" held under the Plan in
the same proportion as directed "qualifying employer securities" are
voted, and the Trustee shall have no discretion to vote otherwise.
(c) Voting directions received by the Trustee from
Participants shall be held by the Trustee in confidence and shall
not be divulged or released to any person, including officers or
employees of the Company.
IN WITNESS WHEREOF, DDB Needham Worldwide Inc. has caused this
Amendment to be executed and its corporate seal to be hereunto affixed and
attested to by its duly authorized officer this 29th day of November, 1994.
DDB NEEDHAM WORLDWIDE INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
-5-
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT made this 11th day of April, 1995, by DDB Needham Worldwide
Inc. (hereinafter referred to as the "Company"), in accordance With Section 10.1
of the DDB Needham Joint Savings Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
Effective as of March 1, 1995, Section 3.1(b) of the Plan be, and hereby
is amended by adding the following paragraph at the end thereof:
"Notwithstanding anything contained herein to the contrary, an Employee
who transfers employment from Griffin Bacal Inc. ("GBI") to the Company
shall become a Participant (1) on the first day of the calendar quarter
coincident with or next following the date of such transfer if he had
completed at least six months of continuous service with GBI as of
December 31 of the year immediately preceding the transfer, or (2), in any
other case, in accordance with Section 3.1(a) and the preceding paragraph
of this Section 3.1(b), but crediting for such purpose the Employee's
continuous service with GBI immediately prior the date of transfer as
service with the Company."
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
DDB NEEDHAM WORLDWIDE INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT made this 19th day of September, 1995, by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
Effective January 1, 1996, Section 4.6 of the DDB Needham Joint Savings
Plan is hereby amended by substituting the words "calendar quarter" for the
words "Plan Year" where the latter appears therein.
SECOND
Section 14.6 of the DDB Needham Joint Savings Plan is hereby amended by
adding the following sentence at the end of the second paragraph thereof:
"Subject to the terms of any such order, the Committee may direct
any distribution pursuant thereto to be made without regard to the
Participant's attainment of any age".
The above amendment shall be effective with respect to qualified domestic
relations orders referred to therein which the Committee receives on or after
the date this Amendment is adopted.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT. made this 19th day of March, 1996, by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
Section 5. 1 of the Plan is hereby amended in its entirety, to read as
follows:
5.1 A Participant's Account shall at all times be nonforfeitable and
fully vested in him, and shall become payable to him (or his Beneficiary)
in the event of his retirement, death or other termination of his
employment with the Company. The amount which shall be payable in such
event shall be equal to the value of the Participant's Account determined
as of the Valuation Date coincident with or immediately following the
earlier of:
i. the date the Participant's completed benefit election form
is received by the Plan Administrator;
ii. the Participant's attainment of age 62 if his Severance
From Service Date occurs before attaining age 62;
iii. the Participant's Normal Retirement Date if his
retirement occurs after attaining age 62;
iv. the Participant's Severance From Service Date if the value
of his Account does not exceed $3,500; or
v. the date on which the Plan Administrator receives a
completed benefit distribution form from the Participant's Beneficiary if
distribution is being made due to the Participant's death.
<PAGE>
SECOND
The second sentence of Section 5.2 of the Plan is hereby deleted in its
entirety.
THIRD
Section 9.3 of the Plan is hereby deleted in its entirety, and Section 9.4
of the Plan is hereby renumbered Section 9.3.
FOURTH
Section 9.3 of the Plan (formerly Section 9.4 per the foregoing Amendment)
is hereby amended by substituting the following for the first paragraph thereof:
"The Fund shall consist of separate investment funds, such as a
fixed income fund, an indexed stock fund and a balanced fund (the
foregoing funds being illustrative only, and neither mandatory nor
exclusive). The Committee shall determine the nature and number of the
investment funds; provided, however, that the Committee shall cause one of
such funds to be invested primarily in common stock, $.50 par value, of
Omnicom Group Inc."
FIFTH
APPENDIX A is hereby added to the Plan, to read as follows:
APPENDIX A
Special Provisions Applicable to
Certain Former Employees of
Foote, Cone & Belding Communications, Inc.
Notwithstanding anything contained in the Plan to the contrary, the
following special provisions shall apply with respect to former employees
of Foote, Cone & Belding Communications, Inc. ("Foote Cone") who became
employed by the Company on or about April 15, 1996 (the "Transfer Date"):
1. Service with Foote Cone prior to the Transfer Date shall be counted as
service with the Company for purposes of determining the eligibility of
such employees to participate under the Plan.
2. Each such employee who had completed at least six months of service
with Foote Cone as of December 31, 1995 shall be eligible to participate
in the Plan on July 1, 1996.
<PAGE>
SIXTH
The foregoing Amendments shall be effective immediately.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT made this 27th day of September, 1996, by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
Effective immediately, Section 3.1(a) of the Plan is hereby amended in its
entirety, to read as follows:
3.1(a) An Employee shall be eligible to become a Participant when he has
completed six (6) months of continuous employment, commencing on his Employment
Commencement Date. Notwithstanding the foregoing, an Employee who is not paid on
a salaried basis and whose Employment Commencement Date is after July 1, 1995
shall be ineligible to become a Participant of the Plan.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM JOINT SAVINGS PLAN
THIS AMENDMENT made this 5th day of May, 1997, by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
The Plan is hereby amended by substituting "DDB Needham/TLP Joint Savings
Plan" for "DDB Needham Joint Savings Plan" each place where the latter appears
therein.
SECOND
The Plan is hereby amended by substituting "The DDB Needham Worldwide
Communications Group Inc." for "DDB Needham Worldwide Inc." each place where the
latter appears therein.
THIRD
AMENDMENTS FIRST AND SECOND are hereby effective July 1, 1997.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM/TLP JOINT SAVINGS PLAN
THIS AMENDMENT, made this 19th day of May, 1998 by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham/TLP Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided:
NOW, THEREFORE, APPENDIX B is hereby added to the Plan, to read as
follows:
APPENDIX B
Special Provisions Applicable to
Certain Former Employees of
Moss/Dragoti
Notwithstanding anything contained in the Plan to the contrary, the following
special provisions shall apply with respect to former employees of the
Moss/Dragoti Division of Wells BDDP ("Moss/Dragoti") who became employed by the
Company on or about May 1, 1998 (the "Transfer Date"):
1. Service with Moss/Dragoti prior to the Transfer Date shall be counted as
service with the Company for purposes of determining the eligibility of such
employees to participate under the Plan.
2. Each such employee who had completed at least six months of service with
Moss/Dragoti as of December 31, 1997 shall be eligible to participate in the
Plan on July 1, 1998.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM/TLP JOINT SAVINGS PLAN
THIS AMENDMENT, made this 1st day of December, 1998, by The DDB Needham
Worldwide Communications Group Inc. (hereinafter referred to as the "Company"),
in accordance with Section 10.1 of the DDB Needham/TLP Joint Savings Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the Plan to
amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter provided;
NOW, THEREFORE, APPENDIX C is hereby added to the Plan, to read as
follows:
APPENDIX C
Special Provisions Applicable
to Certain Employees of
Griffin Bacal Inc.
Notwithstanding anything contained in the Plan to the contrary, the following
special provisions shall apply with respect to employees of Griffin Bacal Inc.
("Griffin Bacal") on December 31, 1998, on which date Griffin Bacal completely
discontinued contributions under the Profit Sharing Plan of Griffin Bacal Inc.
(the "Discontinuance Date"):
1. Service with Griffin Bacal prior to the Discontinuance Date shall be counted
as service with the Company for the purposes of determining the eligibility of
such employees to participate under the Plan.
2. Each such employee who had completed at least six months of service with
Griffin Bacal as of December 31, 1998 shall be eligible to participate in the
Plan on January 1, 1999.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
<PAGE>
AMENDMENT TO THE
DDB NEEDHAM/TLP JOINT SAVINGS PLAN
THIS AMENDMENT, made this 16th day of March, 1999, by The DDB
Needham Worldwide Communications Group Inc. (hereinafter referred to as the
"Company"), in accordance with Section 10.1 of the DDB Needham/TLP Joint Savings
Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company reserved the right under Section 10.1 of the
Plan to amend the Plan; and
WHEREAS, the Company wishes to amend the Plan as hereinafter
provided;
NOW, THEREFORE, the Plan is amended as follows:
FIRST
Section 2.1(i) of the Plan is amended by adding the following
sentence at the end thereof:
Except to the extent required by the Code for coverage and
non-discrimination testing purposes, Employee shall not include any
individual treated by the Company at the time services are rendered
as an independent contractor or as a leased employee for the period
the individual is so treated, even if such individual subsequently
is retroactively reclassified as a common-law employee for such
period.
SECOND
Effective as of April 1, 1998, paragraph iv of Section 5.1 of
the Plan is hereby amended in its entirety, to read as follows:
5.1 iv. the Participant's Severance From Service Date if the value
of this Account does not exceed $5,000; or
<PAGE>
THIRD
Effective as of January 1, 1997, section 7.1 of the Plan is
hereby amended by substituting the following paragraph for the
second paragraph thereof:
Notwithstanding anything hereinabove contained to the contrary in
this section, no distribution hereunder shall commence later than
the later of April 1 following the calendar year following the
calendar year in which the Participant attains age seventy and
one-half (70-1/2), or retires, except that benefit distributions to
a 5-percent owner (as defined in section 416 of the Internal Revenue
Code) must commence by April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2.
FOURTH
Effective as of April 1, 1998, section 7.4 of the Plan is
hereby amended in its entirety, to read as follows:
7.4 Notwithstanding anything herein contained to the contrary, no
distribution of a Participant's Account, which is in excess of
$5,000, may be made without his consent, unless he has reached his
Normal Retirement Date.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of
the Company, has executed this Amendment as evidence of its adoption by the
Company as of the date first above written.
THE DDB NEEDHAM WORLDWIDE
COMMUNICATIONS GROUP INC.
By: /s/ Philip S. Krieger
-------------------------------
ATTEST:
/s/ Olive Frankovic
- -----------------------------
Exhibit 4.2
- --------------------------------------------------------------------------------
TRUST AGREEMENT
between
DDB NEEDHAM WORLDWIDE, INC.
and
THE BANK OF NEW YORK
Dated as of June 15, 1993
Account Numbers(s): 586460, 586461, 586462, 586463
586464, 586465, 586466
- --------------------------------------------------------------------------------
<PAGE>
TRUST AGREEMENT
1. Establishment of Master Trust ....................................... 1
1.1 The Master Trust .............................................. 1
1.2 Establishment of Separate Funds ............................... 1
1.3 Company as Agent .............................................. 2
1.4 Title to Assets ............................................... 2
1.5 Acceptance of Trust ........................................... 2
2. Investment of Master Fund ........................................... 2
2.1 Appointment of Investment Managers and
Investment Committee .......................................... 2
2.2 Discretionary Funds ........................................... 3
(a) Permitted Investments .................................... 3
(b) Brokerage Commissions .................................... 4
(c) Funding Policy ........................................... 4
2 3 Directed Funds ................................................ 4
(a) Permitted Investments .................................... 4
(b) Investment Instructions .................................. 4
2.4 Settlement of Securities Transactions ......................... 5
2.5 Cash Balances ................................................. 5
2.6 Transfers to Collective Trusts ................................ 6
2.7 Insurance Contracts ........................................... 6
(a) Procuring and Holding Contracts .......................... 6
(b) Exercising Rights under Contracts ........................ 7
(c) Payment of Premiums ...................................... 7
(d) Payments under Contracts ................................. 7
(e) Liability of Master Trustee; Indemnification ............. 7
3. Powers of Master Trustee ............................................ 8
3.1 In General .................................................... 8
3.2 At Direction of Named Fiduciary ............................... 9
3.3 Administrative Powers ......................................... 10
4. Registration of Company Securities .................................. 11
5. Accounts to be Maintained by the Master Trustee;
Payments from the Master Trust ...................................... 12
5.1 Accounts ...................................................... 12
5.2 No Separate Recordkeeping ..................................... 12
5.3 Payments; Disputes ............................................ 12
5.4 Direct Deposits of Payments ................................... 12
5.5 Administrative Committee's Responsibility ..................... 13
5.6 Returned and Uncashed Payments ................................ 13
5.7 No Liability for Contributions ................................ 13
6. Valuation of the Master Fund ........................................ 13
-i-
<PAGE>
7. Administrative Expenses, Taxes and
Master Trustee's Compensation ....................................... 14
7.1 In General .................................................... 14
7.2 Fees of Investment Managers ................................... 14
8. Master Trustee's Liability; No Duty
to Review; Indemnification .......................................... 14
8.1 Liability of Master Trustee ................................... 14
8.2 No Duty to Review ............................................. 15
8.3 Reliance on Certain Appraisals ................................ 15
8.4 Indemnification of Master Trustee ............................. 15
8.5 Limitation of Indemnity ....................................... 16
8.6 Indemnification of Successor Trustee .......................... 16
9. Settlement of Master Trustee's Accounts ............................. 16
9.1 Annual Accounting ............................................. 16
9.2 Other Accountings ............................................. 17
9.3 Settlement of Accounts ........................................ 17
10. Segregation of Parts of the Master Trust ............................ 17
10.1 Segregation ................................................... 17
10.2 Segregated Property ........................................... 18
11. Resignation and Removal of Master Trustee ........................... 18
12. Evidence of Action by Company, Investment Managers and
Investment and Administrative Committees, and of
Appointment of Named Fiduciary, Investment Managers and
Investment and Administrative Committees ............................ 19
13. Amendment of Agreement, Termination of Trust,
Termination of Plan ................................................. 20
13.1 Amendment of Agreement ........................................ 20
13.2 Termination of Master Trust ................................... 20
13.3 Termination of the Plan ....................................... 20
13.4 Exclusive Benefit ............................................. 20
14. Inalienability of Benefits and Interests ............................ 21
15. No Merger, Consolidation or Transfer of Plan
Assets or Liabilities ............................................... 21
16. Governing Law ....................................................... 21
Exhibit A. Master Trustee's Fees
-ii-
<PAGE>
TRUST AGREEMENT
THIS AGREEMENT made as of June 15, 1993 by and between DDB Needham
Worldwide, Inc., a New York corporation (hereinafter referred to as the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation
(hereinafter referred to as the "Master Trustee");
W I T N E S S E T H:
WHEREAS, the Company and certain of its subsidiaries and affiliates have
heretofore adopted or may hereafter adopt a qualified deferred compensation plan
for the benefit of its or their employees (such plan, as amended from time to
time, is referred to herein as the "Plan", and the company and any such
subsidiary or affiliate are referred to herein as the "Employer"); and
WHEREAS, the Plan provides, among other things, for the financing by means
of a trust fund of all or a part of the benefits to be paid pursuant to the Plan
to certain employees (herein called "Participants") of the Employer and their
beneficiaries (herein called "Beneficiaries"), and the Company wishes THE BANK
OF NEW YORK to serve as Trustee thereunder in accordance with the requirements
of the Employee Retirement Income Security Act of 1974, as amended (the "Act");
NOW, THEREFORE, the Company and the Master Trustee agree as follows:
SECTION 1. Establishment of Master Trust.
1.1 The Master Trust. The Company hereby establishes with the Master
Trustee a trust (hereinafter referred to as the "Master Trust") which shall
comprise all of the funds and other assets deposited herewith, together with
such other sums of money and such property acceptable to the Master Trustee as
shall from time to time be paid or delivered to the Master Trustee hereafter,
all investments made therewith and proceeds thereof and the earnings and profits
thereon. All such funds and property, together with such investments, proceeds,
earnings and profits, less the payments or other distributions which, at the
time of reference, shall have been made by the Master Trustee as authorized
herein, are referred to as the "Master Fund."
1.2 Establishment of Separate Funds. The Master Fund shall consist
initially of a single fund. At any time and from time to time the Master Trustee
shall, if so directed by DDB Needham, Worldwide Inc., the party that under the
terms of the Plan
<PAGE>
-2-
is the named fiduciary with respect to control or management of the assets
thereof (hereinafter referred to as the "Named Fiduciary"), establish within the
Master Fund one or more investment funds, each of which shall be invested or
reinvested as provided in Section 2. The term "Fund", as used herein, shall mean
the initial fund or any other investment fund so established, depending upon the
fund to which such provision is being applied at the time, and the term "Master
Fund" shall refer to all such funds in the aggregate. The functions of the Named
Fiduciary may be divided among more than one person or persons (in which case
the term "Named Fiduciary" shall refer to any such person or persons, as the
context requires), and the same person or persons may serve as the Named
Fiduciary and the Investment Committee and/or the Administrative Committee as
hereinafter defined. The Master Trustee shall hold, manage, administer, value,
make purchases and sales for, distribute, account for, and otherwise deal with
each Fund separately.
1.3 Company as Agent. Each subsidiary or affiliate of the Company adopting
the Plan appoints the Company as its agent for purposes of this Agreement and
agrees that it shall be bound by the decisions, actions and directions of the
Company and any Investment Manager or Investment Committee (as hereinafter
defined) hereunder and that the Master Trustee shall be fully protected in
relying upon such decisions, actions and directions and shall in no event be
required to give notice to or otherwise deal with such subsidiary or affiliate
except by dealing with the Company as agent of such subsidiary or affiliate.
1.4 Title to Assets. Neither the Plan nor the participants or their
Beneficiaries shall have any right, title or interest in or to any specific
assets of the Master Fund, but shall have an undivided beneficial interest in
the Master Fund valued in accordance with Section 6 hereof. Ownership of all the
individual assets of the Master Fund shall be by the Master Trustee. The Master
Trustee shall not issue any certificate or other documentation representing any
interest in the Master Fund or part hereof.
1.5 Acceptance of Trust. The Master Trustee hereby accepts the Master
Trust created by this Agreement on the terms and conditions herein set forth.
SECTION 2. Investment of Master Fund.
2.1 Appointment of Investment Managers and Investment Committee. At the
time each Fund is established, and from time to time thereafter, the Company
shall determine and advise the Master Trustee whether the investment of such
Fund is to be managed (a) by the Master Trustee in its sole discretion, (b) by
an investment manager who (i) is duly appointed by the Named Fiduciary, and (ii)
qualifies as an investment manager under Section 3(38)(B) of the Act (an
"Investment Manager"), or (c) by
<PAGE>
-3-
an Investment Committee appointed by the Named Fiduciary (the "Investment
Committee"). Any Fund that is managed by the Master Trustee is hereinafter
referred to as a "Discretionary Fund", and any Fund that is managed by an
Investment Manager or Investment Committee is hereinafter referred to as a
"Directed Fund".
In the event the Investment Manager of any Directed Fund resigns or is
removed, the Named Fiduciary shall promptly notify the Master Trustee of such
resignation or removal and of the appointment of a successor to such Investment
Manager. Upon resignation or removal of an Investment Manager the Master Trustee
shall not have or be deemed to have any responsibility to manage and control any
asset held in the Directed Fund of such former Investment Manager, except as set
out in the sentence immediately following. If an Investment Committee has been
appointed, the Master Trustee shall treat such Fund as managed by the Investment
Committee pending notification from the Named Fiduciary of the appointment of a
different successor to the former Investment Manager; if no Investment Committee
has been appointed and if no notification of the appointment of such a successor
is received within seven days of notification to the Master Trustee of the
former Investment Manager's resignation or removal, the Master Trustee shall
thereafter treat such Directed Fund as a Discretionary Fund unless and until it
receives other instructions from the Named Fiduciary as to the investment of
such Fund.
2.2 Discretionary Funds.
(a) Permitted Investments. The Master Trustee shall invest and
reinvest any Discretionary Fund, without distinction between principal and
income, in such property (real, personal or mixed) as the Master Trustee, in its
sole discretion, shall deem suitable for such Fund, including without
limitation: any and all common stocks, preferred stocks, bonds, debentures,
mortgages on real or personal property wherever situated, equipment trust
certificates, notes or other evidence of indebtedness, or any other securities,
certificates of deposit, demand or time deposits (including any such deposits,
demand or time deposits with The Bank of New York), shares of investment
companies and mutual funds (irrespective of whether The Bank of New York is
performing services therefor), interests in partnerships and trusts, insurance
policies and contracts, repurchase agreements, and any other property or joint
or other part interest in property (including, without limitation, part
interests in bonds and mortgages or notes and mortgages), United States or
foreign, whether situated within or outside the United States (provided that,
except as provided in Section 3.3 hereof, the indicia of ownership thereof are
not maintained outside the jurisdiction of the district courts of the United
States), and of any kind, class or character, and irrespective in any case of
whether The Bank of New York or another, individually or as trustee or agent, is
acting as participator of any part interest
<PAGE>
-4-
in property that may be acquired. Such investment and reinvestment shall not be
restricted to property authorized for investment by trustees under any present
or future law. A Discretionary Fund may be invested and reinvested whether or
not the property acquired is productive of income, is marketable or constitutes
a wasting asset. Without limiting the generality of the foregoing, a
Discretionary Fund may be invested in stocks of any classification, bonds or
other securities issued or guaranteed by the Company, or by any subsidiary or
affiliate thereof, or in real property which is owned by or leased to the
Company, or any subsidiary or affiliate thereof. Nothing herein contained,
however, shall be deemed to purport to authorize any investment or reinvestment
in violation of the requirements of the Act.
(b) Brokerage Commissions. In placing securities transactions for a
Discretionary Fund, the Master Trustee's primary objective will be to obtain the
most favorable net results, taking into account such factors as the best net
price available, the size of and difficulty in executing the order, and the
reliability, efficiency and financial responsibility of the broker or dealer.
When it can be done consistently with this goal, the Master Trustee may allocate
orders to brokers or dealers who also provide brokerage or research services (as
defined in Section 28(e) of the Securities Exchange Act of 1934). The Company
understands that such brokerage and research services may be useful to other
accounts managed by the Master Trustee and, similarly, research generated
through commissions paid by such other accounts may be useful in connection
with a Discretionary Fund.
(c) Funding Policy. The Named Fiduciary shall advise the Master
Trustee in writing of any funding policy and method or investment guidelines
which have been established to carry out the objectives of the Plan, and shall
promptly advise the Master Trustee of any changes therein.
2.3 Directed Funds.
(a) Permitted Investments. Each Directed Fund shall be invested and
reinvested, without distinction between principal and income, in any property
authorized in Section 2.2(a) above as the Master Trustee may be directed by an
Investment Manager or the Investment Committee.
(b) Investment Instructions. An Investment Manager or the Investment
Committee at any time and from time to time may issue orders directly to a
broker for the purchase or sale of securities for any Directed Fund that it
manages. The Investment Manager or Investment Committee will promptly give or
cause to be given to the Master Trustee notice of the issuance of such order and
the broker will confirm such order or cause it to be confirmed to the Master
Trustee. Such notice and confirmation may be given in writing, by telecopy or by
any other electronic
<PAGE>
-5-
means using a code for the authentication of messages, and may include Trade
Reports issued by the Institutional Delivery System of Depository Trust Company.
Receipt of a matching notice and confirmation or of such a Trade Report shall be
authority for the Master Trustee to settle such trade. Except as provided in
Section 2.1, in the absence of directions or authorization from the Investment
Manager or Investment Committee, the Master Trustee shall have no power, duty or
authority to invest any Directed Fund.
2.4 Settlement of Securities Transactions. When the Master Trustee is
instructed to deliver property against payment, delivery of the property and
receipt of payment may not be simultaneous. The risk of non-receipt of payment
shall be the Master Trust's and the Master Trustee shall have no liability
therefor. All credits to the Master Trust of the anticipated proceeds of sales
and redemptions of property and of anticipated income from property shall be
conditional upon receipt by the Master Trustee of final payment and may be
reversed to the extent final payment is not received. At the discretion of the
Master Trustee, the Master Trust may make use of such conditional credits. To
the extent such credits do not become unconditional by receipt of final
payment, the Master Trust shall reimburse the Master Trustee upon demand for the
amount of such conditional credits so used. When the Master Trustee is
instructed to receive property, it is authorized to accept documents in lieu of
such property as long as such documents contain the agreement of the issuer
thereof to hold such property subject to the Master Trustee's sole order. The
Master Trustee may, in its discretion, advance funds to the Master Trust to
facilitate the settlement of any trade. In the event of such an advance, the
Master Trust shall immediately reimburse the Master Trustee for the amount
thereof.
2.5 Cash Balances. The Master Trustee may invest all or any portion of any
cash balances in any Discretionary Fund, and an Investment Manager or the
Investment Committee may, with the prior acceptance of the Master Trustee, by
written authorization delegate to the Master Trustee authority to invest all or
any portion of any cash balances in any Directed Fund, in the Master Trustee's
sole discretion, including, without limitation, investments in part interests in
obligations, irrespective of whether The Bank of New York or another,
individually or as trustee or agent, is acting as a participator. The Master
Trustee shall not be liable for interest on any cash balances in any Directed
Fund that it holds uninvested pending receipt of directions from the Investment
Manager or the Investment Committee, in the absence of authorization from the
latter to invest the same in the Master Trustee's sole discretion, nor liable
for interest on any cash balances it may be authorized to invest in its sole
discretion, and may hold uninvested as it deems to be in the best interests of
the Master Fund.
<PAGE>
-6-
2.6 Transfers to Collective Trusts. Notwithstanding any provision of the
Plan or of this Agreement to the contrary, the Master Trustee may, in its sole
discretion with respect to any Discretionary Fund and, if authorized or directed
by the Investment Manager or Investment Committee of any Directed Fund, with
respect to such Directed Fund, transfer all or any part of the assets of such
Fund to, or withdraw the same from, any collective investment trust that shall
be or shall have been created and administered by The Bank of New York or, if
such Investment Manager is a bank, by such Investment Manager, for the
collective investment of the property of employee benefit trusts of which The
Bank of New York or such Investment Manager is trustee or agent, provided that
such trust is qualified under the provisions of Section 401(a) of the Internal
Revenue Code (the "Code") and exempt under the provisions of Section 501(a) of
the Code. To that end, the Master Trustee is hereby expressly authorized to
permit the commingling of any or all of the assets of such Fund with the assets
of other trusts eligible to participate in such collective investment trusts.
Any Investment Manger holding such trust funds shall have with respect to such
funds the powers of the Master Trustee set forth in Sections 2.2(a), 3.1, 3.2
and 3.3. The Master Trustee shall have no responsibility for the custody or
safekeeping of assets so transferred. To the extent that property of the Master
Fund is invested in any such collective investment trust, the declaration of
trust pertaining thereto, as amended from time to time, and the trust thereby
created, shall be a part of this Agreement and of the Plan. The Master Trustee
shall have, with respect to the interest of such Fund in such collective
investment trust, the powers conferred by this Agreement to the extent that such
powers are not inconsistent with the provisions of such declaration of trust.
For purposes of any valuation of the Master Fund or any valuation of the
interest or of the account of any Participant or Beneficiary under the Plan, the
interest of the Master Trust in such collective investment trust shall be valued
at the times and in the manner prescribed by the declaration by which such trust
was created. A copy of the declaration of trust as presently in effect of any
collective investment trust to which the assets of the Plan are transferred
pursuant to this Section 2.6 shall be provided to the Named Fiduciary and copies
of amendments thereto shall be forwarded to the Named Fiduciary promptly after
their adoption.
2.7 Insurance Contracts.
(a) Procuring and Holding Contracts. The Master Trustee, upon
written direction of the Named Fiduciary, shall pay from the Master Trust such
sums to such insurance company or companies as the Named Fiduciary may direct
for the purpose of procuring individual or group annuity contracts or other
insurance contracts (hereinafter referred to as "Contracts"). The Named
Fiduciary shall prepare, or cause to be prepared in such form as it shall
prescribe, the application for any Contract to be applied for. The Master
Trustee shall receive and hold in
<PAGE>
-7-
the Master Trust, subject to the provisions, hereinafter set forth in this
Section, all Contracts obtained, the proceeds of any sale, assignment or
surrender of any such Contract and any and all dividends and other payments of
any kind received with respect to any such Contract.
(b) Exercising Rights under Contracts. The Master Trustee shall be
the complete and absolute owner of Contracts held in the Master Trust, provided
that the Named Fiduciary shall have power, without the consent of any other
person, to exercise any and all of the rights, options or privileges that belong
to the Master Trustee as such absolute owner or that are granted by the terms of
any such Contract or by the terms of this Agreement, and the Master Trustee
shall not exercise any of the foregoing powers or take any other action
permitted by any such Contract other than upon the written direction of the
Named Fiduciary. The Master Trustee shall have no duty to exercise any of such
powers or to take any such action unless and until it shall have received such
direction. The Master Trustee, upon the written direction of the Named
Fiduciary, shall deliver any Contract held in the Master Trust to such person or
persons as may be specified in the direction.
(c) Payment of Premiums. Upon the written direction of the Named
Fiduciary, the Master Trustee shall pay from the Master Trust premiums,
assessments, dues, charges and interest, if any, upon any Contract held in the
Master Trust. The Master Trustee shall have no duty to make any such payment
unless and until it shall have received such direction.
(d) Parents under Contracts. Any sums paid out by any insurance
company under the terms of a Contract held in the Master Trust either to the
Master Trustee, or, in accordance with its direction, to any other person or
persons designated as payees in such Contract shall be a full and complete
discharge of the liability to pay such sums, and the insurance company shall
have no obligation to look to the disposition of any sums so paid. No insurance
company shall be required to look into the terms of this Agreement, or to
question any action of the Master Trustee or to see that any action of the
Master Trustee is authorized by the terms of this Agreement.
(e) Liability of Master Trustee; Indemnification. Anything contained
herein to the contrary notwithstanding, to the extent permitted by law, the
Master Trustee shall not be liable for the refusal of any insurance company to
issue or change any Contract or take any other action requested by the Master
Trustee; for any assets invested in a Contract at the direction of the Named
Fiduciary; for the form, terms, genuineness, validity, sufficiency or effect of
any contract held in the Master Trust; for the act of any person or persons that
may render any such Contract null and void; for the failure of any insurance
company to pay the proceeds of any such Contract as and when the same shall
become due and payable; for any delay in
<PAGE>
-8-
payment resulting from any provision contained in any such Contract nor for the
fact that for any reason whatsoever (other than the Master Trustee's own
negligence or willful misconduct) any Contract shall lapse or otherwise become
uncollectible. The Company hereby agrees to indemnify the Master Trustee and to
hold it harmless from and against any claim, liability, loss, damage or expense
that may be asserted against the Master Trustee by reason of any action taken or
omitted by the Master Trustee in connection with any Contract at the direction
of the Named Fiduciary.
Section 3. Powers of Master Trustee.
3.1 In General. The Master Trustee is authorized and empowered, in its
discretion with respect to a Discretionary Fund and at the direction of an
Investment Manager or the Investment Committee with respect to a Directed Fund:
(1) to sell, exchange, convey, transfer or otherwise dispose of any
property, real or personal, at any time held by the Master Trustee, by private
contract or at public auction, for cash or on credit, (in the case of a Directed
Fund, upon such conditions, at such prices and in such manner as the Investment
Manager or Investment Committee shall direct), and no person dealing with the
Master Trustee shall be bound to see to the application of the purchase money or
to inquire into the validity, expediency or propriety of any such sale or other
disposition;
(2) to grant options to purchase securities held in the Fund
("covered call options") and other property held in the Fund and options to sell
securities and other property to the Fund, as well as combinations of such
options to purchase and such options to sell; and to acquire options to purchase
securities and other property for the Fund and options to sell securities and
other property held in the Fund, as well as combinations of such options to
purchase and such options to sell;
(3) to sell or exercise any conversion privileges, subscription
rights, warrants or other options and to make any payments incidental thereto,
and to consent to or otherwise participate in corporate reorganizations,
mergers, consolidations or other changes affecting corporate securities and to
delegate discretionary powers and to pay any assessments or charges in
connection therewith; but the Company understands that, where warrants, options,
tenders or other rights have fixed expiration dates, in order for the Master
Trustee to act with respect to a Directed Fund, it must receive instructions at
its offices, addressed as the Master Trustee may from time to time request, by
no later than noon (N.Y. City time) at least one business day prior to the last
scheduled date to act with respect thereto (or such earlier date or time as the
Master Trustee may direct);
<PAGE>
-9-
(4) to compromise, compound, settle or arbitrate any claim, debt or
obligation due to or from it as Master Trustee and to reduce the rate of
interest on, extend or otherwise modify, or to foreclose upon default or
otherwise enforce any such obligation; to bid in property on foreclosure or to
take a deed in lieu of foreclosure with or without paying consideration therefor
and in connection therewith to release the obligation on the bond secured by the
mortgage, and, in the case of a Discretionary Fund, to abandon any property
determined by it to be worthless;
(5) to vote upon any stocks, bonds or other securities and to give
general or special proxies or powers of attorney with or without power of
substitution, provided that, in the case of a Directed Fund, unless the Master
Trustee is instructed otherwise, all proxies and proxy materials relating to
securities held in the Master Fund shall be signed by the Master Trustee without
indication of voting preference, and forwarded to the Investment Manager or
Investment Committee for the making of all decisions with respect thereto; and
to enter into any voting trust or similar agreement;
(6) to manage, administer, operate, lease for any period of years,
regardless of any restrictions on leases made by fiduciaries, develop, improve,
repair, alter, demolish, mortgage, pledge, grant options with respect to or
otherwise deal with any real property or interest therein at any time held by
it;
(7) for the purposes of the Master Trust, to engage in transactions
involving financial futures, including but not limited to stock index futures,
and options on financial futures; and in carrying out such transactions to open
accounts to trade in and to make or take delivery of financial futures, to
provide original, variation, maintenance and other required margin in the form
of moneys, securities, or otherwise, and to exercise options; and
(8) generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities or other property held in any Fund.
3.2 At Direction of Named Fiduciary. The Master Trustee is authorized and
empowered, with the approval of the Named Fiduciary with respect to any Fund:
(1) for the purposes of the Master Trust, to borrow money from any
person or persons, including The Bank of New York, to issue the Master Trust's
promissory note or notes therefor, and to secure the repayment thereof by
pledging, mortgaging or otherwise encumbering any property in its possession;
and
(2) to designate The Bank of New York to act on its behalf in
lending securities held in the Master Fund to brokers,
<PAGE>
-10-
dealers, banks or other financial institutions, on such terms as are consistent
with the Act.
3.3 Administrative Powers. The Master Trustee is authorized and empowered
in its sole administrative discretion with respect to both Discretionary and
Directed Funds:
(1) to make, execute, acknowledge and deliver any and all documents
of transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers granted herein;
(2) to collect all interest, dividends and other income payable with
respect to property in the Master Fund, and to surrender securities at maturity
or when advised of earlier call for redemption, provided that the Master Trustee
shall not be liable for failure to surrender any security in a Directed Fund for
redemption prior to maturity or take other action if notice of such redemption
or other action was not provided to the Master Trustee, by the issuer, the
Investment Manager, the Investment Committee or one of the nationally recognized
bond or corporate action services to which the Master Trustee subscribes;
(3) to exchange securities in temporary form for securities in
definitive form, and to effect an exchange of shares where the par value of
stock is changed;
(4) to hold property in its vaults, at a domestic or (to the extent
permitted by regulations issued by the Secretary of Labor under Section 404(b)
of the Act) foreign central depository or clearing corporation, in
non-certificated form with the issuer, on Federal Book Entry at the Federal
Reserve Bank of New York, with a custodian appointed pursuant to clause (5)
below, or, with the approval of the Named Fiduciary, at any other location;
(5) to appoint any other bank as custodian for any foreign
securities or other foreign assets constituting part of the Master Fund, and to
arrange for the custody of such securities or assets and the indicia of
ownership thereof to be held outside the jurisdiction of the district courts of
the United States by such other bank and/or its agents, to the extent permitted
by regulations issued by the Secretary of Labor under Section 404(b) of the Act,
and to pay the reasonable expenses and compensation of such bank from the Master
Fund;
(6) to hold property of the Master Trust in its own name or in the
name of a nominee, including the nominee of any central depository, clearing
corporation or custodian with which securities of the Master Trust may be
deposited (and the Company agrees to hold the Master Trustee and any such
nominee harmless from any liability as a holder of record), and to hold any
investment in bearer form, but the books and records of the
<PAGE>
-11-
Master Trustee shall at all times show that all such investments are part of
the Master Trust;
(7) to form corporations and to create trusts under the laws of any
state for the purpose of acquiring and holding title to any securities or other
property, all on such terms and conditions as it deems advisable;
(8) to employ suitable agents, including auditors and legal counsel
(who may be counsel to the Company or to the Master Trustee in its corporate
capacity) or other advisers, without liability for any loss occasioned by any
such agent selected with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character with like aims, and to pay their reasonable expenses and compensation
from the Master Fund; and
(9) to take any action with respect to the Master Fund that it deems
necessary in carrying out the purposes of this Agreement.
SECTION 4. Registration of Company Securities.
In the event that the property initially delivered to the Master Trustee
hereunder includes any stocks of any classification, bonds or other securities
issued or guaranteed by the Company, or by any subsidiary or affiliate thereof,
or that the Master Trustee purchases for any Discretionary Fund or an Investment
Manager or the Investment Committee directs the purchase for any Directed Fund
of any such securities, and the Master Trustee should thereafter determine (with
respect to a Discretionary Fund) or the Investment Manager or Investment
Committee should thereafter direct the Master Trustee (with respect to a
Directed Fund) to dispose of any such securities under circumstances which, in
the opinion of the Master Trustee, require registration of such securities under
the Securities Act of 1933 and/or qualification of such securities under the
Blue Sky laws of any state or states, then the Company, at its own expense, will
promptly take or cause to be taken any and all action necessary or appropriate
to effect such registration and/or qualification; in such event, the Master
Trustee shall not be required to dispose of such securities until such
registration and/or qualification are complete and effective, and the Master
Trustee shall not be liable for any loss or depreciation of the Fund resulting
from any delay attributable thereto. The Company will indemnify and hold the
Master Trustee and its officers and directors harmless with respect to any
claim, liability, loss, damage or expense incurred as a result of such
registration or qualification or as a result of any information in connection
therewith furnished by the Company or as a result of any failure by the Company
to furnish any such information.
<PAGE>
-12-
SECTION 5. Accounts to be Maintained by the Master Trustee; Payments from
the Master Trust.
5.1 Accounts. The Master Trustee may maintain one or more accounts for the
purpose of making disbursements at the direction of the named fiduciary
authorized to direct and make payments from the Plan (the "Administrative
Committee") and such other purposes, if any, as may be reasonably required for
the convenient administration of the Plan or of the Master Trust.
5.2 No Separate Recordkeeping. The Master Trustee shall not be required to
maintain any separate records or accounts with respect to the Participants (or
their Beneficiaries), and any such records or accounts required to be maintained
pursuant to the terms of the Plan shall be maintained by the Employer or by the
Administrative Committee.
5.3 Payments; Disputes. The Master Trustee, from time to time, upon
receipt of a written order from the Administrative Committee, shall make
payments from the Master Fund to such persons (including the Administrative
Committee or any member of such Committee), and in such amounts as the Committee
shall direct, and amounts paid pursuant to such direction thereafter no longer
shall constitute a part of the Master Trust. Orders from the Administrative
Committee need not specify the purpose of the payments so ordered, and, except
as provided by law, the Master Trustee shall not be responsible in any way
respecting the purpose or propriety of such payments or for the administration
of the Plan. Any such order shall constitute a certification that the payment
directed is one which the Administrative Committee is authorized to direct, and
the Master Trustee need make no further investigation. Payments by the Master
Trustee may be made (i) by its check to the order of the payee and mailed to
the payee at the address last furnished to the Master Trustee by the
Administrative Committee or by the payee, or if no such address has been so
furnished, to the payee in care of the Company, or (ii) by direct deposit to an
account of the payee in accordance with Section 5.4. If a dispute arises as to
who is entitled to or should receive any benefit or payment, the Master Trustee
may withhold or cause to be withheld such payment until the dispute has been
resolved.
5.4 Direct Deposit of Payments. At the request of any Participant or
Beneficiary, the Master Trustee shall deposit periodic payments directly into
the bank account of such person, provided that such person and its depository
bank shall have entered into a depository agreement with the Master Trustee that
is satisfactory to the Master Trustee. The Company hereby agrees to indemnify
the Master Trustee and to hold it harmless from and against any claim,
liability, loss, damage or expense that may be asserted against it as a result
of making any such deposit.
<PAGE>
-13-
5.5 Administrative Committee's Responsibility. In directing the Master
Trustee to make payments out of the Master Trust, the Administrative Committee
shall follow the provisions of the Plan, so that it shall be impossible, either
during the existence or upon the discontinuance of the Plan, for any part of the
Master Fund to be used for or diverted to purposes other than for the exclusive
benefit of the Participants or their Beneficiaries, at any time prior to the
satisfaction of all liabilities with respect to the Participants and their
Beneficiaries, or for any part thereof to be paid or applied to the use of any
Employer except, upon the termination of the Plan, to the extent of any surplus
resulting from an actuarial error.
5.6 Returned and Uncashed Payments. In the event that any payment ordered
by the Administrative Committee shall be distributed by the Master Trustee in
accordance with Section 5.3 or Section 5.4 and (i) such payment shall be
returned to the Master Trustee because the payee or the payee's account cannot
be located at such address, or (ii) any check so mailed shall not be presented
for payment within six months of the date thereof, the Master Trustee shall
promptly notify the Committee of such return or failure to present. Upon the
expiration of 60 days after such notification such payment order shall become
void, and unless and until a further order of such Committee is received by the
Master Trustee with respect to such payment, the Master Trustee shall return
such payment to the Master Trust and continue to administer the Master Trust as
if such order had not been made. The Master Trustee shall not be obligated to
search for or ascertain the whereabouts of any such person (or his duly
appointed representative).
5.7 No Liability for Contributions. The Master Trustee shall be under no
duty to enforce payment of any contribution and shall not be responsible for the
adequacy of the Master Trust to meet and discharge any liabilities under the
Plan.
SECTION 6. Valuation of the Master Fund.
As of the inception of the Master Fund and at such other times as may be
agreed upon by the Master Trustee and the Named Fiduciary or as the Master
Trustee may deem appropriate (the "Valuation Date"), the Master Trustee shall
determine the market value of the Master Fund. Such determination may be made
either by the Master Trustee itself or by such person or persons believed by the
Master Trustee to be competent to make such determination as the Master Trustee
may select, but in accordance with a method consistently followed and uniformly
applied. The Master Trustee's determination of the value of the Master Fund
shall be conclusive and binding upon the Plan, each Employer, the Named
Fiduciary, the Administrative Committee, and the Participants and their
Beneficiaries.
<PAGE>
-14-
SECTION 7. Administrative Expenses, Taxes and Master Trustee's
Compensation.
7.1 In General. All brokerage costs and transfer taxes incurred in
connection with the investment and reinvestment of any Fund, all income taxes or
other taxes of any kind whatsoever which may be levied or assessed under
existing or future laws upon or in respect of such Fund, all expenses incurred
in connection with the acquisition or holding of real or personal property, any
interest therein or mortgage thereon, all other administrative expenses incurred
by the Master Trustee in the performance of its duties, including fees for legal
services rendered to the Master Trustee, the compensation of the Master Trustee
set forth on Exhibit A attached hereto, as the same may be amended from time to
time as provided in this Section, including without limitation any management
fees charged in respect of assets of a Directed Fund that are invested pursuant
to Section 2.5 at the discretion of the Master Trustee, and all other proper
charges and disbursements of the Master Trustee, shall be paid by the Fund, and,
until paid, shall constitute a charge upon the Fund. From time to time the
Master Trustee may provide the Company with written notice of an amendment to
Exhibit A. Such amendment shall become effective on the 60th day after the
Master Trustee mails it to the Company unless the Company shall have provided
the Master Trustee with written notice of objection thereto.
7.2 Fees of Investment Managers. The Named Fiduciary may direct the Master
Trustee to pay from the Master Fund the fees of any Investment Manager and the
administrative expenses of the Plan, including but not limited to actuarial
fees.
SECTION 8. Master Trustee's Liability; No Duty to Review; Indemnification.
8.1 Liability of Master Trustee. With respect to a Discretionary Fund, the
Master Trustee shall not be liable for any loss to or diminution of the
Discretionary Fund resulting from any action taken or omitted by the Master
Trustee except if due to any failure of the Master Trustee to act in accordance
with the requirements of Part 4 of Title I of the Act. With respect to any
Directed Fund hereunder, the Master Trustee shall not be liable for the making,
retention or sale of any investment or reinvestment made or received by it at
the direction of an Investment Manager or the Investment Committee, as herein
provided, nor for any loss to or diminution of the Fund resulting from any
action taken, or from any act omitted, by the Master Trustee at the direction of
an Investment Manager or the Investment Committee as herein provided. The Master
Trustee shall not be responsible for the adequacy of any funding policy of the
Plan of which it is advised pursuant to Section 2.2(c) or the diversification of
the investments of the Plan. Responsibility for monitoring adherence to funding
policies and
<PAGE>
-15-
for investment diversification, and for advising the Master Trustee accordingly
with respect to any Discretionary Fund and advising the Investment Manager or
Investment Committee accordingly with respect to any Directed Fund, shall rest
solely with the Named Fiduciary.
The Master Trustee may from time to time consult with legal counsel, who
may be counsel to the Company or to the Master Trustee in its corporate
capacity, and shall be fully protected in acting upon the advice of counsel.
To protect the Master Trust from expenses which might otherwise be
incurred, the Company shall have sole authority to enforce this Agreement on
behalf of all persons claiming any interest in the Master Trust or under the
Plan, and no other person may institute or maintain any action or proceeding
against the Master Trustee or the Master Trust in the absence of written
authority from the Company or a judgment of a court of competent jurisdiction
that in refusing authority the Company acted fraudulently or in bad faith.
8.2 No Duty to Review. Supervision of Investment Managers and the
Investment Committee shall be the exclusive responsibility of the Named
Fiduciary. The Master Trustee shall be under no duty or obligation to review any
investment or reinvestment made or received at the direction of an Investment
Manager or the Investment Committee nor to make any recommendation as to the
disposition or continued retention thereof. Without limiting the generality of
the foregoing, in the case of any transaction which is both directed by and
executed by or through an Investment Manager or the Investment Committee, the
Investment Manager or Investment Committee shall have entire responsibility for
assuring that the transaction does not violate the prohibitions of any
applicable state or federal law, including Sections 406 and 407 of the Act.
8.3 Reliance on Certain Appraisals. To the extent that the Master Trustee
shall be required to value the assets of the Master Fund for any purpose,
including without limitation any valuation pursuant to Section 6, any accounting
pursuant to Section 9 and any segregation of assets pursuant to Section 10
hereof, the Master Trustee may rely for all purposes of this Agreement upon any
certified appraisal or other form of valuation submitted to it by any Investment
Manager or the Investment Committee and, with respect to any insurance contract
referred to in Section 2.7 hereof, by the insurance company issuing such
contract, and, with respect to an interest in any venture capital organization,
the manager of such organization.
8.4 Indemnification of Master Trustee. The Company recognizes that a
burden of litigation may be imposed upon the Master Trustee, as the result of
some act or transaction for which it has no responsibility or over which it has
no control under this Agreement. Accordingly, the Company hereby agrees to
<PAGE>
-16-
indemnify the Master Trustee, individually and as Master Trustee under this
Agreement, and its directors, officers and employees, and to hold it and them
harmless from and against any claim, liability, loss, damage or expense which
may be asserted against it or them by reason of any action taken or omitted by
or on behalf of the Master Trustee at the direction of any Investment Manager or
Investment Committee, the Named Fiduciary or the Administrative Committee, or by
virtue of being the holder of the Master Trust.
8.5 Limitation of Indemnity. Nothing herein is intended to or shall be
construed to relieve the Master Trustee from any responsibility or liability it
may have under Part 4 of Title I of the Act.
8.6 Indemnification of Successor-Trustee. If The Bank of New York is
acting as a successor trustee or succeeds to responsibility hereunder for
management of plan assets with respect to the Master Fund (or any portion
thereof), the Company hereby agrees to hold The Bank of New York harmless from
and against any tax, claim, liability, loss, damage or expense incurred by or
assessed against it as such successor as a direct or indirect result of any act
or omission of a predecessor trustee or any other person charged under any
agreement affecting Master Fund assets with investment responsibility with'
respect to such assets.
SECTION 9. Settlement of Master Trustee's Accounts.
9.1 Annual Accounting. The Master Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions
hereunder, accounting separately for each Fund, and all accounts, books and
records relating thereto shall be open to inspection and audit at all reasonable
times by any person designated by the Company or the Named Fiduciary. Within 90
days after the close of each fiscal year of the Master Trust (or such other date
as may be agreed upon in writing between the Company and the Master Trustee),
and within 120 days after the effective date of the removal or resignation of
the Master Trustee as provided in Section 11 hereof, the Master Trustee shall
file with the Company a written account, setting forth all investments,
receipts, disbursements and other transactions effected by it during the year
ending on such date (but not including any part of such year for which such an
account has previously been filed) and certified as to the accuracy of the
information set forth therein. Such account may incorporate by reference any and
all schedules and other statements setting forth investments, receipts,
disbursements and other transactions effected during the period for which such
account is rendered which the Master Trustee has furnished to the Company prior
to the filing of such account. Each account so filed (and copies of any
schedules and statements incorporated therein by reference as aforesaid) shall
be open to inspection at
<PAGE>
-17-
the offices of the Company and the Master Trustee during their respective
regular business hours by the Named Fiduciary, by any person designated by the
Company or the Named Fiduciary, by Participants and Beneficiaries of the Plan,
and by any Administrative Committee, Investment Manager or Investment Committee
affected thereby, for a period of 60 days immediately following the date on
which the account is filed with the Company. If for any reason an account
required of the Master Trustee hereunder shall not be filed within the
applicable time specified in the preceding sentence, such account may be filed
by the Master Trustee after the expiration of such time, provided such account
otherwise complies with the requirements of this Agreement, and such account so
filed shall be open to inspection as aforesaid by any of the parties
aforementioned for a period of 90 days immediately following the date on which
the account is filed. In the event that any assets of the Fund have been
transferred to a collective investment trust pursuant to Section 2.6 hereof,
such account shall include a copy of the latest annual written account of such
collective investment trust.
9.2 Other Accountings. The Master Trustee shall provide to the Company
from time to time such other reports as may be agreed upon between the Master
Trustee and the Company. The Company agrees to examine each such report promptly
and to file any exceptions thereto within 90 days of the date thereof.
9.3 Settlement of Accounts. Upon the expiration of the 60-day or 90-day
period referred to in Section 9.1 or 9.2, as the case may be, the Master Trustee
shall be forever released and discharged from all liability and accountability
to anyone with respect to the account or report, including, without limitation,
all acts and omissions of the Master Trustee shown or reflected in such account
or report, except with respect to any acts or omissions as to which the Company,
the Named Fiduciary or the Administrative Committee shall have filed written
objections with the Master Trustee within such 60-day or 90-day period. Nothing
herein contained shall impair the right of the Master Trustee to a judicial
settlement of any account of proceedings rendered by it. In any proceeding for
such judicial settlement the only necessary parties shall be the Master Trustee,
the Company, the Named Fiduciary, the Administrative Committee and any other
party or parties whose participation is required by law, and any judgment,
decree or final order entered therein shall be conclusive on all persons having
or claiming an interest in the Master Trust or the Plan.
SECTION 10. Segregation of Parts of the Master Trust.
10.1 Segregation. The equitable share in the Master Trust of any part of
the Plan or the proportionate share of any Participant or group of Participants
and their Beneficiaries may be segregated and withdrawn from the Master Trust
upon the direction of the Named Fiduciary setting forth the portion of the
<PAGE>
-18-
Plan's equitable share to be so treated or the Participants and Beneficiaries
for whose accounts such segregation and withdrawal are to be carried out. The
Master Trustee may condition its transfer or distribution of any assets upon the
Master Trustee's receiving assurances satisfactory to it that the approval of
appropriate governmental or other authorities has been secured and that all
notice and other procedures required by applicable law have been complied with.
Unless otherwise directed by the Named Fiduciary pursuant to the
preceding paragraph, the Master Trustee shall hold, invest and administer the
Master Trust as a single fund without identification of any part of the Master
Fund with or allocation of any part of the Master Fund to the Company or to any
subsidiary or affiliate of the Company designated by it as a participating
company under the Plan or to any Participant or group of Participants or their
Beneficiaries.
10.2 Segregated Property. Segregation and withdrawal of the equitable
share of a Participant or group of Participants shall be made as of the
Valuation Date immediately following the date of the notice or instruction
referred to in Section 10.1. The selection of the particular assets to be
segregated pursuant to Section 10.1 shall be made by the Named Fiduciary. Such
property shall be held as a separate trust fund for the exclusive benefit of the
withdrawing Participant or group of Participants and their Beneficiaries, under
a separate agreement of trust substantially identical to this Agreement.
SECTION 11. Resignation and Removal of Master Trustee. The Master Trustee
may resign at any time upon 60 days' notice in writing to the Company and the
Named Fiduciary. The Master Trustee may be removed by the Company at any time
upon 60 days' notice in writing to the Master Trustee and the Named Fiduciary.
If within such 60-day period a successor to the Master Trustee shall not have
been appointed, the resigning or removed Master Trustee may apply to any court
of competent jurisdiction for the appointment of such successor. Any successor
trustee shall have the same powers and duties as those conferred upon the Master
Trustee hereunder (other than those relating to the collective investment trust
of The Bank of New York) and subject to receipt by the Master Trustee of written
acceptance of such appointment by the successor trustee, the Master Trustee
shall assign, transfer and pay over to such successor trustee the moneys and
properties then constituting the Master Fund, withdrawing any part of any Fund
then held in any collective investment trust of The Bank of New York. The Master
Trustee may reserve such sum of money as it may deem advisable for payment of
its reasonable fees and expenses in connection with the settlement of its
account or otherwise. Payment of such fees and expenses may be withdrawn from
such reserve. Any balance of such reserve remaining after the payment of such
fees and expenses shall be paid over to the successor trustee. If such reserve
shall be insufficient to pay
<PAGE>
-19-
such charges, such resigning or removed Master Trustee shall be entitled to
recover the amount of any deficiency from the Company or from the successor
trustee or from both the Company and the successor trustee. All provisions of
this Agreement shall apply to any successor trustee appointed as aforesaid with
the same force and effect as if such successor had been originally named herein
as the Master Trustee.
SECTION 12. Evidence of Action by Company. Investment Managers and
Investment and Administrative Committees, and of Appointment of Named Fiduciary,
Investment Managers and Investment and Administrative Committees. Except as
otherwise herein provided, any action by the Company pursuant to any of the
provisions of this Agreement shall be evidenced by a resolution of its Board of
Directors (which may include a resolution authorizing one or more officers or
the Administrative Committee to act on its behalf) certified by the Secretary or
any Assistant Secretary of the Company, and the Master Trustee shall be fully
protected in acting in accordance with such resolution so certified to it. The
Company shall furnish the Master Trustee from time to time with certified copies
of resolutions of its Board of Directors or of other corporate action appointing
and terminating the office of the Named Fiduciary and the Administrative
Committee, and appointing successors. The Named Fiduciary shall furnish the
Master Trustee with a copy of the instrument duly appointing and terminating any
Investment Committee and appointing and terminating successors thereto. The
Named Fiduciary shall file with the Master Trustee a copy of the instrument duly
appointing each Investment Manager, who shall file with the Master Trustee a
copy of his written acceptance of his appointment and acknowledgment that he is
a "fiduciary" with respect to the Plan within the meaning of Section 3(21) of
the Act and due evidence of his qualification under Section 3(38)(B) of the Act.
Any such appointment shall continue to be effective until receipt by the Master
Trustee of written notice to the contrary from the Named Fiduciary. Each
Investment Manager and the Investment Committee shall furnish the Master Trustee
from time to time with a certificate setting forth the name and specimen
signature of each person authorized to act on its behalf. Unless otherwise
provided in a certificate from the Named Fiduciary, all orders, requests and
instructions to the Master Trustee from the Named Fiduciary or the
Administrative Committee shall be in writing or by telecopy signed by two
authorized persons, and all orders, requests and instructions to the Master
Trustee from an Investment Manager or the Investment Committee shall be in
writing, by telecopy or by any other electronic means using a code for the
authentication of messages, and signed or transmitted by an authorized
representative of the Investment Manager or Investment Committee, and the Master
Trustee shall be fully protected in acting in accordance with any such order,
request, or instruction. The Master Trustee shall have the right to rely on and
shall be fully protected in acting in accordance with any resolution, order,
request or instruction
<PAGE>
-20-
which it believes to be genuine and which purports to have been signed or
transmitted in accordance with this section.
SECTION 13. Amendment of Agreement, Termination of Trust, Termination of
Plan.
13.1 Amendment of Agreement. Subject to the restrictions set forth below,
the Company reserves the right at any time and from time to time to modify,
amend or terminate, in whole or in part, any or all of the provisions of this
Agreement; provided, however, that no such modification or amendment which
affects the rights, duties or responsibilities of the Master Trustee may be
made without its consent in writing.
13.2Termination of Master Trust. In the event of the termination of the
Master Trust, the Master Trustee shall continue to administer the Master Trust
as hereinabove provided until all of the purposes for which it has been
established have been accomplished or the Master Trustee has disposed of the
Master Fund after the payment of or other provision for all expenses incurred in
the administration of the Master Trust (including any compensation to which the
Master Trustee may be entitled), all in accordance with the written order of the
Company or any successor thereto. Until the final distribution of the Master
Fund, the Master Trustee shall continue to have and may exercise all of the
powers and discretions conferred upon it by this Agreement. Upon any such
termination, or the resignation or removal of the Master Trustee under Section
11 hereof, Section 7.1 and all indemnities herein, including without limitation
those set forth in Sections 2.7(e), 3.3(6),4, 5.4, 8.4 and 8.6 hereof, shall
remain in full force and effect.
13.3 Termination of the Plan. Upon receipt of notice from the Company that
the Plan is terminated in whole or in part, with respect to all or any group of
Participants and their Beneficiaries, the Master Fund, or the portion thereof
with respect to which the Plan is terminated, shall, subject to the provisions
of Section 7 hereof, be segregated in accordance with Section 10 and held and/or
disposed of by the Master Trustee in accordance with the written order of the
Administrative Committee. The Master Trustee may condition its delivery,
transfer or distribution of any assets upon the Master Trustee's receiving
assurances reasonably satisfactory to it that the approval of appropriate
governmental or other authorities has been secured and that all notice and other
procedures required by applicable law have been complied with.
13.4 Exclusive Benefit. Anything in this Agreement to the contrary
notwithstanding, at no time prior to the satisfaction of all liabilities with
respect to the participants and their Beneficiaries shall any part of the Master
Fund be used for or diverted to purposes other than for the exclusive benefit of
the Participants and their Beneficiaries and defraying
<PAGE>
-21-
reasonable expenses of administering the Plan; provided, however, that nothing
herein contained shall preclude the return to an Employer of any contribution
whose return is permitted by Section 403(c) of the Act or successor legislation.
SECTION 14. Inalienability of Benefits and Interests.
No distribution or payment under this Agreement to any Participant or
Beneficiary shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, and no attempt so to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be valid or recognized by the Master
Trustee, nor shall any such distribution or payment be in any way liable for or
subject to the debts, contracts, liabilities, engagements or torts of any person
entitled to such distribution or payment, except in the case of any voluntary
and revocable assignment of any benefit payment permitted by law and except to
such extent as may otherwise be required by law. If the Master Trustee is
notified by the Administrative Committee that any such Participant or
Beneficiary has been adjudicated bankrupt or has purported to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge any such
distribution or payment, voluntarily or involuntarily, the Master Trustee shall,
if so directed by the Committee, hold or apply such distribution or payment or
any part thereof to or for the benefit of such Participant or Beneficiary in
such manner as the Committee shall direct.
SECTION 15. No Merger, Consolidation or Transfer of Plan Assets or
Liabilities.
Anything herein to the contrary notwithstanding, the Master Trust shall
under no circumstances be so operated as to permit, and nothing herein contained
shall be deemed to authorize, any merger, consolidation, or transfer of the
assets or liabilities of the Plan with or to any other plan except in compliance
with the provisions of the Act and the Code which are applicable to such
mergers, consolidations, or transfers, including without limitation Sections 208
and 4043(b)(8) of the Act and Sections 401(a)(12), 414(1), and 6058(b) of the
Code, and Regulations promulgated pursuant to the foregoing Sections.
SECTION 16. Governing Law.
This Agreement shall be administered and construed according to the
internal substantive laws (and not the choice of law provisions) of the State of
New York, except as may otherwise be required by Section 514 of the Act. The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability
<PAGE>
-22-
of any other provision. The Master Trust shall at all times be maintained as a
domestic trust in the United States.
IN WITNESS WHEREOF, this Agreement has been executed, attested and sealed,
as of the date first above written, by the duly authorized officers of the
Company and THE BANK OF NEW YORK.
DDB NEEDHAM WORLDWIDE, INC.
JOINT SAVINGS PLAN
By /s/ Gerald Germain
----------------------------------
Name: Gerald Germain
Title: Vice Chairman
(Corporate Seal)
Attest:
/s/ Philip S. Krieger
- ----------------------------------
Philip S. Krieger
Senior Vice President
Counsel
(Corporate Seal) THE BANK OF NEW YORK
Attest:
/s/ Richard A. Vollmer Jr. By /s/ Anthony J. Passanesi
- ---------------------------------- ----------------------------------
Richard A. Vollmer Jr. Anthony J. Passanesi
Assistant Vice President Vice President
<PAGE>
EXHIBIT A
EMPLOYEE BENEFIT TRUST FEE SCHEDULE
The annual fee is computed and billed on the basis of the market value of the
total fund at the end of each quarter and covers general administrative
services including the custody of the assets.
0.03 of 1% on the first $15,000,000
0.01 of 1% on the balance
Employee Benefit Trust Administration and Accounting/Reporting services provide
FORM 5500/ERISA information for an annual fee of $5,000 per Actively Managed
Investment account; $2,500 per Special Asset account; and $1,250 per Cash
Disbursement account. Special Asset accounts include G.I.C. funds, participant
loan accounts, and commingled funds. The accounting fee includes combinations of
accounts into composite structures.
Lump-sum checks will be charged at $5.00 each plus postage for those processed
using the Bank's pre-printed form, or $7.50 each plus postage for other
direction. Tax information forms will be charged at $1.50 each plus postage.
Transactions initiated by the client or qualified investment managers other than
The Bank of New York will be charged $25.00 per purchase or sale (excluding cash
management operations). Money wire transfers from The Bank of New York, Common
Stock Distributions, and Participant Loan activation and paydown transactions
(waived for first three years of loans) will be charged at $15.00 each
occurrence.
The fee proposal is subject to joint review by The Bank of New York and the
client upon completion of three years.
Actual fees are billed on the market value at calendar quarter end, and the
activity of the fund during the invoice period.
Exhibit 5
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
March 23, 1999
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
Re: Registration Statement on Form S-8 Filed with the Securities
and Exchange Commission on March 23, 1999
Gentlemen:
We are acting as counsel for Omnicom Group Inc., a New York
corporation ("Omnicom"), in connection with the registration by Omnicom under
the Securities Act of 1933, as amended (the "Act"), of 1,000,000 shares of
common stock, par value $.50 per share (the "Shares"), to be offered pursuant to
the DDB Needham/TLP Joint Savings Plan (the "Plan") under the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on March
23, 1999 (the "Registration Statement").
We are familiar with the proceedings of Omnicom relating to the
authorization and issuance of the Shares. In addition, we have made such further
examinations of law and fact as we have deemed appropriate in connection with
the opinion hereinafter set forth. We express no opinion as to the law of any
jurisdiction other than the laws of the State of New York.
Based upon the foregoing, we are of the opinion that the Shares
offered pursuant to the Plan have been duly authorized and, when issued in
accordance with the resolutions of the Board of Directors of Omnicom authorizing
such issuance, will be validly issued, fully paid and nonassessable.
<PAGE>
Omnicom Group Inc.
March 23, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or under the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 18, 1998
(except for Note 14 as to which the date is March 24, 1998) included in Omnicom
Group Inc.'s Form 10-K for the year ended December 31, 1997 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
New York, New York
March 23, 1999
