AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MARCH 24, 1995
Registration Statement No. 33-_____
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________________
ANHEUSER-BUSCH COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 43-1162835
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
One Busch Place
St. Louis, Missouri 63118
(Address of principal executive offices)
__________________________
ANHEUSER-BUSCH
DEFERRED INCOME STOCK PURCHASE AND SAVINGS PLAN
(Full title of the plan)
__________________________
JoBeth G. Brown, Esq. Copies to:
Vice President and Secretary John A. Niemoeller, Esq.
Anheuser-Busch Companies, Inc. The Stolar Partnership
One Busch Place 911 Washington Avenue, 7th Fl
St. Louis, Missouri 63118 St. Louis, Missouri 63101
(Name and address of agent for service)
(314) 577-3314
(Telephone number of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Title of each Amount Proposed Proposed Amount of
class of to be maximum maximum registra-
securities Registered offering aggregate tion fee
to be registered price offering
per share price
Common Stock,
$1 Par Value Per
Share, Including 5,000,000 $57.6875* $99,461.21
Related Rights Shares $288,437,500*
* Estimated solely for purposes of calculating the registration
fee. In accordance with Rule 457(h)(1), the proposed offering
price of shares was based on the average of the high and low
prices reported on the New York Stock Exchange for March 20,
1995.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. Pursuant to Rule
457(h)(2), no separate registration fee is required with respect
to the plan interests.
<PAGE>
PART I
The Section 10(a) prospectus relating to the Plan is omitted from
this Registration Statement pursuant to the Note to Part I of
Form S-8. This registration statement and Registration No.
33-39715, both of which cover securities offered to employees
under the same Plan, initially will share a common prospectus
pursuant to Rule 429(a).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents are incorporated in this
registration statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1994.
(b) The Plan's Annual Report on Form 11-K, filed as Exhibit
19.2 to Form 8, Amendment No. 1 to Form 10-K, filed September 26,
1994, for the Plan's fiscal year ended March 31, 1994.
(c) The description of the Registrant's shares of common
stock, including the Rights related to the shares as set forth in
the Rights Agreement relating to such Rights, contained in the
Registrant's registration statement filed under the Securities
Exchange Act of 1934, file no. 1-7823, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, as amended, 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
herein and to be a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities
The Registrant's common stock is registered under Section 12 of
the Securities Exchange Act of 1934, as amended.
Item 5. Interests of Named Experts and Counsel
Price Waterhouse LLP, the Registrant's independent accountants,
have no interest in the Registrant.
Thomas D. Larson, Esq., Associate General Counsel of the
Registrant, has passed upon the legality of the shares offered
under this registration statement. Jacquelyn G. Johnson, Esq.,
Senior Associate General Counsel of the Registrant, has passed
upon the compliance of the Plan with the requirements of ERISA.
Page II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law permits the indemnification
by a Delaware corporation of its directors, officers, employees
and other agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they
acted in good faith in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was illegal. A similar
standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with defense or
settlement of such an action or requires court approval before
there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
The Registrant's Restated Certificate of Incorporation provides
that each person who was or is made a party to, or is involved
in, any action, suit or proceeding by reason of the fact that he
or she is or was a director or officer of the Registrant (or was
serving at the request of the Registrant as a director, officer,
employee or agent for another entity) while serving in such
capacity will be indemnified and held harmless by the Registrant
to the full extent authorized or permitted by Delaware law. The
Restated Certificate also provides that the Registrant may
purchase and maintain insurance, may also create a trust fund,
grant a security interest and/or use other means (including
establishing letters of credit, surety bonds and other similar
arrangements), and may enter into contracts providing for
indemnification, to ensure full payment of indemnifiable amounts.
The Registrant has entered into indemnification agreements with
its directors and its executive officers.
Item 7. Exemptions from Registration Claimed
Not Applicable.
Page II-2
<PAGE>
Item 8. Exhibits
Exhibit 4.1
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan,
As Amended and Restated Effective April 1, 1994.
Exhibit 4.2
Master Defined Contribution Trust Agreement, by and between
Anheuser-Busch Companies, Inc. and Mellon Bank, N.A., with
Exhibits A and B and Appendix
Exhibit 5.1
Opinion and consent of Thomas D. Larson, Esq., Associate General
Counsel of the Registrant, concerning the legality of the shares
of common stock being registered hereunder.
Exhibit 5.2
Opinion and consent of Jacquelyn G. Johnson, Esq., Senior
Associate General Counsel to the Registrant, relating to the
compliance of the Plan as amended and restated with the
requirements of ERISA.
Exhibit 23
Consent of Independent Accountants
Exhibit 24.1
Power of Attorney executed by certain directors and officers of
the Registrant.
Exhibit 24.2
Power of Attorney executed by the members of the Plan's
Administrative Committee.
Page II-3
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(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.
Page II-4
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
Page II-5
<PAGE>
SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all 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 St. Louis, State of Missouri, on March 24, 1995.
ANHEUSER-BUSCH COMPANIES, INC.
By: JOBETH G. BROWN
(JoBeth G. Brown,
Vice President and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
August A. Busch III* Chairman of the Board March 24, 1995
(August A. Busch III) and President and
Director (Principal
Executive Officer)
Jerry E. Ritter* Executive Vice March 24, 1995
(Jerry E. Ritter) President - Chief
Financial and
Administrative Officer
(Principal Financial
Officer)
Gerald C. Thayer* Vice President and March 24, 1995
(Gerald C. Thayer) Controller (Principal
Accounting Officer)
_______________________ Director
(Pablo Aramburuzabala O.)
Page II-6
<PAGE>
Richard T. Baker* Director March 24, 1995
(Richard T. Baker)
Andrew B. Craig III* Director March 24, 1995
(Andrew B. Craig III)
Bernard A. Edison* Director March 24, 1995
(Bernard A. Edison)
Peter M. Flanigan* Director March 24, 1995
(Peter M. Flanigan)
John E. Jacob* Director March 24, 1995
(John E. Jacob)
Charles F. Knight* Director March 24, 1995
(Charles F. Knight)
Vernon R. Loucks, Jr.* Director March 24, 1995
(Vernon R. Loucks, Jr.)
Vilma S. Martinez* Director March 24, 1995
(Vilma S. Martinez)
Sybil C. Mobley* Director March 24, 1995
(Sybil C. Mobley)
James B. Orthwein* Director March 24, 1995
(James B. Orthwein)
Douglas A. Warner III* Director March 24, 1995
(Douglas A. Warner III)
William H. Webster* Director March 24, 1995
(William H. Webster)
_______________________ Director
(Edward E. Whitacre, Jr.)
* By: JOBETH G. BROWN
JoBeth G. Brown
Attorney-in-Fact
Page II-7
<PAGE>
The Plan. Pursuant to the requirements of the Securities
Act of 1933, the administrative committee of the Plan has duly
caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of St.
Louis, State of Missouri, on March 24, 1995.
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
Signature Title Date
Albert R. Wunderlich* Committee Member March 24, 1995
(Albert R. Wunderlich)
William L. Rammes* Committee Member March 24, 1995
(William L. Rammes)
JoBeth G. Brown* Committee Member March 24, 1995
(JoBeth G. Brown)
Jacquelyn G. Johnson* Committee Member March 24, 1995
(Jacquelyn G. Johnson)
* By: JOBETH G. BROWN
JoBeth G. Brown
Attorney-in-Fact
Page II-8
<PAGE>
EXHIBIT INDEX
Exhibit 4.1
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan,
As Amended and Restated Effective April 1, 1994.
Exhibit 4.2
Master Defined Contribution Trust Agreement, by and between
Anheuser-Busch Companies, Inc. and Mellon Bank, N.A., with
Exhibits A and B and Appendix
Exhibit 5.1
Opinion and consent of Thomas D. Larson, Esq., Associate General
Counsel of the Registrant, concerning the legality of the shares
of common stock being registered hereunder.
Exhibit 5.2
Opinion and consent of Jacquelyn G. Johnson, Esq., Senior
Associate General Counsel to the Registrant, relating to the
compliance of the Plan as amended and restated with the
requirements of ERISA.
Exhibit 23
Consent of Independent Accountants
Exhibit 24.1
Power of Attorney executed by certain directors and officers of
the Registrant.
Exhibit 24.2
Power of Attorney executed by the members of the Plan's
Administrative Committee.
Page II-9
Exhibit 4.1
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
As Amended and Restated
Effective April 1, 1994
<PAGE>
TABLE OF CONTENTS
Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ESTABLISHMENT OF PLAN. . . . . . . . . . . . . . . . . . . . 1
1.1. Action By Company. . . . . . . . . . . . . . . . . 1
1.2. Named Plan Fiduciaries . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFINITIONS OF GENERAL APPLICABILITY AND RULES OF CONSTRUCTION 3
2.1. "Account". . . . . . . . . . . . . . . . . . . . . 3
2.2. "After-Tax Contributions". . . . . . . . . . . . . 3
2.3. "Allocated Shares" . . . . . . . . . . . . . . . . 3
2.4. "Allocated Share Equivalents". . . . . . . . . . . 3
2.5. "Before-Tax Contributions" . . . . . . . . . . . . 3
2.6. "Beneficiary". . . . . . . . . . . . . . . . . . . 4
2.7. "Base Pay" . . . . . . . . . . . . . . . . . . . . 4
2.8. "Board". . . . . . . . . . . . . . . . . . . . . . 5
2.9. "Closing Price". . . . . . . . . . . . . . . . . . 5
2.10. "Code" . . . . . . . . . . . . . . . . . . . . . . 5
2.11. "Committee". . . . . . . . . . . . . . . . . . . . 5
2.12. "Company". . . . . . . . . . . . . . . . . . . . . 5
2.13. "Company Matching Contributions" . . . . . . . . . 6
2.14. "Company Stock Fund" . . . . . . . . . . . . . . . 6
2.15. "Company Year" . . . . . . . . . . . . . . . . . . 6
2.16. "Consolidated Net Income For Plan Purposes". . . . 6
2.17. "Effective Date" . . . . . . . . . . . . . . . . . 6
2.18. "Eligible Employee". . . . . . . . . . . . . . . . 6
2.19. "Employee" . . . . . . . . . . . . . . . . . . . . 6
2.20. "Employing Companies". . . . . . . . . . . . . . . 7
2.21. "Equity Index Fund". . . . . . . . . . . . . . . . 8
2.22. "ERISA". . . . . . . . . . . . . . . . . . . . . . 8
2.23. "ESOP Loan". . . . . . . . . . . . . . . . . . . . 8
2.24. "ESOP Loan Payment Accumulation Account" . . . . . 8
2.25. "ESOP Loan Suspense Account" . . . . . . . . . . . 8
2.26. "Fund" . . . . . . . . . . . . . . . . . . . . . . 8
2.27. "Highly Compensated Employee". . . . . . . . . . . 8
2.28. "Hour of Service". . . . . . . . . . . . . . . . . 10
2.29. "Indexed Balanced Fund". . . . . . . . . . . . . . 13
2.30. "Managed Balanced Fund". . . . . . . . . . . . . . 13
2.31. "Mean Price" . . . . . . . . . . . . . . . . . . . 13
2.32. "Medium-Term Fixed Income Fund". . . . . . . . . . 13
2.33. "Non-Highly Compensated Employee". . . . . . . . . 13
2.34. "Participant". . . . . . . . . . . . . . . . . . . 13
2.35. "Participating Employer" . . . . . . . . . . . . . 14
2.36. "Personal Contributions" . . . . . . . . . . . . . 14
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<PAGE>
2.37. "Plan" . . . . . . . . . . . . . . . . . . . . . . 15
2.38. "Plan Year". . . . . . . . . . . . . . . . . . . . 15
2.39. "Processing Period". . . . . . . . . . . . . . . . 15
2.40. "Related Plans". . . . . . . . . . . . . . . . . . 15
2.41. "Share". . . . . . . . . . . . . . . . . . . . . . 15
2.42. "Short-Term Fixed Income Fund" . . . . . . . . . . 15
2.43. "Subsidiary" . . . . . . . . . . . . . . . . . . . 15
2.44. "Supplemental Contributions" . . . . . . . . . . . 15
2.45. "Taxable Compensation" . . . . . . . . . . . . . . 15
2.46. "Unallocated Shares" . . . . . . . . . . . . . . . 15
2.47. "Trust Agreement". . . . . . . . . . . . . . . . . 16
2.48. "Trustee". . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . 17
ELIGIBILITY AND PARTICIPATION. . . . . . . . . . . . . . . . 17
3.1. Eligibility. . . . . . . . . . . . . . . . . . . . 17
3.2. Becoming a Participant . . . . . . . . . . . . . . 17
3.3. Re-employment Following a Break in Service . . . . 17
3.4. Year of Service; Break in Service. . . . . . . . . 17
3.5. Transfers of Participants and Lay-Offs . . . . . . 18
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . 20
MATCHED CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 20
4.1. Before-Tax Matched Contributions . . . . . . . . . 20
4.2. After-Tax Matched Contributions. . . . . . . . . . 20
4.3. Limitation on Total Matched Contributions. . . . . 20
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
UNMATCHED CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . 21
5.1. Contributions Permitted. . . . . . . . . . . . . . 21
5.2. Before-Tax Unmatched Contributions . . . . . . . . 21
5.3. After-Tax Unmatched Contributions. . . . . . . . . 21
5.4. Limitation on Total Unmatched Contributions. . . . 21
5.5. Rollover Contributions . . . . . . . . . . . . . . 21
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . 23
COMPANY CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 23
6.1. Required Contributions . . . . . . . . . . . . . . 23
6.2. Contribution Rate For Company Matching
Contributions. . . . . . . . . . . . . . . . . . . 23
6.3. Determination of Supplemental Contribution . . . . 24
6.4. Payment and Payment Date . . . . . . . . . . . . . 26
6.5. Allocation to Participants' Accounts . . . . . . . 26
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . 27
PROCEDURES AND LIMITATIONS ON PERSONAL CONTRIBUTIONS AND
ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1. Election Procedures. . . . . . . . . . . . . . . . 27
7.2. Special Dollar Limitation On Before-Tax
Contributions. . . . . . . . . . . . . . . . . . . 27
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<PAGE>
7.3. Required Adjustment of Before-Tax Personal
Contributions. . . . . . . . . . . . . . . . . . . 28
7.4. Required Adjustment of After-Tax and Company
Matching Contributions . . . . . . . . . . . . . . 30
7.5. Suspension and Reinstatement of Matched Personal
Contributions Withdrawal . . . . . . . . . . . . . 32
7.6. Payroll Deductions . . . . . . . . . . . . . . . . 32
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . 33
ESOP LOANS . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.1. Terms of ESOP Loan . . . . . . . . . . . . . . . . 33
8.2. Acquisition of Shares with proceeds of ESOP Loan . 33
8.3. Shares to be Unrestricted. . . . . . . . . . . . . 34
8.4. Release from ESOP Loan Suspense Account. . . . . . 34
8.5. Use of Company and Personal Contributions for ESOP
Loan Payments. . . . . . . . . . . . . . . . . . . 34
8.6. Use of Dividends for ESOP Loan Payments. . . . . . 35
8.7. ESOP Loan Payments . . . . . . . . . . . . . . . . 35
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . 37
INVESTMENT OF CONTRIBUTIONS. . . . . . . . . . . . . . . . . 37
9.1. Investment of Company Matching and Supplemental
Contributions. . . . . . . . . . . . . . . . . . . 37
9.2. Investment of the Matched Contributions Part of an
Account. . . . . . . . . . . . . . . . . . . . . . 37
9.3. Investment of the Unmatched Contributions Part of
an Account . . . . . . . . . . . . . . . . . . . . 37
9.4. A Participant's Investment Direction for Current
Contributions. . . . . . . . . . . . . . . . . . . 37
9.5. A Participant's Investment Direction for Accumulated
Account Balances . . . . . . . . . . . . . . . . . 37
9.6. Special Diversification After Attainment of Age
55 . . . . . . . . . . . . . . . . . . . . . . . . 38
9.7. The Company Stock Fund . . . . . . . . . . . . . . 38
9.8. The Short-Term Fixed Income Fund . . . . . . . . . 39
9.9. The Medium-Term Fixed Income Fund. . . . . . . . . 39
9.10. The Equity Index Fund. . . . . . . . . . . . . . . 40
9.11. The Indexed Balanced Fund. . . . . . . . . . . . . 41
9.12. The Managed Balanced Fund. . . . . . . . . . . . . 41
9.13. Earnings, etc. . . . . . . . . . . . . . . . . . . 42
9.14. Reports to Participants. . . . . . . . . . . . . . 42
9.15. Voting of Shares . . . . . . . . . . . . . . . . . 43
9.16. Tendering of Shares and Rights . . . . . . . . . . 44
9.17. Plan Mergers . . . . . . . . . . . . . . . . . . . 45
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
MAINTENANCE AND VALUATION OF ACCOUNTS. . . . . . . . . . . . 46
10.l. Separate Accounts. . . . . . . . . . . . . . . . . 46
10.2. Company Stock Fund Portion . . . . . . . . . . . . 46
10.3. Other Investment Fund Portions . . . . . . . . . . 48
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<PAGE>
10.4. Transfers Between Funds. . . . . . . . . . . . . . 48
10.5. Valuation of the Fund. . . . . . . . . . . . . . . 49
10.6. Effect of Valuations . . . . . . . . . . . . . . . 49
10.7. No Liability for Fluctuations in Value . . . . . . 49
10.8. Adjustments to Accounts. . . . . . . . . . . . . . 49
10.9. Ordering of Distributions. . . . . . . . . . . . . 50
10.10. Unallocated Accounts . . . . . . . . . . . . . . . 50
10.11. Special Valuation of Company Stock in
Extraordinary Circumstances. . . . . . . . . . . . 51
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . 52
VESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1. Amounts Contributed by the Participant . . . . . . 52
11.2. Company Matching and Supplemental Contributions. . 52
11.3. Vesting Rules. . . . . . . . . . . . . . . . . . . 52
11.4. Change in Control of the Company . . . . . . . . . 54
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . 55
DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . 55
12.1. Distributions Upon Termination of Employment . . . 55
12.2. Time and Method of Distribution. . . . . . . . . . 55
12.3. Eligible Rollover Distributions. . . . . . . . . . 58
12.4. Determination of Disability. . . . . . . . . . . . 58
12.5. Reporting Persons. . . . . . . . . . . . . . . . . 58
12.6. Transfer of Accounts . . . . . . . . . . . . . . . 59
12.7. Early Distribution under Domestic Relations Order. 59
12.8. Absolute Right to Receive Stock Distribution . . . 59
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . 60
WITHDRAWALS WHILE EMPLOYED . . . . . . . . . . . . . . . . . 60
13.1. Elective Right to Make Certain Withdrawals . . . . 60
13.2. Protected Withdrawal Rights. . . . . . . . . . . . 61
13.3. Withdrawal Procedure . . . . . . . . . . . . . . . 61
13.4. Frequency of Withdrawals . . . . . . . . . . . . . 62
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . 63
HARDSHIP WITHDRAWALS . . . . . . . . . . . . . . . . . . . . 63
l4.l. Eligibility and Procedure. . . . . . . . . . . . . 63
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . 65
LOANS TO PARTICIPANTS. . . . . . . . . . . . . . . . . . . . 65
l5.l. Procedure and Terms. . . . . . . . . . . . . . . . 65
ARTICLE XVI. . . . . . . . . . . . . . . . . . . . . . . . . . 68
DESIGNATION OF A BENEFICIARY . . . . . . . . . . . . . . . . 68
16.1. Procedure and Effect . . . . . . . . . . . . . . . 68
16.2. Renunciation of Death Benefit. . . . . . . . . . . 70
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<PAGE>
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . 72
LOST DISTRIBUTEES. . . . . . . . . . . . . . . . . . . . . . 72
17.1. Disposition of Accounts Payable to Persons Who
Cannot Be Located. . . . . . . . . . . . . . . . . 72
17.2. Efforts To Locate Distributees . . . . . . . . . . 72
ARTICLE XVIII. . . . . . . . . . . . . . . . . . . . . . . . . 73
AMENDMENT OR TERMINATION . . . . . . . . . . . . . . . . . . 73
18.1. Company's Power to Amend or Terminate. . . . . . . 73
18.2. Termination. . . . . . . . . . . . . . . . . . . . 74
18.3. Disposition of Assets on Termination . . . . . . . 74
18.4. Effect of Termination by the Company . . . . . . . 75
18.5. Effect of Termination of ESOP Loan . . . . . . . . 76
ARTICLE XIX. . . . . . . . . . . . . . . . . . . . . . . . . . 77
ADMINISTRATIVE COMMITTEE . . . . . . . . . . . . . . . . . . 77
19.1. Appointment. . . . . . . . . . . . . . . . . . . . 77
19.2. Organization . . . . . . . . . . . . . . . . . . . 77
19.3. Powers . . . . . . . . . . . . . . . . . . . . . . 77
19.4. Forms and Procedures . . . . . . . . . . . . . . . 79
19.5. Meetings . . . . . . . . . . . . . . . . . . . . . 80
19.6. Records. . . . . . . . . . . . . . . . . . . . . . 80
19.7. Applications for Benefits; Appeal From Denial of
Benefits . . . . . . . . . . . . . . . . . . . . . 80
19.8. Liability of Committee . . . . . . . . . . . . . . 81
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . 83
PROHIBITION AGAINST VOLUNTARY OR INVOLUNTARY ASSIGNMENTS . . 83
20.1. No Liability for Participants' Debts . . . . . . . 83
ARTICLE XXI. . . . . . . . . . . . . . . . . . . . . . . . . . 84
COMPETENCY OF DISTRIBUTEES . . . . . . . . . . . . . . . . . 84
21.1. Distributees Presumed Competent. . . . . . . . . . 84
21.2. Facility of Payment. . . . . . . . . . . . . . . . 84
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . 85
BECOMING A PARTICIPATING EMPLOYER. . . . . . . . . . . . . . 85
22.1. Authorization and Procedure. . . . . . . . . . . . 85
22.2. Effect of Being a Participating Employer . . . . . 85
22.3. Pooled Funds . . . . . . . . . . . . . . . . . . . 85
22.4. Costs and Expenses . . . . . . . . . . . . . . . . 86
22.5. Adoption of Plan Conditional . . . . . . . . . . . 86
ARTICLE XXIII. . . . . . . . . . . . . . . . . . . . . . . . . 87
LIMITATIONS APPLICABLE TO ALL CONTRIBUTIONS TO THIS PLAN . . 87
23.1. Special Limitation on Annual Additions For Any
Participant For Any Year . . . . . . . . . . . . . 87
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<PAGE>
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . 89
SPECIAL RULES FOR YEARS WHEN PLAN IS TOP-HEAVY . . . . . . . 89
24.1. Special Definitions and Rules of Construction. . . 90
24.2. Special Rules Applicable to Top-Heavy Years. . . . 91
24.3. Operating Rules. . . . . . . . . . . . . . . . . . 92
ARTICLE XXV. . . . . . . . . . . . . . . . . . . . . . . . . . 94
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 94
25.1. Return of Contributions. . . . . . . . . . . . . . 94
25.2. Limitations of Liability and Rights. . . . . . . . 94
25.3. General Administration and Expenses. . . . . . . . 95
25.4. Notice of Address. . . . . . . . . . . . . . . . . 95
25.5. Data . . . . . . . . . . . . . . . . . . . . . . . 95
25.6. Trust Agreement Related. . . . . . . . . . . . . . 95
25.7. Severability Clause. . . . . . . . . . . . . . . . 96
25.8. Situs. . . . . . . . . . . . . . . . . . . . . . . 96
25.9. Succession . . . . . . . . . . . . . . . . . . . . 96
25.10. Execution. . . . . . . . . . . . . . . . . . . . . 96
25.11. Merger of Plan or Transfer of Trust Assets . . . . 96
25.12. Miscellaneous Rules of Construction. . . . . . . . 96
25.13. Delayed Payments . . . . . . . . . . . . . . . . . 96
25.14. Mistakes in Benefit Payments . . . . . . . . . . . 97
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<PAGE>
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
ARTICLE I
ESTABLISHMENT OF PLAN
1.1. Action By Company. Effective as of April l, 1976,
Anheuser-Busch, Inc., a Missouri corporation, established the
Anheuser-Busch Employee Stock Purchase and Savings Plan. The
Plan was subsequently amended from time to time and the position
of Anheuser-Busch, Inc. as the Plan Sponsor was assumed by
Anheuser-Busch Companies, Inc., a Delaware corporation (the
"Company"). The Company reserved the right to amend the Plan in
any way not expressly prohibited by the Plan. Pursuant to such
reserved right, effective January 1, 1985, the Company divided
the Plan into two separate plans, with employees covered by a
collective bargaining agreement being covered by a separate but
substantially similar plan. This Plan is a continuation of the
former Anheuser-Busch Employee Stock Purchase and Savings Plan
though its name has been changed to the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan.
Also pursuant to such reserved right the Company has duly
amended the Plan from time to time, most recently in the form of
a complete restatement effective April 1, 1992, with three
subsequent amendments thereto. By such restatement, the Company
again divided the Plan into two separate plans, with hourly
employees of Busch Entertainment Corporation and certain of its
subsidiaries covered by a separate but substantially similar
plan. The Company does hereby adopt this current amendment and
restatement of the Plan, effective as of April 1, 1994, in order
to make certain other changes intended to simplify and enhance
the Plan.
The Plan is intended to be an employee stock ownership plan
within the meaning of Section 4975(e)(7) of the Code, designed to
invest primarily in "qualifying employer securities" as defined
in Sections 4975(e)(8) and 409(l) of the Code and also is
intended to constitute a cash or deferred arrangement pursuant to
Section 401(k) of the Code. The Plan permits investment in
Company stock to be made with the proceeds of loans involving
funds borrowed by the Company or Trustee. It is the intention of
the Company that loans entered into by the Trustee shall be
repaid with contributions under the Plan, dividends on Company
stock and earnings thereon.
1.2. Named Plan Fiduciaries. The authority to control and
manage the operation and administration of this Plan, and,
generally, the investment of its funds, shall be vested in the
<PAGE>
Plan's named fiduciaries. The Plan's named fiduciaries are the
Company, as Plan Sponsor and Plan Administrator, the Trustee,
and, for certain limited purposes, Participants. As Plan
Sponsor, the Company shall have the right to amend the Plan, to
designate the Plan's named fiduciaries, and to exercise all
fiduciary functions necessary to the operation of the Plan except
those which are assigned to another named fiduciary under this
Plan. As Plan Administrator, the Company shall have the
authority and responsibility for the general administration of
the Plan, including discretionary authority to determine
eligibility for benefits and to construe the terms thereof. The
Company shall have the right to appoint an Administrative
Committee to exercise such authority and responsibility. The
Trustee shall have the exclusive authority and discretion to
invest, manage and control the assets of the Trust by which the
Plan is funded, subject to and in accordance with the provisions
hereof and of the separate Trust Agreement, and subject to the
rights of Participants to direct the investment of their Accounts
as permitted hereby. For purposes of voting and tendering Shares
as to which no instructions have been received by the Trustee,
and Unallocated Shares as described in Sections 9.15 and 9.16,
the Participants shall be deemed named fiduciaries.
The rights and responsibilities of each named fiduciary
shall be exercised severally and not jointly, but any party may
serve in more than one fiduciary capacity with respect to the
Plan.
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<PAGE>
ARTICLE II
DEFINITIONS OF GENERAL APPLICABILITY
AND RULES OF CONSTRUCTION
2.1. "Account". The separate record of the interest of
each Participant in this Plan which will be established in
accordance with Section 10.1.
2.2. "After-Tax Contributions". A Participant's Personal
Contributions which are not subject to deduction or exclusion
from gross income for federal income tax purposes. After-Tax
Contributions are of two types:
(a) "After-Tax Matched Contributions", which are
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "After-Tax Unmatched Contributions", which are
Personal Contributions for which no Company Matching Contribution
will be made.
2.3. "Allocated Shares". Shares which have been allocated
to the Account of a Participant.
2.4. "Allocated Share Equivalents". The equivalent to the
number of Allocated Shares that will be credited to a
Participant's Account for purposes of Sections 9.15 and 9.16 if
and when the Committee changes from Share accounting to unit
accounting under the Company Stock Fund. Allocated Share
Equivalents held in the Company Stock Fund that a Participant or
Beneficiary shall be entitled to vote shall be equal to the
number of full and fractional Allocated Shares held in such fund
as of a Valuation Date, divided by the number of Company Stock
Fund units as of such Valuation Date, multiplied by the number of
Company Stock Fund units in the Participant's Account as of such
Valuation Date. For purposes of this Section, the term
"Valuation Date" shall mean any date as of which Share value or
unit value is determined under an Investment Fund as directed by
the Committee.
2.5. "Before-Tax Contributions". A Participant's Personal
Contributions which are properly excluded from gross
income pursuant to Section 40l(k) of the Code. Before-Tax
Contributions are of two types:
(a) "Before-Tax Matched Contributions", which are
Personal Contributions for which a Company Matching Contribution
will be made; and
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<PAGE>
(b) "Before-Tax Unmatched Contributions", which are
Personal Contributions for which no Company Matching Contribution
will be made.
2.6. "Beneficiary". Any person designated by a Participant
pursuant to Article XVI to receive benefits hereunder or any
other person deemed to be a Beneficiary by any other provision of
this Plan or by law.
2.7. "Base Pay". A Participant's regular salary, wages or
other remuneration for services paid by a Participating Employer
and determined before subtracting Before-Tax Contributions or
salary reductions pursuant to a plan designed to comply with
section 125 of the Code. Base Pay is used in computing the
amount of Personal Contributions to the Plan and shall be
determined as follows:
(a) Participants Paid on an Hourly Basis. Base Pay
is straight-time gross wages for the standard work week,
including productivity pay (for Employees of St. Louis
Refrigerator Car Company only) and leadman pay, but not including
any over-time pay, supplemental unemployment benefits, or
supplemental workers' compensation benefits. Base Pay includes
vacation pay at straight-time rates (or such other rates as are
established by local facility practice) and amounts paid, at
straight-time rates, for periods not worked because of holiday
time off, furlough, sick leave, bereavement, military leave, jury
duty, or with respect to relief or lunch periods. In situations
where work schedules are not arranged so that 40 regular hours
are worked each work week, the Committee shall determine an
appropriate method to compute Base Pay.
(b) Participants Paid on a Salary Basis. Base Pay is
gross salary for the standard pay period, not including any
over-time pay. Base pay includes, at regular salary rates,
amounts paid for periods not worked because of vacation, holiday
time off, furlough, sick leave, bereavement, military leave, jury
duty or with respect to relief or lunch periods.
(c) Other Items Included In Base Pay For All
Participants. Base Pay includes commissions paid to persons who
are compensated wholly or partially by way of commission,
reported tips for persons who are compensated wholly or partially
by way of tips, and also includes back pay, but only
to the extent that the back pay would have been Base Pay had it
been paid in a timely manner (i.e., disregarding back pay awards
for such items as over-time pay). Back pay shall be included in
Base Pay at the time payment is actually made.
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<PAGE>
(d) Other Items Excluded from Base Pay For All
Participants. Base Pay does not include any bonus, pay in lieu
of vacation, service allowance, severance pay, premium pay for
shift or other specialized work, Company Matching or Supplemental
Contributions to this Plan, Company contributions to any other
pension, retirement, group insurance, health and welfare or
similar plan, cash payments pursuant to a plan designed to comply
with section 125 of the Code, any other so-called "fringe
benefits," any income attributable to the award or exercise of a
stock option or the premature disposition of stock option stock,
any other amount which does not constitute "compensation" within
the meaning of Section 4l5 of the Code, any type of remuneration
not otherwise described in this Section, or any expense allowance
or reimbursements of expenses paid on behalf of a Participant
(even if subsequently not allowed as such and treated as addi-
tional compensation for federal income tax purposes). Base Pay
does not include any vacation pay which becomes payable on
account of termination of employment nor does it include payments
for any unused sick day, whether before or after termination of
employment.
(e) Limit On Base Pay Considered. In no event shall
the Base Pay taken into account for a Participant under this Plan
exceed the amount specified in Section 401(a)(17) of the Code as
adjusted for any applicable increases in the cost of living.
2.8. "Board". The Board of Directors of the Company.
2.9. "Closing Price". The price at which Shares shall be
valued for some purposes under the Plan. The Closing Price is
the closing price of a Share or group of Shares on the New York
Stock Exchange for the last trading day (on which there was at
least one sale of a Share) of a Processing Period, or on such
other date as may be specified in the Plan or determined by the
Committee pursuant to the Plan.
2.10. "Code". The United States Internal Revenue Code of
1986, as amended (Title 26 of the United States Code). All
references to specific sections of the Code shall be deemed to be
references to such sections as they may be amended or superseded,
and to the corresponding sections or provisions of any subsequent
United States Internal Revenue Code, as appropriate at the time
of reference.
2.11. "Committee". The Committee appointed under the
provisions of Section 19.1 to administer this Plan.
2.12. "Company". Anheuser-Busch Companies, Inc., a
corporation organized and existing under the laws of the State of
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<PAGE>
Delaware, and any successor corporation which assumes this Plan
and agrees to be bound by the terms and provisions hereof.
2.13. "Company Matching Contributions". The amounts
contributed to this Plan by Participating Employers pursuant to
Section 6.1(a), including forfeitures which are applied to reduce
the contributions otherwise payable by them.
2.14. "Company Stock Fund". The separate portion of the
Fund which is to be invested in accordance with Section 9.7.
2.15. "Company Year". The fiscal year of the Company as in
effect from time to time. On the Effective Date the fiscal year
of the Company is the calendar year.
2.16. "Consolidated Net Income For Plan Purposes". The
consolidated net income of all of the Employing Companies for any
Company Year as shown in the Company's annual report to its
shareholders for such Company Year after extraordinary items of
and charges to income, but before taxes on income and earnings
of, and direct and indirect expenses attributable to, any
Subsidiary acquired after October 1, 1982 that is not a
Participating Employer under this Plan or a Related Plan. For
purposes of the foregoing all determinations of earnings and
expenses shall be made in accordance with rules of uniform
application adopted by the Committee; the incorporation of a
Subsidiary at the direction of the Company shall not be treated
as an acquisition of such Subsidiary, even though one of the
Employing Companies may purchase the shares thereof; and a
Subsidiary will be deemed to be acquired when the percentage of
voting capital stock or equity interest owned by the Company or
another Subsidiary or any combination of the Company and/or one
or more Subsidiaries first equals 80%.
2.17. "Effective Date". When used with respect to this
amended and restated Plan, April 1, 1994. This Plan is a
continuation, in part, of the Anheuser-Busch Employee Stock
Purchase and Savings Plan, and the term "Effective Date", when
used with respect to that Plan as originally adopted, means
April l, 1976.
2.18. "Eligible Employee". An Employee of any
Participating Employer who has satisfied the service requirement
for eligibility to participate in this Plan set forth in Article
III hereof.
2.19. "Employee". Any common law employee employed by any
of the Employing Companies in any capacity other than
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<PAGE>
(a) A person employed outside the United States or
Puerto Rico, except that the following persons shall be
considered "Employees" unless excluded from participation in the
Plan by individual agreement, requirements of law or practical
impediment as determined by the Committee; provided that
confirmation of the identity of persons to be considered
"Employees" under this Section 2.19(a) shall be provided to the
Committee in writing from time to time:
(i) a United States citizen or permanent
resident initially employed in the United States and transferred
outside the United States under the Company's International
Assignment Policy;
(ii) a United States citizen initially employed
outside the United States or Puerto Rico, unless hired for
assignment to the host country with no plan for transfer to the
United States; or
(iii) a foreign national initially employed in
the United States and transferred outside the United States under
the Company's International Assignment Policy;
(b) A person employed in a branch operation of
Anheuser-Busch Investment Capital Corporation;
(c) A person employed by the St. Louis National
Baseball Club, Inc. and classified as part time on such company's
records or who is a major or minor league player or a major
league manager, coach or trainer; or
(d) A person employed by Anheuser-Busch, Inc. at its
wholesale operations division in Canton, Ohio who is compensated
on an hourly basis as shown on records of the employer.
2.20. "Employing Companies". The Company and any
corporation or other business entity that is a member of a
controlled group of corporations or other business entities, as
defined in Sections 414(b) and 414(c) of the Code, that includes
the Company, or is a member of an affiliated service group that
includes the Company as defined in Section 414(m) of the Code,
all as determined from time to time. A business entity is an
Employing Company only while a member of such a controlled group
of corporations or other business entities or such an affiliated
service group. All determinations required by this Section shall
be made pursuant to and consistent with Sections 414(b), (c), (m)
and (o) of the Code and regulations thereunder.
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<PAGE>
2.21. "Equity Index Fund". The separate portion of the
Fund which is to be invested in accordance with Section 9.10.
2.22. "ERISA". The Employee Retirement Income Security Act
of 1974, Pub. L. No. 93-406, 88 Stat. 829, which amended both the
Code and Title 29 of the United States Code (captioned "Labor").
ERISA sections contained in the Code are cited by references to
the Code. ERISA sections not contained in the Code are cited in
sections of ERISA as enacted. All references to specific ERISA
sections shall be deemed to be references to such sections as
originally enacted or as subsequently amended or superseded, as
appropriate at the time of reference.
2.23. "ESOP Loan". A loan described in Section
404(a)(9)(A) of the Code and which otherwise satisfies the
requirements of Article VIII, which is used by the Trustee to
finance the acquisition of Shares, or to refinance an existing
ESOP Loan.
2.24. "ESOP Loan Payment Accumulation Account". The
Account established pursuant to Section 10.10(b) in which the
Trustee will accumulate, pursuant to Section 8.5, Plan
contributions, dividends and related earnings.
2.25. "ESOP Loan Suspense Account". The account
established pursuant to Section 10.10(a) to hold Unallocated
Shares.
2.26. "Fund". All securities, cash and other assets held
by the Trustee with respect to this Plan from time to time
subject to the provisions of this Plan. As of April 1, 1994,
there are six separate Investment Funds within the Fund: the
Company Stock Fund, the Equity Index Fund, the Indexed Balanced
Fund, the Managed Balanced Fund, the Medium-Term Fixed Income
Fund and the Short-Term Fixed Income Fund.
2.27. "Highly Compensated Employee". (a) The term Highly
Compensated Employee includes Highly Compensated Employees who
are active and certain former Highly Compensated Employees as
described in this Section.
(b) An active Highly Compensated Employee includes
any individual who performs service for any of the Employing
Companies during the determination year and who, during the
look-back year: (i) received compensation from the Employing
Companies in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code); (ii) received compensation from the
Employing Companies 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 at any time an officer of an
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<PAGE>
Employing Company and received compensation during such year that
is greater than 50 percent of the dollar limitation in effect
under Section 415(b)(1)(A) of the Code for such year.
(c) The term Highly Compensated Employee also
includes: (i) individuals who are both described in the
preceding subsection (b) if the term "determination year" is
substituted for the term "look-back year" and the individual is
one of the one hundred employees who received the most
compensation from the Employing Companies during the
determination year; and (ii) employees who are five-percent
owners at any time during the look-back year or determination
year.
(d) If no officer has satisfied the compensation
requirement of (b)(iii) above during either a determination year
or look-back year, the highest paid officer for such year shall
be treated as a Highly Compensated Employee.
(e) For purposes of this Section 2.27, (i) the
determination year shall be the Plan Year; (ii) the look-back
year shall be the twelve-month period immediately preceding the
determination year; and (iii) compensation shall mean
compensation as defined in Section 414(q)(7) of the Code and
regulations thereunder.
(f) A former Highly Compensated Employee includes
any individual who separated from service with an Employing
Company (or was deemed to have separated) prior to the
determination year, performs no service for an Employing Company
during the determination year, and was an active Highly
Compensated Employee for either the separation year or any
determination year ending on or after the employee's 55th
birthday.
(g) If an individual is, during a determination year
or look-back year, a family member of either a five-percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the ten most highly compensated employees
during such year, then the family member and the five-percent
owner or top-ten 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 of the family member and five-percent
owner or top-ten highly compensated employee.
(h) For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the
employee or former employee and the spouses of such lineal
ascendants and descendants.
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<PAGE>
(i) The determination of who is a Highly Compensated
Employee, including the determinations of the number and identity
of employees in the top-paid group, any five-percent owner, the
top one hundred employees, the number of employees treated as
officers and the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and applicable
Treasury Regulations.
2.28. "Hour of Service". (a) An Hour of Service is:
(i) each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Employing Company;
(ii) each hour for which an Employee is paid,
or entitled to payment, by an Employing 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),
layoff, jury duty, military duty or leave of absence; and
(iii) each hour (if not already credited) for
which back pay (irrespective of mitigation of damages) has been
either awarded or agreed to by an Employing Company; provided the
Hours of Service derived from back pay shall be credited to the
computation period or periods to which the award or agreement
pertains, and not to the computation period in which payment is
made.
(iv) in the case of an Employee (or former
Employee) who is on an authorized leave of absence or on active
duty with any branch of the military service of the United States
and who is not directly or indirectly paid or entitled to payment
by any of the Employing Companies during such period, an Hour of
Service is every regular working hour of every regular working
day for which such person would have been credited with an Hour
of Service (based on the person's normal work schedule in effect
at the time of the beginning of such leave or military service)
had the person been actively at work during the period of such
leave or military service, but only if such person returns to
work at the end of such leave or (in the case of military
service) during the period in which such person's re-employment
rights are protected by Federal law.
(b) The following rules shall apply to
determinations of Hours of Service credited under this Plan:
(i) A payment shall be deemed to be made by or
due from an Employing Company regardless of whether such payment
is made by or due from an Employing Company directly, or
indirectly
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<PAGE>
through (among others) a trust fund or insurer to which the
Employing Company contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular Employees or are
on behalf of a group of Employees in the aggregate.
(ii) An Employee who is compensated by way of a
salary which is payable semi-monthly shall be credited with 95
Hours of Service for each semi-monthly payroll period for which
the Employee is compensated for the performance of duties (the
number of Hours of Service to be credited to such Employee
because of compensation for reasons other than the performance of
duties shall be determined in the manner hereafter specified).
If a semi-monthly salary period falls into two different
computation periods, the entire number of Hours of Service
attributable to such period shall be credited to the second
computation period.
(iii) The number of Hours of Service to be
credited to an Employee for reasons other than performance of
duties, and the Plan Year or Plan Years to which Hours of Service
will be credited in appropriate instances, shall be determined,
respectively, pursuant to the United States Department of Labor's
Regulations Section 2530.200b-2(b) and (c), which are
incorporated herein by this reference.
(iv) Notwithstanding the provisions of
subsection (a) requiring that Hours of Service be credited
because of payments made for reasons other than the performance
of duties, no more than 501 Hours of Service shall be credited to
an Employee on account of any single continuous period (whether
occurring in one or more computation periods) during which such
Employee performs no duties, and no Hour of Service shall be
credited on account of a period during which no duties are
performed if the payment therefor is made under a plan maintained
solely for the purpose of complying with applicable workmen's
compensation, unemployment compensation, or disability insurance
laws.
(v) No Hours of Service will be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by such Employee.
(vi) For purposes of determining the number of
Hours of Service credited to an Employee who is not yet eligible
to be a Participant in this Plan, the computation period shall be
the eligibility computation period specified in Section 3.4
hereof.
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(vii) These provisions shall be liberally
construed in favor of Employees.
(viii) Solely for the purposes of determining
whether a break in service for eligibility under Section 3.3(a)
has occurred, any Employee who is absent from work (A) by reason
of the pregnancy of the Employee, (B) by reason of the birth of a
child of the Employee, (C) by reason of the placement of a child
with the Employee in connection with the adoption of such child
by the Employee, or (D) for purposes of caring for such child for
a period beginning immediately following such birth or placement,
shall receive credit for the Hours of Service which would
otherwise have been credited but for such absence, or in any case
in which such hours cannot be determined, eight Hours of Service
for each day of such absence. The Hours of Service credited
under this paragraph shall be credited in the computation period
in which the absence begins if the crediting is necessary to
prevent a break in service in that period, or, in all other
cases, in the following computation period. Notwithstanding the
foregoing, no more than 501 Hours of Service shall be credited
under this paragraph for any single maternity or paternity leave.
The Committee shall have the right to require such timely
information from an Employee as it deems reasonably necessary to
establish that the absence is for reasons referred to in this
paragraph and the number of days for which there was such an
absence. If an Employee does not comply with any such request,
the rules of this paragraph shall not apply to the absence.
(c) Hours of Service credited under a Related Plan
shall be Hours of Service under this Plan for all purposes.
(d) In determining the Hours of Service of any
individual employed by Sea World of Florida, Inc., Florida
Cypress Gardens, Inc., Busch Properties of Florida, Inc.,
Sea World, Inc., Sea World of Texas, Inc., or Boardwalk and
Baseball, Inc. as of December 1, 1989, hours of service with any
of such corporations shall be considered Hours of Service in
accordance with this Section 2.28. In addition, if an individual
worked for Harcourt, Brace, Jovanovich, Inc. immediately prior to
December 1, 1989 and became employed by a Participating Employer
on or before January 1, 1990, his hours of service with such
company shall be considered Hours of Service under this Plan.
(e) In determining the Hours of Service of any
individual employed by Vesper Corporation as of May 29, 1992, who
becomes an Employee in connection with the acquisition of the LG
Potato Chip Company division of Vesper Corporation on or about
May 29, 1992, hours of service with Vesper Corporation prior to
May 30, 1992 shall be considered Hours of Service in accordance
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with this Section 2.28. This provision shall be effective for
purposes of both Article III and Article XI.
(f) In determining the Hours of Service of any
individual employed by Precision Printing and Packaging, Inc. as
of December 31, 1994, hours of service with such corporation or
with International Label Company shall be considered Hours of
Service in accordance with this Section 2.28. This provision
shall be effective for purposes of both Article III and Article
XI.
(g) An Employee who is placed on a special leave of
absence because such Employee's spouse is transferred outside the
United States under the Company's International Assignment Policy
shall, upon returning to work at the expiration of such leave,
receive credit for eight Hours of Service for each day of such
absence. This provision shall be effective for purposes of both
Article II and Article XI.
2.29. "Indexed Balanced Fund". The separate portion of the
Fund which is to be invested in accordance with Section 9.11.
2.30. "Managed Balanced Fund". The separate portion of the
Fund which is to be invested in accordance with Section 9.12.
2.31. "Mean Price". The price at which Shares shall be
valued for some purposes as specified in the Plan. The Mean
Price is the fair market value of a Share or group of Shares
determined by the mean between the highest and lowest selling
prices of a Share as listed in the New York Stock Exchange
Composite Transactions listing published in the Midwest Edition
of the Wall Street Journal, for either (a) the last trading day
(on which there was at least one sale of a Share) of the
Processing Period for which the value is to be determined, if the
determination is as of the end of a Processing Period, or (b) the
date otherwise specified in the Plan.
2.32. "Medium-Term Fixed Income Fund". The separate
portion of the Fund which is to be invested in accordance with
Section 9.9.
2.33. "Non-Highly Compensated Employee". An Employee who
is neither a Highly Compensated Employee nor a family member of a
Highly Compensated Employee within the meaning of Section
414(q)(6)(B) of the Code.
2.34. "Participant". Any Eligible Employee who has elected
to participate in this Plan in the manner provided in Section 3.2
and any former Eligible Employee who has assets credited to an
Account.
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2.35. "Participating Employer". (a) As of April 1, 1994,
the Company and the following Subsidiaries:
AB Contract Services, Inc. Golden Eagle Distributing
Anheuser-Busch Distributors of Company
of New York, Inc. Innervision Productions, Inc.
Anheuser-Busch Europe, Inc. Kingsmill Realty, Inc.
Anheuser-Busch, Incorporated Manufacturers Cartage Company
Anheuser-Busch International, Inc. Manufacturers Railway Company
Anheuser-Busch Investment Capital Metal Container Corporation
Corporation Metal Container Corporation
Anheuser-Busch Mexico, Inc. of California
Anheuser-Busch Recycling Metal Container International,
Corporation Inc. (effective January 1,
August A. Busch & Co. of 1995)
Massachusetts Metal Container Service
Boardwalk & Baseball, Inc. Corporation
Busch Agricultural Resources, Inc. MRS Transport Company
Busch Agricultural Resources Nutri-Turf, Inc.
International, Inc. Optimus, Inc.
Busch Biotech, Inc. Pacific International Rice
Busch Creative Services Mills, Inc.
Corporation Precision Printing and
Busch Entertainment Corporation Packaging, Inc. (effective
Busch Media Group, Inc. January 1, 1995)
Busch Mechanical Services, Inc. St. Louis National Baseball
Busch Properties, Inc. Club, Inc.
Busch Properties of Florida, Inc. St. Louis Refrigerator Car
Civic Center Corporation Company
Consolidated Farms, Inc. Sea World, Inc.
Eagle Snacks, Inc. Sea World of Texas, Inc.
Fairfield Transport, Inc. Sea World of Florida, Inc.
Florida Cypress Gardens, Inc. SP Parks, Inc.
Williamsburg Transport, Inc.
(b) Any other Subsidiary which may hereafter become
a party hereto in the manner provided in Article XXII.
(c) Any corporation(s) into which or with which any
of the foregoing Participating Employers may be liquidated,
merged or consolidated, if such successor(s) or (in the event of
a liquidation, merger or consolidation) surviving corporation(s)
is a Subsidiary and is or becomes a Participating Employer
hereunder.
2.36. "Personal Contributions". A generic term referring,
collectively, to all amounts contributed to this Plan by a
Participant. Such amounts will be either After-Tax Contributions
or Before-Tax Contributions, and may be either matched by a
Company Matching Contribution or unmatched.
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2.37. "Plan". This Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan as herein established and as it may be
amended from time to time.
2.38. "Plan Year". The fiscal year adopted by the Company
for this Plan. The Plan Year is the twelve consecutive month
period beginning each April 1 and ending each March 31.
2.39. "Processing Period". Each calendar month or such
other period as may be designated by the Committee from time to
time.
2.40. "Related Plans". The Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan (for Employees Covered by A
Collective Bargaining Agreement), the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (for Certain Hourly
Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries)
and effective July 1, 1994, the Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan (for Certain Employees of
Campbell Taggart, Inc. and its Subsidiaries).
2.41. "Share". A share of common stock of the Company.
2.42. "Short-Term Fixed Income Fund". The separate portion
of the Fund which is to be invested in accordance with Section
9.8.
2.43. "Subsidiary". Any corporation or other form of
business enterprise created or organized in the United States
under the law of any State or Territory thereof, the issued and
outstanding voting capital stock or equity interest of which is,
in the aggregate, 80% or more owned by the Company, another
Subsidiary or any combination of the Company and/or one or more
Subsidiaries.
2.44. "Supplemental Contributions". Amounts contributed to
this Plan by Participating Employers pursuant to Section 6.1(b).
2.45. "Taxable Compensation". The amount of compensation
determined under the provisions of Section 414(s) of the Code and
regulations thereunder, but including amounts otherwise excluded
from gross income under Sections 402(e)(3) and 125 of the Code.
In no event shall an Employee's Taxable Compensation exceed the
amount specified in Section 401(a)(17) of the Code as adjusted
for any applicable increases in the cost of living.
2.46. "Unallocated Shares". Shares held in the ESOP Loan
Suspense Account which have not been allocated to the Account of
a Participant.
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2.47. "Trust Agreement". The separate Master Defined
Contribution Trust Agreement entered into by and between the
Company and the Trustee, as well as all other agreements and
documents relating to the operation of the Master Defined
Contribution Trust including, but not limited to, agreements
appointing investment managers and agreements joining plans into
the Master Defined Contribution Trust Agreement. The Master
Defined Contribution Trust Agreement, as may be amended from time
to time, governs the establishment, investment and maintenance of
the Fund. The Master Defined Contribution Trust Agreement shall
be deemed to be a part of this Plan as if all of the terms and
provisions thereof were fully set forth herein.
2.48. "Trustee". The corporation designated by the Company
from time to time to act as Trustee under the Trust Agreement.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1. Eligibility. (a) An Employee of a Participating
Employer shall be eligible to participate in the Plan at the end
of the eligibility computation period during which the Employee
completes one Year of Service.
(b) Notwithstanding the foregoing, no Employee will
be eligible to participate in this Plan if (i) such person's
employment is covered by a collective bargaining agreement which
does not expressly provide for participation in this Plan and
under which retirement benefits have been the subject of good
faith collective bargaining, (ii) such person is eligible to
participate in a Related Plan, or (iii) such person is deemed to
be a leased employee (within the meaning of Section 414(n) of the
Code) of an Employing Company.
(c) Notwithstanding the foregoing, any individual
who is an Employee employed by Precision Printing and Packaging,
Inc. as of November 30, 1994 shall become an Eligible Employee
who is eligible to participate in the Plan effective as of
January 1, 1995, unless the individual's employment as an
Employee is terminated before January 1, 1995.
3.2. Becoming a Participant. Participation in the Plan is
entirely voluntary, but to become a Participant an Eligible
Employee must agree to make Personal Contributions, as
hereinafter set out. Notwithstanding anything, an Eligible
Employee's election to make Personal Contributions shall not
become effective before the first day of the calendar month
following expiration of the eligibility computation period during
which such person completes one Year of Service.
3.3. Re-employment Following a Break in Service. (a) An
Employee who has five consecutive breaks in service before
becoming eligible to participate in this Plan and who is
subsequently re-employed by a Participating Employer shall be
treated as a new Employee and shall be required to satisfy the
eligibility requirements set out in Section 3.1 following such
person's re-employment date before such person becomes an
Eligible Employee.
(b) An Eligible Employee who has one or more breaks
in service and who is subsequently re-employed by a Participating
Employer shall be eligible to participate in this Plan
immediately upon re-employment.
3.4. Year of Service; Break in Service. (a) A Year of
Service for determining eligibility to participate is an
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eligibility computation period during which an Employee performs
at least 1,000 Hours of Service.
(b) The initial eligibility computation period for
an Employee shall be the twelve-month period beginning on the
first date (the "initial employment date") such Employee performs
an Hour of Service. In the case of an Employee who performs more
than 500 but less than 1,000 Hours of Service during the initial
eligibility computation period, each succeeding twelve-month
period beginning on the anniversary of the Employee's initial
employment date shall be an eligibility computation period until
the Employee either becomes an Eligible Employee or incurs five
consecutive breaks in service.
(c) An Employee's failure to perform more than 500
Hours of Service during any eligibility computation period before
the Employee becomes an Eligible Employee shall constitute a
break in service.
(d) The eligibility computation period for an
Employee who has incurred five consecutive breaks in service and
who is subsequently re-employed shall be the twelve-month period
beginning on the first date (the "re-employment date") on which
such Employee performs an Hour of Service following such breaks
in service. In the case of such an Employee who performs more
than 500 but less than 1,000 Hours of Service during such
eligibility computation period, each succeeding twelve-month
period beginning on each anniversary of the Employee's
re-employment date shall be an eligibility computation period
until the Employee either becomes an Eligible Employee or incurs
five consecutive breaks in service.
3.5. Transfers of Participants and Lay-Offs. (a) No
transfer or other change in the employment of a Participant from
the employ of a Participating Employer to the employ of another
of the Employing Companies which is not a Participating Employer,
and no transfer from an employment classification in which the
Participant is an Employee to a classification in which the
Participant is not an Employee, shall be deemed to be either a
break in service or a termination of employment, whether or not
the transferred employee is reported as having resigned or
otherwise ceased to have been employed in such employee's former
employment classification or by such employee's former employer.
After such transfer, the transferred Participant shall no longer
be entitled to make Personal Contributions to this Plan or to
have any Company Matching Contributions made on such
Participant's behalf. If eligible to participate in a Related
Plan after such transfer, a Participant's Account may be
transferred to such Related Plan.
(b) So long as there is any unwithdrawn or
undistributed balance in the Account of a transferred
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Participant, the Account shall not be affected by such transfer
and shall not be segregated from or within the Fund, but shall
continue to be commingled therewith and be subject to appropriate
increases or decreases to reflect the results of the valuations
made in accordance with Section 10.5.
(c) A Participant who may no longer actively
participate in this Plan because of a lay-off or a job transfer
and who is thereafter again transferred to the employ of a
Participating Employer or is recalled from lay-off shall
automatically and immediately become eligible to resume
participation in this Plan upon compliance with rules adopted by
the Committee and the timely filing of the requisite forms, if
any.
(d) If, as a result of an employment transfer, an
individual who was a Participant in a Related Plan or the
Anheuser-Busch Employee Stock Purchase and Savings Plan becomes
eligible to participate in this Plan, this Plan shall accept the
transfer of such Participant's Account from such other Plan. Any
Account so transferred shall be combined with the Participant's
Account under this Plan, if any, in accordance with procedures
established by the Committee. Any Participant described in this
subsection who was making Personal Contributions to a Related
Plan at the time of transfer shall be deemed to have made
identical elections regarding the rate, type and investment of
contributions to this Plan.
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ARTICLE IV
MATCHED CONTRIBUTIONS
4.1. Before-Tax Matched Contributions. A Participant who
wishes to make Before-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received,
in the percentage indicated by the Participant, but subject to
the limitations set out in Sections 7.2 and 7.3, on the condition
that the amount so deferred be delivered to the Trustee as a
Personal Contribution. All Before-Tax Matched Contributions
shall be expressed in full percentage points of Base Pay, and
shall be either 1, 2, 3, 4, 5 or 6% of Base Pay.
4.2. After-Tax Matched Contributions. A Participant who
wishes to make After-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, but subject
to the limitations set out in Section 7.4, and to deliver the
amounts so withheld to the Trustee as a Personal Contribution.
All After-Tax Matched Contributions shall be expressed in full
percentage points of Base Pay, and shall be either 1, 2, 3, 4, 5
or 6% of Base Pay.
4.3. Limitation on Total Matched Contributions. The sum of
a Participant's Before-Tax Matched Contributions and After-Tax
Matched Contributions may not be less than 1% nor more than 6% of
the Participant's Base Pay.
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ARTICLE V
UNMATCHED CONTRIBUTIONS
5.1. Contributions Permitted. Whether or not a Participant
is making matched Personal Contributions, such Participant may
make unmatched Personal Contributions pursuant to this Article
and subject to the limitations set out in this Article and
Article VII. Such unmatched Personal Contributions may either be
on a before-tax or after-tax basis.
5.2. Before-Tax Unmatched Contributions. A Participant who
wishes to make Before-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received
in the percentage indicated by the Participant, on the condition
that the amount so deferred be delivered to the Trustee as a
Personal Contribution. All Before-Tax Unmatched Contributions
shall be expressed in full percentage points of Base Pay, and
shall be either 1, 2, 3, 4, 5, 6, 7, 8, 9 or 10% of Base Pay.
5.3. After-Tax Unmatched Contributions. A Participant who
wishes to make After-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, and to
deliver the amounts so withheld to the Trustee as a Personal
Contribution. All After-Tax Unmatched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either l, 2, 3, 4, 5, 6, 7, 8, 9 or l0% of Base Pay.
5.4. Limitation on Total Unmatched Contributions. If a
Participant making Before-Tax Unmatched Contributions is
concurrently making After-Tax Unmatched Contributions, the sum of
the Participant's unmatched contribution rates may not be more
than 10% of the Participant's Base Pay.
5.5 Rollover Contributions. (a) The Trustee may accept an
Eligible Rollover Contribution from an Employee in accordance
with rules and procedures established by the Committee. Any
Eligible Rollover Contribution made by an Employee shall be
treated as a Before-Tax Unmatched Contribution for all purposes
under the Plan.
(b) The term "Eligible Rollover Contribution" means
any part of a distribution which meets the requirements of
Section 402(c)(4) of the Code and which is made to an Employee
from:
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(i) A plan maintained by Precision Printing and
Packaging, Inc. in accordance with Section 401(k) of the Code, or
(ii) If approved by the Committee, a plan
maintained by any company whose stock or assets are acquired by
an Employing Company.
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ARTICLE VI
COMPANY CONTRIBUTIONS
6.1. Required Contributions. (a) Each Participating
Employer shall contribute, as its share of Company Matching
Contributions, for each month of its participation in this Plan,
either directly or indirectly by way of (i) release of available
Unallocated Shares having an equivalent value, or (ii) the access
or use of any funds held in the ESOP Loan Payment Accumulation
Account, the "formula amount", less the aggregate amount of
forfeitures attributable to Participants employed by it. The
"formula amount" is that amount determined by multiplying (i) the
total amount of matched Personal Contributions actually deferred
or withheld during such month from the Base Pay of all
Participants employed by such Participating Employer, by (ii) the
contribution rate in effect for such month.
(b) Each Participating Employer shall also
contribute, directly or indirectly by way of (i) release of
available Unallocated Shares having an equivalent value, or (ii)
the access or use of any funds held in the ESOP Loan Payment
Accumulation Account, for each Plan Year (or portion thereof) of
its participation in this Plan, its proportionate share of any
Supplemental Contribution for any Plan Year. Supplemental
Contributions shall be determined by the Committee under Section
6.3.
(c) If so directed by the Company from time to time,
each Participating Employer shall also contribute for each Plan
Year (or portion thereof) of its participation in this Plan,
either directly or indirectly by access or use of any funds held
in the ESOP Loan Payment Accumulation Account, its proportionate
share of the amount, if any, by which dividends transferred to
the ESOP Loan Payment Accumulation Account for such year exceeds
the value of Shares available for release from the ESOP Loan
Suspense Account in connection with such transfer.
(d) If so directed by the Company from time to time,
each Participating Employer shall make its proportionate share of
any additional contributions determined by the Company, in its
absolute discretion.
(e) For purposes of this Section 6.1, the value of
such Shares released from the ESOP Loan Suspense Account shall be
the Closing Price on the last trading day prior to the date of
release or such other date as may be determined by the Committee
for this purpose.
6.2. Contribution Rate For Company Matching Contributions.
The contribution rate for Company Matching Contributions is a
decimal fraction, expressed to four places,
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determined by the Committee prior to the beginning of each Plan
Year, which shall not change during a Plan Year. Such
contribution rate shall be established by dividing (a) 2-1/2% of
the Company's Consolidated Net Income for Plan Purposes for the
Company Year most recently ended, by (b) 6% of the eligible
payroll for such Company Year, but shall never be less than .3333
nor more than .7500. Notwithstanding the foregoing, the Company,
in its sole discretion as Plan sponsor, may establish a
contribution rate for a Plan Year which is greater than the rate
determined in accordance with the preceding sentence.
The "eligible payroll" for any Company Year shall be the sum
of (c) the total Base Pay accrued for that Company Year for all
Employees of all of the Employing Companies which will be
Participating Employers for the Plan Year for which the
contribution rate is being established and, without duplication,
(d) the total "Base Pay" accrued for such Plan Year for all
"employees" of all of the "employing companies" which will be
"participating employers" in all the Related Plans except the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(for Certain Employees of Campbell Taggart, Inc. and its
Subsidiaries), and (e) the total "compensation", as defined in
Section 2.9 of the Anheuser-Busch Employee Stock Purchase and
Savings Plan, accrued for such Plan Year for all "employees" of
all "employing companies" which are "participating employers" in
such plan. For purposes of this paragraph, the quoted terms
shall have the meanings set out in such other plans.
Consolidated Net Income and payroll shall be
determined by excluding the earnings and payroll of Sea World,
Inc. and Campbell Taggart, Inc. and their respective subsidiaries
until such time as the Company determines that such exclusion is
no longer appropriate, in part or in full.
6.3. Determination of Supplemental Contribution. (a) As
soon as practicable after the close of each Plan Year, the
Committee shall determine the amount of the Supplemental
Contribution, if any, for such Plan Year. The Supplemental
Contribution shall be computed by first computing a Tentative
Supplemental Contribution and then adjusting such figure as set
forth herein. The Tentative Supplemental Contribution shall be
computed as follows: first, the average Closing Price of Shares
released from the ESOP Loan Suspense Account for the Plan Year
for this Plan and each Related Plan shall be determined. Second,
the ESOP Share Cost of such released Shares shall be increased by
(i) five percent (5%) for the first Plan Year, and (ii) ten
percent (10%) compounded annually for each full Plan Year which
has elapsed since the ESOP Loan proceeds were received by the
Trustee, or for any Plan Year, such other percentage as may be
determined by the Committee from time to time. (For partial
years, a proportional part of the applicable percentage increase
shall be used based on the number of full months in the Plan Year
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during which the ESOP Loan is outstanding). The ESOP Share Cost
so increased shall be referred to as the Hurdle ESOP Share Price
for such Plan Year. If the average Closing Price of the Shares
released from the ESOP Loan Suspense Account for the Plan Year is
equal to or less than the Hurdle ESOP Share Price for the Plan
Year, there shall be no Tentative Supplemental Contribution for
such Year. If such average Closing Price is greater than the
Hurdle ESOP Share Price for the Plan Year, the difference shall
be computed and multiplied by the number of Shares actually
released from the ESOP Loan Suspense Account for this Plan and
each Related Plan during the Plan Year. The figure so obtained
shall be apportioned among this Plan and the Related Plans based
on the ratio that the aggregate formula amount (as defined in
Section 6.1(a)) of each plan attributable to those Participants
eligible to have a Supplemental Contribution allocated to their
Accounts for such Plan Year, bears to the combined aggregate
formula amount of all plans attributable to those Participants
eligible to have a Supplemental Contribution allocated to their
Accounts for such Plan Year, and the portion allocated to this
Plan shall be this Plan's Tentative Supplemental Contribution for
the Plan Year. If there is more than one ESOP Loan outstanding
for any Plan Year, the Tentative Supplemental Contribution shall
be the sum of the amounts computed under this Section with
respect to the Shares in the separate ESOP Loan Suspense
Accounts. This Plan's Tentative Supplemental Contribution shall
then be reduced by the amount of this Plan's "Carryover Amount",
if any, for the Plan Year, and increased by the amount of its
"Surplus Amount", if any, for such Plan Year, as such terms are
described in subsection (b).
(b) For purposes of this Section, the "Carryover
Amount" shall be equal to the excess, if any, of (i) the total
Supplemental Contributions of this Plan for all prior Plan Years
(without regard to forfeitures) over (ii) the total Tentative
Supplemental Contributions of this Plan for all prior Plan Years
(without regard to forfeitures). The "Surplus Amount" shall be
the excess, if any, of (iii) the Closing Price as of the last
trading day prior to the end of the Plan Year of all Suspense
Shares required to be released from this Plan's ESOP Loan Sus-
pense Account for such Plan Year but which were otherwise not
released throughout such Plan Year multiplied by the number of
such Shares, over (iv) the Tentative Supplemental Contribution of
this Plan for such Plan Year (without regard to forfeitures).
(c) For purposes of this Section, the "ESOP
Share Cost" shall be the average price at which the Trustee
acquires Shares with the proceeds of an ESOP Loan. For each ESOP
Loan entered into by the Trustee there shall be a separate ESOP
Share Cost which shall be uniform for each Share acquired with
the proceeds of such loan.
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6.4. Payment and Payment Date. Each Participating
Employer's Company Matching, Supplemental, and any other type of
contribution for the Plan Year, to the extent actually required
to be contributed under Section 6.1, shall be delivered to the
Trustee as and when determined by the Committee but not later
than 180 days after the end of such Plan Year. Such delivery
shall be either in cash or in Shares (from authorized but
unissued Shares or out of Shares held in the Company's treasury),
or a combination of both, and if delivered wholly or partially in
Shares, such Shares shall be valued at the Mean Price on the date
of delivery.
6.5. Allocation to Participants' Accounts. (a) Company
Matching Contributions shall be allocated to the Accounts of
Participants as of the end of each Processing Period in
accordance with the contribution rate in effect for the Plan Year
in which such Processing Period falls. Thus, if the contribution
rate for a Plan Year is .3500, each Participant shall have
allocated to such Participant's Account from the Company Matching
Contributions for any Processing Period of such Plan Year an
amount equal to thirty-five percent of such Participant's matched
Personal Contributions actually withheld during such Processing
Period.
(b) Supplemental Contributions shall be allocated to
the Accounts of Participants as of the end of each Plan Year in
accordance with the ratio that the sum of the individual
Participant's Company Matching Contributions allocated (and not
then forfeited) for such Plan Year bears to the total Company
Matching Contributions allocated (and not then forfeited) for
such Plan Year. In order to receive a Supplemental Contribution
allocation for a Plan Year, a Participant (or the Participant's
Beneficiary) must have an existing Account balance in the Plan as
of the last day of such Plan Year. Notwithstanding anything to
the contrary in this Plan, no Supplemental Contribution shall be
allocated to the Account of an alternate payee under a qualified
domestic relations order (as described in Section 414(p) of the
Code) unless otherwise specifically required under such order.
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ARTICLE VII
PROCEDURES AND LIMITATIONS
ON PERSONAL CONTRIBUTIONS AND ELECTIONS
7.1 Election Procedures. (a) An election to make Personal
Contributions must be delivered to the Employee Stock Plans
Department at such time prior to the effective date of the
election as the Committee may determine. A Participant may
change the rate or type of Personal Contributions, or cease
making Personal Contributions altogether, by delivering such an
instruction to the Employee Stock Plans Department prior to the
effective date of such change. A direction concerning rate and
type of Personal Contributions shall continue in effect until
changed in the manner provided above.
(b) All elections concerning rate and type of
Personal Contributions shall be implemented after the election is
delivered to the Employee Stock Plans Department on so much
advance notice as may be required by the Committee, but shall
always become effective as of the first paycheck dated in a
month.
(c) All elections concerning rate and type of
Personal Contributions must be made in accordance with all
applicable rules and procedures adopted by the Committee.
7.2. Special Dollar Limitation On Before-Tax Contributions.
(a) A Participant's total Before-Tax Contributions (Matched and
Unmatched) for any calendar year shall not exceed the amount in
effect under Section 402(g) of the Code for such calendar year
($9,240 for 1994). If such limit would be exceeded under a
Participant's deferral election as in effect at any time (whether
because of a mid-year Base Pay increase or otherwise), the
Participant's contribution rate for Before-Tax Contributions
shall automatically be reduced by the Plan before the end of the
calendar year so that such limit is not exceeded. In addition,
the Committee may make such projections and adopt such procedures
as it shall deem advisable to insure satisfaction of this limit
at the end of the Plan Year. Payroll deductions shall be
adjusted as necessary to comply with this paragraph.
(b) If the Committee is notified, pursuant to
Section 402(g)(2) of the Code and prior to April 15, that a
Participant has made deferrals in the immediately preceding
calendar year under two or more qualified plans which, in the
aggregate, would exceed the limitations of subsection (a), a
portion of such excess deferrals, as directed by the Participant,
shall be handled in accordance with subsection (c) of this
Section.
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(c) If, notwithstanding the provisions of this
Section, it is determined that a Participant's Before-Tax
Contributions in fact exceeded the limit set out in subsection
(a), by administrative error or otherwise, or if the Participant
so directs under Section 7.2(b), the amount of Before-Tax
Contributions actually made for the calendar year in excess of
the permitted amount, plus applicable earnings, may be refunded
to the Participant. Any refund under this paragraph shall be
made after the excess deferral was received by the Plan but, if
feasible, on or before the April 15th following the end of the
calendar year in which the excess deferral occurred. Earnings
attributable to an excess deferral hereunder shall be computed
under a method selected by the Committee and permitted under
applicable Treasury Regulations. Any excess deferral otherwise
distributable hereunder shall be reduced by the amount of any
excess Before-Tax Contributions distributed under Section 7.3
prior to the distribution hereunder and made with respect to the
Plan Year commencing within such calendar year. Refunds under
this Section shall be apportioned first to Before-Tax Unmatched
Contributions, including earnings, and then to Before-Tax Matched
Contributions, including earnings.
(d) A refund under this Section shall not subject a
Participant to any suspension penalty.
7.3. Required Adjustment of Before-Tax Personal
Contributions. Inasmuch as applicable federal law and
regulations establish certain limitations on amounts which may be
excluded from income by certain Employees, each election to make
Before-Tax Contributions shall be subject to automatic adjustment
in accordance with the rules set forth in this Section. This
Section shall be administered in a manner consistent with
Sections 401(k) and 401(m) of the Code and applicable Treasury
Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual Before-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who
are Highly Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual Before-Tax
Contribution rate for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of Before-Tax Contributions for such
person, to (y) such person's Taxable Compensation.
(b) One of the following tests shall be satisfied
each Plan Year: (i) the actual Before-Tax Contribution rate for
the Highly Compensated group shall not exceed one and one-quarter
times the rate of the Non-Highly Compensated group; or (ii) the
rate of the Highly Compensated group shall be neither more than
two percentage points higher than, nor more than two times, the
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rate of the Non-Highly Compensated group. If neither of these
tests is met, the excess Before-Tax Contributions of each
affected Participant in the Highly Compensated group shall be
refunded to the Participant, with income attributable thereto,
within twelve months after the close of the Plan Year in which
such excess Before-Tax Contributions were made. In making
refunds hereunder, unmatched contributions shall be completely
refunded before any matched contribution is refunded. Income
attributable to such refunded contributions shall be determined
in accordance with a method selected by the Committee and
permitted under applicable Treasury Regulations. A refund under
this Section shall not subject a Participant to any suspension
penalty.
(c) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.3(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
Before-Tax Contributions of Highly Compensated Employees.
(d) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.3(b), the Committee
may, at its option and if permitted by law, aggregate pertinent
data from this Plan and any other plan maintained by any of the
Employing Companies which contains provisions intended to be
qualified under Section 401(k) of the Code.
(e) The determination of the amount of excess
Before-Tax Contributions for each Highly Compensated Participant
under subsection (b) shall be made by reducing the contribution
rates of Highly Compensated Participants in order of highest
actual deferral ratios, using the leveling method provided in
Treasury Regulations.
(f) If the test under clause (ii) of Section 7.3(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.4(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(g) Excess Before-Tax Contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by applicable Treasury Regulations.
(h) In determining the actual Before-Tax
Contribution rate for any Highly Compensated Employee, (i) salary
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deferral contributions under each plan maintained by an Employing
Company shall be aggregated, and (ii) the Before-Tax
Contributions and Taxable Compensation of certain family members
shall be taken into account as provided in Section 2.27(g).
7.4. Required Adjustment of After-Tax and Company Matching
Contributions. Inasmuch as applicable Federal law and
regulations establish certain limitations on amounts which may be
contributed to this Plan, each election to make After-Tax
Contributions shall be subject to automatic adjustment in
accordance with the rules set forth in this Section. This
Section shall be administered in a manner consistent with
Sections 401(k) and 401(m) of the Code and applicable Treasury
Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual After-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who
are Highly-Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual After-Tax
Contribution rates for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one-hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of After-Tax, Company Matching and
Supplemental Contributions for such person, to (y) such person's
Taxable Compensation.
(b) One of the following tests shall be satisfied
for each Plan Year: (i) the actual After-Tax Contribution rate
for the Highly Compensated group shall not exceed one and
one-quarter times the rate of the Non-Highly Compensated group;
or (ii) the rate of the Highly Compensated Group shall be neither
more than two percentage points higher than, nor more than two
times, the rate of the Non-Highly Compensated Group.
(c) If the actual After-Tax Contribution rate for
the Highly Compensated group should exceed the limits in the
preceding subsection, then excess After-Tax Contributions and
income attributable thereto shall be refunded as set out in this
Section. For purposes hereof, excess After-Tax Contributions
shall mean the excess of (i) the aggregate amount of the
After-Tax, Company Matching and Supplemental Contributions of
Highly-Compensated Employees made for the Plan Year, over (ii)
the maximum amount of such contributions permitted under
subsection (b). Such excess contributions shall be refunded on
the basis of the respective portions of such amount attributable
to each such Participant, in accordance with the following:
(aa) First, such Participant's After-Tax
Unmatched Contributions will be refunded.
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(bb) Next, After-Tax Matched
Contributions shall be refunded.
Income attributable to excess After-Tax Contributions to be
refunded shall be computed under a method selected by the
Committee and permitted under applicable Treasury Regulations.
(d) All refunds of excess contributions and
applicable earnings under this Section shall be completed not
later than the close of the Plan Year following the Plan Year in
which the excess contributions were made.
(e) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.4(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
After-Tax Contributions of Highly Compensated employees.
(f) The determination of the amount of excess After-
Tax Contributions shall be made after excess Before-Tax
Contributions under Section 7.3 have been determined.
(g) The determination of the amount of excess
After-Tax Contributions for each Highly Compensated Participant
under subsection (c) shall be made by reducing the contribution
rates of the Highly Compensated Participants in order of highest
actual contribution percentages, using the leveling method
provided in Treasury Regulations.
(h) If the test under clause (ii) of Section 7.4(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.3(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(i) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.4(b), the Committee
may, at its option and if permitted by law, aggregate pertinent
data from this Plan and any other plan maintained by any of the
Employing Companies which contains provisions intended to be
qualified under Section 401(m) of the Code.
(j) In determining the actual After-Tax Contribution
rate for any Highly Compensated Employee, the After-Tax Company
Matching and Supplemental Contributions, and the Taxable
Compensation, of certain family members shall be taken into
account as provided in Section 2.27(g). Excess
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After-Tax Contributions shall be allocated to Participants who
are subject to the family member aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by applicable
Treasury Regulations.
7.5. Suspension and Reinstatement of Matched Personal
Contributions Withdrawal. (a) A Participant who has made a
withdrawal pursuant to Article XIII and is thereby prevented
from making any Personal Contributions to this Plan for six
months shall, upon the expiration of such period, be eligible to
resume making Personal Contributions upon delivering appropriate
instructions in accordance with Section 7.1.
(b) A Participant who has made a withdrawal pursuant
to Section 14.1 and is thereby prevented from making any Personal
Contributions to this Plan for twelve months shall, upon the
expiration of such period, be eligible to resume making Personal
Contributions upon delivering appropriate instructions in
accordance with Section 7.1.
7.6. Payroll Deductions. All Personal Contributions from
Participants shall be made by way of payroll deductions. A
Participant's election made in accordance with Section 7.1 shall
constitute full authority to the Participating Employer to deduct
the percentage of Base Pay indicated by the Participant.
Personal Contributions so deducted shall be transmitted to the
Trustee no less frequently than monthly, in cash or, in the case
of contributions to be invested in the Company Stock Fund, either
in cash or in Shares (from authorized but unissued Shares or out
of Shares held in the Company's treasury), or a combination of
both. If contributions are transmitted in Shares, such shares
shall be valued at the Mean Price on the date of delivery.
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ARTICLE VIII
ESOP LOANS
8.1. Terms of ESOP Loan. The Trustee will be specifically
empowered to borrow funds (including a borrowing from the Company
or any other of the Employing Companies) to acquire Shares or
repay a prior ESOP Loan, subject to the conditions set forth in
this Section 8.1. The terms of each ESOP Loan must, at the time
the loan is made, be at least as favorable to the Trust as the
terms of a comparable loan resulting from arm's length
negotiations between independent parties. Each ESOP Loan shall
be for a specific term, shall bear a reasonable rate of interest,
and shall be without recourse against the Trust or the
Participants' Accounts, except that an ESOP Loan may be
guaranteed by the Company and may be secured by a pledge of the
Shares acquired with the proceeds of the ESOP Loan (or acquired
with the proceeds of a prior ESOP Loan which is being
refinanced). No other Trust assets may be pledged as collateral
for an ESOP Loan, and no lender shall have recourse against Trust
assets other than (a) collateral given for the ESOP Loan, (b)
amounts held under the ESOP Loan Payment Accumulation Account
(other than Company Matching or Supplemental Contributions of
Shares), and (c) earnings attributable to such collateral. An
ESOP Loan shall not be payable on demand except in the event of
default. In the event of default, the value of Plan assets
transferred in satisfaction of the ESOP Loan shall not exceed the
amount of the default plus any applicable prepayment or similar
penalties or premiums. If the lender is a disqualified person
within the meaning of Code Section 4975(e)(2), the ESOP Loan must
provide for a transfer of Trust assets on default only upon and
to the extent of the failure of the Trust to meet the payment
schedule of the ESOP loan. Payments of principal and/or interest
on any ESOP Loan shall be made by the Trustee in accordance with
Section 8.7. The Committee shall direct the Trustee to enter
into any loan transaction approved by the Board and conforming
with the provisions hereof.
8.2. Acquisition of Shares with proceeds of ESOP Loan. The
ESOP Loan proceeds shall be used by the Trustee within a
reasonable time after receipt to acquire Shares or to repay a
prior ESOP Loan. In acquiring Shares, the Trustee shall take all
appropriate and necessary measures to ensure that the Trust pays
no more than "adequate consideration" (within the meaning of
Section 3(18) of ERISA) for such securities. All Shares acquired
with the proceeds of an ESOP Loan shall be placed in an ESOP Loan
Suspense Account established by the Trustee pursuant to Section
10.10(a). To the extent required for the purpose of pledging
such Shares as collateral for the ESOP Loan, the Shares held as
collateral in the ESOP Loan Suspense Account may be physically
segregated from other Trust assets. Any pledge of Shares must
provide for the release of Shares not later than as payments on
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the ESOP Loan are made by the Trustee and for Shares so released
to be transferred as appropriate for allocation to Participants'
Accounts pursuant to Sections 8.4 and 8.6 and regulations
promulgated under ERISA and the Code.
8.3. Shares to be Unrestricted. No Shares acquired with
the proceeds of an ESOP Loan shall be subject to any put, call or
other option or any buy-sell or similar agreement while held by
or when distributed from the Trust, whether or not the Plan
constitutes an "employee stock ownership plan" within the meaning
of Section 4975(e)(7) of the Code at such time and whether or not
the ESOP Loan has been repaid at such time.
8.4. Release from ESOP Loan Suspense Account. Each year a
number of Shares shall be released from the ESOP Loan Suspense
Account. Such number shall be determined as follows: the number
of Shares held in the ESOP Loan Suspense Account at the beginning
of the applicable Plan Year shall be multiplied by a fraction,
the numerator of which shall be the amount of principal and
interest due under the loan amortization payment schedule for the
current Plan Year, and the denominator shall be the numerator
plus the principal and interest to be paid on the loan
amortization payment schedule for all future Plan Years. Unless
otherwise determined by the Committee, a substantially equal
number of Shares shall be released from the ESOP Loan Suspense
Account for each calendar quarter during the Plan Year. Such
Shares shall be deemed acquired by the Company Stock Fund at the
Closing Price on the last trading day prior to the date of
release or such other date as may be determined by the Committee
for this purpose, and shall, in accordance with procedures
adopted by the Committee, be allocated to the Accounts of
Participants at the average price(s) determined under Section
10.2 in substitution for Shares otherwise required to be
allocated; provided that if and when the Committee changes from
Share accounting to unit accounting under the Company Stock Fund,
Company Stock Fund units representing the Participant's interest
in such released Shares shall be allocated to the accounts of
Participants in substitution for Company Stock Fund units
otherwise required to be allocated. In connection with such
releases, it is intended that the Trustee will transfer funds to
the ESOP Loan Payment Accumulation Account for each month equal
to the total value of Shares released from the ESOP Loan Suspense
Account for such month. Such transferred funds shall represent
Personal Contributions, Company Contributions and dividends that
are required to be invested in the Company Stock Fund and
allocated to the Accounts of Participants.
8.5. Use of Company and Personal Contributions for ESOP
Loan Payments. In order to accumulate the necessary funds for
ESOP loan repayment, all Company and Personal Contributions to
this Plan which are to be invested in the Company Stock Fund
shall be available for ESOP loan repayment. It is intended that
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Company Contributions under Section 6.1(d), Company Matching
Contributions and Personal Contributions, together with earnings
thereon, shall be applied to ESOP loan repayment as provided
under Section 8.7.
8.6. Use of Dividends for ESOP Loan Payments. In the event
a dividend on Company stock is paid and an ESOP loan is
outstanding, such dividend shall, except where directed otherwise
by the Committee, be applied to ESOP loan repayment. It is
intended that dividends on Company stock be deemed applied to
ESOP loan repayment to the extent that such dividends, if so
applied, would be tax deductible to the Company under Section
404(k) of the Code, and that the Committee will direct that
dividends be applied to purposes other than ESOP loan repayment
only where such a tax deduction would not be available. In any
case in which dividends on Allocated Shares are applied for ESOP
Loan repayment, Shares ("Dividend Replacement Shares") with a
fair market value equal to such dividends shall be substituted
for such dividends. For this purpose, fair market value of
Unallocated Shares released from the ESOP Loan Suspense Account
shall be the Closing Price on the last trading day prior to the
date of release or such other date as may be determined by the
Committee for this purpose, and for other Dividend Replacement
Shares, shall be the replacement cost to the Trust. As long as
the Committee uses Share accounting, Dividend Replacement Shares
shall be allocated to Participant's Accounts in lieu of the
dividends on Shares in their Accounts that are applied to ESOP
Loan repayment in accordance with this Section 8.6 as of the end
of the Processing Period in which such dividends were paid by the
Company. If and when the Committee changes from Share accounting
to unit accounting with respect to the Company Stock Fund,
Dividend Replacement Shares shall be applied to increase the
value of Company Stock Fund units.
8.7. ESOP Loan Payments. The Trustee shall, from time to
time, transfer sufficient funds to the ESOP Loan Payment
Accumulation Account or ESOP Loan Suspense Account to provide
funds for ESOP Loan payments required for the Plan Year. Such
transfers (including the transfers described in Section 8.4) and
the corresponding ESOP loan payments, shall be treated as derived
from the following sources in the following order to the extent
of assets available from such sources at the time of transfer:
(a) First, if directed by the Committee, proceeds
from the sale, exchange, or disposition of Shares or other assets
held in the ESOP Loan Suspense Account and earnings thereon;
(b) Second, from dividends on Shares in accordance
with Section 8.6 and, to the extent permitted under applicable
law, earnings thereon;
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(c) Third, from Company Contributions under Section
6.1(d) and earnings thereon;
(d) Fourth, from Company Matching Contributions and
earnings thereon;
(e) Fifth, from Supplemental Contributions and
earnings thereon;
(f) Sixth, from Before-Tax Personal Contributions
made by Participants and earnings thereon; and
(g) Last, from After-Tax Personal Contributions made
by Participants and earnings thereon.
This provision shall not be construed to preclude the
transfer of funds out of the ESOP Loan Payment Accumulation
Account or ESOP Loan Suspense Account for other Plan purposes,
provided that no such transfer shall alter the order of priority
established by this provision. Further, any funds remaining in
the ESOP Loan Payment Accumulation Account or ESOP Loan Suspense
Account at the end of the Plan Year and not applied to ESOP loan
repayment shall be used as otherwise provided in this Plan.
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ARTICLE IX
INVESTMENT OF CONTRIBUTIONS
9.1. Investment of Company Matching and Supplemental
Contributions. All Company Matching and Supplemental
Contributions shall be invested in the Company Stock Fund at all
times except to the extent that any of such contributions are
held by the Trustee in the ESOP Loan Payment Accumulation Account
or ESOP Loan Suspense Account.
9.2. Investment of the Matched Contributions Part of an
Account. At least one-half of a Participant's matched Personal
Contributions for each Plan Year shall be invested in the Company
Stock Fund. The remaining one-half shall be invested, as the
Participant may direct, in 1% increments in any Investment Fund.
Except as provided in Section 9.6, all Shares or units required
under this Section to be purchased for any Plan Year with a
Participant's matched Personal Contributions must be held in the
Company Stock Fund for at least one full Plan Year beginning
after the date of contribution and thereafter the Participant
shall be permitted to direct the investment of such Shares or
units and all earnings thereon, in 1% increments, in any
Investment Fund.
9.3. Investment of the Unmatched Contributions Part of an
Account. A Participant's unmatched Personal Contributions shall
be invested, as the Participant may direct in 1% increments, in
any Investment Fund.
9.4. A Participant's Investment Direction for Current
Contributions. In connection with an initial election to
participate in the Plan, each Participant shall indicate how
current contributions credited to such Participant's Account
which are subject to the Participant's investment direction are
to be invested. A Participant may change investment direction,
but not more than once in any Processing Period by delivering
such instructions to the Employee Stock Plans Department at the
time and in the manner prescribed by the Committee. Any change
in investment direction for current contributions shall be
effective as of the first day of a Processing Period.
9.5. A Participant's Investment Direction for Accumulated
Account Balances. (a) Either with or without changing
investment direction for contributions to be credited thereafter,
a Participant may, by delivery of instructions to the Employee
Stock Plans Department at the time and in the manner prescribed
by the Committee, direct that the accumulated balance in the
Personal Contributions portion of the Participant's Account be
transferred pursuant to Section 10.4 between or among available
Investment Funds, in 1% increments, provided that all Shares or
units required under Section 9.2 to be purchased for any Plan
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Year with a Participant's matched Personal Contributions must
remain invested in the Company Stock Fund for at least one full
Plan Year beginning after the date of contribution. Except as
provided in Section 9.6 below, no investment direction may be
given under this subsection more frequently than once in any
one-month period.
(b) The Participant's Account as of the end of the
Processing Period in which the change of investment is intended
to become effective shall be controlling for purposes of
implementing the change order. Any change of investment of the
accumulated balance in a Participant's Account shall be effective
as of the end of a Processing Period.
9.6. Special Diversification After Attainment of Age 55.
Each Participant shall be permitted, during the 90-day period
following the close of each Plan Year occurring after attainment
of age 55, to diversify the investment of all Shares or Company
Stock Fund units in the Participant's Account, other than those
attributable to Company Matching and Supplemental Contributions,
by directing the transfer thereof, in 1% increments, into any
other fund established for investments under this Plan. The
right to transfer investments hereunder shall be in addition to
any other investment or transfer right under this Plan. A
request hereunder shall be submitted, on forms provided by the
Committee, within such 90-day period and shall be effective June
30 of the following Plan Year.
9.7. The Company Stock Fund. Except for interim
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment in Shares, and for amounts held to meet
contemplated payments, the Company Stock Fund shall be invested
by the Trustee only in Shares; provided, the Trustee may receive
and retain in such Company Stock Fund any warrant, right, option
or similar instrument which gives the holder the right to acquire
any Shares under any circumstances, distributed on or in respect
of any Shares held in such Company Stock Fund (and shall sell any
other instrument or property so received which does not give the
holder the right to acquire Shares). Cash contributions to the
Company Stock Fund and any proceeds from any Shares held therein
which were tendered or exchanged in a tender or exchange offer
shall be applied by the Trustee to the purchase of Shares or
other Qualifying Employer Securities if such securities are
available for purchase at a price determined to be appropriate by
the Trustee, as soon as reasonably possible after the Trustee's
receipt thereof except to the extent such contributions and
proceeds are held in cash for purposes of liquidity. Shares may
be acquired by the Trustee in any of the following transactions:
(i) purchases from the Company or otherwise,
at a price not greater than the Mean Price on the date of
purchase;
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(ii) purchases on the open market; or
(iii) deemed purchases from an ESOP Loan
Suspense Account, at a price not greater than the Closing Price
on the last trading day prior to the date of release from the
Suspense Account or such other date as may be determined by the
Committee for this purpose.
9.8. The Short-Term Fixed Income Fund. The Short-Term
Fixed Income Fund shall be invested by the Trustee only in the
following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any short-
term fixed income fund maintained by, any national or state bank,
trust company (including the Trustee or any bank affiliated with
it), savings and loan association or regulated insurance company;
or
(c) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Short-Term Fixed Income Fund other
than United States Government or agency obligations shall be
rated A or higher by Moody's Investors Service or another
equivalent recognized rating agency. All investments of the
Short-Term Fixed Income Fund (other than readily marketable or
redeemable units of participation in any fund) shall mature on
demand or on a date not later than three years after the date of
acquisition thereof. Investments for the Short-Term Fixed Income
Fund may be purchased on the open market or otherwise, or by
direct subscription with the issuer.
9.9. The Medium-Term Fixed Income Fund. Except for interim
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Medium-Term Fixed Income Fund shall be
invested by the Trustee only in the following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
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(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any
medium-term fixed income fund or guaranteed interest contracts
fund maintained by, any national or state bank, trust company
(including the Trustee or any bank affiliated with it), savings
and loan association or regulated insurance company;
(c) Guaranteed interest contracts issued by
regulated insurance companies; or
(d) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Medium-Term Fixed Income Fund other
than United States Government or agency obligations shall be
rated A or higher by Moody's Investors Service or another
equivalent recognized rating agency. All investments of the
Medium-Term Fixed Income Fund (other than readily marketable or
redeemable units of participation in any fund) shall mature not
later than ten years after the date of acquisition thereof.
Investments for the Medium-Term Fixed Income Fund may be
purchased on the open market or otherwise, or by direct
subscription with the issuer.
9.10. The Equity Index Fund. Except for interim
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Equity Index Fund shall be invested
only in units of participation in one or more funds, managed by
an investment manager selected by the Committee from time to
time. The primary objective of such fund(s) shall be the
realization of dividends and capital growth closely approximating
the results of the group of stocks comprising the Standard &
Poor's 500 Composite Index from time to time. Such fund(s) may
be a mutual fund, an investment trust or any other type of
investment vehicle. During any period of time when the Equity
Index Fund is invested through the medium of a common, collective
or commingled trust fund which is qualified under the provisions
of Section 401(a) of the Code and exempt from income tax under
the provisions of Section 501(a) of the Code, the Declaration of
Trust of such fund, as theretofore or thereafter amended, may be
incorporated by reference into the Trust Agreement of this Plan.
The investment manager of the Equity Index Fund shall have and
may exercise all powers and discretions granted by the
organizational instruments governing the fund, including, without
limitation, the power to eliminate investments which in its
judgment involve an unacceptable risk of loss, the power to
respond to tender offers as it deems to be in the best interests
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of the fund, and the power to lend securities of the fund;
provided, that any loan of securities shall be pursuant to a
written instrument approved by an investment manager which is
fully independent of the Trustee and shall be subject to the
terms of any prohibited transaction exemption (class or
otherwise) issued by the U.S. Department of Labor. As used
herein the term "investment manager" means only (a) a party
registered as an investment manager under the Investment Advisers
Act of 1940, (b) a bank as defined in such Act, or (c) an
insurance company qualified to manage, acquire or dispose of any
asset of any employee benefit plan subject to ERISA.
9.11. The Indexed Balanced Fund. Except for interim
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Indexed Balanced Fund shall be
invested only in units of participation in two or more funds
managed by an investment manager selected by the Committee from
time to time. The primary objective of such funds shall be to
achieve a total return which approximates the performance of a
50/50 mix of stocks and bonds, as reflected in the Standard &
Poor's 500 Composite Index and the Lehman Brothers Government
Corporate Bond Index, respectively. During any period of time
when the Indexed Balanced Fund is invested through the medium of
a common, collective or commingled trust fund which is qualified
under the provisions of Section 401(a) of the Code and exempt
from income tax under the provisions of Section 501(a) of the
Code, the Declaration of Trust of such fund, as theretofore or
thereafter amended, may be incorporated by reference into the
Trust Agreement of this Plan. The investment manager of the
Indexed Balanced Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund, including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment
manager which is fully independent of the Trustee and shall be
subject to the terms of any prohibited transaction exemption
(class or otherwise) issued by the U.S. Department of Labor. As
used herein, the term "investment manager" means only (a) a party
registered as an investment manager under the Investment Advisers
Act of 1940, (b) a bank as defined in such Act, or (c) an
insurance company qualified to manage, acquire or dispose of any
asset of any employee benefit plan subject to ERISA.
9.12. The Managed Balanced Fund. Except for interim
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Managed Balanced Fund shall be
invested only in units of participation in two or more funds,
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managed by an investment manager selected by the Committee from
time to time. The primary objective of such funds shall be to
achieve higher returns than a 60/40 mix of the Standard & Poor's
500 Composite Index and the Lehman Brothers Government Corporate
Bond Index, respectively. During any period of time when the
Managed Balanced Fund is invested through the medium of a common,
collective or commingled trust fund which is qualified under the
provisions of Section 401(a) of the Code and exempt from income
tax under the provisions of Section 501(a) of the Code, the
Declaration of Trust of such fund, as theretofore or thereafter
amended, may be incorporated by reference into the Trust
Agreement of this Plan. The investment manager of the Managed
Balanced Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment
manager which is fully independent of the Trustee and shall be
subject to the terms of any prohibited transaction exemption
(class or otherwise) issued by the U.S. Department of Labor. As
used herein, the term "investment manager" means only (a) a party
registered as an investment manager under the Investment Advisers
Act of 1940, (b) a bank as defined in such Act, or (c) an
insurance company qualified to manage, acquire or dispose of any
asset of any employee benefit plan subject to ERISA.
9.13. Earnings, etc. Except as provided in Section 8.6,
dividends, interest and other cash distributions received by
the Trustee in respect of any Investment Fund shall be reinvested
in the same Investment Fund. If the Company so directs, the
Trustee shall purchase from the Company (from authorized but
unissued Shares or out of Shares held in the Company's treasury)
all or some of the Shares which are to be purchased with cash
dividends received on Shares held in the Fund, and in any such
case, the purchase price per Share payable by the Trustee shall
be the Mean Price on the date of purchase. Alternatively, the
Trustee may obtain Shares from other sources, including Shares
released from the ESOP Loan Suspense Account.
9.14. Reports to Participants. The Committee shall furnish
each Participant, at least semi-annually, a statement of the
Participant's Account showing, at a minimum, the market value
thereof as of the end of such period, the portions invested in
each Investment Fund, and the portions thereof which are vested
and unvested. Notwithstanding the foregoing, the Committee need
not furnish a statement of account to an individual who has
separated from the service of the Employing Companies unless such
individual so requests.
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9.15. Voting of Shares. (a) Each Participant (or, if
deceased, the Participant's Beneficiary), as a named fiduciary
within the meaning of Section 403(a)(1) of ERISA, shall be
entitled to vote, at any meeting of shareholders of the Company,
all of the full and fractional Allocated Shares or Allocated
Share Equivalents credited to the Participant's Account in the
Plan, as shown on the records of the Plan as of the most recent
valuation date for which information is available prior to the
record date for determining shareholders entitled to vote at such
meeting. To enable them to do so, and to be fully informed of
all matters on which they are entitled to vote, arrangements have
been made for the Company or the Committee promptly to deliver or
cause to be delivered to each Participant (or Beneficiary) who is
entitled to vote any Allocated Shares or Allocated Share
Equivalents a copy of all proxy solicitation materials, before
each annual or special meeting of shareholders of the Company,
together with a form requesting confidential instructions on how
the Shares which such Participant is entitled to vote are to be
voted at such meeting.
(b) Each Participant (or Beneficiary) who has
Allocated Shares or Allocated Share Equivalents entitled to vote
on any matter presented for a vote by the stockholders and who
provides timely instructions to the Trustee hereunder shall also
be considered to have voted, as a named fiduciary, in proportion
to the vote of such Participant's (or Beneficiary's) Allocated
Shares or Allocated Share Equivalents, a pro rata portion of the
votes attributable to the aggregate number of (i) any Allocated
Shares or Allocated Share Equivalents as to which voting
instructions have not been timely received from Participants (or
Beneficiaries), and (ii) any other Shares not allocated to
Participants' (or Beneficiaries') Accounts. Such pro rata
portion shall be equal to the aggregate number of votes
attributable to Shares or Share Equivalents described in clauses
(i)-(ii) of the preceding sentence multiplied by a fraction, the
numerator of which is the number of votes attributable to
Allocated Shares or Allocated Share Equivalents for such
Participant (or Beneficiary) and the denominator of which is the
total number of votes attributable to Allocated Shares or
Allocated Share Equivalents of all Participants (and
Beneficiaries) who have provided timely instructions to the
Trustee under this Section 9.15.
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide voting instructions to the Trustee at least three
business days before the shareholders' meeting. Voting
instructions from individual Participants (or Beneficiaries)
shall be held by the Trustee in strictest confidence and neither
the name of, nor the voting instructions given by, any individual
Participant (or Beneficiary) who chooses to give voting
instructions shall be divulged by the Trustee to any of the
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Employing Companies or to any director, officer or employee
thereof, or to the Committee; provided, however, that to the
extent necessary for the operation of the Plan, such instructions
may be relayed by the Trustee to an independent recordkeeper,
auditor or other person providing services to the Plan if such
person agrees not to divulge such directions to any other person,
including employees, officers and directors of the Company or its
affiliates.
9.16. Tendering of Shares and Rights. (a) Each Participant
(or, if deceased, the Participant's Beneficiary), as a named
fiduciary within the meaning of Section 403(a)(1) of ERISA, shall
be entitled, to the extent of full and fractional Allocated
Shares or Allocated Share Equivalents credited to the
Participant's (or Beneficiary's) Account in the Plan, as shown on
the records of the Plan as of the most recent valuation date for
which information is available, to direct the Trustee in writing
as to the manner in which to respond to a tender or exchange
offer, including but not limited to a tender or exchange offer
within the meaning of the Securities Exchange Act of 1934, as
amended, with respect to Shares, related rights, or both, and the
Trustee shall respond in accordance with the instructions so
received. The Committee shall utilize its best efforts to timely
distribute or cause to be distributed to each Participant (or
Beneficiary) such information as will be distributed to
shareholders of the Company in connection with any such tender or
exchange offer, together with a form requesting confidential
instructions on whether or not such Shares or rights will be
tendered or exchanged.
(b) Each Participant (or Beneficiary) who has
Allocated Shares or Allocated Share Equivalents shall also be
considered to have directed the Trustee, as a named fiduciary, in
proportion to the direction given or deemed to have been given
with respect to such Participant's (or Beneficiary's) Allocated
Shares or Allocated Share Equivalents, as to the sale, exchange
or transfer of a pro rata portion of the aggregate number of any
Shares that have not been allocated to any Participant's (or
Beneficiary's) Accounts. Such pro rata portion shall be equal to
the Shares described in the preceding sentence multiplied by a
fraction, the numerator of which is the number of Allocated
Shares or Allocated Share Equivalents of such Participant (or
Beneficiary) and the denominator of which is the total number of
Allocated Shares or Allocated Share Equivalents of all
Participants (or Beneficiaries).
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide instructions to the Trustee by the date established
by the Trustee and calculated to provide sufficient time to
compile instructions and a timely response to the tender or
exchange offer. If the Trustee shall not receive timely
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instructions from a Participant (or Beneficiary) as to the manner
in which to respond to such a tender or exchange offer, the
Participant (or Beneficiary) shall be deemed to have directed the
Trustee not to tender or exchange such Participant's (or
Beneficiary's) Shares and the Trustee shall not tender or
exchange such Shares with respect to which such Participant (or
Beneficiary) has the right of direction. The instructions
received by the Trustee from individual Participants shall be
held in the strictest confidence and neither the name of, nor the
instructions given by, any individual Participant (or
Beneficiary) who chooses to give instructions shall be divulged
by the Trustee to any of the Employing Companies or to any
director, officer or employee thereof, or to the Committee;
provided, however, that to the extent necessary for the operation
of the Plan, such instructions may be relayed by the Trustee to
an independent recordkeeper, auditor or other person providing
services to the Plan if such person agrees not to divulge such
directions to any other person, including employees, officers and
directors of the Company or its affiliates.
9.17. Plan Mergers. In the event that this Plan is a party
to a merger with or accepts a transfer of assets from any other
qualified employee benefit plan, the Committee shall be
authorized to waive any of the investment restrictions of Section
9.1, 9.2 or 9.5 with respect to existing balances in any employee
account which is transferred to this Plan in connection with such
merger, if in the Committee's absolute discretion such waiver is
appropriate under the circumstances.
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ARTICLE X
MAINTENANCE AND VALUATION OF ACCOUNTS
10.l. Separate Accounts. The Committee shall establish a
separate Account for each Participant, which shall be a record of
all contributions made by or for such Participant, by source and
type, and all investments thereof, separately accounted for with
respect to each part of such Account and each Investment Fund.
The fact that allocations shall be made and credited to
individual Accounts shall not give the Participant any vested
or other right in or to the assets of the Fund except as
expressly provided by this Plan.
10.2. Company Stock Fund Portion. The number of Shares or
units to be credited to each part of a Participant's Account
which has been invested in the Company Stock Fund shall be
determined as follows:
(a) Such part shall be credited as of the end of
each Processing Period with a number of Shares or units
(including fractional Shares or units to the fourth decimal
place) determined by dividing
(i) the sum of the contributions made
(directly or indirectly through, for example, release of
Unallocated Shares from the ESOP Loan Suspense Account) to such
part for such Participant (regardless of type or source) which
were applied toward the acquisition of Shares or units for that
Processing Period, by
(ii) in the case of Shares, the average
price (including brokerage fees and transfer taxes) of each Share
acquired (regardless of source) by the Trustee for all
Participants for such Processing Period; and in the case of
units, the fair market value of each unit as of the end of the
Processing Period.
As long as the Committee uses Share accounting, the
following shall apply for purposes of (i) and (ii) above,
(iii) the price of Shares acquired with
earnings received on any contributions (other than contributions
used to acquire Unallocated Shares) before such contributions are
allocated to the Accounts of Participants (including dividends
received on Shares acquired with such contributions and such
earnings and the value of Dividend Replacement Shares described
in Section 8.6) shall be applied to compute the average price per
Share,
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(iv) the Shares so acquired with such
earnings shall be credited to the Accounts of the Participants
(and parts thereof) in accordance with (i) and (ii) above,
(v) in the case of a special transaction
relating to a cash tender offer, the average price (including
brokerage fees and transfer taxes) of each Share acquired by the
Trustee (regardless of source) with the actual proceeds of such
tender transaction shall be separately computed (with the result
that there be a separate average price at which Shares are
recredited to the Accounts of affected Participants), and
(vi) the Shares acquired through release of
Unallocated Shares shall be deemed to have been acquired at the
Closing Price on the last trading day prior to the date of
release or such other date as may be determined by the Committee
for this purpose.
In any instance in which the amount applied to acquire
Shares for any Processing Period is less than the total amount
contributed to the Company Stock Fund for such Processing Period
from all sources, the number of Shares to be credited to the
Account of a Participant pursuant to this subsection shall be
that number of Shares (including fractional Shares) determined by
multiplying the total number of Shares acquired for such
Processing Period by the following fraction: (A) the numerator
is the total contributions from all sources for such Participant
for such Processing Period which were allocated to the Company
Stock Fund, and (B) the denominator is the total contributions
from all sources for all Participants for such Processing Period
which were allocated to the Company Stock Fund. If necessary,
such number of Shares shall be allocated to the various parts of
such Participant's Account in proportion to the contributions
allocated thereto for such Processing Period which were intended
for investment in Shares.
(b) Such part shall be debited as of the end of each
Processing Period with the number of Shares or units distributed
or sold from the part as of the end of such Processing Period
(even though the distribution or sale might not be completed
until some subsequent date), except that, as long as the
Committee uses Share accounting, in the case of Shares
distributed in kind the Participant shall be entitled to the
amount of any dividend or other distribution on any security in
the Participant's Account which first trades "ex-dividend" or
"ex-distribution" after the debit date but before the date on
which the distribution is actually made. If and when the
Committee changes from Share accounting to unit accounting with
respect to the Company Stock Fund, dividends and other cash
distributions received on Allocated Shares shall be applied to
increase the value of Company Stock Fund units.
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(c) Except as provided in Section 8.6, dividends and
other cash distributions received on Allocated Shares (other than
Shares distributed in kind after the date on which such Shares
were first traded "ex-dividend" or "ex-distribution") shall be
reinvested in the Company Stock Fund. As long as the Committee
uses Share accounting for the Company Stock Fund, the appropriate
part of each Participant's Account shall be credited as of the
end of each Processing Period with a proportionate number of the
Shares (including fractional Shares to the fourth decimal place)
acquired for such Processing Period out of such dividends and
other cash distributions (other than Shares, acquired with
earnings, which are to be allocated pursuant to subsection (a)
above), including Dividend Replacement Shares described in
Section 8.6, based on the number of Shares in such part of a
Participant's Account as of the end of the previous Processing
Period, after the allocations under subsections (a) and (b) above
for such previous Processing Period. Dividends and other cash
distributions received on Shares distributed in kind after the
date on which such Shares were first traded "ex-dividend" or
"ex-distribution" shall not be reinvested in Shares, but shall be
distributed in cash to the distributee of the Shares on which
they were received. If and when the Committee changes from Share
accounting to unit accounting with respect to the Company Stock
Fund, dividends and other cash distributions received on
Allocated Shares may, in the Committee's discretion on a uniform
and consistent basis, be applied to increase the value of Company
Stock Fund units.
10.3. Other Investment Fund Portions. The Committee may
adopt any method of accounting it believes appropriate (unit,
dollar or otherwise) for each of the other Investment Funds. As
of the end of each Processing Period, there shall be credited to
each Participant's Account additional units or interests, as
appropriate, of each Investment Fund in which the Participant's
Account is invested, as determined by dividing the contributions
to each such Investment Fund for such Processing Period by the
value of a unit or interest therein as of the end of the prior or
current Processing Period as determined by the Committee on a
uniform and consistent basis. In making valuations of the
Investment Funds, the Trustee shall be entitled to accept the
most recent valuations received from their managers.
10.4. Transfers Between Funds. All transfers of
investments between Investment Funds to comply with a
Participant's investment direction or to comply with Section 12.8
shall be deemed a sale of the assets which must be disposed of,
and a purchase of the assets which must be purchased, to effect
such transfer. As long as the Committee uses Share accounting
for the Company Stock Fund, in the case of a deemed sale or
purchase of Shares, such Shares shall be valued at the Mean Price
at the end of the Processing Period for which such deemed sale or
purchase occurs. In the case of a sale or purchase of interests
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in the Equity Index Fund, Short-Term Fixed Income Fund, Medium-
Term Fixed Income Fund, Indexed Balanced Fund, Managed Balanced
Fund, or the Company Stock Fund (if the Committee adopts unit
accounting for the Company Stock Fund), such interests shall be
valued at the end of the Processing Period for which such deemed
sale or purchase occurs.
10.5. Valuation of the Fund. As soon as practicable after
the end of each Processing Period the Trustee shall determine, in
accordance with generally accepted valuation methods and
practices, the fair market value of the assets then constituting
the Fund (giving effect to income, expenses and realized and
unrealized gains and losses experienced during such Processing
Period), separately valuing each Investment Fund, as of the end
of such Processing Period (such determination being called a
"valuation"), and shall separately adjust the value of each
Investment Fund's portion of all existing Accounts in the ratio
that the balance of each such portion of each such Account bears
to the total of the combined balances of such portions of all
Accounts. In making its valuations of the Fund, the Trustee
shall have the absolute right to rely on the valuations of units
of participation in any Investment Fund, or the underlying
investments of any Investment Fund, furnished by the Investment
Fund's manager.
10.6. Effect of Valuations. The Trustee's valuations of
the Fund or any portion thereof in accordance with the foregoing,
and its determination of the value of the Participants' Accounts
based thereon, shall be conclusive and binding upon the Company,
all other Participating Employers, the Committee, and all
Participants and their respective Beneficiaries.
10.7. No Liability for Fluctuations in Value. The benefits
provided by this Plan shall be payable solely from the Fund.
Each Participant and all persons who may derive rights under this
Plan through or from a Participant are hereby charged with actual
notice that all Accounts will increase or decrease in value from
time to time as the assets of the Fund fluctuate in value. The
fact that a particular amount was credited to a Participant's
Account at some time is no assurance that such amount will
ultimately be distributable hereunder and neither the Company,
any Participating Employer, the Committee, the Trustee, nor any
fund manager, guarantees in any way that the amount ultimately
distributable to or on behalf of any Participant will be equal to
any amount at any time credited to such Participant's Account.
Each Participant, by electing to participate in this Plan,
assumes the risk of possible declines in the market value of the
Participant's Account.
10.8. Adjustments to Accounts. If an adjustment to any
Participant's Account is required to correct any error (such as
an incorrect payroll deduction or an incorrect allocation of any
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contribution), or for any other reason (such as a delay in the
start of payroll deductions), such adjustment shall be made as
soon as administratively feasible after the Committee first
learns of the circumstances which require adjustment. Any such
adjustment shall be made in accordance with the Plan characteris-
tics (including, but not limited to, the price of Shares and
units) in effect during the Processing Period in which the
adjustment is posted to the Participant's Account, except that
adjustments of Company Matching Contributions shall be at the
rate(s) in effect during the Processing Period(s) in which the
error occurred. No adjustment shall be made for any interest,
dividend or other gain or loss not realized because of a delay in
contributions.
Under extraordinary circumstances as determined by the
Committee in its absolute discretion, error adjustments may be
made based on Plan characteristics in effect during the
Processing Period(s) in which the error(s) occurred or on such
other terms as the Committee shall determine. In exercising its
discretion under this paragraph, the Committee shall consider
such circumstances as it shall deem appropriate, including but
not limited to (a) the nature of the error, (b) the ability of
the Participant reasonably to detect the error, and (c) the time
elapsed between discovery of the error and the reporting of same.
All necessitated Participant make-up contributions shall be
on an after-tax basis and shall be made by way of cashiers check
or money order. In no event shall adjustments be made for any
period exceeding twelve (12) months prior to the date the
Participant notifies a Plan representative of the error.
10.9. Ordering of Distributions. A distribution on
termination of employment shall take precedence over any other
distribution or withdrawal which (but for this provision) would
otherwise be made from the Account of a Participant as of the
distribution date.
10.10. Unallocated Accounts. The Trustee shall establish
and maintain in the Trust the following accounts for purposes of
holding and investing amounts not allocated to the individual
accounts of Participants:
(a) An account to be designated the "ESOP Loan
Suspense Account" to hold Unallocated Shares acquired with the
proceeds of an ESOP Loan until such time as they are released and
allocated to Participants' Accounts in accordance with Section
8.4. If so directed by the Committee, the ESOP Loan Suspense
Account may also hold contributions, dividends and related
accumulations under the ESOP for application to payment of
principal and interest on an ESOP loan in lieu of maintaining an
ESOP Loan Payment Accumulation Account as described in (b) below.
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(b) An account to be designated the "ESOP Loan
Payment Accumulation Account" to hold and accumulate such funds
as are transferred thereto pursuant to Sections 8.4 and 8.7 to
make future ESOP Loan amortization payments or for use as
provided in Section 8.7. Pending application of funds to ESOP
Loan payment or other Plan purposes, the ESOP Loan Payment
Accumulation Account shall be invested in the Short-Term Fixed
Income Fund or in a separate but similar fund invested in the
manner described in Section 9.8.
10.11. Special Valuation of Company Stock in Extraordinary
Circumstances. Notwithstanding anything in this Plan to the
contrary, if the Committee determines that the volume of
distributions, withdrawals, transfers between Investment Funds,
or Participant loans as of the last day of a Processing Period
pursuant to other provisions of the Plan requires sales or
purchases of Shares at levels greater than can be accommodated in
an orderly fashion in a single day on the New York Stock
Exchange, the sales or purchases shall be spread over a period of
days and the price shall be established at the end of the period
in accordance with procedures adopted by the Committee from time
to time.
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ARTICLE XI
VESTING
11.1. Amounts Contributed by the Participant. The portions
of a Participant's Account which are attributable to the
Participant's Personal Contributions, with all earnings thereon,
shall be fully vested and non-forfeitable at all times.
11.2. Company Matching and Supplemental Contributions. The
portion of a Participant's Account which is attributable to
Company Matching and Supplemental Contributions for any Plan Year
(including earnings thereon) shall vest and become non-
forfeitable when such Participant completes two years of Vesting
Service.
11.3. Vesting Rules. (a) Vesting Service shall be that
period of employment with the Employing Companies commencing on
an individual's Employment Commencement Date and ending on the
individual's Severance from Service Date. In the event that
non-successive periods of Vesting Service are restored pursuant
to this Section, such periods shall be aggregated into completed
twelfths of a year on the basis that thirty days of service equal
one twelfth of a year.
(b) The Employment Commencement Date shall be the
date on which an individual first performs an Hour of Service for
an Employing Company.
(c) The Severance from Service Date of an individual
shall be the earlier of the date the individual quits, is
discharged, retires or dies, or the first anniversary of the date
the individual is absent from service for any reason, unless
otherwise provided in subsection (d) or (h) of this Section.
(d) The Vesting Service of an individual shall not
be considered severed by an Absence from Service, and, except as
otherwise provided above, shall be deemed to include such Absence
from Service. An Absence from Service means one of the
following:
(i) Any approved non-disability leave of
absence not exceeding two years in length; provided, however,
that Service shall not include any portion of the leave of
absence which is in excess of twelve (12) months unless the
individual returns to regular employment within thirty (30) days
after expiration of the leave of absence. If the individual
fails to return within such period, such individual's Severance
from Service Date shall be the earlier of the expiration of the
individual's leave of absence or the first anniversary of the
date on which the individual's leave of absence began.
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(ii) Absence for any period while in the
service of the government of the United States under
circumstances such that the individual has re-employment rights
granted by Federal law, provided a written application for re-
employment is filed within the period after discharge from such
government service during which such re-employment rights are
guaranteed, failing which such individual's Severance from
Service Date shall be the first day of the period during which
the individual no longer performs services for the Employing
Companies because of such governmental service.
(iii) A leave of absence because of physical
or mental disability up to a maximum of twenty-four (24) months.
(iv) Lay-off of up to twelve (12) months.
(e) Period of Severance shall mean the period of
time commencing on an individual's Severance from Service Date
and ending on the date on which the individual again performs an
Hour of Service.
(f) If an individual has a Severance from Service by
reason of a quit, discharge or retirement and again performs an
Hour of Service for an Employing Company within twelve months of
the Severance from Service Date, such Period of Severance shall
be disregarded and shall constitute Vesting Service.
(g) If an individual has a Severance from Service by
reason of a quit, discharge, or retirement during an absence of
twelve months or less for any reason other than a quit, discharge
or retirement, and again performs an Hour of Service with an
Employing Company within twelve months of the date on which the
individual was first absent from Service, such Period of
Severance shall be disregarded and shall constitute Vesting
Service.
(h) The Severance from Service Date of an individual
who is absent from service beyond the first anniversary of the
first date of absence by reason of a maternity or paternity
absence described in Section 2.28(b)(viii) is the second
anniversary of the first date of absence. The period between the
first and second anniversaries of the first date of absence is
not a Period of Severance nor a period of Vesting Service unless
otherwise provided in subsection (d).
(i) If a Participant has a Period of Severance and
is thereafter re-employed, all years of Vesting Service prior to
the Period of Severance shall be taken into account in
determining the Participant's vested interest in the Company
Matching and Supplemental Contributions portion of the
Participant's Account, as accumulated prior to such severance.
The foregoing sentence shall not apply to any Participant whose
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entire account balance is not vested on the Participant's
Severance from Service Date and who incurs a Period of Severance
exceeding five years. During the period when any unvested amount
is being held pending a determination of whether a Period of
Severance exceeding five years occurs, the Participant's interest
in such amount shall be immediately terminated subject to
reinstatement if the Participant is re-employed by an Employing
Company prior to incurring a five-year Period of Severance. If
the amount does not subsequently vest, it shall be treated as a
forfeiture. Any amount reinstated hereunder shall be the fair
market value of the forfeited amount on the date of forfeiture,
without any interest or other addition thereto for the period
prior to reinstatement. Forfeitures shall be applied to reduce
the Company's Contributions to this Plan.
(j) A transferred Participant whose participation
has become inactive under Section 3.5 and who continues to be
employed by an Employing Company without incurring a Period of
Severance shall be credited with Vesting Service for so long as
the Participant remains so employed.
11.4. Change in Control of the Company. Notwithstanding
the foregoing provisions of this Article XI, in the event of a
"Change in Control of the Company" (as defined herein), the
nonvested portion of a Participant's Account which is
attributable to Company Matching and Supplemental Contributions
for any Plan Year or part thereof (including earnings thereon)
shall immediately vest and become nonforfeitable. The portion of
the Participant's Account which shall vest and become
nonforfeitable under this Section shall be determined as of the
end of the month during which the Change in Control of the
Company occurs. For purposes hereof, a "Change in Control of the
Company" shall occur if any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Act")) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act) of more than
fifty percent (50%) of the then outstanding voting stock of the
Company. This Section shall not apply to any Participant who is
not employed by an Employing Company at the time the Change in
Control of the Company occurs.
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ARTICLE XII
DISTRIBUTIONS
12.1. Distributions Upon Termination of Employment. A
Participant who ceases to be an Employee of any Employing Company
because of death, total and presumably permanent disability,
entry into active duty with any branch of the military services
of the United States, or who has been laid off for a period
exceeding twelve consecutive months, or who has attained the age
of 60 years at the time the Participant ceases to be an Employee,
or who has completed two years of Vesting Service or is otherwise
vested under the provisions of Article XI, shall receive (or if
not then living, the Participant's Beneficiary shall receive), at
the time provided in Section 12.2 hereof, in a single
distribution, the Participant's entire Account. A cessation of
employment with all Employing Companies for any reason or at any
time described in the preceding sentence is referred to as a
"vested termination." A Participant who ceases to be an Employee
of any Employing Company under any other circumstances shall
receive (or if the Participant is not living at the time of
distribution the Participant's Beneficiary shall receive), at the
time provided in Section 12.2 hereof, in a single distribution,
the portions of the Participant's Account attributable to
Personal Contributions. Such Participant shall forfeit the
portion of his Account which is attributable to Company Matching
and Supplemental Contributions in accordance with Section
11.3(i).
12.2. Time and Method of Distribution. (a) Except as
provided otherwise in this Section 12.2, every distribution under
Section 12.1 shall be made as soon as is administratively
feasible after, but as of, the end of the Processing Period which
ends on or after the date on which the Committee learns that an
event requiring distribution has occurred and is advised of the
identity or identities, and location(s) of, the party or parties
entitled to such distribution. In any event payment of such
distribution shall be commenced no later than the 60th day after
the close of the Plan Year in which falls the last to occur of
the following dates:
(i) The date on which the Participant
attains the age of 65 years;
(ii) The tenth anniversary of the year in
which the Participant first became a Participant in this Plan; or
(iii) The date on which the Participant
ceased to be an Employee of any Employing Company.
Notwithstanding anything to the contrary herein,
distributions under this Plan shall commence not later than
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April 1 following the calendar year in which the Participant
attains age 70-1/2.
Whole numbers of Shares which are to be distributed shall be
distributed in kind (subject, however, to transfer taxes), except
that amounts required to be distributed under the preceding
paragraph after age 70-1/2 may be distributed in cash at the
Participant's election. Subject to Section 12.8, the value of
all other interests shall be distributed in cash. Interests in
the Investment Funds shall be valued as of the end of the
Processing Period as of which a distribution is to be made;
provided that, with respect to interests in the Company Stock
Fund which are to be distributed in cash, the value of a
fractional Share shall be based on the value of a full Share,
which shall be the Mean Price in the case of Share accounting,
and in the case of unit accounting shall be the Closing Price on
the last business day of the Processing Period or on the next
prior business day as determined by the Committee on a uniform
and consistent basis.
(b) Each Participant (and, in the case of a deceased
Participant, the Participant's beneficiary) entitled to a
distribution hereunder may elect to defer such distribution to
the end of the Plan Year during which the Participant's Account
would otherwise be distributed, so as to participate in the
allocation of any Supplemental Contribution for such Plan Year.
Such Participant shall indicate, in accordance with procedures
promulgated by the Committee, whether the Participant or
Beneficiary elects to defer such distribution or receive it
immediately. If the value of such distribution is less than
$3,500 and if the Participant or Beneficiary fails to elect to
defer such distribution, the Participant or Beneficiary shall be
deemed to have elected immediate distribution.
(c) Notwithstanding any other provision of the Plan,
if a Participant's vested Account balance exceeds $3,500 or has
exceeded $3,500 at the time of any previous distribution to the
Participant, amounts payable to such Participant shall not be
distributed before the Participant attains age 62 without the
consent of the Participant. The Participant's consent to
distribution must be made in accordance with procedures
promulgated by the Committee after the Participant receives a
notice as described in subsection (d) below and must be made
within the 90-day period ending on the last day of the Processing
Period as of which the amount of the distribution is determined
and made.
(d) No less than 30 days and no more than 90 days
before the last day of the Processing Period as of which a
distribution to a Participant is determined and made in
accordance with this Article or Article XIII, the Committee shall
provide to the Participant a notice describing the right to defer
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receipt of the distribution until age 62. Notwithstanding the
preceding sentence, distribution to a Participant may be made
less than 30 days after the notice is provided if (i) the notice
clearly informs the Participant that the Participant has a right
to a period of at least 30 days after receiving the notice to
consider the decision of whether or not to elect a distribution,
and (ii) the Participant affirmatively elects a distribution
after receiving the notice.
(e) Any Participant not consenting to a distribution
hereunder shall become an inactive Participant, but
notwithstanding any provision of this Plan to the contrary, such
Participant shall have only the following rights under this Plan:
(i) the right to receive a distribution of
all (but not less than all) of the vested portion of the
Participant's Account as of the end of any Processing Period
permitted under this Section;
(ii) the right to make changes in the
investments of the Participant's Account in accordance with
Article IX;
(iii) the right to vote and tender Shares or
Allocated Share Equivalents held in the Participant's Account in
accordance with Sections 9.15 and 9.16, respectively;
(iv) the right to change the Participant's
designated Beneficiary or Beneficiaries from time to time in
accordance with Section 16.1;
(v) the right to have Supplemental
Contributions allocated to the Participant's Account for the Plan
Year in which the Participant's termination occurred; and
(vi) any other right required by law to be
given to an inactive Participant with an undistributed vested
account in a defined contribution plan qualified under Section
401(a) of the Code.
(f) The consent to distribution required by
subsection (c) above shall not be applicable in the event of a
termination distribution arising from the death of a Participant.
In addition, if an inactive Participant dies, the distribution of
such Participant's Account shall be made as soon as
administratively feasible after the Committee learns of such
event.
(g) Nothing in this Section shall be construed to
increase the vested portion of any Participant's Account whose
termination was not a "vested termination" within the meaning of
Section 12.1. An Account held hereunder for later distribution
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shall, subject to the inactive Participant's right to direct a
change in investments as herein set forth, remain invested in the
manner in effect on the Participant's termination date, and shall
continue to fluctuate in value as the respective Investment Funds
in which such Account is invested so fluctuate.
12.3. Eligible Rollover Distributions. (a) Effective for
distributions made on or after January 1, 1993, a Participant 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
Participant (a "direct rollover"). In addition, the
Participant's surviving spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, may elect a direct
rollover.
(b) An eligible rollover distribution is any
distribution of all or any portion of a Participant's Account,
except that an eligible rollover distribution does not include
any distribution required under Section 401(a)(9) of the Code and
the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to Shares).
(c) 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 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.
12.4. Determination of Disability. For purposes of
determining whether a Participant has had a Vested Termination
because of total and presumably permanent disability, a
Participant shall be deemed to be totally and presumably
permanently disabled if the Participant is unable to perform the
duties of such Participant's position as an Employee because of a
physical or mental impairment which can be expected to result in
death or to be of long continued or indefinite duration, as
conclusively determined by a competent doctor selected by the
Participant and approved by the Committee or its delegate, who
shall certify the result of the examination of the Participant to
the Committee.
12.5. Reporting Persons. Any Participant who, by virtue of
the Participant's position as an officer of the Company, is
subject to the reporting requirements of Section 16(a) of the
Securities Exchange Act of 1934 ("Reporting Person") shall have
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the right to elect to receive a cash distribution in an amount
equal to the fair market value of the Shares which the
Participant would otherwise be entitled to receive under this
Article or Article XIII, in lieu of any distribution of Shares.
In such case, the fair market value shall be the Mean Price in
the case of Share accounting, and the Closing Price in the case
of unit accounting, at the end of the Processing Period as of
which a distribution is made. Any notice of a cash election of
amounts distributable pursuant to this Article or Article XIII
shall be valid only if such Reporting Person files a written
notice of such cash election in the time and manner prescribed by
the Committee. Any election under this Section 12.5 must be
made, if at all, with respect to all Shares available for
distribution, and once made may not be revoked.
12.6. Transfer of Accounts. Once per year or at such other
times as it shall determine, the Committee shall arrange for the
transfer of the Accounts of individuals who are no longer
eligible to participate in this Plan and who are currently
eligible and have an Account in a Related Plan to such Related
Plan to be combined with the Participant's active Account under
such Related Plan. After such transfer is accomplished, this
Plan shall have no further liability to the Participant with
respect to the transferred Account.
12.7. Early Distribution under Domestic Relations Order.
If the Committee shall receive an order that is finally
determined to be a qualified domestic relations order within the
meaning of Section 414(p) of the Code, and if such order shall so
permit, the Committee may authorize the early distribution under
the provisions of this Article XII of any amount distributable to
the alternate payee under the order.
12.8. Absolute Right to Receive Stock Distribution.
Notwithstanding any provision of this Plan to the contrary,
whenever it is specified that a distribution will be made in
cash, the Participant shall nonetheless have the right to elect
to have Shares purchased and distributed to him. If such election
is made, the Participant's non-Share investments shall be deemed
transferred, pursuant to Section 10.4, to the Company Stock Fund
and thereafter distributed. Under no circumstances will a
fractional Share be distributed.
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ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1. Elective Right to Make Certain Withdrawals. (a) Any
Participant may withdraw any part of the Participant's Account
which is attributable to
(i) After-Tax Unmatched Contributions,
(ii) After-Tax Matched Contributions which
have been in the Participant's Account for at least one full Plan
Year after the contributions were made, and
(iii) Company Matching Contributions
attributable to Personal After-Tax Contributions made before
April 1, 1994, which have been in the Participant's Account for
at least two full Plan Years after the contributions were made;
provided that, if any part of a Participant's Account described
in this paragraph (iii) is withdrawn, the Participant shall not
be permitted to make any Personal Contributions to the Plan or to
have any Company Matching Contributions credited to the
Participant's Account for a period of six months.
Any withdrawals under this subsection (a) shall be deemed
made in the order listed above.
(b) In addition to the rights set forth in
subsection (a), any Participant may withdraw any part of the
Participant's Account which is attributable to
(i) Company Matching Contributions
attributable to Personal Before-Tax Contributions made before
April 1, 1994, which have been in the Participant's Account for
at least two full Plan Years after the contributions were made,
and
(ii) After a Participant has attained age
59-1/2
(A) Before-Tax Matched Contributions which
have been in the Participant's Account for at least one full
Plan Year after the contributions were made,
(B) Before-Tax Unmatched Contributions, and
(C) Company Matching Contributions which
have been in the Participant's Account for at least one full
Plan Year after the contributions were made.
Withdrawals under this subsection (b) shall be deemed made
in the order listed above.
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(c) Subject to Section 12.8, amounts withdrawn under
this Section shall be distributed in cash. Amounts which are to
be distributed in cash shall be expressed in whole dollars unless
the entire amount of the part of the Account subject to
withdrawal is being withdrawn. Interests in the Investment Funds
which are to be distributed shall be valued as of the end of the
Processing Period as of which a distribution is to be made;
provided that, if Share accounting is used, the value of any full
or fractional Shares which are to be distributed in cash shall be
based on the Mean Price at the end of the Processing Period as of
which a distribution is determined and made.
(d) A Participant who has attained age 55 and for
whom the diversification requirements of Section 401(a)(28) of
the Code cannot be satisfied for any Plan Year by a change of
investments under Article IX shall be permitted to withdraw so
much of the vested Company Matching and Supplemental Contribution
portions of the Participant's Account as may be necessary to
satisfy such diversification requirements. To request a
withdrawal under this Section, a Participant must deliver the
appropriate withdrawal form, properly completed, on or before the
90th day following the close of such Plan Year. Withdrawals
under this subsection shall be distributed within 180 days
following the end of the Plan Year to which the withdrawal
relates.
13.2. Protected Withdrawal Rights. Any Participant with an
Account balance as of March 31, 1994 shall be entitled to any
elective distribution or withdrawal right under the Plan as in
effect on such date with respect to such Account balance;
provided that any limitations or suspension penalties on such
elective distribution or withdrawal rights in effect on March 31,
1994 may be reduced or eliminated in accordance with rules
promulgated by the Committee. For any period of suspension after
March 31, 1994, the Participant will not be permitted to make any
Personal Contributions to the Plan.
13.3. Withdrawal Procedure. A Participant may request a
withdrawal under this Article XIII by delivering such request to
the Employee Stock Plans Department in accordance with procedures
prescribed by the Committee. Withdrawals shall be effective as
of the last day of a Processing Period and shall be distributed
as soon as administratively feasible after the end of such
Processing Period. For purposes of determining the amount to be
withdrawn, the value of the withdrawable portion of the Account
as of the effective date of the withdrawal shall govern. Except
as may be required for certain withdrawals made pursuant to
Section 13.2, withdrawals shall be distributed in Shares or cash
at the Participant's election.
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13.4. Frequency of Withdrawals. No more than two
withdrawals may be made under this Article in any period of
twelve consecutive months.
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ARTICLE XIV
HARDSHIP WITHDRAWALS
l4.l. Eligibility and Procedure. This Article is
applicable only to the portions of a Participant's vested Account
which cannot be withdrawn under Article XIII excluding any
earnings on Before-Tax Contributions accumulated after
December 31, 1988.
(a) Any Participant who has suffered a hardship may
withdraw all or any part of such portions of the Participant's
Account upon application to the Committee and demonstration to
the Committee's satisfaction that a hardship exists.
(b) For purposes of this Article, a distribution
will be on account of hardship if the distribution is necessary
in light of immediate and heavy financial needs of the
Participant. A distribution based upon financial hardship cannot
exceed the amount required to meet the immediate financial need
created by the hardship and not reasonably available from other
resources of the Participant. The determination of the existence
of financial hardship and the amount required to be distributed
to meet the need created by the hardship shall be made in
accordance with uniform and non-discriminatory rules promulgated
by the Committee. The Committee shall require exhaustion of all
other resources reasonably available to the Participant,
including loans and distributions from the Plan, before granting
an application hereunder. A loan shall not be required if
repayment thereof would constitute a hardship.
(c) Subject to Section 12.8 the amount of a
withdrawal under this Article shall be delivered to the
Participant in cash from investments of the Participant's Account
other than Shares except as (and only to the extent) necessary to
realize sufficient cash to fund the withdrawal.
(d) In administering this Article the Committee
shall be entitled to act in reliance on any applicable U. S.
Treasury Regulations.
(e) No more than one withdrawal under this Article,
may be made in any consecutive period of twelve months.
(f) No withdrawal will be permitted which will
reduce the amount of a Participant's Account which is then held
as collateral to secure a loan under Article XV.
(g) If a Participant shall have a hardship
withdrawal approved, the Participant shall be suspended from Plan
participation for twelve months from the date of distribution.
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Such suspension shall run concurrently with any other suspension
then in effect.
(h) Withdrawals under this Article shall be
distributed as soon as administratively feasible after the end of
the Processing Period during which the Committee approves the
Participant's application.
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ARTICLE XV
LOANS TO PARTICIPANTS
l5.l. Procedure and Terms. A Participant may apply to the
Committee for a loan from the Participant's Account and the
Committee shall grant such a loan, but only on the following
conditions:
(a) Maximum loan amounts are the lesser of (i)
$50,000 less the highest outstanding loan balance under the Plan
during the one-year period ending on the day before the loan is
made, or (ii) 50% of the vested portion of the Account. In
computing the maximum amount of a loan, any Company Matching or
Supplemental Contributions which have not been in the Plan for
one full Plan Year shall not be considered.
(b) A Participant may have no more than two loans
outstanding at any time.
(c) The minimum amount of any loan shall be $1,000.
(d) The loan shall be evidenced by a note on a form
approved by the Committee and shall bear interest at a rate of
one percentage point above the "prime rate" published by Morgan
Guaranty Trust Company of New York at the close of business on
the last business day of the prior calendar quarter, as
determined by the Committee for each calendar quarter. The loan
shall be secured by a portion of the Participant's Account
equivalent to the amount of the loan, and shall be repayable in
level installments of principal and interest over a period not to
exceed five years from the date of such loan. Notwithstanding
the foregoing sentence, if the proceeds of a loan are to be used
to acquire a dwelling unit which is to be used, within a
reasonable period of time after the loan is made, as the
principal residence of the Participant, the loan shall be
repayable over such a period, not to exceed ten years, as the
Committee shall determine. The note shall be subject to
prepayment at any time, but only in full, and not in part,
without premium or penalty. Except as the Committee shall
otherwise determine, payments on the note shall be made only by
way of payroll deductions and shall be invested in accordance
with the current method of investment for the Participant's
current Before-Tax Unmatched Contributions. If no Before-Tax
Unmatched Contributions are then being made, the Participant
shall direct how loan payments are to be invested.
(e) In the event a note or any installment
thereunder is not paid when due, the Committee shall give written
notice to the Participant sent to the Participant's last known
address at such time as the Committee shall deem appropriate.
After the Participant shall be 90 days in arrears on loan
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payments, the Committee shall determine the loan to be in
default. The Trustee shall there-after have the right to take
recourse against the collateral securing the same, with full
right to exercise all remedies granted a secured party under the
applicable laws (including the Uniform Commercial Code) as in
effect in the various jurisdiction(s) in which the collateral may
be located; provided: (i) in no event shall the Trustee file a
claim under any bankruptcy proceeding for the debt represented by
the note; (ii) if an event occurs whereby the Participant would
receive a distribution of the Participant's Account balance, such
distribution shall consist of the defaulted note and the
remainder of the assets of the Account; and (iii) in no event
shall the defaulted note be distributed until the Participant
would be eligible to elect to receive distribution of the
Participant's Account balance pursuant to Section 12.1, even
though a taxable distribution may be deemed to have occurred at
an earlier time under applicable provisions of the Code.
(f) Any such loan shall be treated as a segregated
investment for the appropriate portion of the Account of the
borrowing Participant, the interest thereon shall be credited
only to such portion of the Participant's Account (and not to the
general earnings of the Fund), and for the purposes of allocating
income of the Fund or any other appreciation or depreciation of
the Fund for any Plan Year the Account of such borrowing
Participant shall be treated as not including the unpaid amount
of such borrowing (but for all other purposes of this Plan,
including the provisions dealing with the allocation of
contributions and the valuation of the corpus of the Trust, the
amount of such borrowing shall continue to be treated as part of
the borrowing Participant's Account, having a fair market value
exactly equal to the unpaid principal balance thereof at any time
when it is necessary to determine its fair market value).
(g) An application for a loan must be submitted and
shall be processed and disbursed in accordance with procedures
established by the Committee.
(h) The loan will be made in cash, from the
investments of the Participant's Account other than Shares except
as (and only to the extent) necessary to realize sufficient cash
to fund the loan.
(i) If a Participant becomes entitled to a
termination distribution before the loan has been repaid in full,
the Trustee will distribute the Participant's note, endorsed
without recourse, as part of the resulting distribution of the
Participant's Account unless the loan is repaid at that time or
the termination distribution is deferred as provided in Section
12.2.
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(j) If so determined by the Committee, a Participant
requesting a loan shall pay all out-of-pocket administrative and
filing fees incurred in processing the Participant's loan.
(k) A waiting period of two full calendar months is
required after a loan is repaid in any manner before a new loan
may be effective.
(l) The Committee shall have the authority, but
shall not be required, to undertake such investigation of a
Participant's employment or creditworthiness as the Committee
shall determine from time to time.
(m) Any Participant with respect to whom a loan has
been determined by the Committee to be in default shall not be
permitted to commence another loan of any type until five years
have elapsed from the end of the month in which the loan was
determined to be in default.
(n) Other than to determine whether an extended term
is available under Section 15.1(d), the Committee shall not take
into consideration the purpose for which the Participant intends
to use the proceeds.
(o) If a Participant directs that payroll deductions
for loan payments are to be discontinued prior to the full
repayment of a loan, the Participant shall be prohibited from
making another loan from the Plan for ten years from the date of
such direction, and shall be suspended from participation for
five years from the date of such direction.
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ARTICLE XVI
DESIGNATION OF A BENEFICIARY
16.1. Procedure and Effect. (a) Except as otherwise
provided in this Article or by law, any amount distributable
under this Plan as a result of or following the death of a
Participant shall be applied only for the benefit of the
Beneficiary or Beneficiaries designated pursuant to this Article
by the Participant on whose behalf the amount payable was
accumulated. Each Participant shall specifically designate, by
name, on forms provided by the Committee, the Beneficiary(ies) to
whom such payment shall be made. Such designation may be made at
any time satisfactory to the Committee. Except as provided in
subsection (b) hereof, a designation of a Beneficiary may be
changed or revoked without the consent of the Beneficiary at any
time by filing a new Beneficiary designation form with the
Committee. The filing of a new form shall automatically revoke
any forms previously filed with the Committee. A Beneficiary
designation form not properly filed with the Committee prior to
the death of the Participant shall have no validity under the
Plan.
Any such designation shall be contingent on the designated
Beneficiary surviving the Participant, and if the designated
Beneficiary survives the Participant but dies before receiving
the entire amount distributable to the Beneficiary hereunder, the
amount which would otherwise have been so distributed shall be
paid to the estate of the deceased Beneficiary unless a contrary
direction was made by the Participant, in which case such
direction shall control. More than one Beneficiary, and
alternative or contingent Beneficiaries, may be designated, in
which case the Participant shall specify the shares, terms and
conditions upon which amounts shall be paid to such multiple or
alternative or contingent Beneficiaries, all of which must be
satisfactory to the Committee. All payments and distributions to
a Beneficiary or Beneficiaries shall always be of the total
amount of the Participant's Account which is then subject to
distribution, and no such payments or distributions shall be made
in installments or as an annuity.
(b) In any situation where a married Participant
wishes to designate a Beneficiary other than the Participant's
spouse to receive benefits upon the Participant's death, such a
designation shall not be a qualified Beneficiary designation, and
shall not be recognized under this Plan, unless it is accompanied
by one of the following:
(i) a written consent, in form satisfactory
to the Committee, whereby the spouse to whom the Participant is
married at the time of the Participant's death consents to the
designation of the Beneficiary and acknowledges the effect of the
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designation, and which is witnessed by either a notary public, a
member of the Committee or other plan representative; or
(ii) proof satisfactory to the Committee
that such a written consent cannot be obtained because the spouse
cannot be located or such other circumstances as U.S. Treasury
Regulations may prescribe.
Spousal consent to the designation of a non-spouse
Beneficiary shall not be valid unless such consent is executed
and filed with the Committee prior to the Participant's death.
(c) If (i) no such designation is on file with the
Committee at the time of the Participant's death, or (ii) if a
designation on file is not valid, based upon the Participant's
marital status on the Participant's date of death, the
Participant's surviving spouse (if the Participant is married at
the time of the Participant's death) or the Participant's estate
(if it is established to the satisfaction of the Committee that
the Participant is not then married) shall be conclusively deemed
to be the Beneficiary designated to receive any amounts
distributable under this Plan. In determining any question
concerning a Participant's beneficiary, the latest designation
filed with the Committee shall control and intervening changes in
circumstances shall be ignored.
By way of example, if a Participant designates the
Participant's spouse as Beneficiary but thereafter is divorced
from such spouse and is not remarried on the Participant's date
of death, such designation shall remain valid unless the
Participant filed a later beneficiary designation form with the
Committee. Further, if a Participant at any time files a
beneficiary designation form which, because of other provisions
of this Plan or applicable federal law, is not effective at the
time it is filed or later becomes ineffective for any period of
time (this could occur, for example, by reason of an intervening
marriage during which the current spouse would automatically be
entitled to benefits under this Article or as otherwise required
by law), and such individual's marital status or other
circumstances change so that, on the date of death such
designation would be effective, such designation shall be
controlling notwithstanding any intervening period of
ineffectiveness.
(d) In addition to the foregoing limitations on a
Participant's right to have this Plan recognize a Beneficiary
designation, a Participant's designation shall automatically be
modified to the extent necessary to comply with the terms of any
Qualified Domestic Relations Order (within the meaning of Section
414(p) of the Code) received by the Plan affecting the
Participant's benefits under this Plan. In interpreting this
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Section, any applicable U.S. Treasury or Department of Labor
Regulations shall be complied with.
(e) If any amount distributable hereunder is payable
to a minor or other person under legal disability, distributions
thereof shall be made in one (or any combination) of the
following ways, as the Committee shall determine in its sole
discretion:
(i) directly to said minor or other person;
(ii) to the legal representatives of said
minor or other person; or
(iii) to some relative of such minor for the
support, welfare or education of such minor.
Neither the Company, any Participating Employer, the
Committee nor the Trustee shall be required to see to the
application of any distribution so made, and the receipt by the
person to whom such distribution is actually made shall fully
discharge the Company, each Participating Employer, the Committee
and the Trustee from any further accountability or responsibility
with respect to the amount so distributed.
(f) The amount payable to the Participant's
Beneficiaries shall be all amounts remaining in the Trust Fund on
the Participant's date of death. If the Participant, prior to
death, had requested any withdrawal or if any type of
distribution had otherwise commenced, and a check or stock
certificate was issued on or prior to the Participant's date of
death, such funds shall remain payable to the Participant, as
opposed to the Participant's Beneficiaries, even if not received
prior to the Participant's death. Any check or stock certificate
issued after the Participant's date of death shall be the
property of the Participant's Beneficiaries determined in
accordance with this Section.
(g) A Participant's Beneficiary designation on file
with the Committee under a Related Plan shall be valid and
binding under this Plan unless and until superseded as provided
in this Article.
16.2. Renunciation of Death Benefit. A Beneficiary of a
Participant entitled to a benefit under this Plan may disclaim
the right to all or any portion of such benefit by filing with
the Committee, a written irrevocable and unqualified refusal to
accept the benefit. Such disclaimer must be filed before payment
to the Beneficiary of any part of the benefit to which the
Beneficiary is otherwise entitled, but no later than nine months
after the death of such a Participant. Any benefit so disclaimed
shall be distributable to the person or persons (and in the
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proportions) to which such benefit would have been distributable
if the disclaiming Beneficiary had predeceased the Participant.
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ARTICLE XVII
LOST DISTRIBUTEES
17.1. Disposition of Accounts Payable to Persons Who Cannot
Be Located. If the Committee is unable to locate any person
entitled to receive a distribution hereunder, or the
estate of such person if he is deceased and if, under this Plan,
his estate is entitled to receive any amount distributable,
within two years after the same becomes distributable, during
which period the Committee shall have made a reasonable search
for such person and/or his estate, the right and interest of such
distributee in and to the amount distributable shall terminate on
the last day of such two-year period, and the amount so
distributable shall be applied to reduce the administrative
expenses of the Plan; provided, however, that if the Participant
or his Beneficiary(ies) or estate should later make a claim for
benefits hereunder or otherwise be located, the amounts so
applied shall be reinstated and used and applied only for the
benefit of such Participant, his Beneficiary(ies) or estate, as
otherwise provided by this Plan.
17.2. Efforts To Locate Distributees. In its search for
any distributee, the Committee (or the Trustee, at the direction
of the Committee) shall mail a notice, postage prepaid, by U.S.
registered or certified mail, return receipt requested and return
postage guaranteed, to the last known address of such distributee
or (if the distributee is not the Participant and if the address
of the distributee is not known or if the notice sent to such
distributee is returned unclaimed or addressee unknown) to such
distributee in care of the last known address of the Participant
for whose benefit the Account to be distributed was accumulated.
Such action shall constitute a reasonable search for such
distributee.
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ARTICLE XVIII
AMENDMENT OR TERMINATION
18.1. Company's Power to Amend or Terminate. (a) The
Company, for itself and for each other Participating Employer,
reserves the absolute right to modify, amend or terminate this
Plan in whole or in part, at any time and from time to time, by
action of (i) the Board; (ii) subject to the limitations stated
in Section 19.3(c), the Committee; or (iii) any officer of the
Company authorized from time to time by the Board. A copy of the
instrument by which any such action is taken shall promptly be
delivered to the Trustee and to the corporate secretary of the
Company. This Plan shall not, however, be modified or amended in
any manner which would
(i) reduce the amount credited to a
Participant's Account unless such reduction is required in order
to prevent the issuance by the Internal Revenue Service of an
adverse determination letter as to the qualified status of the
Plan under Section 401 of the Code, or shall be necessary to
bring the provisions of this Plan into conformity with any
applicable law or regulation so that contributions of the
Participating Employers hereunder and dividend payments shall
be deductible for federal income tax purposes, or so that
interest paid on any ESOP Loan shall be subject to the exclusion
available under Section 133 of the Code, or to satisfy the
prohibited transaction exemption requirements under the Code and
ERISA, or shall be necessary in order to qualify the Trust by
which this Plan is funded as exempt from tax under Section 501 of
the Code, or to continue the qualified status of such Trust; or
(ii) permit any portion of the Fund to be
used for or diverted to purposes other than (A) for the exclusive
benefit of Participants, their Beneficiaries or estates, and (B)
for the administrative expenses of this Plan; or
(iii) cause any part of the Fund to revert
to any of the Employing Companies (except as provided in
paragraph (i) above or in Section 25.1); or
(iv) increase the duties or liabilities of
the Trustee without its consent;
provided, that any modification or amendment which would result
in the loss by the Plan of its qualified status under Section 401
of the Code, or in the loss by the Trust of its tax exempt status
under Section 501 of the Code, shall be retroactively null and
void as if such amendment had never been made.
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(b) All Participating Employers and their Employees,
and all Participants and their Beneficiaries and estates, shall
be bound by any amendment effected by the Company pursuant to
this Section.
18.2. Termination. Every Participating Employer reserves
the right to terminate its participation in this Plan voluntarily
as of any specified current or future date (or, if no date be
specified, as of the date of delivery of the certified copy of
the authorizing resolution to the Trustee as hereinafter
required) by action of its Board of Directors and by delivering a
certified copy of the resolution by which such action is taken to
the Committee and to the Trustee. In addition, the participation
of any Participating Employer in this Plan shall be automatically
terminated upon a dissolution of such Participating Employer (but
not upon a merger, consolidation, reorganization or recapitali-
zation thereof if the surviving corporation therein is a
Subsidiary and is already a Participating Employer or
specifically assumes this Plan and agrees to be bound by the
terms hereof), or upon such Participating Employer being legally
adjudicated a bankrupt, or upon the appointment of a receiver or
trustee in bankruptcy with respect to such Participating
Employer's assets and business if such appointment is not set
aside within 90 days thereafter, or upon the making by such
Participating Employer of a general assignment for the benefit of
creditors, or if such Participating Employer ceases to be a
Subsidiary. Upon a termination of participation as aforesaid, or
in the event of a complete and permanent discontinuance of
contributions to this Plan by a Participating Employer (whether
or not pursuant to action by its Board of Directors and whether
or not, if pursuant to such action, a certified copy of the
authorizing resolution is delivered to the Trustee), no
additional Employees of such Participating Employer shall become
eligible to participate herein, and any undistributed balance in
any Account shall immediately and fully vest in favor of the
person for whom such Account was established and shall become
non-forfeitable. Should a partial termination of this Plan
occur, as determined in accordance with Federal law and
regulation, such partial termination shall have the same effect
as, and shall be treated the same as, a termination of the Plan,
except that in such case the provisions of Sections 18.3(b) and
(c) governing termination shall be applied only to those persons
affected by such partial termination, whose undistributed Account
balances shall thereupon be immediately fully vested and
non-forfeitable.
18.3. Disposition of Assets on Termination. (a)
Notwithstanding that the participation of a Participating
Employer in this Plan may be terminated pursuant to Section 18.2,
the Trust by which this Plan is funded shall continue in full
effect, but the Trustee shall make a valuation of the Fund as of
the date of such termination of participation in the manner
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provided with respect to regular valuations, and shall segregate
from the Fund all Shares and other investments attributable to
the Accounts of all Participants then or theretofore employed by
such terminating Participating Employer which have vested and
become non-forfeitable.
(b) If the terminating Participating Employer has
ceased doing business or has been dissolved, or if any other
event has occurred as a result of which no Participant continues
to be employed by such Participating Employer (so that all such
Participants shall be deemed to have severed their employment
with such Participating Employer within the meaning of Section
402(d)(4)(A)(iii) of the Code), the Trustee shall distribute to
each Participant formerly employed by such Participating Employer
the Participant's proportionate share of the assets segregated
from the Fund in the manner provided above, as reflected by the
Participant's adjusted Account balance, less distribution
expenses. Until the segregated assets have been fully
distributed, the Trustee shall continue to possess all powers,
rights, privileges and immunities with which it was invested by
the Trust Agreement, and shall have all such other powers as are
necessary or appropriate to the completion of such distribution,
and all expenses of administration of the segregated assets shall
be charged to and paid out of such assets.
(c) If, notwithstanding the termination, all or any
of the Participants shall continue in the employ of such
terminating Participating Employer or of an entity so related to
such terminating Participating Employer that such Participants
shall be deemed not to have severed their employment with it
within the meaning of Section 402(d)(4)(A)(iii) of the Code, the
assets which would otherwise be distributable to them shall be
retained by the Trustee, which shall continue to administer such
assets subject to the provisions of the Trust, until such time as
the same shall be otherwise distributable under this Plan, and
during such administration, all expenses of administration of
such amounts shall be charged to and paid out of such assets.
(d) Notwithstanding anything to the contrary in this
Section, no distribution shall be made to the former employees of
the terminating Participating Employer if such distribution would
violate Section 401(k)(2)(B) of the Code. In such case, the
assets which would otherwise be distributable shall be retained
by the Trustee, which shall continue to administer such assets
subject to the provisions of the Trust until such time as the
same may be distributable under such section of the Code, and
during such administration, all expenses of administration of
such amounts shall be charged to and paid out of such assets.
18.4. Effect of Termination by the Company. If the Company
terminates its participation in this Plan, such
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termination shall result in the immediate termination of this
Plan in its entirety, as to all Participating Employers,
whereupon every Account which contains an undistributed balance
shall immediately and fully vest in favor of the person for whom
it was established, and shall become non-forfeitable.
18.5. Effect of Termination of ESOP Loan. If for any
reason it shall be necessary or desirable to terminate or
partially terminate an outstanding ESOP Loan prior to its
original termination date, including but not limited to (a) the
termination of the ESOP Loan provisions of this Plan or the Plan
otherwise ceasing to qualify to maintain any ESOP Loan, (b) the
occurrence of a default under such loan, or (c) the occurrence of
any event which increases the interest rate payable on such loan
or results in the Company purchasing or assuming such loan, the
Trustee shall repay any outstanding ESOP Loan (or the part
thereof to be terminated) first using the assets (if any) then
held in the ESOP Loan Suspense Account and then using assets held
in the ESOP Loan Payment Accumulation Account, as directed by the
Committee and permitted under the terms of the ESOP Loan and
Section 4975 of the Code and the regulations promulgated
thereunder. Unless the Plan is also terminated at such time,
termination of all or part of an ESOP Loan shall not affect the
operation of other Plan provisions.
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ARTICLE XIX
ADMINISTRATIVE COMMITTEE
19.1. Appointment. The actual administration of this Plan
shall be conducted by a Committee of not less than three (3)
persons appointed from time to time by, and to serve at the
pleasure of, the Chief Financial Officer of the Company. The
number of persons constituting the Committee may be increased or
decreased (but not below three) at any time and from time to time
by such Officer. Any officer, director or Employee of any of the
Employing Companies may be appointed to the Committee, but
Committee members need not be either Employees or Participants.
Any member of the Committee may resign by delivering a written
resignation to the Chief Financial Officer of the Company and to
the then-acting Secretary of the Committee. The members of the
Committee shall serve as such without compensation.
19.2. Organization. The members of the Committee shall
elect a Chairman (who shall be a member of the Committee) and a
Secretary (who may, but need not, be a member of the Committee),
who shall have the powers and duties usually incident to their
respective offices. The Committee may appoint from its
membership such subcommittees, and delegate such of its powers
thereto, as it may determine, and may authorize one or more of
its members, or any agent, to execute and deliver any instrument,
or, on its behalf, to authorize or direct any payment or
distribution permitted or required by this Plan. The Committee
may delegate to any agents such duties and powers, both
ministerial and discretionary, as it deems appropriate, by an
instrument in writing which specifies which such duties are so
delegated and to whom each such duty is so delegated.
19.3. Powers. The Committee shall have full power and
authority to administer this Plan in all respects, including
without limitation, full power and authority:
(a) To construe the Plan and to determine all
questions which may arise thereunder relating to the
administration of the Plan, including questions relating to the
eligibility of Employees to participate in the Plan and the
status and rights of Participants, Beneficiaries, and other
persons hereunder; provided, however, that if the Committee deems
any language of this Plan so ambiguous or unclear that its
reasonable meaning or application cannot be determined, the
Committee may, if it so desires and in its sole discretion,
submit such language to the Board with a request that it adopt a
resolution interpreting such language or establishing rules for
its application, and any such resolution adopted by it shall be
binding upon all parties interested in the Plan. If the
Committee so desires, it may (but need not) submit such language
to counsel for interpretation prior to requesting action by the
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Board. Unless the Board has adopted a particular interpretation
of specific Plan language, or has established rules for its
application, any decision of, or action taken by, the Committee
shall be final and binding upon all parties interested in the
Plan. Any discretionary actions taken, or rules adopted by the
Committee or the Board, shall be administered uniformly and
applied with equal effectiveness and in a non-discriminatory
manner to all persons similarly situated.
(b) To establish limitations on changes in
investments by Participants as may be necessary to assure
compliance with any contractual restrictions governing any fund,
guaranteed interest contract or other investment, and, in its
sole discretion, to establish rules and regulations governing,
and to administer, loans and hardship withdrawals hereunder,
including all necessary processing and the exercise of any
discretion associated therewith.
(c) To modify or amend this Plan and the Trust
Agreement, at any time and from time to time, effective as of any
specified current, prior or future date, provided, however, that
the Committee shall have no authority to:
(i) Add or remove any Participating
Employer; or
(ii) Except as provided in subsection (d)
below, change any provision relating to the Company Matching
Contribution formula, participation, eligibility to participate,
vesting, withdrawals, distributions, or limitations on
contributions or benefits, except in regard to procedural or
technical matters in a way calculated to lessen administrative
burdens or as necessary to comply with applicable law.
(d) To implement the ESOP Loan provisions of this
Plan, including but not limited to (i) directing the Trustee with
regard to any ESOP Loan, and (ii) determining the Supplemental
Contribution under Section 6.3 for any Plan Year and the
Participants to whom it shall be allocated.
(e) To appoint an agent for service of process in
any action or proceeding involving this Plan, who may (but need
not) be either a member of the Committee, an Employee or a
Participant.
(f) To employ such counsel, accountants and agents
(who may serve any of the Employing Companies in a similar
capacity) and to contract for such clerical and accounting
assistance, and to delegate ministerial authority (including the
authority to instruct the Trustee respecting the amount and time
for payment of any benefit hereunder, and the identity of the
payee(s) thereof) to such person(s) selected by it, as it may
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deem necessary or desirable, and all fees, charges and costs
incurred thereby shall be treated as an expense of the Plan and
paid in the manner provided for other expenses of the Plan.
(g) The Committee shall have no obligation or right
to manage or direct the investment of the Fund, except the right
to direct the Trustee as to which, if any, collective investment
funds shall be selected for the Investment Funds.
(h) To require such information from Participants as
it may deem necessary, in its absolute discretion, to make
determinations as to the status of paternity or maternity leaves,
marital status or the location of a Participant's spouse, or the
adequacy of any hardship circumstance as contemplated under
Article XIV.
(i) To make such determinations concerning the
qualified status of domestic relations orders affecting
Participants as are required by law and to adopt such rules and
procedures relating thereto as the Committee deems appropriate in
its absolute discretion.
(j) To direct the Trustee to enter into ESOP Loans
approved by the Board and otherwise meeting the criteria set out
in Article VIII.
(k) To adopt procedures designed to safeguard the
confidentiality of information relating to the purchase, holding,
and sale of Shares and the exercise of voting, tender and similar
rights with respect to such Shares by Participants and Beneficia-
ries. The Committee shall be responsible for insuring that such
procedures are sufficient to safeguard the confidentiality of
such information, that such procedures are being followed, and
that an independent fiduciary is appointed to carry out
activities relating to any situations which the Committee
determines involve a potential for undue Company influence upon
Participants and Beneficiaries with regard to the direct or
indirect exercise of shareholder rights.
19.4. Forms and Procedures. The Committee shall adopt all
forms and procedures it deems necessary or appropriate for the
administration of this Plan and may change such forms and
procedures from time to time as it sees fit. In instances in
which no time period is stated in this Plan, the Committee shall
adopt reasonable time periods for the doing of any act, which may
take the form of a required notice period in advance of the date
on which an action is to become effective or of a period after
some event during which, or upon the expiration of which, an
action may be timely taken. The Committee shall have the power,
under uniform and non-discriminatory rules, and for good cause or
administrative convenience, to waive strict adherence to any time
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period or other requirement stated in this Plan or established by
the Committee.
19.5. Meetings. The Committee shall hold meetings upon
such notice, at such place or places, and at such time or times
as it may from time to time determine, and may, if it so desires,
by resolution, provide for regular meetings. In lieu of any
meeting, the Committee may act by written consent signed by a
majority of the members of the Committee and filed with the
Secretary thereof, whether executed before or after the stated
effective date thereof, and such consent shall have the same
effect as if the action thereby taken had been taken at a meeting
duly called and held.
19.6. Records. The Secretary of the Committee shall keep
records of all meetings of the Committee and shall forward all
necessary communications to the Trustee. The Committee shall
preserve the accounts of the fiscal transactions of the Plan
submitted by the Trustee, and shall keep in convenient form such
data as may be necessary for calculating the financial condition
of the Plan and for determining any benefit or other right
hereunder.
19.7. Applications for Benefits; Appeal From Denial of
Benefits. Any application for any payment, distribution,
withdrawal or loan under this Plan, whether by a Participant or
by a Beneficiary, shall be submitted in accordance with
procedures prescribed by the Committee. Any properly completed
application submitted to the Committee shall constitute a claim
under the Plan, and the Committee shall then grant or deny such
claim as soon as is reasonably practicable. The Committee shall
render its decision on the claim not later than 90 days after
receipt of the claim, and shall notify the claimant of its
decision; provided, however, that in special circumstances, as
found by the Committee, the Committee may by notice to the
claimant extend the time for its decision in order to permit
processing or otherwise meet the special circumstances, in which
case the decision shall be rendered as soon as practicable, but
not later than 180 days after the receipt of the claim. In any
instance where a claim is denied in whole or in part by the
Committee, the Committee shall forthwith furnish a copy of its
decision to the claimant, in writing, setting forth the follow-
ing:
(a) The specific reason or reasons for the denial of
the claim;
(b) Specific reference to the pertinent Plan
provision(s) on which such denial is based;
(c) If the denial was occasioned by the failure of
the claimant to furnish any necessary information, a description
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of the additional information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and
(d) Appropriate information as to the steps to be
taken if the claimant wishes to submit the claim for review.
Any claimant whose application for payment, distribution,
loan or withdrawal has been denied may appeal such denial by
filing an appeal and request for review with the Committee not
later than 60 days after receipt of the notice of denial of the
claim. The Committee shall then promptly review its decision,
reconsidering the facts of the case and taking into account any
new or additional information which may be submitted by the
claimant, and shall render its decision not later than 60 days
after receipt of the appeal and request for review; provided,
however that in special circumstances, as found by the Committee,
the Committee may by notice to the Claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 120 days
after the receipt of the request for review. In connection with
such review, the claimant or a duly authorized representative may
review all pertinent documents and records and may submit issues
and comments in writing. The Committee's decision on the appeal
shall be reported to the claimant, in writing, in the same manner
as an original decision, and no further appeal to the Committee
shall be permitted under this Plan.
19.8. Liability of Committee. (a) The Committee shall be
responsible only for its own acts and omissions, and except as
provided in ERISA Section 405 (29 U.S.C. Sec. 1105) shall have no
liability to any person or party whomsoever for the acts or
omissions of others. The Company shall indemnify any person who
is, or is threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that such person is or was a member of the Committee, against
expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding,
to the extent and under the circumstances permitted by ERISA, but
not as to any matter in which such person shall be finally
adjudged in such action, suit or proceeding (i) to be liable for
misconduct in the performance of such person's duties as such
member or (ii) to have breached with respect to the Plan or its
Trust any fiduciary duty imposed on such person by ERISA for
which personal liability is imposed on such person and, in either
instance, for which indemnification would be contrary to public
policy, as set forth in any applicable statute or judicial
decision. The foregoing right of indemnification shall extend to
any action, suit or proceeding which may be settled or compro-
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mised prior to final judgment, and shall not be exclusive of any
other rights to which any such Committee member may be entitled
as a matter of law.
(b) Such indemnification (unless ordered by a court)
shall be made as authorized in a specific case upon a
determination that indemnification of the Committee member is
proper in the circumstances because such person has met the
applicable standards of conduct set forth in ERISA. Such
determination shall be made (i) by the Board by a majority vote
of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Company. Expenses
incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final
disposition of the action, suit or proceeding as authorized by
the Board in a specific case, upon receipt of an undertaking by
or on behalf of the Committee member to repay such amount unless
it shall ultimately be determined that such person is entitled to
be indemnified by the Company as authorized by ERISA and this
Article.
(c) The foregoing right of indemnification shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, or vote
of stockholders or disinterested members of the Board, both as to
action in the person's official capacity as a member of the
Committee and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
Committee member and shall inure to the benefit of the heirs,
executors and administrators of such person.
(d) The Board may authorize, to the extent permitted
by ERISA, the purchase and maintenance of insurance on behalf of
any person who is or was a member of the Committee against any
liability asserted against such person and incurred by such
person in such capacity or arising out of such person's status as
such.
(e) Except as otherwise required by law, no bond or
other security shall be required of any member of the Committee
for the faithful performance of such person's duties as such.
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ARTICLE XX
PROHIBITION AGAINST VOLUNTARY OR INVOLUNTARY ASSIGNMENTS
20.1. No Liability for Participants' Debts. Except as
otherwise required by law or provided in Article XV, neither this
Plan nor the Trust by which it is funded shall be liable for or
subject to the debts or liabilities of any Participant or
Beneficiary hereunder, and no amount payable hereunder shall at
any time or in any manner be subject to alienation, sale,
transfer, assignment, pledge or encumbrance of any kind.
Notwithstanding the foregoing, this Plan shall comply with the
terms of any domestic relations order which is found by the
Committee to be "qualified" in accordance with Section 414(p) of
the Code. Any such order which is found by the Committee not to
be so qualified shall not be complied with. The Committee shall
adopt written procedures for making determinations concerning the
qualified status of domestic relations orders.
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ARTICLE XXI
COMPETENCY OF DISTRIBUTEES
21.1. Distributees Presumed Competent. Every person
receiving or claiming any benefit under this Plan shall be
conclusively presumed to be mentally competent and of legal age
until the Committee and/or Trustee receives a written notice, in
form and substance acceptable to them, that any such person is
incompetent, is a minor or that a guardian or other individual
legally vested with the care of the person's estate has been
appointed.
21.2. Facility of Payment. (a) If any amount is payable
hereunder to a minor or other person under legal disability or
otherwise incapable of managing such person's own affairs, as
determined by the Committee, payment thereof shall be made in one
(or any combination) of the following ways, as the Committee
shall determine in its sole discretion:
(i) directly to said minor or other person;
(ii) to a custodian for said minor or other
person (whether designated by the Committee or any other person)
under the Missouri Transfers to Minors Law, the Missouri Personal
Custodian Law or a similar law of any other jurisdiction;
(iii) to the conservator of the estate of
said minor or other person; or
(iv) to some relative or friend of such
minor or other person for the support, welfare or education of
such minor or other person.
(b) If the Committee determines that any amount
shall be paid to a relative or friend of such minor or other
person for the support, welfare or education of such minor or
other person, and the amount would otherwise be required to be
distributed in the form of Shares, the relative or friend to whom
such amount is payable shall have the right to elect that the
entire distribution be made in the form of cash rather than
Shares.
(c) The Committee shall not be required to see to
the application of any payment made pursuant to this Section
21.2, and the receipt of the person to whom such payment is
actually made shall fully discharge the Committee from any
further accountability or responsibility with respect to the
amount so paid.
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ARTICLE XXII
BECOMING A PARTICIPATING EMPLOYER
22.1. Authorization and Procedure. (a) Any Subsidiary
may, with the consent of the Chief Financial Officer of the
Company, adopt this Plan and become a Participating Employer
hereunder. Any such Subsidiary which desires to become a
Participating Employer shall deliver to the Committee an executed
participation agreement which is satisfactory to the Committee in
form and substance. Thenceforth such entity shall be a
Participating Employer hereunder for all purposes and shall be
bound by each and every provision of this Plan and of the Trust
Agreement.
(b) Each new Participating Employer shall deliver or
cause to have delivered to the Committee such information as the
Committee may request for purposes of implementing the Plan as
regards such Participating Employer and such of its Employees as
are or may become eligible to participate herein.
22.2. Effect of Being a Participating Employer. Except as
hereinafter provided in this Section, the contributions made by
each Participating Employer shall be credited, and forfeitures
reducing its contributions shall be reallocated, only to the
Accounts of those Participants who are employed by it. The
transfer of a Participant from the employ of one Participating
Employer to the employ of another Participating Employer shall
not result in the termination of such Participant's participation
in this Plan. However, in the event of any such transfer, the
Committee shall thereupon annotate such Participant's Account so
as to clearly identify it with the Participating Employer by
which such Participant is then employed. If any such transferred
Participant thereafter terminates employment with the Employing
Companies under any circumstance giving rise to a forfeiture, any
such forfeiture shall be allocated among the Participating
Employers whose contributions were credited to such Participant's
Account, in the ratio that the unvested amounts contributed for
such Participant by each such Participating Employer bears to the
total unvested amounts contributed for such Participant by all
Participating Employers.
22.3. Pooled Funds. Notwithstanding that there may be more
than one Participating Employer, there shall be but a single
Trust, consisting of such separate Investment Funds as are
required under this Plan, and the Trustee shall invest and
reinvest each of such Investment Funds as a single investment
pool. The Trustee shall not be required to segregate the Account
of any Participant for separate investment or otherwise, though
separate records of all Participant's Accounts shall be
maintained as required by Article X hereof.
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22.4. Costs and Expenses. Any costs and expenses of
operating and administering this Plan that are to be paid by the
Participating Employers may be paid in full by the Company, and
each Participating Employer shall then reimburse the Company for
its equitable share thereof, as determined by the Committee in
its sole discretion.
22.5. Adoption of Plan Conditional. The adoption of this
Plan by a Participating Employer shall be conditioned on such
action not adversely affecting the qualified status of the Plan,
or the tax exempt status of the Trust by which it is funded,
whether determined with respect to the Plan and Trust as existing
prior to the participation of such Participating Employer or as
regards the participation thereof.
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ARTICLE XXIII
LIMITATIONS APPLICABLE TO
ALL CONTRIBUTIONS TO THIS PLAN
23.1. Special Limitation on Annual Additions For Any
Participant For Any Year. (a) No Participant shall have an
annual addition to the Participant's Account for any calendar
year in excess of the amount then permitted under Section 415 of
the Code.
(b) If a Participant shall, as a result of errors in
estimating compensation or in determining the amount of elective
deferrals (within the meaning of Code Section 402(a)(3)) that may
be made with respect to any individual under the limits of Code
Section 415, have allocated to accounts under this Plan and all
other defined contribution plans maintained by the Employing
Companies which are "qualified" under Section 401(a) of the Code,
an annual addition greater than the limit set out under Section
415 of the Code, such Participant's account under any other such
defined contribution plan shall be reduced before any reductions
are made to such Participant's account under this Plan. If such
other defined contribution plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions
are required under this Plan, such Participant's Personal and
Company Contributions under this Plan shall be reduced or
refunded as necessary in accordance with procedures established
by the Committee.
(c) In the case of a Participant who also
participates in a defined benefit plan(s) which is maintained by
the Employing Companies and which is "qualified" under Section
401(a) of the Code, the sum of such Participant's "defined
benefit plan fraction" and such Participant "defined contribution
plan fraction" for any year shall not exceed the limit provided
in Section 415 of the Code. If such fractions would exceed this
limit, benefits shall be reduced or eliminated under such defined
benefit plan, to the extent necessary to comply with Section 415
of the Code, before any reduction of benefits shall be made under
this Plan. If such other plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions
are required under this Plan, such Participant's Personal and
Company Contributions under this Plan shall be reduced in
accordance with procedures established by the Committee.
(d) For purpose of this Section, "annual addition"
shall mean the sum of the Before-Tax Contributions, After-Tax
Contributions, Company Matching and Supplemental Contributions
allocated to the account of a Participant for the limitation
year. The terms compensation, defined benefit plan fraction and
defined contribution plan fraction shall have the meanings
provided in Section 415 of the Code. Section 415 of the Code, as
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in effect from time to time, and regulations promulgated
thereunder, are incorporated herein by reference.
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ARTICLE XXIV
SPECIAL RULES FOR YEARS
WHEN PLAN IS TOP-HEAVY
24.1. Special Definitions and Rules of Construction. For
purposes of applying the special rules set out in this Article
the following terms shall have the following meanings:
(a) "Top-Heavy". Unless the Plan is required to be
included in an aggregation group, this Plan will be a top-heavy
plan with respect to any Plan Year if, as of the determination
date, the aggregate of the Accounts of Key Employees under the
Plan exceeds 60 percent of the aggregate of the Accounts of all
Employees under the Plan. If the Plan is required to be included
in an aggregation group for any Plan Year, the Plan will be
top-heavy with respect to such Plan Year if the aggregation group
is a top-heavy group.
(b) "Aggregation Group". Each plan of the Employing
Companies in which a Key Employee is a Participant, and each
other plan of the Employing Companies which enables any plan in
which a Key Employee participates to meet the requirements of
Sections 401(a)(4) or 410 of the Code. The Company may at its
option treat any plan not required to be included in an
aggregation group pursuant to the preceding sentence as being
part of such group if such group would continue to meet the
requirements of such Sections 401(a)(4) and 410 with such plan
being taken into account.
(c) "Top-Heavy Group". Any aggregation group if:
(i) the sum (as of the determination date)
of:
(A) the present value of the cumulative
accrued benefits for Key Employees under all defined
benefit plans included in such group, and
(B) the aggregate of the accounts
(adjusted to include contributions due as of such
determination date) of Key Employees under all defined
contribution plans included in such group,
(ii) exceeds 60 percent of a similar sum
determined for all employees under such plans.
For purposes of determining the present value of the cumulative
accrued benefit for any Employee or the amount of the account of
any Employee,
(iii) such present value or amount shall be
increased by the aggregate distributions made with respect to
such employee under the plan during the 5-year period ending on
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the determination date (including distributions under any
terminated plan which, if it had not been terminated, would have
been required to be included in an aggregation group) and (iv)
the valuation date shall be the most recent valuation date
occurring within a twelve-month period ending on the
determination date.
(d) "Determination Date". With respect to any plan
year, the last day of the preceding plan year or, in the case of
the first plan year of a plan, the last day of such first plan
year. In the case of an aggregation group, a separate
determination shall be made each calendar year for each plan
within such aggregation group, as of each such plan's
determination date which falls within such calendar year. The
results of the separate determinations within the same calendar
year shall then be added to determine the status of the
aggregation group.
(e) "Key Employee". An Employee who, at any time
during the Plan Year in question or any of the four preceding
Plan Years, is or was:
(i) an officer of the Employing Companies
having an annual compensation from the Employing Companies
greater than 150 percent of the amount in effect under Section
415(c)(1)(A) of the Code for such Plan Year;
(ii) one of the ten employees having annual
compensation from the Employing Companies of more than the
limitation in effect under Section 415(c)(1)(A) of the Code and
owning (or considered as owning, within the meaning of Section
318 of the Code) the largest interests in the Employing
Companies;
(iii) a 5-percent owner of the Employing
Companies; or
(iv) a 1-percent owner of the Employing
Companies having aggregate annual compensation from the Employing
Companies combined in excess of $150,000; provided, however, that
no more than 50 Employees in the aggregate (or, if less, the
greater of 3 or 10 percent of the Employees of the Employing
Companies) shall be treated as officers. For purposes of clause
(ii), if two or more Employees have the same interest in the
Employing Companies, the Employee having greater annual compensa-
tion from the Employing Companies shall be treated as having a
larger interest.
(f) "5-percent Owner". Any person who owns (or is
considered as owning within the meaning of Section 318 of the
Code) more than 5 percent of the outstanding stock of the
Employing Companies or stock possessing more than 5 percent of
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the total combined voting power of all stock of the Employing
Companies.
(g) "1-percent Owner". Any person who owns (or is
considered as owning within the meaning of Section 318 of the
Code) more than 1 percent of the outstanding stock of the
Employing Companies or stock possessing more than 1 percent of
the total combined voting power of all stock of the Employing
Companies.
(h) "Non-Key Employee". Any Employee who is not a
Key Employee.
(i) For purposes of this Article, subparagraph (C)
of Section 318(a)(2) of the Code shall be applied by substituting
"5 percent" for "50 percent," and the rules of subsections (b),
(c), and (m) of Section 414 of the Code shall not apply for
purposes of determining ownership.
(j) The terms Employee and Key Employee include
their Beneficiaries.
(k) This Article shall not apply with respect to any
Employee included in a unit of Employees covered by an agreement
which the Secretary of Labor finds to be a collective bargaining
agreement between Employee representatives and one or more
employers if there is evidence that retirement benefits were the
subject of good faith bargaining between such employee
representatives and such employer or employers.
(l) If any individual is a Non-Key Employee with
respect to the Plan for any Plan Year, but was a Key Employee
with respect to the Plan for any prior Plan Year, the Account of
such individual shall not be taken into consideration in making
the determinations hereunder.
(m) If any individual has not received any
compensation from the Employing Companies (other than benefits
under this Plan) at any time during the five-year period ending
on the applicable determination date, the Account of such
individual shall not be taken into consideration in making the
determination hereunder.
24.2. Special Rules Applicable to Top-Heavy Years. If this
Plan is a top-heavy plan for any Plan Year, then:
(a) Notwithstanding any provisions herein to the
contrary, no Key Employee may have allocated to the Key
Employee's Account for such Plan Year Before-Tax, Company
Matching or Supplemental Contributions which, expressed as a
percentage of the Key Employee's Compensation, exceed the Company
Matching and Supplemental Contribution also expressed as a
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percentage of Compensation, of that Non-Key Eligible Employee
whose Company Matching and Supplemental Contribution is the
lowest percentage. The percentage calculations required by this
subsection shall be made treating all defined contribution plans
of the Company included in the aggregation group of plans as if
they were a single plan, and any reduction in Before-Tax, Company
Matching and Supplemental Contributions required by this
provision shall be effected out of Before-Tax, Company Matching
and Supplemental Contributions to this Plan first, before being
allocated to any other plan. If the Before-Tax, Company Matching
and Supplemental Contributions which would otherwise be allocated
to a Key Employee are reduced by operation of this provision,
excess Personal Contributions shall be refunded to the
Participant without penalty, to the end that the Participant's
Personal Contributions for the Plan Year in question do not
exceed the amount the Key Employee would have contributed in
order to receive only the recalculated Company Matching and
Supplemental Contribution amount;
(b) The provision in (a) above shall not apply to
any Non-Key Eligible Employee to the extent the Non-Key Eligible
Employee is covered under any other plan or plans of an Employing
Company if any such other plan is a defined benefit plan under
which the Non-Key Eligible Employee shall receive the minimum
accrued benefit required by Section 416(c) of the Code; and
(c) Paragraphs (2)(b) and (3)(b) of Section 415(e)
of the Code shall be applied by substituting "1.0" for "1.25" if
the aggregate value of the accounts of Key Employees exceeds 90%
of the aggregate value of the accounts of all Employees under the
Plan or if the sum referred to in Section 23.1(c)(i) above
exceeds 90% of a similar sum determined for all employees under
all plans in the aggregation group.
(d) For purposes of this Article, the term
"compensation" shall be the amount of compensation determined
under the provisions of Section 415(c)(3) of the Code.
24.3. Operating Rules. (a) Contributions or benefits
under chapter 2 (relating to tax on self-employment income),
chapter 21 (relating to Federal Insurance Contributions Act) of
the Code, or title II of the Social Security Act, or any other
Federal or State law shall not be taken into account in applying
Section 24.2.
(b) This Article shall be applied to all plans
maintained by the Employing Companies in a manner consistent with
regulations promulgated by the Secretary of the Treasury under
the authority granted by Section 416(f) of the Code.
(c) This Article is included solely to permit the
Plan to comply with Section 416 of the Code. Should this Plan
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ultimately be excused or exempted from the operation of such
Section, either by statutory amendment or by any regulation or
ruling of the U.S. Treasury or the Internal Revenue Service, this
Article shall immediately and automatically be null and void and
of no further force or effect.
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ARTICLE XXV
MISCELLANEOUS
25.1. Return of Contributions. (a) It is the objective
and intention of each Participating Employer that this amended
and restated Plan shall continue to be a qualified plan within
the meaning of Section 401 of the Code, the Trust of which
continues to be exempt from Federal income tax under Section 501
of the Code. If the Internal Revenue Service rules, upon
application to it for a favorable determination, that this Plan
and its related Trust are so qualified and exempt, all
contributions theretofore made by any Participating Employer
shall be subject to the provisions of this Plan in all respects
and may not be diverted to purposes other than the exclusive
benefit of Participants and their Beneficiaries and estates and
the payment of the administrative expenses of this Plan, and may
not be returned to any Participating Employer.
(b) Notwithstanding the foregoing or any other
contrary provision herein contained, any erroneous Company
Matching or Supplemental Contribution which is made by a mistake
of fact may be returned to the Participating Employer which made
such contribution if the mistake of fact is discovered and the
return of such contribution is completed within one year after
the payment of such contribution to the Plan. Furthermore, if
after the Internal Revenue Service rules that the Plan and Trust
are qualified and exempt, as contemplated by subsection (a)
above, any deduction for any Company Contribution hereto is
denied as not allowable under Section 404(a)(3) of the Code, then
such contribution, to the extent of such disallowed deduction,
may be returned to the Participating Employer which made such
contribution within one year after the disallowance of such
deduction. Each and every Company contribution made pursuant to
this Plan is contingent upon the allowance of a deduction for
such contribution under Section 404 of the Code.
25.2. Limitations of Liability and Rights. (a)
Participation in this Plan shall not give any Participant any
rights to any amounts hereunder except as specifically provided
in this Plan, and no one in the employ of any Participating
Employer, and no Participant or Beneficiary, shall be entitled to
any amounts hereunder except to the extent that a right thereto
is specifically fixed by the terms of this Plan and the assets of
the Trust by which this Plan is funded are sufficient therefor.
(b) Except as provided in ERISA Section 405 (29
U.S.C. Sec. 1105), no Participating Employer, no officer,
director or stockholder of any Participating Employer, and no
member of the Committee, shall be liable for any act or omission
of the Trustee with respect to its investment or administration
of the Trust which is a part of this Plan.
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(c) The establishment of this Plan shall not give
any person any right to be continued in the employ of any
Participating Employer or any of the Employing Companies, nor
shall it interfere with or limit any right of any of the
Employing Companies to terminate the employment of any person at
any time.
25.3. General Administration and Expenses. Except with
respect to such duties as have specifically been delegated to the
Committee, the Trustee or others hereunder, or which require the
exercise of discretion, the Company or its nominees (who may be
Employees) may perform all ministerial activities necessary to
the efficient administration of this Plan, may maintain all
proper files and records, and may provide all forms, notices and
other documents in connection herewith. All notices, requests,
directions and other orders or elections for which the Committee
has adopted an official administrative form shall be effective
only if submitted to the Committee on a properly completed and
signed official form. All brokerage fees, commissions, stock
transfer taxes and similar acquisition costs incurred on the
purchase of any security (including any Shares) shall be treated
as additional purchase price and all brokerage fees, commissions,
stock transfer taxes and similar disposition costs incurred on
the sale of any security (including any Shares) shall be treated
as a reduction in sale proceeds, except that stock transfer taxes
on Shares distributable in kind shall be charged against the
Account of the distributee. Except as otherwise provided in the
Trust Agreement, all other expenses of the Plan and its adminis-
tration may be paid by the Participating Employers, in such
proportions as the Company shall determine.
25.4. Notice of Address. It is the duty of every
Participant to keep the employer informed of the Participant's
current post office address. Any communication, statement or
notice addressed to a Participant at the latest post office
address on file with the Employing Companies shall be binding
upon such Participant for all purposes, and neither the
Committee, the Trustee nor the Company shall be obligated to
search for or attempt to ascertain the whereabouts of any person,
except as provided in Article XVII.
25.5. Data. Every person entitled to payments hereunder
shall furnish such documents, evidence or other information to
the Committee as the Committee may consider necessary or
desirable for the administration of this Plan or for the
protection of the Plan, the Committee or the Trustee. Each such
person must furnish such information promptly and must sign such
documents as the Committee may reasonably require before the
person shall receive any payment or distribution hereunder.
25.6. Trust Agreement Related. The Trust Agreement and
each of the provisions thereof shall be deemed a part of the this
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Plan for all purposes, and in case of a conflict between the
provisions of the Trust Agreement and the provisions of this
Plan, the provisions of this Plan shall control.
25.7. Severability Clause. In case any provision of this
Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining
provisions of the Plan, and the Plan shall be construed and
enforced as if such illegal and invalid provision had never been
included herein.
25.8. Situs. This Plan shall be construed, regulated and
administered according to ERISA.
25.9. Succession. Except as otherwise provided herein,
this Plan and each of the provisions hereof shall be binding upon
each Participating Employer and any corporation(s) resulting from
or surviving any merger, consolidation, reorganization or recap-
italization of a Participating Employer or of a Participating
Employer and one of more other corporations, and any corporation
into which a Participating Employer may be liquidated.
25.10. Execution. This Plan may be executed in any number
of counterparts, each of which so executed shall be deemed to be
an original, and such counterparts shall together constitute one
and the same instrument.
25.11. Merger of Plan or Transfer of Trust Assets. If this
Plan is merged or consolidated with any other plan, or if the
assets or liabilities of the Plan are transferred to any other
plan or trust, then each Participant in the Plan shall (if the
Plan shall then be terminated) receive a benefit immediately
after such merger, consolidation or transfer which is equal to or
greater than the benefit the Participant would have been entitled
to receive immediately before such merger, consolidation or
transfer (if the Plan had then terminated).
25.12. Miscellaneous Rules of Construction. (a) Masculine
pronouns include the feminine, the singular includes the plural,
and the plural includes the singular, as the context or applica-
tion demands. The words "herein", "hereunder", "hereof" and
similar compounds of the word "here" refer to this entire Plan
unless expressly limited to a particular article, section,
sentence or other subdivision of this Plan.
(b) Titles to articles and headings of sections in
this Plan are for convenience of reference only, and in case of
conflict, the text of this Plan rather than such titles or
headings shall control.
25.13. Delayed Payments. Notwithstanding any other
provision of the Plan, if the amount of a payment required to be
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paid on a date determined under this Plan cannot be ascertained
by such date, or if it is not possible to make such payment on
such date because the Committee has been unable to locate the
Participant, spouse or Beneficiary (if applicable) after making
reasonable efforts to do so, a payment retroactive to such date
may be made no later than 60 days after the earliest date on
which the amount of such payment can be ascertained or the date
on which such Participant, spouse or Beneficiary is located
(whichever is applicable).
25.14. Mistakes in Benefit Payments. In the event and to
the extent that any payment to a Participant, spouse or
Beneficiary is determined by the Committee to have been in error,
the Committee and the Trustee shall determine the extent of the
error, and shall take action to correct the error in an equitable
manner, as determined in the sole discretion of the Committee,
consistent with the following:
(a) In the event that an amount paid in error is
less than the amount which should have been paid, the Committee
shall direct the Trustee to distribute the difference between the
amount paid and the amount which should have been paid to the
Participant, spouse or Beneficiary;
(b) In the event that the amount paid in error
exceeds the amount which should have been paid, the Committee, to
the extent possible, shall reduce any benefit then remaining
payable to the Participant, spouse or Beneficiary by the excess
of the amount paid over the amount which should have been paid,
and shall make other reasonable efforts to recover such excess
from the Participant, spouse or Beneficiary.
IN WITNESS WHEREOF, the Company has executed this Plan by
and through its authorized agents, effective as of the 1st day of
April, l994.
ANHEUSER-BUSCH COMPANIES, INC.
By
Jerry E. Ritter
Chief Financial Officer
Attest:__________________________
JoBeth Brown
Secretary
raw\401ksal.94
Exhibit 4.2
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
by and between
ANHEUSER-BUSCH COMPANIES, INC.
and
MELLON BANK, N.A.
<PAGE>
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
THIS MASTER TRUST AGREEMENT made and entered into on this day
of June, 1994, effective as of November 1, 1993, by and between ANHEUSER-
BUSCH COMPANIES, INC. (hereinafter referred to as the "Corporation") and
MELLON BANK, N.A. (hereinafter referred to as the "Master Trustee"),
WITNESSETH:
WHEREAS, the Corporation desires to establish a master trust which
will serve as a funding medium to eligible employee benefit plans of the
Corporation and its subsidiaries and affiliates; and
WHEREAS, the Master Trustee is willing to act as trustee of such trust
upon all of the terms and conditions hereinafter set forth; and
WHEREAS, the Corporation and the Master Trustee wish to amend those
trust agreements referred to in Exhibit A hereto (the "Prior Agreements")
so that this Agreement shall be deemed to supersede all such Prior
Agreements and so that all the separate trusts established by the Prior
Agreements shall be deemed consolidated into the master trust established
hereby;
NOW, THEREFORE, the Corporation and the Master Trustee declare and
agree that the Master Trustee will receive, hold and administer all sums of
money and such other property acceptable to Master Trustee as shall from
time to time be contributed, paid or delivered to it hereunder, IN TRUST,
upon all of the following terms and conditions.
SECTION 1
General
1.1 Definitions. Where used in this Agreement, unless the context
otherwise requires or unless otherwise expressly provided:
(a) "Account Party" shall mean an officer of the Corporation designated to
represent the Corporation for this purpose, the Named Fiduciary and any
Person to whom the Master Trustee shall be instructed by the Named
Fiduciary to deliver its annual account under Section 12.2.
(b) "Accounting Period" shall mean the 12 consecutive month period
coincident with the fiscal year of the Plans or the shorter period in any
such fiscal year in which the Master Trustee accepts appointment as Master
Trustee hereunder or ceases to act as Master Trustee for any reason.
<PAGE>
(c) "Administrative Committee" or "Administrator" shall mean the committee
or committees, individually or collectively, responsible for benefit
administration under the Plans.
(d) "Agreement" shall mean all of the provisions of this instrument and of
all other instruments amendatory hereof.
(e) "Appendix" shall mean the Appendix attached hereto and by this
reference incorporated in this Agreement, which contains provisions
regarding the investment in Qualifying Employer Securities.
(f) "Asset Manager" shall mean the Master Trustee, Named Fiduciary or
Investment Manager, individually or collectively as the context shall
require, with respect to those assets held in an Investment Account over
which it exercises, or to the extent it is authorized to exercise,
discretionary investment authority or control.
(g) "Bank business day" shall mean a day on which the Master Trustee is
open for business.
(h) "Board of Directors" shall mean the Board of Directors of the
Corporation.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Regulations issued thereunder.
(j) "Directed Fund" shall mean any Investment Account, or part thereof,
subject to the discretionary management and control of any Named Fiduciary
appointed pursuant to Section 402(a)(1) of ERISA or any Investment Manager
appointed pursuant to Section 402(c)(3) of ERISA.
(k) "Discretionary Fund" shall mean any Investment Account, or part
thereof, subject to the discretionary management and control of the Master
Trustee.
(l) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and Regulations issued thereunder.
(m) "Fund" shall mean all cash and property contributed, paid or delivered
to the Master Trustee hereunder, all investments made therewith and
proceeds thereof and all earnings and profits thereon, less payments,
transfers or other distributions which, at the time of reference, shall
have been made by the Master Trustee, as authorized herein. The Fund shall
include all evidences of ownership, interest or participation in an
Investment Vehicle, but shall not, solely by reason of the Fund's
investment therein, be deemed to include any assets of such Investment
Vehicle.
2
<PAGE>
(n) "Insurance Contract" shall mean any contract or policy of any kind
issued by an insurance company, whether or not providing for the allocation
of amounts received by the insurance company thereunder solely to the
general account or solely to one or more separate accounts (including
separate accounts maintained for the collective investment of qualified
retirement plans), or a combination thereof, and whether or not any such
allocation may be made in the discretion of the insurance company or the
Named Fiduciary.
(o) "Investment Account" shall mean each pool of assets in the Master
Trust in which one or more Plans has an interest during an Accounting
Period.
(p) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38) of ERISA
which has provided the Master Trustee with written acknowledgment of
compliance with ERISA.
(q) "Investment Vehicle" shall mean any common, collective or commingled
trust, investment company, corporation functioning as an investment
intermediary, insurance contract, partnership, joint venture or other
entity or arrangement to which, or pursuant to which, assets of the Master
Trust may be transferred or in which the Master Trust has an interest,
beneficial or otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(r) "Master Trust" shall mean the trust created hereby.
(s) "Named Fiduciary" shall mean the fiduciary with respect to the Plans
within the meaning of Section 402(a)(2), 402(c)(3) or 403(a)(1) of ERISA
who has the authority to perform the separate functions allocated to the
"Named Fiduciary" under this Agreement. Unless a Named Fiduciary right or
duty is specifically assigned to either the Corporation or the
Administrative Committee in this Agreement, the Corporation and the
Administrative Committee shall have congruent power to act as Named
Fiduciary.
(t) "Plan" shall mean any employee benefit plan which meets the
requirements for eligibility specified in Section 1.3 and as of the date of
this Agreement includes those plans listed on Exhibit B.
(u) "Person" shall mean a natural person, trust, estate, corporation of
any kind or purpose, mutual company, joint-stock company, unincorporated
organization, association, partnership, joint venture, employee
organization, committee, board, participant, beneficiary, trustee, partner,
or venturer acting in
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an individual, fiduciary or representative capacity, as the context may
require.
(v) "Qualifying Employer Security" shall mean the employer securities as
defined in Section 407(d) of ERISA.
(w) "Valuation Date" shall mean the last day of the Accounting Period,
calendar quarter or any more frequent reporting date determined by the
Administrative Committee and agreed to by the Master Trustee.
The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine, as the context shall require.
1.2 Compliance With Law. The Trust hereinafter established is intended to
comply with ERISA and to be tax exempt under Section 501(a) of the Code.
1.3 Eligibility. Any employee benefit plan established by the
Corporation, or a subsidiary or an affiliate of the Corporation, may be
funded, in whole or in part, through the Master Trust if (i) the plan is
qualified under Section 401(a) of the Code, (ii) the Master Trust is exempt
from taxation under Section 501(a) of the Code, (iii) the employee benefit
plan provides that it may be funded through a master trust, and (iv) the
Chief Financial Officer of the Corporation has authorized funding of the
employee benefit plan through this Master Trust.
1.4 Master Trustee Relationship to Plan. Notwithstanding anything else in
this Agreement to the contrary: (1) the Master Trustee is not a party to,
and has no duties or responsibilities under, the Plans; (2) the
Administrator shall be required to certify in writing to the Master Trustee
the identity of any fiduciary which is named in the Plans and which has the
power to manage and control Plan assets, and the Master Trustee shall be
entitled to rely upon such certification until notified otherwise in
writing by the Administrator; (3) wherever in this Agreement the Master
Trustee is required to act in accordance with the provisions of any Plan
which are not set forth in this Agreement, the Administrative Committee
shall certify such Plan provisions to the Master Trustee; and (4) absent
written certification to the Master Trustee pursuant to this paragraph, the
Master Trustee shall be chargeable with no knowledge of any Plan terms and
shall be deemed to be in compliance with the Plans except as required by
law. Notwithstanding the preceding sentence, the Master Trustee reserves
the right to seek a judicial and/or administrative determination as to its
proper course of action under this Agreement.
4<PAGE>
SECTION 2
Establishment of Trust
2.1 Establishment of Trust. The Corporation hereby establishes with the
Master Trustee the Master Trust consisting of such 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.
2.2 Contributions to the Trust. The Master Trustee shall have no duty to
determine or collect contributions under any Plan and shall be solely
accountable for monies or properties actually received by it. The
Corporation shall have the sole duty and responsibility for the
determination of the accuracy or sufficiency of the contributions to be
made under any of the Plans, the transmittal of the contributions to the
Master Trustee and compliance with any statute, regulation or rule
applicable to contributions.
2.3 Prior Administration. The Master Trustee shall not have any duty to
inquire into the administration of the Plans or actions taken under any of
the Plans by any prior trustee other than Mellon Bank, N.A. or any of its
affiliates.
2.4 Fund to be Held in Trust. The Fund shall be held by the Master
Trustee in trust and dealt with in accordance with the provisions of this
Agreement and the ERISA.
2.5 Fund to be Held for Benefit of Plan Participants. Except as provided
in any Plan for the purpose of returning any of the Corporation's
contributions or in case any Plan of which this Trust forms a part provides
for the return of the Corporation's contributions in the event such Plan
fails to initially qualify under the applicable provisions of the Code, at
no time prior to the satisfaction of all liabilities for benefits under any
Plan shall any part of the Fund be used for or diverted to purposes other
than for the exclusive benefit of participants, retired participants, or
their beneficiaries under the Plans and for the payment of the reasonable
expenses of the Plans.
2.6 Commingling. The Master Trustee shall commingle such assets
attributable to the Plans as the Administrative Committee may direct. The
Corporation shall be responsible for causing sufficient records to be
maintained to ensure that benefits and liabilities payable with respect to
each Plan shall be paid from the assets allocable to such Plan. Should
separation be required of any Plan from the Fund, the Master Trustee shall
make such separation in accordance with generally accepted accounting
principles.
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SECTION 3
Administration of the Plan
3.1 Administrator. The Plans shall be administered by the Administrative
Committee which shall have the sole fiduciary duty as to plan
administration and the Master Trustee shall not be responsible in any
respect for such administration.
3.2 Indemnity. The Corporation shall fully indemnify and save harmless
the Master Trustee from liability and expense incident to any act or
failure to act by reason of the Master Trustee's reliance upon or
compliance with instructions issued by the Administrative Committee or the
Corporation.
SECTION 4
Disbursement from the Fund
4.1 Disbursements by Master Trustee. The Master Trustee shall make such
payments out of the Fund as the Administrative Committee may from time to
time in writing direct. In the discretion of the Administrative Committee,
such payments may be made directly to the person specified by the
Administrative Committee or deposited in a checking account maintained by
the Administrative Committee for the purpose of making payments to the
person or persons entitled to such payments under the Plans, or to an
account maintained by some other entity which the Administrative Committee
may designate to make payments.
4.2 Direction to the Master Trustee. Any direction given to the Master
Trustee in accordance with this Section need not specify the specific
application of the payment to be made, but shall specify that the payment
is for the purposes of the Plans or the payment of Plans' expenses.
SECTION 5
Allocation of Investment Responsibilities
5.1 Asset Managers. (a) The Administrative Committee will from time to
time, in its sole discretion, appoint one or more Asset Managers to manage
specified portions of the Fund. Upon the appointment of each Asset
Manager, the Administrative Committee shall so notify the Master Trustee
and instruct the Master Trustee in writing to separate into a separate
Directed Fund those assets as to which each Asset Manager has discretion
and control. The Asset Manager shall designate in writing the person or
persons who are to represent any such Asset Manager in dealings with the
Master Trustee. Upon the separation of the
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assets in accordance with the instructions of the Administrative Committee,
the Master Trustee shall thereupon be relieved and released of all
investment duties, responsibilities and liabilities normally and
statutorily incident to a trustee as to such Directed Funds, except as
required by law, and, as to such Directed Funds, the Master Trustee shall
act as custodian. Except as otherwise provided by the Administrative
Committee in writing from time to time, the Master Trustee shall take no
action with respect to the duties or powers allocated to an Asset Manager
in Section 6 or Section 7 without receipt of written directions of the
Asset Manager. Unless specifically prohibited in writing, the Master
Trustee, as custodian, may hold the assets of such Directed Funds in the
name of a nominee or nominees. Nothing in this Section shall reduce the
Master Trustee's duty to invest otherwise uninvested cash for the benefit
of any Directed Fund.
(b) Should an Asset Manager at any time elect to place security
transactions directly with a broker or dealer, the Master Trustee shall not
recognize such transaction unless and until it has received instructions or
confirmation of such fact from the Asset Manager. Should the Asset Manager
direct the Master Trustee to utilize the services of any person with regard
to the assets under its management or control, such instructions shall be
in writing and shall specifically set forth the actions to be taken by the
Master Trustee as to such services.
(c) In the event that an Asset Manager places security transactions
directly or directs the utilization of a service, the Asset Manager shall
be solely responsible for the acts of such persons. The sole duty of the
Master Trustee as to such transactions shall be incident to its duties as
custodian except as required by law.
5.2 Transfer of Assets to Asset Managers. (a) receipt of written
directions by the Administrative Committee, the Master Trustee shall (i)
transfer and deliver such part of the assets of the Fund as may be
specified in such writing to any Asset Manager so appointed, and (ii)
accept the transfer back to it of any such assets at any time held by an
Asset Manager, provided that the Administrative Committee may only direct
such transfers as are in conformity with the provisions of the Plans, this
Agreement, and ERISA, and Sections 401(a) and 501(a) of the Code. Any such
written direction shall constitute a certification to the Master Trustee by
the Administrative Committee that the transfer so directed is one which the
Administrative Committee is authorized to direct and is in conformity with
the aforesaid provisions.
(b) If any assets are so transferred to the custody of an Asset Manager,
such Asset Manager shall undertake and be responsible for all the custodial
duties therefor, and such assets shall remain for all purposes a part of
the Fund and the Trust, and as
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such, subject to all the terms and provisions of this Agreement. Any Asset
Manager receiving such assets may invest any part or all of such assets in
units of any collective, common or pooled trust fund operated or maintained
by a bank or trust company, including the Investment Manager or any
affiliate of the Investment Manager, exclusively for the commingling and
collective investment of monies or other assets held under or as part of a
plan which is established in conformity with and qualifies under Section
401(a) of the Code. Notwithstanding the provisions of this Agreement which
place restrictions upon the actions of the Master Trustee, or the Asset
Manager, to the extent monies or other assets are utilized to acquire units
of any collective trust, the terms of the collective trust indenture shall
solely govern the investment duties, responsibilities and powers of the
trustee of such collective trust, and to the extent required by law, such
terms, responsibilities and powers shall be incorporated herein by
reference and shall be part of this Agreement. For the purposes of
valuation of any interest under the Plans of which this Trust Agreement
forms a part, the value of the interest maintained by the Fund in such
collective trust shall be the fair market value of the collective fund
units held determined in accordance with generally recognized valuation
procedures.
(c) The Master Trustee shall have no duty or responsibility as to the
safekeeping of such assets or as to the investment and reinvestment of the
same, except that the Master Trustee shall require such statements and
reports from such Asset Manager as may be necessary to enable the Master
Trustee and the Administrative Committees to carry out their recordkeeping
and reporting duties under this Agreement. The Master Trustee shall enter
into and execute such agreements, receipts and releases as shall be
required to carry out the directions of the Administrative Committee with
respect to the transfer of any assets of the Fund to or from an Asset
Manager in accordance with this Section 5.2.
5.3 The Master Trustee. Subject to investment policies, objectives and
guidelines communicated to the Master Trustee by the Administrative
Committee as contemplated by this Section 5, the Master Trustee shall from
time to time invest and reinvest the Discretionary Fund and keep it
invested in accordance with such policies, objectives and guidelines.
SECTION 6
Participant Accounts
6.1 Establishment of Investment Accounts. The Administrative Committee
shall direct the Master Trustee to establish on its books and records
accounts sufficient to accommodate investment
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options, including investments in Qualifying Employer Securities, available
to the employees. The Administrative Committee shall establish an
investment purpose for each Investment Account, either by separate written
designation or through an agreement between the Administrative Committee
and the Master Trustee that shall incorporate therein the investment
purposes and, if applicable, the investment restrictions which the Plans
provide as to the respective Investment Accounts. The Investment Accounts
so established shall, until changed by the Administrative Committee,
operate in the manner and form established.
6.2 Qualifying Employer Securities. All amounts received by the Master
Trustee which are directed by the Administrative Committee to one or more
Investment Accounts which have as their investment purpose investment in
Qualifying Employer Securities and any amount received by the Master
Trustee as a result of holding such Qualifying Employer Securities shall be
invested and reinvested exclusively in Qualifying Employer Securities,
except as provided for in Section 7.4 and as follows. Notwithstanding the
foregoing, the Master Trustee shall place amounts received by it for such
Investment Funds in temporary investments if in the opinion of the Master
Trustee market conditions are such that investment in Qualifying Employer
Securities would be disruptive or could not be accomplished. The Master
Trustee shall net all purchases and sales of Qualifying Employer Securities
within any Investment Account. Except as otherwise directed by the
Administrative Committee, the Master Trustee shall acquire or dispose of
Qualifying Employer Securities in the open market or by other methods of
purchases and sales used by the Master Trustee in the normal course of its
securities transactions; provided, however, that both sales and purchases
will be at market value and the books and records of the Master Trustee
shall clearly reflect such fact. Should the Master Trustee for any reason
be unable to acquire or dispose of any Qualifying Employer Securities in
the manner provided for by this Section, it shall notify the Corporation of
this fact and shall make no purchases or sales of Qualifying Employer
Securities until the Master Trustee next becomes able to acquire or dispose
of the Qualifying Employer Securities or until instructions are received
from the Corporation, whichever occurs first. Notwithstanding the
foregoing, the Corporation as Named Fiduciary may provide the Master
Trustee with guidelines for sale and/or purchase of Qualifying Employer
Securities under specified market conditions, and if guidelines are
provided and such specified market conditions occur, the Master Trustee
shall substitute such guidelines for its own evaluation of market
conditions hereinabove provided for.
6.3 Allocation of Contributions. The Administrative Committee shall, upon
the making of any contribution to this Trust by the Corporation, or, if
applicable, a Participant, or both, instruct
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<PAGE>
the Master Trustee in writing of the manner that such contribution is to be
allocated among the Investment Accounts.
6.4 Responsibility of Master Trustee. The Master Trustee shall not be
responsible nor liable to establish or maintain a record or account in the
name of any individual Participant. The Master Trustee shall not be
required to establish the value of any Participant's individual interest in
the Fund or any account established hereunder. Should the Master Trustee
and the Administrative Committee or the Corporation agree that the Master
Trustee shall maintain individual account records, such agreement shall be
separate and apart from the terms of this Trust. Such an agreement shall
not be construed as implying any duty upon the Master Trustee hereunder
even though the Master Trustee, in its corporate capacity as record keeper
for the accounts of individual Participants, may have the right, power or
duty to issue instructions or directions as to the disposition or
distribution of any assets held hereunder.
6.5 Investment Accounts as Separate Trusts. For the purposes of
application of this Agreement of Trust, each Investment Account created
hereunder shall be considered a separate trust insofar as the application
of powers granted the Master Trustee. Notwithstanding the provisions of
this Agreement of Trust which establish powers and duties with regard to
the Trust as a whole, the Master Trustee shall exercise only such of those
powers as are consistent with the investment purposes of the respective
Investment Accounts. Where applicable or required, the Master Trustee with
the Administrative Committee's consent may subdivide any Investment Account
as may be required to fulfill either its duties hereunder or the
instructions of the Administrative Committee. Notwithstanding the
foregoing or any other provision of this Agreement of Trust, the assets
held for the benefit of Participants and Beneficiaries under each Plan
shall constitute a separate trust within the meaning of Section 414(1) of
the Code, such that only the assets of such trust shall be available to
fund the benefits of Participants and Beneficiaries thereunder.
SECTION 7
Investment of the Fund
7.1 Standard of Care. The Master Trustee, each Asset Manager and the
Named Fiduciary shall discharge their respective investment duties as
provided under Sections 5 and 6 hereof with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent Person
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character with like aims and by
diversifying the investments held hereunder consistent with investment
policies, objectives and guidelines so as to minimize the risk of
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<PAGE>
large losses, unless it would be clearly not prudent to diversify or the
lack of diversification is due to acquisition or holding of Qualifying
Employer Securities.
7.2 Waiver of Investment Restrictions. Such investment and reinvestment
shall not be restricted to securities or property of the character
authorized for investments by trustees or asset managers under any statute
or other laws of any state, district or territory.
7.3 Grant of Investment Powers. In addition to any power granted to
trustees or asset managers under any statute or other laws, such laws and
statutes if necessary being incorporated herein by reference, the Master
Trustee's, and each Asset Manager's investment powers may, unless
restricted in writing by the Named Fiduciary, include, but shall not be
limited to, investment in the following without distinction between
principal and income:
(a) domestic or foreign common and preferred stocks and options thereon,
as well as warrants, rights and preferred stocks convertible into common
stock, regardless of where or how traded;
(b) the purchase or sale, writing or issuing, of puts, calls or other
options, covered or uncovered, entering into financial futures contracts,
forward placement contracts and standby contracts, and in connection
therewith, depositing, holding (or directing the Master Trustee, in its
individual capacity, to deposit or hold) or pledging assets of the Fund;
(c) corporate bonds and debentures and any such securities which are
convertible into common stock, domestic or foreign;
(d) bonds or other obligations of the United States of America or any
foreign nation, and any agencies thereof, or any bonds or other obligations
which are directly or indirectly guaranteed by the United States or any
foreign nation, or any agency thereof;
(e) obligations of the states and of municipalities or of any agencies
thereof;
(f) notes of any nature, of foreign or domestic issuers;
(g) mortgages and real estate, wherever situate and whether developed or
undeveloped, including sales and leasebacks, interests or participations in
real estate investment trusts or corporations organized under Section
501(c)(2) or 501(c)(25) of the Code and non-income producing properties.
Notwithstanding any other provision of this Agreement, including, without
limitation, any specific or general power granted to the Master Trustee,
the Master Trustee shall have no responsibility or discretion with respect
to the ownership, management,
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administration, operation or control of any real estate properties,
mortgages, leases or other interests now or hereafter held in the Fund,
including without limitation responsibility for or in connection with any
of the following conditions which now exist or may hereafter be found to
exist in, under, about or in connection with any real estate held in the
Fund or any interest in any trust, partnership or corporation: (i) any
violation of any applicable environmental or health or safety law,
ordinance, regulation or ruling; or (ii) the presence, use, generation,
storage, release, threatened release, or containment, treatment or disposal
of any petroleum, including crude oil or any fraction thereof, hazardous
substances, pollutants or contaminants as defined in the Comprehensive
Environmental Response Compensation and Liability Act, as amended (CERCLA)
or hazardous, toxic or dangerous substances or materials as any of these
terms may be defined under any federal or state law in the broadest sense
from time to time. Notwithstanding anything to the contrary herein or
elsewhere set forth, to the extent permitted by law, the Master Trustee
shall be indemnified by the Corporation, to the extent not paid by the
Fund, from and against any and all claims, demands, suits, liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees
and expenses) arising from or in connection with any matter relating to
conditions in subsections (i) or (ii). This paragraph shall survive the
sale or other disposition of any real estate investment of the Fund and/or
the merger or termination of this Master Trust or appointment of a
successor master trustee.
(h) savings accounts, certificates of deposit and other types of time
deposits, bearing a reasonable rate of interest based upon the duration,
amount, type and geographical area, with any financial institution or
quasi-financial institution or any department of the same, either domestic
or foreign, under the supervision of the United States or any State,
including any such financial institution owned, operated or maintained by
the Master Trustee in its corporate or Association capacity (including any
department or division of the same) or a corporation or association
affiliated with the same;
(i) leaseholds of any duration;
(j) mineral and other natural resources, including, but not limited to,
oil, gas, timber and coal, and any participation therein in any form,
including but not limited to, royalties, ownership, drilling and
exploration;
(k) any collective or common trust fund or composite security owned,
operated and maintained by the Master Trustee, including, but not limited
to, demand notes, short-term notes and cash equivalent funds;
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(l) any collective, common or pooled trust fund operated or maintained
exclusively for the commingling and collective investment of monies or
other assets including any such fund operated or maintained by the Master
Trustee. Notwithstanding the provisions of this Agreement which place
restrictions upon the actions of the Master Trustee or an Investment
Manager, to the extent monies or other assets are utilized to acquire units
of any collective trust, the terms of the collective trust indenture shall
solely govern the investment duties, responsibilities and powers of the
trustee of such collective trust and, to the extent required by law, such
terms, responsibilities and powers shall be incorporated herein by
reference and shall be part of this Agreement. For purposes of valuation,
the value of the interest maintained by the Fund in such collective trust
shall be the fair market value of the collective fund units held,
determined in accordance with generally recognized valuation procedures.
The Corporation expressly understands and agrees that any such collective
fund may provide for the lending of its securities by the collective fund
trustee and that such collective fund's trustee will receive compensation
for the lending of securities that is separate from any compensation of the
Master Trustee hereunder, or any compensation of the collective fund
trustee for the management of such collective fund;
(m) open-end and closed-end investment companies, regardless of the
purposes for which such fund or funds were created, and any partnership,
limited or unlimited, joint venture and other forms of joint enterprise
created for any lawful purpose;
(n) individual or group insurance policies and contracts including, but
not limited to, life insurance, annuity (fixed or variable) and investment
policies and contracts, but only if directed by the Administrative
Committee or the Named Fiduciary, as appropriate, to purchase or retain
such policies and contracts.
7.4 Maintenance of Cash Balances. The Master Trustee shall keep such
portion of each Investment Account in cash or cash balances as may be
specified from time to time to meet contemplated payments from the Fund.
The Master Trustee shall not be liable for interest on any reasonable cash
balances so maintained. The Master Trustee shall invest any other portions
of each Investment Fund which may be in cash or cash balances in accordance
with such investment policies, objectives and guidelines as may be
communicated to the Master Trustee from time to time by the Administrative
Committee or Asset Manager pursuant to Section 5.
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SECTION 8
Powers of the Master Trustee,
Asset Managers or the Named Fiduciary
8.1 Qualifying Employer Securities Accounts. The Plans provide generally
with respect to Investment Accounts invested in Qualifying Employer
Securities that the right to vote, the right to tender in the event of a
tender offer, or the exercise of certain other rights concerning such
Securities are vested in the Participants. The Master Trustee shall act
only in accordance with the procedures set forth in the Appendix by which
the Participants exercise such rights. Prior to the time any such action
is to be taken, the Administrative Committee shall confirm the procedures
set forth in the Appendix then in effect for this purpose.
8.2 ESOP Loans - The Master Trustee is empowered to borrow funds to
acquire shares of Qualifying Employer Securities only in accordance with
the terms set forth in Article IIA of the Appendix.
8.3 General Powers. As to all assets other than Qualifying Employer
Securities, the Master Trustee shall have and exercise the following powers
and authority in the administration of the Fund only on the direction of an
Asset Manager or the Named Fiduciary where such powers and authority relate
to a Directed Fund and in its sole discretion where such powers and
authority relate to investments made by the Master Trustee in accordance
with Section 5.3:
(a) to purchase, receive or subscribe for any securities or other property
and to retain in trust such securities or other property;
(b) to sell, exchange, convey, transfer, lend, or otherwise dispose of any
property held in the Fund and to make any sale by private contract or
public auction; 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;
(c) to vote in person or by proxy any stocks, bonds or other securities
held in the Fund;
(d) to exercise any rights appurtenant to any such stocks, bonds or other
securities for the conversion thereof into other stocks, bonds or
securities, or to exercise rights or options to subscribe for or purchase
additional stocks, bonds or other securities, and to make any and all
necessary payments with respect to any such conversion or exercise, as well
as to write options with respect to such stocks and to enter into any
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transactions in other forms of options with respect to any options which
the Fund has outstanding at any time;
(e) to join in, dissent from or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations or
properties of which the Fund may hold stocks, bonds or other securities or
in which it may be interested, upon such terms and conditions as deemed
wise, to pay any expenses, assessments or subscriptions in connection
therewith, and to accept any securities or property, whether or not
trustees would be authorized to invest in such securities or property,
which may be issued upon any such reorganization, recapitalization,
consolidation, sale or merger and thereafter to hold the same, without any
duty to sell;
(f) to manage, administer, operate or lease for any number 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, all upon such terms and conditions as may be deemed
advisable, to renew or extend or participate in the renewal or extension of
any mortgage upon such terms as may be deemed advisable, and to agree to a
reduction in the rate of interest on any mortgage or any other modification
or change in the terms of any mortgage or of any guarantee pertaining
thereto in any manner and to any extent that may be deemed advisable for
the protection of the Fund or the preservation of the value of the
investment; to waive any default, whether in the performance of any
guarantee, or to enforce any default in such manner and to such extent as
may be deemed advisable; to exercise and enforce any and all rights of
foreclosure, to bid on the property in foreclosure, to take a deed in lieu
of foreclosure, with or without paying a consideration therefor, and in
connection therewith to release the obligation on the bonds or notes
secured by such mortgage and to exercise and enforce in any action, suit or
proceeding at law or in equity any right or remedy in respect to any such
mortgage or guarantee;
(g) to explore for and to develop mineral interests and other natural
resources and to acquire land, either by lease or purchase, for such
purpose, and to enter into any type of contract or agreement incident
thereto, and to sell any product produced by reason of or resulting from
such development or exploration to any person or persons on such terms and
conditions as the Master Trustee or Asset Manager deems advisable, and to
enter into agreements and contracts for transportation of the same;
(h) to insure, according to customary standards, any property held in the
Fund for any amount and to pay any premiums required for such coverage;
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(i) to purchase or otherwise acquire and make payment therefor from the
Fund any bond or other form of guarantee or surety required by any
authority having jurisdiction over this Trust and its operation, or
believed by the Master Trustee or Asset Manager to be in the best interests
of the Fund, except the Master Trustee or Asset Manager may not obtain any
insurance whose premium obligation extends to the Fund which would protect
the Master Trustee or Asset Manager against its liability for breach of
fiduciary duty;
(j) to enter into any type of contract with any insurance company or
companies, either for the purposes of investment or otherwise; provided
that no insurance company dealing with the Master Trustee shall be
considered to be a party to this Agreement and shall only be bound by and
held accountable to the extent of its contract with the Master Trustee.
Except as otherwise provided by any contract, the insurance company need
only look to the Master Trustee with regard to any instructions issued and
shall make disbursements or payments to any person, including the Master
Trustee, as shall be directed by the Master Trustee. Where applicable, the
Master Trustee shall be the sole owner of any and all insurance policies or
contracts issued. Such contracts or policies, unless otherwise determined,
shall be held as an asset of the Fund for safekeeping or custodian purposes
only;
(k) to lend the assets of the Fund upon such terms and conditions as are
deemed appropriate in the sole discretion of the Master Trustee and,
specifically, to loan any securities to brokers, dealers or banks upon such
terms, and secured in such manner, as may be determined by the Master
Trustee, to permit the loaned securities to be transferred into the name of
the borrower or others and to permit the borrower to exercise such rights
of ownership over the loaned securities as may be required under the terms
of any such loan; provided, that, with respect to the lending of securities
pursuant to this paragraph, the Master Trustee's powers shall subsume the
role of custodian (the expressed intent hereunder being that the Master
Trust, in such case, be deemed a financial institution, within the meaning
of section 101(22) of the Bankruptcy Code); and provided, further, that any
loans made from the Fund shall be made in conformity with such laws or
regulations governing such lending activities which may have been
promulgated by any appropriate regulatory body at the time of such loan and
provided further, notwithstanding the first sentence of this Section 8.2 or
any other provision of this Agreement, that the exercise of this power
shall occur solely if and on terms authorized by the Administrative
Committee;
(l) to purchase, enter, sell, hold, and generally deal in any manner in
and with contracts for the immediate or future delivery of financial
instruments of any issuer or of any other property;
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to grant, purchase, sell, exercise, permit to expire, permit to be held in
escrow, and otherwise to acquire, dispose of, hold and generally deal in
any manner with and in all forms of options in any combination;
(m) to lend the assets of the Fund to participants of the Plan. The
Corporation shall have full and exclusive responsibility for loans made to
participants, including, without limitation, full and exclusive
responsibility for the following: development of procedures and
documentation for such loans; acceptance of loan applications; approval of
loan applications; disclosure of interest rate information required by
Regulation Z of the Federal Reserve Board promulgated pursuant to the Truth
in Lending Act, 15 U.S.C. Sec. 1601 et seq.; acting as agent for the
physical custody and safekeeping of the promissory notes and other loan
documents; performing necessary and appropriate recordkeeping and
accounting functions with respect to loan transactions; enforcement of
promissory note terms, including, but not limited to, directing the Master
Trustee to take specified actions; and maintenance of accounts and records
regarding interest and principal payments on notes. The Master Trustee
shall not in any way be responsible for holding or reviewing such
documents, records and procedures and shall be entitled to rely upon such
information as is provided by the Corporation or its own sub-agent or
recordkeeper without any requirement or responsibility to inquire as to the
completeness or accuracy thereof, but may from time to time examine such
documents, records and procedures, as it deems appropriate. The
Corporation shall indemnify and hold the Master Trustee harmless from all
damages, costs or expenses, including reasonable attorneys fees, arising
out of any action or inaction of the Corporation with respect to its agency
responsibilities described herein with respect to participant loans.
8.4 Specific Powers of the Master Trustee. The Master Trustee shall have
the following powers and authority, to be exercised in its reasonable
discretion with respect to the Fund:
(a) to appoint agents, custodians, depositories or counsel (who may be
counsel to any Participating Employer under any Plan), domestic or foreign,
as to part or all of the Fund and functions incident thereto where such
delegation is necessary in order to facilitate the operations of the Fund
and such delegation is not inconsistent with the purposes of the Fund or in
contravention of any applicable law. To the extent that the appointment of
any such person or entity may be deemed to be the appointment of a
fiduciary, the Master Trustee may exercise the powers granted hereby to
appoint as such a fiduciary any person or entity, including, but not
limited to, the Named Fiduciary or the Corporation, notwithstanding the
fact that such person or entity is then considered a fiduciary, a party in
interest or a disqualified person. Upon such delegation, the Master
Trustee
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may require such reports, bonds or written agreements as it deems necessary
to properly monitor the actions of its delegate;
(b) to cause any investment, either in whole or in part, in the Fund to be
registered in, or transferred into, the Master Trustee's name or the names
of a nominee or nominees, including but not limited to that of the Master
Trustee, a clearing corporation, or a depository, or in book entry form, or
to retain any such investment unregistered or in a form permitting transfer
by delivery, provided that the books and records of the Master Trustee
shall at all times show that such investments are a part of the Fund; and
to cause any such investment, or the evidence thereof, to be held by the
Master Trustee, in a depository, in a clearing corporation, in book entry
form, or by any other entity or in any other manner permitted by law;
(c) to make, execute and deliver, as trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or desirable for the accomplishment of any of the foregoing
powers;
(d) to defend against or participate in any legal actions involving the
Fund or the Master Trustee in its capacity stated herein, in the manner and
to the extent it deems advisable, the costs of any such defense or
participation to be borne by the Fund, unless paid by the Corporation in
accordance with Section 11; provided however, the Master Trustee shall
notify the Named Fiduciary and the Corporation of all such actions and the
Corporation may, in its sole discretion, determine against the incurrence
of any such legal fees and expenses which may be incurred beyond those
necessary to protect the Fund against default or immediate loss and may
participate in the selection of and instructions to legal counsel;
(e) to form corporations and to create trusts, to hold title to any
security or other property, to enter into agreements creating partnerships
or joint ventures for any purpose or purposes determined by the Master
Trustee to be in the best interests of the Fund;
(f) to establish and maintain such separate accounts in accordance with
the instructions of the Administrative Committee for the proper
administration of the Plans, or as determined to be necessary by the Master
Trustee. Such accounts shall be subject to the general terms of this
Agreement, unless the Master Trustee is notified of a contrary intent by
the Administrative Committee or the Named Fiduciary in writing; and
(g) to generally take all action, whether or not expressly authorized,
which the Master Trustee may deem necessary or desirable for the protection
of the Fund.
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8.5 Maintenance of Indicia of Ownership. The Master Trustee shall not
maintain indicia of ownership of any asset of the Fund held by it outside
the jurisdiction of the District Courts of the United States unless such
holding is approved through ruling or regulations promulgated under ERISA
by the Secretary of Labor.
8.6 Third Party Transactions. In addition, and not by way of limitation,
the Master Trustee shall have any and all powers and duties concerning the
investment, retention or sale of property held in trust as if it were
absolute owner of the property, and no restrictions with regard to the
property so held shall be implied, warranted or sustained by reason of this
Agreement; provided, however, at no time shall the exercise of such powers
and duties establish any evidence which would permit a third party to
assert a right, title or interest superior to that of the Plans in the
property held in the Fund.
SECTION 9
Discretionary Powers
9.1 Master Trustee Granted Discretion. The Master Trustee is hereby
granted any and all discretionary powers not explicitly or implicitly
conferred or limited by this Agreement which it may deem necessary or
proper for the protection of the property held hereunder.
SECTION 10
Prohibited Transactions
10.1 Transactions which are Prohibited. Notwithstanding any provision of
this Agreement, either appearing before or after this Section, the Master
Trustee shall not engage in or cause the Trust to engage in any transaction
if it knows or should know, that such transaction constitutes a direct or
indirect prohibited transaction, as defined in Section 406 of ERISA or
Section 4975 of the Code.
10.2 Provision of Ancillary Services by Master Trustee. Notwithstanding
the foregoing, the Master Trustee may, in addition to the services rendered
in conjunction with its duties and responsibilities as Master Trustee under
the terms of this Agreement, provide such ancillary services as meet the
following standards:
(a) there have been adopted by the Master Trustee internal safeguards
which assure that such ancillary services are consistent with sound banking
and financial practices as determined by the appropriate banking authority;
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(b) the ancillary services are provided in accordance with guidelines
which are intended to meet the standards established by the appropriate
banking authority; and
(c) the compensation received by the Master Trustee for such services is
reasonable and established in an arm's-length manner and otherwise
satisfies the requirements of Section 408(b)(6) of ERISA.
SECTION 11
Expenses, Compensation and Taxes
11.1 Compensation and Expenses of the Master Trustee. The Master Trustee
shall be entitled to such reasonable compensation for services rendered by
it in accordance with the schedule of compensation as agreed upon by the
Corporation and the Master Trustee from time to time together with all
reasonable expenses incurred by the Master Trustee as a result of the
execution of its duties hereunder, including, but not limited to, legal and
accounting expenses, expenses incurred as a result of disbursements and
payments made by the Master Trustee, and reasonable compensation for
agents, counsel or other services rendered to the Master Trustee by third
parties and expenses incident thereto.
11.2 Payment from the Fund. The Corporation and the other Participating
Employers under the Plans shall pay such portion of the expenses of each
Fund as the Corporation shall determine from time to time. All
compensation, expenses, taxes and assessments in respect of the Fund, to
the extent that they are not paid by the Corporation or the other
Participating Employers, shall constitute a charge upon the Fund and be
paid by the Master Trustee from the Fund upon at least ten (10) days
advance written notice to the Corporation.
11.3 Payment of Taxes. The Master Trustee shall notify the Corporation in
writing upon receipt of notice with regard to any proposed tax deficiencies
or any tax assessments which it receives on any income or property in the
Fund and, unless notified to the contrary by the Corporation within thirty
(30) days after delivery of such notice to the Corporation, shall pay any
such assessments. If the Corporation notifies the Master Trustee within
said period that, in its opinion or the opinion of counsel, such
assessments are invalid or that they should be contested, then the Master
Trustee shall take whatever action is indicated in the notice received from
the Corporation or counsel, including contesting the assessment or
litigating any claims.
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SECTION 12
Accounts, Books and Records of the Fund
12.1 Recordkeeping Duty of Master Trustee. The Master Trustee shall keep
accurate and detailed accounts of all investments, receipts and
disbursements and other transactions hereunder, and all accounts, books and
records relating thereto shall be open at all reasonable times to
inspection and audit by any person designated by the Corporation.
12.2 Periodic Reports. In addition, within sixty (60) days following the
close of each fiscal year of the Fund, or following the close of such other
period as may be agreed upon between the Master Trustee and the
Corporation, and within one hundred twenty (120) days, or such other agreed
upon period, unless such period be waived, after the removal or resignation
of the Master Trustee as provided for in this Agreement, the Master Trustee
shall file with the Administrative Committee, Named Fiduciary and/or the
Corporation a certified written report setting forth all investments,
receipts and disbursements, and other transactions effected during the
fiscal year or other annual period or during the period from the close of
the preceding fiscal year or other preceding period to the date of such
removal or resignation, including a description of all securities and
investment purchases and sales with the cost or net proceeds of such
purchases or sales and showing all cash, securities and other property held
at the close of such fiscal year or other period, valued currently, and
such other information as may be required of the Master Trustee under any
applicable law.
12.3 Additional Accounting. Except as provided below, neither the
Administrative Committee, Named Fiduciary nor the Corporation shall have
the right to demand or be entitled to any further accounting different from
the normal accounting rendered by the Master Trustee. Further, no
participant, beneficiary or any other person shall have the right to demand
or be entitled to any accounting by the Master Trustee, other than those to
which they may be entitled under the law. The Administrative Committee,
Named Fiduciary or the Corporation shall have the right to inspect the
Master Trustee's books and records relating to the Fund during normal
business hours or to designate an accountant to make such inspection,
study, and/or audit with all expenses related thereto to be paid by the
Corporation.
12.4 Judicial Determination of Accounts. Nothing contained herein will be
construed or interpreted to deny the Master Trustee or the Corporation the
right to have the Master Trustee's account judicially determined.
12.5 Limitation of Actions. Notwithstanding any other provision of the
Plans or this Agreement, the Master Trustee shall not be
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subject to any liability for any breach of fiduciary duty or violation of
Part 1 of ERISA, regardless of its nature, after the expiration of six
years after the date of the last act which constituted a part of the breach
or violation or in the case of an omission, the latest date on which the
Master Trustee could have cured the breach or violation, or if earlier,
three years after the earliest date on which a plaintiff had actual
knowledge of such act or omission except in the case of fraud or
concealment, in which case an action may be brought against the Master
Trustee up to six years after the date of discovery of a breach or
violation by the Master Trustee.
12.6 Filings by the Administrative Committee. For the purposes of this
Section, the Master Trustee shall conclusively presume that the
Administrative Committee has made or caused to be made, or will make or
cause to be made, all Federal filings as of the date required. Should the
Master Trustee incur any liability by reason of failure of the
Administrative Committee to timely file, the Corporation shall fully
reimburse the Master Trustee for any and all obligations, including
penalties, interest or expenses, so incurred by the Master Trustee.
12.7 Determination of Fair Market Value. The Master Trustee shall
determine the fair market value of the Fund monthly and annually or more
frequently as may be directed by the Administrative Committee and agreed to
by the Master Trustee based upon generally accepted accounting principles
applicable to Investment Funds that are similar in nature to the ones
created hereunder.
12.8 Retention of Records. All records and accounts maintained by the
Master Trustee with respect to the Fund shall be preserved for such period
as may be required under any applicable law. Upon the expiration of any
such required retention period, the Master Trustee shall have the right to
destroy such records and accounts after first notifying the Corporation in
writing of its intention and transferring to the Corporation any records
and accounts requested. The Master Trustee shall have the right to
preserve all records and accounts in original form, or on microfilm,
magnetic tape, or any other similar process.
SECTION 13
Fiduciary Duties of Master Trustee
13.1 Acknowledgment of Fiduciary Duty. The Master Trustee acknowledges
that it assumes the fiduciary duties established by this Agreement.
13.2 Judicial Determination. The Master Trustee shall not, however, be
liable for any loss to or diminution of the Fund
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except to the extent that any such loss or diminution results from act or
inaction on the part of the Master Trustee which is judicially determined
to be a breach of its fiduciary duties.
SECTION 14
Resignation and Removal
14.1 Power to Resign or Remove. The Master Trustee may be removed with
respect to all, or a part of, the Fund by the Corporation, upon written
notice to the Master Trustee to that effect. The Master Trustee may resign
as Master Trustee hereunder, upon written notice to that effect delivered
to the Corporation.
14.2 Notice. Such removal or resignation shall become effective as of the
last day of the month which coincides with or next follows the expiration
of sixty (60) days from the date of the delivery of such written notice,
unless an earlier or later date is agreed upon in writing by the
Corporation and the Master Trustee.
14.3 Successor Appointment. In the event of such removal or resignation,
a successor Master Trustee, or a separate trustee or trustees, shall be
appointed by the Corporation to become Master Trustee, or a separate
trustee or trustees, as of the time such removal or resignation becomes
effective. Such successor Master Trustee, or separate trustee or trustees,
shall accept such appointment by an instrument in writing delivered to the
Corporation and the Master Trustee and upon becoming successor Master
Trustee, or separate trustee or trustees, shall be vested with all the
rights, powers, duties, privileges and immunities as successor Master
Trustee, or separate trustee or trustees, hereunder as if originally
designated as Master Trustee, or separate trustee or trustees, in this
Agreement.
14.4 Transfer of Fund to Successor. Upon such appointment and acceptance,
the retiring Master Trustee shall endorse, transfer, assign, convey and
deliver to the successor Master Trustee, or separate trustee or trustees,
all of the funds, securities and other property then held by it in the
Fund, except such amount as may be reasonable and necessary to cover its
compensation and expenses as may be agreed to by the Corporation in
connection with the settlement of its accounts and the delivery of the Fund
to the successor Master Trustee, or separate trustee or trustees, and the
balance remaining of any amount so reserved shall be transferred and paid
over to the successor Master Trustee, or separate trustee or trustees,
promptly upon settlement of its accounts.
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14.5 Retention of Nontransferable Assets. If the retiring Master Trustee
holds any property unsuitable for transfer, as determined by the
Administrative Committee, it shall retain such property, and as to such
property alone it shall be a co-trustee with the successor Master Trustee,
or separate trustee or trustees, its duties and obligations being solely
limited to any such property, and it shall not have fiduciary duties of any
nature as to assets transferred. Should the successor Master Trustee, or
separate trustee or trustees, accept fiduciary responsibility as to such
property, the Master Trustee shall retain only custodian duties as to such
property.
14.6 Accounting. In the event of the removal or resignation of the Master
Trustee hereunder, the Master Trustee shall file with the Corporation a
statement and report of its accounts and proceedings covering the period
from its last annual statement and report, and its liability and
accountability to anyone with respect to the propriety of its acts and
transactions shown in such written statement and report shall be governed
by the terms of this Agreement.
SECTION 15
Actions by the Corporation,
the Administrative Committee or Named Fiduciary
15.1 Action by Corporation. Any action by the Corporation pursuant to
this Agreement shall be evidenced or empowered in writing to the Master
Trustee, and the Master Trustee shall be entitled to rely on such writing.
15.2 Action by the Administrative Committee or Named Fiduciary. Any
action by any person or entity duly empowered to act on behalf of the
Administrative Committee or the Named Fiduciary with respect to any rights,
powers or duties specified in this Agreement shall be in writing, signed by
such person or by the person designated by the Administrative Committee or
the Named Fiduciary and the Master Trustee shall act and shall be fully
protected in acting in accordance with such writing.
SECTION 16
Amendment or Termination
16.1 Amendment or Termination. The Corporation shall have the right at
any time and from time to time by appropriate action:
(a) to modify or amend in whole or in part any or all of the provisions of
this Agreement upon sixty (60) days' prior notice in writing to the Master
Trustee, unless the Master Trustee
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agrees to waive such notice; provided, however, that no modification or
amendment which affects the rights, duties or responsibilities of the
Master Trustee may be made without the Master Trustee's consent, or
(b) to terminate this Agreement upon sixty (60) days' prior notice in
writing delivered to the Master Trustee; provided, further, that no
termination, modification or amendment shall permit any part of the corpus
or income of the Fund to be used for or diverted to purposes other than for
the exclusive benefit of such participants, retired participants and their
beneficiaries, the payment of any ESOP Loans as provided for in the
Appendix and payment of the Plans' expenses, except for the return of
Corporation contributions which are allowed by law and permitted under a
Plan.
16.2 Distribution Upon Termination. Should the Corporation notify the
Master Trustee of the termination of a Plan, the Master Trustee shall
distribute all cash, securities and other property then constituting the
assets of that Plan, less any amounts constituting charges and expenses
payable from the Fund, on the date or dates specified by the Administrative
Committee to such Persons and in such manner as the Administrative
Committee shall direct. In making such distributions, the Master Trustee
shall be entitled to assume that such distributions are in full compliance
with and are not in violation of any applicable law regulating the
termination arising from any distribution made by the Master Trustee at the
direction of the Administrative Committee as a result of the termination of
the Plan and shall indemnify and save the Master Trustee harmless from any
attempt to impose any liability on the Master Trustee with respect to any
such distribution.
16.3 Retention of Nontransferable Property. The Master Trustee reserves
the right to retain such property as is not, in the sole discretion of the
Corporation, suitable for distribution at the time of termination of this
Agreement and shall hold such property as custodian for those persons or
other entities entitled to such property until such time as the Master
Trustee is able to make distribution. The Master Trustee's duties and
obligations with respect to any property held in accordance with the above
shall be purely custodial in nature and the Master Trustee shall only be
obligated to see to the safekeeping of such property and make a reasonable
effort to prevent deterioration or waste of such property prior to its
distribution. Upon complete distribution of all property constituting the
Fund, this Agreement shall be deemed terminated.
16.4 Termination in the Absence of Directions from the Administrative
Committee. In the event no direction is provided by the Administrative
Committee with respect to the distribution of a Plan's portion of the Fund
upon termination of this
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Agreement, the Master Trustee shall make such distributions as are
specified by the Plan after notice to the Corporation. In the event the
Plan is silent as to the distributions to be made upon termination of the
Plan or the terms of the Plan are inconsistent with the then applicable law
or the Master Trustee is unable by reasonable efforts to obtain a copy of
the most recent Plan, the Master Trustee shall distribute the Fund to
participants and their beneficiaries under the Plan in an equitable manner
that will not adversely affect the qualified status of the Plan under
Section 401(a) of the Code or any other statute of similar import and that
will comply with any applicable provisions of ERISA regulating the
allocation of assets upon termination of plans such as the Plan. The
Master Trustee, in such cases, reserves the right to seek a judicial and
administrative determination as to the proper method of distribution of the
Fund upon termination of this Agreement.
16.5 Termination on Corporate Dissolution. If the Corporation ceases to
exist as a result of liquidation, dissolution or acquisition in some
manner, the Fund shall be distributed as provided above upon termination of
a Plan unless a successor company elects to continue the Plan and this
Agreement as provided in this Agreement.
16.6 Termination of Contributions. The discontinuance of contributions by
the Corporation or any Participating Employer shall not of itself
constitute the termination of a Plan. In the event of a discontinuance
which is not a termination of a Plan, the Trustee shall continue to
administer the assets then constituting the Fund.
SECTION 17
Merger or Consolidation
17.1 Merger or Consolidation of Master Trustee. Any corporation, or
national association, into which the Master Trustee may be merged or with
which it may be consolidated, or any corporation, or national association,
resulting from any merger or consolidation to which the Master Trustee is
a party, or any corporation, or national association, succeeding to the
trust business of the Master Trustee, shall become the successor of the
Master Trustee hereunder, without the execution or filing of any instrument
or the performance of any further act on the part of the parties hereto.
17.2 Merger or Consolidation of Corporation. Any corporation into which
the Corporation may be merged or with which it may be consolidated, or any
corporation succeeding to all or a substantial part of the business
interests of the Corporation may become the Corporation hereunder by
expressly adopting and
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agreeing to be bound by the terms and conditions of the Plan and this
Agreement and so notifying the Master Trustee to such effect by submission
to the Master Trustee of an appropriate written document.
17.3 Merger or Consolidation of Plan. In the event that the Named
Fiduciary or the Corporation authorizes and directs that the assets of
another plan be merged or consolidated with or transferred to a Plan
participating in this Trust, the Master Trustee shall take no action with
regard to such merger, consolidation or transfer until it has been notified
in writing that each participant covered under the plan the assets of which
are to be merged, consolidated or transferred will immediately after such
merger, consolidation or transfer be entitled to a benefit either equal to
or greater than the benefit he or she would have been entitled to had the
Plan been terminated.
SECTION 18
Acceptance of Trust
18.1 Acceptance by Master Trustee. The Master Trustee accepts the Trust
created hereunder and agrees to be bound by all the terms of this
Agreement.
SECTION 19
Nonalienation of Trust
19.1 Trust not Subject to Assignment or Alienation. Except as permitted
by law, no company, participant or beneficiary of the Plans to which the
Trust applies shall have any interest in or right to the assets of this
Trust, and to the full extent of all applicable laws, the assets of this
Trust shall not be subject to any form of attachment, garnishment,
sequestration or other actions of collection afforded creditors of the
Corporation, participants or beneficiaries. The Master Trustee shall not
recognize any assignment or alienation of benefits unless, and then only to
the extent, written notices are received from the Administrative Committee.
19.2 Plans' Interest in Trust not Assignable. The equity or interest of
any participating Plan in the Fund shall not be assignable.
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SECTION 20
Governing Law
20.1 Governing Law. This Agreement shall be construed and enforced, to
the extent possible, according to the laws of the Commonwealth of
Pennsylvania, and all provisions hereof shall be administered according to
the laws of said Commonwealth and any federal laws, regulations or rules
which may from time to time be applicable. In case of any conflict between
the provisions of the Plans and this Agreement, the provisions of this
Agreement shall govern.
SECTION 21
Parties to Court Proceedings
21.1 Only Corporation and Master Trustee Necessary. To the extent
permitted by law, only the Master Trustee and the Corporation shall be
necessary parties in any application to the courts for an interpretation of
this Agreement or for an accounting by the Master Trustee, and no
participant under any Plan or other person having an interest in the Fund
shall be entitled to any notice or service of process. Any final judgment
entered in such an action or proceeding shall, to the extent permitted by
law, be conclusive upon all persons claiming under this Agreement or any
Plan.
SECTION 22
Subsidiaries and Affiliates
22.1 Adoption of Master Trust by Subsidiaries and Affiliates. Any Company
which is a subsidiary of the Corporation or which may be affiliated with
the Corporation in any way and which is now or may hereafter be organized
under the laws of the United States of America, or of any State or
Territory thereof, with the approval of the Corporation, by resolution of
its own Board of Directors, may adopt this Agreement, if such subsidiary or
affiliate shall have adopted one or more Plans qualified under Section
401(a) of the Code. If any such subsidiary or affiliate so adopts this
Agreement, this Agreement shall establish the trust for such Plans as are
specified by such subsidiary or affiliate and shall constitute a
continuation, amendment and restatement of any prior trust for any such
Plans. Furthermore, the assets of any such Plans may be commingled with
the assets of other Plans held in the Fund pursuant to Section 2.6 hereof.
However, the assets of any Plan so held in the Fund shall not be subject to
any claim arising under any other Plan, the assets of which are commingled
therewith by the Master Trustee for investment purposes, and
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under no circumstances shall any of the assets of one Plan be available to
provide the benefits under another Plan. A separate trust shall be deemed
to have been created with respect to each Plan funded under the Agreement.
22.2 Segregation from Further Participation. Any subsidiary or affiliate
of the Corporation may, at any time, with the consent of the Corporation,
segregate its Plan's trust from further participation in this Agreement.
In such event, such subsidiary or affiliate shall file with the Master
Trustee a document evidencing the segregation of the Plan from the Fund and
its continuance of a separate trust in accordance with the provisions of
this Agreement as though such subsidiary or affiliate were the Corporation
thereunder. In such event, the Master Trustee shall deliver to itself as
Master Trustee of such separate trust such share of each Investment Fund as
may be determined by the Master Trustee to constitute the appropriate share
of the Fund, as confirmed by the Corporation, then held in respect of the
participating employees in such Plan. Such subsidiary or affiliate may
thereafter exercise, in respect of such separate trust, all of the rights
and powers reserved to the Corporation under the provisions of this
Agreement. The equitable share of any Plan participating in each
Investment Fund shall be immediately segregated and withdrawn from the Fund
if the Plan ceases to be qualified under Section 401(a) of the Code and the
Corporation shall promptly notify the Master Trustee of any determination
by the Internal Revenue Service that any such Plan has ceased to be so
qualified.
22.3 Segregation of Assets Allocable to Specific Employees. The
Administrative Committee may at any time direct the Master Trustee to
segregate and withdraw the equitable share of any such Plan, or that
portion of such equitable share as may be certified to the Master Trustee
by the Administrative Committee as allocable to any specified group or
groups of employees or beneficiaries. Whenever segregation is required,
the Master Trustee shall withdraw from each Investment Fund such assets as
it shall deem to be equal in value to the equitable share to be segregated.
Such withdrawal from each Investment Fund shall be in cash or in any
property held in such Investment Fund, or in a combination of both. The
Master Trustee shall thereafter hold the assets so withdrawn as a separate
Fund in accordance with the provisions of this Agreement, which shall be
construed in respect of such assets as if the employer maintaining such
Plan (determined without regard to whether any subsidiaries or affiliates
of such employer have joined in such Plan) has been named as the
Corporation hereunder. Such segregation shall not preclude later
readmission to the Fund.
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SECTION 23
Authorities
23.1 Corporation. Whenever the provisions of this Agreement specifically
require or permit any action to be taken by "the Corporation" or a
subsidiary or affiliate of the Corporation, such action must be taken by
the Person authorized to act on behalf of the Corporation or such
subsidiary or affiliate. Any resolution adopted by the Board of Directors
or other evidence of such authorization shall be certified to the Master
Trustee by the Secretary or an Assistant Secretary of the Corporation or
such subsidiary or affiliate under its corporate seal, and the Master
Trustee may rely upon any authorization so certified until revoked or
modified by a further action of the Board of Directors similarly certified
to the Master Trustee.
23.2 Named Fiduciary and Administrative Committee. The Corporation shall
furnish the Master Trustee from time to time with a list of the names and
signatures of all Persons authorized to act as the Corporation's designee
under Section 1.1, as a Named Fiduciary, as members of the Administrative
Committee, or in any other manner authorized to issue orders, notices,
requests, instructions and objections to the Master Trustee pursuant to the
provisions of this Agreement. Any such list shall be certified by the
Secretary or an Assistant Secretary of the Corporation (or by the Secretary
or an Assistant Secretary of any subsidiary or affiliate of the Corporation
which is authorized to appoint members of the Administrative Committee for
a Plan), and may be relied upon for accuracy and completeness by the Master
Trustee. Each such Person shall thereupon furnish the Master Trustee with
a list of the names and signatures of those individuals who are authorized,
jointly or severally, to act for such Person hereunder, and the Master
Trustee shall be fully protected in acting upon any notices or directions
received from any of them.
23.3 Investment Manager. The Named Fiduciary shall cause each Investment
Manager to furnish the Master Trustee from time to time with the names and
signatures of those persons authorized to direct the Master Trustee on its
behalf hereunder.
23.4 Form of Communications. Any agreement between the Corporation and
any Person (including an Investment Manager) or any other provision of this
Agreement to the contrary notwithstanding, all notices, directions and
other communications to the Master Trustee shall be in writing or in such
other form, including transmission by electronic means through the
facilities of third parties or otherwise, specifically agreed to in writing
by the Master Trustee, and the Master Trustee shall be fully protected in
acting in accordance therewith.
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23.5 Continuation of Authority. The Master Trustee shall have the right
to assume, in the absence of written notice to the contrary, that no event
constituting a change in the Named Fiduciary or membership of the
Administrative Committee or terminating the authority of any Person,
including any Investment Manager, has occurred.
23.6 No Obligation to Act on Unsatisfactory Notice. The Master Trustee
shall incur no liability under this Agreement for any failure to act
pursuant to any notice, direction or any other communication from any Asset
Manager, the Corporation, the Administrative Committee, or any other Person
or the designee of any of them unless and until it shall have received
instructions in form satisfactory to it.
SECTION 24
Counterparts
24.1 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and said
counterparts shall constitute but one and the same instrument and may be
sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the parties hereto, each intending to be legally
bound hereby, have hereunto set their hands and seals as of the day and
year first above written.
ANHEUSER-BUSCH COMPANIES, INC.
By /s/ Jerry E. Ritter
Jerry E. Ritter
Chief Financial Officer
MELLON BANK, N.A.
By /s/ Robert T. Borza
Name: Robert T. Borza
Title: Vice-President
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EXHIBIT "A"
Effective November 1, 1993
1. Trust Agreement for Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (As Amended and Restated Effective June 1, 1989)
2. Trust Agreement for Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Employees Covered by a Collective Bargaining
Agreement) (As Amended and Restated Effective June 1, 1989)
3. Trust Agreement for Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Hourly Employees of Busch Entertainment Corporation)
Effective July 1, 1994
Trust Agreement for the Anheuser-Busch Employee Stock Purchase and Savings
Plan (Amended and Restated as of January 1, 1985)
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EXHIBIT "B"
Effective November 1, 1993
1. Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
2. Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For
Employees Covered by a Collective Bargaining Agreement)
3. Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For
Hourly Employees of Busch Entertainment Corporation)
Effective July 1, 1994
1. Anheuser-Busch Employee Stock Purchase and Savings Plan
2. Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For
Certain Employees of Campbell Taggart, Inc. and its Subsidiaries)
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MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
BY AND BETWEEN
ANHEUSER-BUSCH COMPANIES, INC.
AND
MELLON TRUST
APPENDIX
The following rules shall govern each Company Stock Fund maintained under
the Master Trust, notwithstanding any inconsistent provision of the
Agreement of Trust to which this document is the Appendix.
IA. DEFINITIONS
For purposes of this Appendix, the following phrases shall have the
meanings set forth herein, except as otherwise required by the context, and
shall apply to each Investment Fund invested in Qualifying Employer
Securities under the Agreement of Trust. References in this Appendix to
terms defined in the Agreement of Trust shall have the meanings set forth
therein, except as otherwise required by the context.
"Account". The separate record of the interest of each Participant in
any Plan.
"Allocated Shares". Shares other than Unallocated Shares which are
held in any Company Stock Fund from time to time.
"Allocated Share Equivalents". The equivalent to the number of
Allocated Shares that will be credited to a Participant's Account for
purposes of Sections 3.3A and 3.4A if and when the Master Trustee changes
from Share accounting to unit accounting under the Company Stock Funds in
accordance with the directions of the Administrative Committee. Allocated
Share Equivalents held in a Company Stock Fund that a Participant or
Beneficiary shall be entitled to vote shall be equal to the number of full
and fractional Allocated Shares held in such Company Stock Fund as of a
Valuation Date, divided by the number of units in such Company Stock Fund
as of such Valuation Date, multiplied by the number of units in the
Participant's Account in such Company Stock Fund as of such Valuation Date.
"Closing Price". The value of a Share or group of Shares determined
by the closing price of a Share as listed in the New York Stock Exchange
Composite Transactions listing published in the Midwest Edition of the Wall
Street Journal on the specified date.
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"Company Matching Contributions". The amounts contributed under any
Plan by Participating Employers pursuant to the basic formula set forth in
such Plan, including forfeitures which are applied to reduce the amount of
contributions otherwise payable by Participating Employers.
"Company Stock Fund". An Investment Fund invested only in Shares and
cash in accordance with the instruction of the Administrative Committee.
Any specific Company Stock Fund may hold part or all of the Allocated
Shares under one Plan or under two or more Plans.
"Employing Companies". The Corporation and (a) all of its
Subsidiaries (whether Participating Employers or not) and other
corporations which, but for the fact that they are not created or organized
in the United States under the law of any State or Territory thereof, would
be Subsidiaries, which are members of the controlled group of corporations
of which the Corporation is a member, and (b) all other trades or
businesses (whether or not incorporated) which are under common control
with the Corporation, (c) any organization (whether or not incorporated)
which is a member of an affiliated service group which includes the
Corporation, (d) any other entity otherwise required to be aggregated with
the Corporation, and such Subsidiaries and other corporations, taken
collectively. All determinations required by this Section shall be
pursuant to and consistent with Sections 414(b), (c), (m) and (o) of the
Code and regulations thereunder.
"ESOP". Any Plan designed to comply with the requirements for
employee stock ownership plans under Section 4975(e)(7) of the Code and
regulations thereunder.
"ESOP Loan". A loan described in Section 404(a)(9)(A) of the Code and
which otherwise satisfies the requirements of Article IIA, which is used by
the Master Trustee to finance the acquisition of Shares or to refinance an
existing ESOP Loan under any ESOP.
"ESOP Loan Payment Accumulation Account". An account in which the
Master Trustee accumulates contributions, dividends and related earnings
under any ESOP in accordance with the Administrative Committee's
directions.
"ESOP Loan Suspense Account". The account established to hold
Unallocated Shares with respect to any ESOP. If so directed by the
Administrative Committee, an ESOP Loan Suspense Account may also hold
contributions, dividends and related accumulations under the ESOP for
application to payment of principal and interest on an ESOP Loan.
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"Participant". An individual with an Account under any Plan.
"Personal Contributions". A generic term referring, collectively, to
all amounts contributed to this Plan by a Participant. Such amounts will
be either After-Tax Contributions or Before-Tax Contributions, and may be
either matched by Company Matching Contributions or unmatched.
"Processing Date". The last trading day of each calendar month on the
New York Stock Exchange or such other date or series of periodic dates
(such as daily or weekly) as the Administrative Committee may determine
from time to time for the purpose of processing allocations to
Participants' Accounts under the Plans.
"Share". A share of common stock of the Corporation.
"Subsidiary". Any corporation or other form of business enterprise
created or organized in the United States under the law of any State or
Territory thereof, the issued and outstanding voting capital stock or
equity interest of which is, in the aggregate, 80% or more owned by the
Corporation, another Subsidiary or any combination of the Corporation
and/or one or more Subsidiaries.
"Supplemental Contributions". Amounts contributed to an ESOP by
Participating Employers in addition to Company Matching Contributions
pursuant to a formula based on increases in the price of Shares from time
to time.
"Unallocated Shares". Shares held in an ESOP Loan Suspense Account.
"Valuation Date". Any date as of which the Master Trustee determines
Share value or unit value under an Investment Fund, as directed by the
Administrative Committee. Valuation Dates may be more frequent than
Processing Dates.
IIA. DUTIES OF THE MASTER TRUSTEE UNDER ESOPS
2.1A Provisions Apply to Each ESOP Separately. The provision of this
Article IIA shall apply only to ESOPs and shall apply to each ESOP as if it
were the only Plan. For example, if two ESOPs have ESOP Loans outstanding
at the same time, the resources of each such ESOP shall be applied only to
its own ESOP Loan obligation.
2.2A Terms of ESOP Loan. The Master Trustee will be specifically
empowered to borrow funds (including a borrowing from the Corporation or
any other of the Employing Companies) to acquire Shares or repay a prior
ESOP Loan, subject to the
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conditions set forth in this Section 2.2A. The terms of each ESOP Loan
must, at the time the loan is made, be at least as favorable to the ESOP's
trust as the terms of a comparable loan resulting from arm's length
negotiations between independent parties. Each ESOP Loan shall be for a
specific term, shall bear a reasonable rate of interest, and shall be
without recourse against the Master Trust or any Participants' Accounts,
except that an ESOP Loan may be guaranteed by the Corporation and may be
secured by a pledge of the Shares acquired with the proceeds of the ESOP
Loan (or acquired with the proceeds of a prior ESOP Loan which is being
refinanced). No other assets of the Master Trust may be pledged as
collateral for an ESOP Loan, and no lender shall have recourse against
assets of the Master Trust other than (a) collateral given for the ESOP
Loan, (b) amounts held under the ESOP's ESOP Loan Suspense Account or ESOP
Loan Payment Accumulation Account (other than contributions of Shares in
kind), and (c) earnings attributable to such collateral. An ESOP Loan
shall not be payable on demand except in the case of default. In the case
of default, the value of Plan assets transferred in satisfaction of the
ESOP Loan shall not exceed the amount of the default plus any applicable
prepayment or similar penalties or premiums. If the lender is a
disqualified person within the meaning of Code Section 4975(e)(2), the ESOP
Loan must provide for a transfer of Trust assets on default only upon and
to the extent of the failure of the Master Trustee to meet the payment
schedule of the ESOP Loan. Payments of principal and/or interest on any
ESOP Loan shall be made by the Master Trustee in accordance with Section
2.8A. The Administrative Committee shall direct the Master Trustee to
enter into any loan transaction approved by the Board of Directors and
conforming with the provisions hereof.
2.3A Acquisition of Shares with Proceeds of ESOP Loan. The proceeds
of any ESOP Loan shall be used by the Master Trustee within a reasonable
time after receipt to acquire Shares or to repay a prior ESOP Loan on
behalf of the ESOP. In acquiring Shares, the Master Trustee shall take all
appropriate and necessary measures to ensure that the Trust pays no more
than "adequate consideration" (within the meaning of Section 3(18) of
ERISA) for such securities. All Shares acquired with the proceeds of an
ESOP Loan shall be placed in the ESOP Loan Suspense Account established by
the Master Trustee. To the extent required for the purpose of pledging
such Shares as collateral for the ESOP Loan, the Shares held as collateral
in the ESOP Loan Suspense Account may be physically segregated from other
assets of the Master Trust. In no event shall the Shares held as
collateral in the ESOP Loan Suspense Account be commingled with any other
assets of the ESOP or any other Plan. Any pledge of Shares must provide
for the release of Shares not later than as payments on the ESOP Loan are
made by the Master Trustee and for Shares so released to be transferred as
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appropriate for allocation to Participants' Accounts pursuant to Sections
2.6A and 2.7A and regulations promulgated under ERISA and the Code.
2.4A Shares to be Unrestricted. No Shares acquired with the proceeds
of an ESOP Loan shall be subject to any put, call or other option or any
buy-sell or similar agreement while held by or when distributed from the
Master Trust, whether or not the ESOP constitutes an "employee stock
ownership plan" within the meaning of Section 4975(e)(7) of the Code at
such time and whether or not the ESOP Loan has been repaid at such time.
2.5A Release from ESOP Loan Suspense Account. The number of Shares
to be released from the ESOP Loan Suspense Account during each Plan Year
shall be determined as follows: the number of Shares held in the ESOP Loan
Suspense Account at the beginning of the Plan Year shall be multiplied by
a fraction, the numerator of which shall be the amount of principal and
interest due under the loan amortization payment schedule for the Plan
Year, and the denominator of which shall be the sum of the numerator plus
the principal and interest to be paid on all amortization payments under
the loan amortization payment schedule for all future Plan Years. Unless
otherwise determined by the Administrative Committee, a substantially equal
number of Shares shall be released from the ESOP Loan Suspense Account of
any ESOP for each calendar quarter during the Plan Year. Shares may be
released on two or more dates within a calendar quarter, so long as the
total number of Shares released for the quarter is appropriate. For
purposes of determining the average Share price under the Plan as of a
Processing Date, such Shares shall be deemed acquired by the Master Trustee
at the Closing Price on the last trading day prior to the date(s) of
release or such other Valuation Date as may be determined by the
Administrative Committee for this purpose, and shall, in accordance with
procedures adopted by the Administrative Committee, be allocated to the
Accounts of Participants in the ESOP in substitution for Shares otherwise
required to be allocated pursuant to provisions of the respective ESOPs.
In connection with such releases, it is intended that the Master Trustee
will transfer funds to the ESOP Loan Payment Accumulation Account or ESOP
Loan Suspense Account maintained on behalf of the ESOP for each calendar
quarter equal to the total value of Shares released from the ESOP Loan
Suspense Account for such calendar quarter.
2.6A Use of Company and Personal Contributions for ESOP Loan
Payments. In order to accumulate the necessary funds for repayment of any
ESOP Loan, all Company Matching Contributions, discretionary Company
contributions, Supplemental Contributions and Personal Contributions,
together with earnings thereon, shall be available for repayment of the
ESOP Loan, and shall be applied to ESOP Loan repayment as provided for in
Section 2.8A.
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2.7A Use of Dividends for ESOP Loan Payments. Any dividends on
Shares held by the Master Trustee under an ESOP which are paid while an
ESOP Loan is outstanding shall be applied to ESOP Loan repayment, unless
directed otherwise by the Administrative Committee. It is intended that
such dividends be applied to ESOP Loan repayment to the extent that such
dividends, if so applied, would be tax-deductible by the Corporation under
Section 404(k) of the Code. If dividends on Allocated Shares under an ESOP
are applied to ESOP Loan repayment in accordance with the foregoing, Shares
("Dividend Replacement Shares") with a fair market value equal to such
dividends shall be substituted for such dividends. For this purpose, fair
market value of Unallocated Shares released from an ESOP Loan Suspense
Account shall be the Closing Price on the last trading day prior to the
date of release or such other Valuation Date as may be determined by the
Administrative Committee for this purpose, and for other Dividend
Replacement Shares, fair market value shall be the cost of the Dividend
Replacement Shares to the Master Trust. As long as the Master Trustee uses
Share accounting, Dividend Replacement Shares shall be allocated to
Participants' Accounts in lieu of the dividends on Shares in their Accounts
that are applied to ESOP Loan repayment in accordance with this Section
2.7A as of the Processing Date following the date of payment of such
dividends by the Corporation. If and when the Master Trustee changes from
Share accounting to unit accounting with respect to the Company Stock
Funds, Dividend Replacement Shares shall be applied to increase the value
of units in the respective Company Stock Funds holding the Shares on which
the replaced dividends were paid.
2.8A ESOP Loan Payments. The Master Trustee shall, from time to time
during each Plan Year, transfer sufficient funds to the ESOP Loan Payment
Accumulation Account or ESOP Loan Suspense Account to provide funds for
ESOP Loan payments required for the Plan Year as directed from time to time
by the Committee or the Corporation.
2.9A Effect of Termination of ESOP Loan. If for any reason it shall
be necessary or desirable to terminate or partially terminate an
outstanding ESOP Loan prior to its original termination date, including but
not limited to (a) the termination of the ESOP Loan provisions of the ESOP
or the ESOP otherwise ceasing to qualify to maintain any ESOP Loan, (b) the
occurrence of a default under such loan, or (c) the occurrence of any event
which increases the interest rate payable on such loan or results in the
Corporation purchasing or assuming such loan, the Master Trustee shall
repay any outstanding ESOP Loan (or the part thereof to be terminated)
first using the assets (if any) then held in the ESOP Loan Suspense Account
and then using assets held in the ESOP Loan Payment Accumulation Account,
as directed by the Administrative Committee and permitted under the terms
of the ESOP Loan and Section 4975 of the Code and the regulations
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promulgated thereunder. Unless the Plan constituting the ESOP is also
terminated at such time, termination of all or part of an ESOP Loan shall
not affect the operation of other provisions of the Plan constituting the
ESOP.
IIIA. DUTIES OF THE MASTER TRUSTEE RELATING
TO ALL COMPANY STOCK FUNDS
3.1A Investment of Company Matching and Supplemental Contributions.
All Company Matching Contributions and Supplemental Contributions under all
Plans shall be invested in the Company Stock Funds maintained under the
Plans at all times except to the extent that any of such contributions are
held by the Master Trustee in an ESOP Loan Payment Accumulation Account or
ESOP Loan Suspense Account.
3.2A The Company Stock Funds. Except for interim investment of any
cash held thereunder, each Company Stock Fund shall be invested by the
Master Trustee only in Shares; provided that the Master Trustee may receive
and retain in any Company Stock Fund any warrant, right, option or similar
instrument which gives the holder the right to acquire any Shares under any
circumstances, distributed on or in respect of any Shares held in such
Company Stock Fund (and shall sell any other instrument or property so
received which does not give the holder the right to acquire Shares), all
subject to Sections 6.2 and 10.1 of the Agreement of Trust.
3.3A Voting of Shares. (a) Each Participant (or, if deceased, his
Beneficiary), as a named fiduciary within the meaning of Sections 402(a)(2)
and 403(a)(1) of ERISA, shall be entitled to vote, at any meeting of
shareholders of the Corporation, the number of full and fractional
Allocated Shares or Allocated Share Equivalents credited to his Account, as
shown on the records of the Plans as of the most recent date for which
information is available prior to the record date for determining
shareholders entitled to vote at such meeting. To enable them to do so,
and to be fully informed of all matters on which they are entitled to vote,
arrangements will be made by the Master Trustee for the Corporation or the
Administrative Committee promptly to deliver or cause to be delivered to
each Participant (or Beneficiary) who is entitled to vote any Allocated
Shares or Allocated Share Equivalents a copy of all proxy solicitation
materials, before each annual or special meeting of shareholders of the
Corporation, together with a form requesting confidential instructions on
how the Shares which such Participant is entitled to vote are to be voted
at such meeting.
(b) Each Participant (or Beneficiary) who has Allocated Shares
or Allocated Share Equivalents entitled to vote on any matter presented for
a vote by the stockholders and who
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provides timely instructions to the Master Trustee hereunder shall, as a
named fiduciary, also be considered to have voted, in proportion to the
vote of his Allocated Shares or Allocated Share Equivalents, a pro rata
portion of the votes attributable to the aggregate number of (i) any
Allocated Shares or Allocated Share Equivalents as to which voting
instructions have not been timely received from Participants (or
Beneficiaries), and (ii) any other Shares not allocated to Participants'
(or Beneficiaries') Accounts under the Plan in which he is a Participant
(or Beneficiary). Such pro rata portion shall be equal to the aggregate
number of votes attributable to Shares described in clauses (i) and (ii) of
the preceding sentence multiplied by a fraction, the numerator of which is
the number of votes attributable to Allocated Shares or Allocated Share
Equivalents for such Participant (or Beneficiary) and the denominator of
which is the total number of votes attributable to Allocated Shares or
Allocated Share Equivalents held on behalf of Participants or Beneficiaries
in the same Plan who have provided timely instructions to the Master
Trustee under this Section 3.3A.
(c) For purposes of this Section, the Master Trustee shall
follow the directions of those Participants (and Beneficiaries) who provide
voting instructions to the Master Trustee at least three business days
before the shareholders' meeting. Voting instructions from individual
Participants (or Beneficiaries) shall be held by the Master Trustee in
strictest confidence and neither the name of, nor the voting instructions
given by, any individual Participant (or Beneficiary) who chooses to give
voting instructions shall be divulged by the Master Trustee to any of the
Employing Companies or to any director, officer or employee thereof, or to
the Administrative Committee; provided, however, that to the extent
necessary for the operation of the Plans, such instructions may be relayed
by the Master Trustee to an independent recordkeeper, auditor or other
person providing services to the Plans if such person agrees not to divulge
such directions to any other person, including employees, officers and
directors of the Corporation or its affiliates.
3.4A Tendering of Shares and Rights. (a) Each Participant (or, if
deceased, his Beneficiary), as a named fiduciary within the meaning of
Section 403(a)(1) of ERISA, shall be entitled, to the extent of full and
fractional Allocated Shares or Allocated Share Equivalents credited to his
Accounts in a Plan, as shown on the records of the Plan as of the most
recent date for which information is available, to direct the Master
Trustee in writing as to the manner in which to respond to a tender or
exchange offer, including but not limited to a tender or exchange offer
within the meaning of the Securities Exchange Act of 1934, as amended, with
respect to Shares, related rights, or both, and the Master Trustee shall
respond in accordance with the instructions
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so received. The Master Trustee or the Administrative Committee shall
utilize its best efforts to timely distribute or cause to be distributed to
each Participant (or Beneficiary) such information as will be distributed
to shareholders of the Corporation in connection with any such tender or
exchange offer, together with a form requesting confidential instructions
on whether or not such Shares or rights will be tendered or exchanged.
(b) Each Participant (or Beneficiary) who has Allocated Shares
or Allocated Share Equivalents under a Plan shall, as a named fiduciary,
also be considered to have directed the Master Trustee, in proportion to
the direction given or deemed to have been given with respect to Allocated
Shares or Allocated Share Equivalents, as to the sale, exchange or transfer
of a pro rata portion of the aggregate number of any Shares that have not
been allocated to any Participant's (or Beneficiary's) Accounts under the
same Plan. Such pro rata portion shall be equal to the Shares described in
the preceding sentence multiplied by a fraction, the numerator of which is
the number of Allocated Shares or Allocated Share Equivalents of such
Participant (or Beneficiary) and the denominator of which is the total
number of Allocated Shares or Allocated Share Equivalents credited to the
Accounts of all Participants (or Beneficiaries) under the same Plan.
(c) For purposes of this Section, the Master Trustee shall
follow the directions of those Participants (and Beneficiaries) who provide
instructions to the Master Trustee by the date established by the Master
Trustee and calculated to provide sufficient time to compile instructions
and a timely response to the tender or exchange offer. If the Master
Trustee shall not receive timely instructions from a Participant (or
Beneficiary) as to the manner in which to respond to such a tender or
exchange offer, the Participant (or Beneficiary) shall be deemed to have
directed the Master Trustee not to tender or exchange his or her Shares and
the Master Trustee shall not tender or exchange such Shares with respect to
which such Participant (or Beneficiary) has the right of direction. The
instructions received by the Master Trustee from individual Participants
(or Beneficiaries) shall be held in the strictest confidence and neither
the name of, nor the instructions given by, any individual Participant (or
Beneficiary) who chooses to give instructions shall be divulged by the
Master Trustee to any of the Employing Companies or to any director,
officer or employee thereof, or to the Administrative Committee; provided,
however, that to the extent necessary for the operation of the Plans, such
instructions may be relayed by the Master Trustee to an independent
recordkeeper, auditor or other person providing services to the Plans if
such person agrees not to divulge such
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directions to any other person, including employees, officers and directors
of the Corporation or its affiliates.
A-10
Exhibit 5.1
March 24, 1995
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-8 Relating to 5,000,000
shares of Common Stock, Par Value $1.00 Per Share, To Be
Issued Pursuant to the Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan
Gentlemen:
I am an Associate General Counsel of the Anheuser-Busch
Companies, Inc. (the "Company") and have represented the Company
in connection with the Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan (the "Plan"). I have examined such
documents, records and matters of law as I have deemed necessary
for purposes of this opinion letter, and based thereupon I am of
the opinion that:
(1) The shares of common stock that may be issued pursuant
to the Plan will be, when issued in accordance with the Plan,
duly authorized, validly issued, fully paid and nonassessable.
(2) The participations in the Plan to be extended to
participants in the Plan will be, when extended in accordance
with the Plan, validly issued.
I hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the registration statement on Form S-8 filed by
the Company to effect registration of the common stock under the
Securities Act of 1933 and to the reference to me under the
caption "Interests of Named Experts and Counsel" therein.
Very truly yours,
THOMAS LARSON
Thomas Larson
Associate General Counsel
tal\opnplan
Exhibit 5.2
March 24, 1995
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-8 Relating to
5,000,000 shares of Common Stock, Par Value $1.00 Per
Share, To Be Issued Pursuant to the Anheuser-Busch
Deferred Income Stock Purchase and Savings Plan
Gentlemen:
I am a Senior Associate General Counsel of the
Anheuser-Busch Companies, Inc. (the "Company") and have
represented the Company in connection with the Anheuser-Busch
Deferred Income Stock Purchase and Savings Plan (the "Plan"). I
have examined such documents, records and matters of law as I
have deemed necessary for purposes of this opinion letter, and
based thereupon I am of the opinion that the Plan is in
compliance with the applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
I hereby consent to the filing of this opinion letter as
Exhibit 5.2 to the registration statement on Form S-8 filed by
the Company to effect registration of the common stock under the
Securities Act of 1933 and to the reference to me under the
caption "Interests of Named Experts and Counsel" therein.
Very truly yours,
JACQUELYN G. JOHNSON
Jacquelyn G. Johnson
Senior Associate General Counsel
tal\opnplan2
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February
6, 1995, which appears on page 66 of the 1994 Annual Report to
Shareholders of Anheuser-Busch Companies, Inc., which is
incorporated by reference in the Anheuser-Busch Companies, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1994.
We also consent to the incorporation by reference of our report
on the Financial Statement Schedule, which appears on page 15 of
such Annual Report on Form 10-K.
PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
St. Louis, Missouri
March 24, 1995
Exhibit 24.1
ANHEUSER-BUSCH COMPANIES, INC.
POWER OF ATTORNEY
Each of the undersigned directors and officers of
Anheuser-Busch Companies, Inc., a Delaware corporation (the
"Company"), hereby appoints August A. Busch III, Jerry E. Ritter
and JoBeth G. Brown, and each of them acting singly, the true and
lawful agents and attorneys of the undersigned, with full power
of substitution, to do all things and to execute all instruments
which any of them may deem necessary or advisable to enable the
Company 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
proposed registration under said Act pursuant to a Registration
Statement on Form S-8 of 5,000,000 shares of the common stock of
the Company for issuance under the Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan; this authorization to include
the authority to sign the name of each of the undersigned in the
capacities indicated below to the said proposed Registration
Statement to be filed with the Securities and Exchange Commission
in respect of said securities, and to any amendments to said
proposed Registration Statement.
IN WITNESS WHEREOF, each of the undersigned has executed a
copy of this Power of Attorney as of March 22, 1995.
AUGUST A. BUSCH III
August A. Busch III
Chairman of the Board
and President and Director
(Principal Executive Officer)
JERRY E. RITTER
Jerry E. Ritter
Executive Vice President - Chief
Financial and Administrative Officer
(Principal Financial Officer)
GERALD C. THAYER
Gerald C. Thayer
Vice President and Controller
(Principal Accounting Officer)
Pablo Aramburuzabala O.
Director
RICHARD T. BAKER
Richard T. Baker
Director
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ANDREW B. CRAIG III
Andrew B. Craig III
Director
BERNARD A. EDISON
Bernard A. Edison
Director
PETER M. FLANIGAN
Peter M. Flanigan
Director
JOHN E. JACOB
John E. Jacob
Director
CHARLES F. KNIGHT
Charles F. Knight
Director
VERNON R. LOUCKS, JR.
Vernon R. Loucks, Jr.
Director
VILMA S. MARTINEZ
Vilma S. Martinez
Director
SYBIL C. MOBLEY
Sybil C. Mobley
Director
JAMES B. ORTHWEIN
James B. Orthwein
Director
DOUGLAS A. WARNER III
Douglas A. Warner III
Director
WILLIAM H. WEBSTER
William H. Webster
Director
Edward E. Whitacre, Jr.
Director
tal\abci3-23.po3
Exhibit 24.2
ANHEUSER-BUSCH DEFERRED INCOME STOCK PURCHASE
AND SAVINGS PLAN
ANHEUSER-BUSCH DEFERRED INCOME STOCK PURCHASE
AND SAVINGS PLAN (FOR EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT)
POWER OF ATTORNEY
The undersigned are the members of each of the
Administrative Committees of the Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan and the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (For Employees Covered by
a Collective Bargaining Agreement). Each of the undersigned
hereby appoints August A. Busch III, Jerry E. Ritter and JoBeth
G. Brown, and each of them acting singly, the true and lawful
agents and attorneys of the undersigned, with full power of
substitution, to do all things and to execute all instruments
which any of them may deem necessary or advisable to enable
Anheuser-Busch Companies, Inc. (the "Company") 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 (a) the proposed registration
under said Act pursuant to a Registration Statement on Form S-8
of 5,000,000 shares of the common stock of the Company for
issuance under the Anheuser-Busch Deferred Income Stock Purchase
and Savings Plan and (b) the proposed registration under said Act
pursuant to a Registration Statement on Form S-8 of 5,000,000
shares of the common stock of the Company for issuance under the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(For Employees Covered by a Collective Bargaining Agreement);
this authorization to include the authority to sign the name of
each of the undersigned in the capacities indicated below to the
said proposed Registration Statement or amendments to be filed
with the Securities and Exchange Commission in respect of said
securities, and to any amendments to said Registration Statement
or any other Registration Statements previously filed in
connection with any of said Plans.
IN WITNESS WHEREOF, each of the undersigned has executed a
copy of this Power of Attorney as of March 22, 1995.
ALBERT R. WUNDERLICH JoBETH G. BROWN
Albert R. Wunderlich JoBeth G. Brown
Committee Member Committee Member
WILLIAM L. RAMMES JACQUELYN G. JOHNSON
William L. Rammes Jacquelyn G. Johnson
Committee Member Committee Member
tal\deferinc.poa
