AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 1995
Post-Effective Amendment No. 1 to Registration Statement No. 33-46846
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
POST-EFFECTIVE AMENDMENT No. 1 TO
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
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
(Full title of the plan)
[Formerly known as Anheuser-Busch Deferred Income and Savings Plan
(For Hourly Employees of Busch Entertainment Corporation)]
__________________________
JoBeth G. Brown Copies to:
Secretary
Anheuser-Busch Companies, Inc. John A. Niemoeller, Esq.
One Busch Place The Stolar Partnership
St. Louis, Missouri 63118 911 Washington Avenue, 7th Floor
(Name and address of agent for service) St. Louis, Missouri 63101
(314) 577-3314
(Telephone number of agent for service)
Supplementing Part II and Supplying Certain Exhibits
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
Exhibit 4.3
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Hourly Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries),
Effective Date April 1, 1994.
[This document constitutes an amendment and restatement of the Plan, and
supersedes Exhibit 4.1 previously filed with the Commission. The Plan
formerly was known as Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Hourly Employees of Busch Entertainment Corporation).]
Exhibit 4.4
Master Defined Contribution Trust Agreement, by and between Anheuser-Busch
Companies, Inc. and Mellon Bank, N.A., with Exhibits A and B and Appendix
[This document supersedes Exhibit 4.2 previously filed with the
Commission.]
Exhibit 5.3
Determination letter of the Internal Revenue Service, relating to the
compliance of the Plan (as adopted March 31, 1992) with the requirements of
ERISA.
Exhibit 5.4
Opinion and consent of Roberta Warren, Esq., 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 [previously filed electronically as
Exhibit 23 to Form 10-K, Annual Report, filed by the Registrant for the
year ended December 31, 1993; said Exhibit 23 is incorporated in this post-
effective amendment by reference].
Exhibit 24.3
Power of Attorney executed by the Principal Accounting Officer of the
Registrant.
Exhibit 24.4
Power of Attorney executed by the members of the Plan's Administrative
Committee.
<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 amendment to registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of St. Louis,
State of Missouri, on February 14, 1995.
ANHEUSER-BUSCH COMPANIES, INC.
By: JOBETH G. BROWN
(JoBeth G. Brown, Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
amendment to 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 February 14, 1995
(August A. Busch III) and President and
Director (Principal
Executive Officer)
Jerry E. Ritter* Executive Vice President February 14, 1995
(Jerry E. Ritter) - Chief Financial and
Administrative Officer
(Principal Financial
Officer)
Gerald C. Thayer* Vice President and February 14, 1995
(Gerald C. Thayer) Controller (Principal
Accounting Officer)
_______________________ Director
(Pablo Aramburuzabala O.)
Richard T. Baker* Director February 14, 1995
(Richard T. Baker)
Andrew B. Craig III* Director February 14, 1995
(Andrew B. Craig III)
Bernard A. Edison* Director February 14, 1995
(Bernard A. Edison)
Peter M. Flanigan* Director February 14, 1995
(Peter M. Flanigan)
John E. Jacob* Director February 14, 1995
(John E. Jacob)
Charles F. Knight* Director February 14, 1995
(Charles F. Knight)
Vernon R. Loucks, Jr.* Director February 14, 1995
(Vernon R. Loucks, Jr.)
<PAGE>
Vilma S. Martinez* Director February 14, 1995
(Vilma S. Martinez)
Sybil C. Mobley* Director February 14, 1995
(Sybil C. Mobley)
James B. Orthwein* Director February 14, 1995
(James B. Orthwein)
_______________________ Director
(Douglas A. Warner III)
William H. Webster* Director February 14, 1995
(William H. Webster)
Edward E. Whitacre, Jr.* Director February 14, 1995
(Edward E. Whitacre, Jr.)
* By: JOBETH G. BROWN
JoBeth G. Brown
Attorney-in-Fact
The Plan. Pursuant to the requirements of the Securities Act of
1933, the administrative committee of the Plan has duly caused this
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Louis, State of
Missouri, on February 14, 1995.
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF ANHEUSER-BUSCH
COMPANIES, INC. AND ITS SUBSIDIARIES)
Signature Title Date
Albert R. Wunderlich* Committee Member February 14, 1995
(Albert R. Wunderlich)
Wiiliam L. Rammes* Committee Member February 14, 1995
(William L. Rammes)
JoBeth G. Brown* Committee Member February 14, 1995
(JoBeth G. Brown)
Jacquelyn G. Johnson* Committee Member February 14, 1995
Jacquelyn G. Johnson)
* By: JOBETH G. BROWN
JoBeth G. Brown
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit 4.3
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Hourly Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries),
Effective Date April 1, 1994.
[This document constitutes an amendment and restatement of the Plan, and
supersedes Exhibit 4.1 previously filed with the Commission. The Plan
formerly was known as Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Hourly Employees of Busch Entertainment Corporation).]
Exhibit 4.4
Master Defined Contribution Trust Agreement, by and between Anheuser-Busch
Companies, Inc. and Mellon Bank, N.A., with Exhibits A and B and Appendix
[This document supersedes Exhibit 4.2 previously filed with the
Commission.]
Exhibit 5.3
Determination letter of the Internal Revenue Service, relating to the
compliance of the Plan (as adopted March 31, 1992) with the requirements of
ERISA.
Exhibit 5.4
Opinion and consent of Roberta Warren, Esq., 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 [previously filed electronically as
Exhibit 23 to Form 10-K, Annual Report, filed by the Registrant for the
year ended December 31, 1993; said Exhibit 23 is incorporated in this post-
effective amendment by reference].
Exhibit 24.3
Power of Attorney executed by the Principal Accounting Officer of the
Registrant.
Exhibit 24.4
Power of Attorney executed by the members of the Plan's Administrative
Committee.
All Exhibits are filed electronically.
Exhibit 4.3
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
Effective Date April 1, 1994
<PAGE>
Table of Contents
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. "Before-Tax Contributions" . . . . . . . . . . . . . . . 3
2.4. "Beneficiary". . . . . . . . . . . . . . . . . . . . . . 3
2.5. "Base Pay" . . . . . . . . . . . . . . . . . . . . . . . 3
2.6. "Board". . . . . . . . . . . . . . . . . . . . . . . . . 5
2.7. "Closing Price". . . . . . . . . . . . . . . . . . . . . 5
2.8. "Code" . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.9. "Committee". . . . . . . . . . . . . . . . . . . . . . . 5
2.10. "Company". . . . . . . . . . . . . . . . . . . . . . . . 5
2.11. "Company Matching Contributions" . . . . . . . . . . . . 5
2.12. "Company Stock Fund" . . . . . . . . . . . . . . . . . . 5
2.13. "Company Year" . . . . . . . . . . . . . . . . . . . . . 5
2.14. "Consolidated Net Income For Plan Purposes". . . . . . . 5
2.15. "Effective Date" . . . . . . . . . . . . . . . . . . . . 6
2.16. "Eligible Employee". . . . . . . . . . . . . . . . . . . 6
2.17. "Employee" . . . . . . . . . . . . . . . . . . . . . . . 6
2.18. "Employing Companies". . . . . . . . . . . . . . . . . . 6
2.19. "Equity Index Fund". . . . . . . . . . . . . . . . . . . 6
2.20. "ERISA". . . . . . . . . . . . . . . . . . . . . . . . . 6
2.21. "Fund" . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.22. "Highly Compensated Employee". . . . . . . . . . . . . . 7
2.23. "Hour of Service". . . . . . . . . . . . . . . . . . . . 8
2.24. "Indexed Balanced Fund". . . . . . . . . . . . . . . . . 11
2.25. "Investment Fund". . . . . . . . . . . . . . . . . . . . 11
2.26. "Managed Balanced Fund . . . . . . . . . . . . . . . . . 11
2.27. "Mean Price" . . . . . . . . . . . . . . . . . . . . . . 11
2.28. "Medium-Term Fixed Income Fund". . . . . . . . . . . . . 11
2.29. "Non-Highly Compensated Employee". . . . . . . . . . . . 11
2.30. "Participant". . . . . . . . . . . . . . . . . . . . . . 11
2.31. "Participating Employer" . . . . . . . . . . . . . . . . 12
2.32. "Personal Contributions" . . . . . . . . . . . . . . . . 12
2.33. "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.34. "Plan Year". . . . . . . . . . . . . . . . . . . . . . . 12
2.35. "Processing Period". . . . . . . . . . . . . . . . . . . 13
2.36. "Related Plans". . . . . . . . . . . . . . . . . . . . . 13
2.37. "Share". . . . . . . . . . . . . . . . . . . . . . . . . 13
2.38. "Short-Term Fixed Income Fund" . . . . . . . . . . . . . 13
2.39. "Subsidiary" . . . . . . . . . . . . . . . . . . . . . . 13
2.40. "Supplemental Contributions" . . . . . . . . . . . . . . 13
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2.41. "Taxable Compensation" . . . . . . . . . . . . . . . . . 13
2.42. "Trust Agreement". . . . . . . . . . . . . . . . . . . . 13
2.43. "Trustee". . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Eligibility and Participation . . . . . . . . . . . . . . . . . . . 15
3.1. Eligibility. . . . . . . . . . . . . . . . . . . . . . . 15
3.2. Becoming a Participant . . . . . . . . . . . . . . . . . 15
3.3. Re-Employment Following a Break in Service . . . . . . . 15
3.4. Year of Service; Break in Service. . . . . . . . . . . . 15
3.5. Transfers of Participants and Lay-Offs . . . . . . . . . 16
ARTICLE IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Matched Contributions . . . . . . . . . . . . . . . . . . . . . . . 18
4.1. Before-Tax Matched Contributions . . . . . . . . . . . . 18
4.2. After-Tax Matched Contributions. . . . . . . . . . . . . 18
4.3. Limitation on Total Matched Contributions. . . . . . . . 18
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Unmatched Contributions . . . . . . . . . . . . . . . . . . . . . . 19
5.1. Contributions Permitted. . . . . . . . . . . . . . . . . 19
5.2. Before-Tax Unmatched Contributions . . . . . . . . . . . 19
5.3. After-Tax Unmatched Contributions. . . . . . . . . . . . 19
5.4. Limitation on Total Unmatched Contributions. . . . . . . 19
ARTICLE VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Company Contributions . . . . . . . . . . . . . . . . . . . . . . . 20
6.1. Required Contributions . . . . . . . . . . . . . . . . . 20
6.2. Contribution Rate For Company Matching Contributions . . 20
6.3. Determination of Supplemental Contribution . . . . . . . 21
6.4. Payment and Payment Date . . . . . . . . . . . . . . . . 21
6.5. Allocation to Participants' Accounts . . . . . . . . . . 21
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Procedures and Limitations on Personal Contributions and Elections. 23
7.1. Election Procedures. . . . . . . . . . . . . . . . . . . 23
7.2. Special Dollar Limitation On Before-Tax Contributions. . 23
7.3. Required Adjustment of Before-Tax Personal Contributions.24
7.4. Required Adjustment of After-Tax and Company Matching
Contributions. . . . . . . . . . . . . . . . . . . . . 26
7.5. Suspension and Reinstatement of Matched Personal
Contributions After Withdrawal . . . . . . . . . . . . 28
7.6. Payroll Deductions . . . . . . . . . . . . . . . . . . . 28
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ARTICLE VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Investment of Contributions . . . . . . . . . . . . . . . . . . . . 29
8.1. Investment of Company Matching and Supplemental
Contributions. . . . . . . . . . . . . . . . . . . . . 29
8.2. Investment of the Matched Contributions Part of an
Account . . . . . . . . . . . . . . . . . . . . . . . 29
8.3. Investment of the Unmatched Contributions Part of
an Account . . . . . . . . . . . . . . . . . . . . . . 29
8.4. A Participant's Investment Direction for Current
Contributions . . . . . . . . . . . . . . . . . . . . 29
8.5. A Participant's Investment Direction for Accumulated
Account Balances . . . . . . . . . . . . . . . . . . . 29
8.6. Special Diversification After Attainment of Age 55 . . 30
8.7. The Company Stock Fund . . . . . . . . . . . . . . . . 30
8.8. The Short-Term Fixed Income Fund . . . . . . . . . . . 31
8.9. The Medium-Term Fixed Income Fund. . . . . . . . . . . 31
8.10. The Equity Index Fund. . . . . . . . . . . . . . . . . 32
8.11. The Indexed Balance Fund . . . . . . . . . . . . . . . 33
8.12. The Managed Balanced Fund. . . . . . . . . . . . . . . 33
8.13. Earnings, etc. . . . . . . . . . . . . . . . . . . . . 34
8.14. Reports to Participants. . . . . . . . . . . . . . . . 34
8.15. Voting of Shares . . . . . . . . . . . . . . . . . . . 34
8.16. Tendering of Shares and Rights . . . . . . . . . . . . 36
8.17. Plan Mergers . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Maintenance and Valuation of Accounts . . . . . . . . . . . . . . . 38
9.1. Separate Accounts. . . . . . . . . . . . . . . . . . . 38
9.2. Company Stock Fund Portion . . . . . . . . . . . . . . 38
9.3. Other Investment Fund Portions . . . . . . . . . . . . 40
9.4. Transfers Between Funds. . . . . . . . . . . . . . . . 40
9.5. Valuation of the Fund. . . . . . . . . . . . . . . . . 40
9.6. Effect of Valuations . . . . . . . . . . . . . . . . . 41
9.7. No Liability for Fluctuations in Value . . . . . . . . 41
9.8. Adjustments to Accounts. . . . . . . . . . . . . . . . 41
9.9. Ordering of Distributions. . . . . . . . . . . . . . . 42
9.10. Special Valuation of Company Stock in Extraordinary
Circumstances. . . . . . . . . . . . . . . . . . . . . 42
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.1. Amounts Contributed by the Participant . . . . . . . . 43
10.2. Company Matching and Supplemental Contributions. . . . 43
10.3. Vesting Rules. . . . . . . . . . . . . . . . . . . . . 43
10.4. Change in Control of the Company . . . . . . . . . . . 45
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ARTICLE XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.1. Distributions Upon Termination of Employment . . . . . 46
11.2. Time and Method of Distribution. . . . . . . . . . . . 46
11.3. Eligible Rollover Distributions. . . . . . . . . . . . 49
11.4. Determination of Disability. . . . . . . . . . . . . . 49
11.5. Transfer of Accounts . . . . . . . . . . . . . . . . . 49
11.6. Early Distribution under Domestic Relations Order. . . 50
11.7. Absolute Right to Receive Stock Distribution . . . . . 50
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Withdrawals While Employed. . . . . . . . . . . . . . . . . . . . . 51
12.1. Elective Right to Make Certain Withdrawals . . . . . . 51
12.2. Protected Withdrawal Rights. . . . . . . . . . . . . . 52
12.3. Withdrawal Procedure . . . . . . . . . . . . . . . . . 52
12.4. Frequency of Withdrawals . . . . . . . . . . . . . . . 53
ARTICLE XIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Hardship Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . 54
13.1. Eligibility and Procedure. . . . . . . . . . . . . . . 54
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Loans to Participants . . . . . . . . . . . . . . . . . . . . . . . 56
14.1. Procedure and Terms. . . . . . . . . . . . . . . . . . 56
ARTICLE XV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Designation of a Beneficiary. . . . . . . . . . . . . . . . . . . . 59
15.1. Procedure and Effect . . . . . . . . . . . . . . . . . 59
15.2. Renunciation of Death Benefit. . . . . . . . . . . . . 61
ARTICLE XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Lost Distributees . . . . . . . . . . . . . . . . . . . . . . . . . 62
16.1. Disposition of Accounts Payable to Persons Who Cannot
Be Located. . . . . . . . . . . . . . . . . . . . . . 62
16.2. Efforts To Locate Distributees . . . . . . . . . . . . 62
ARTICLE XVII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Amendment or Termination. . . . . . . . . . . . . . . . . . . . . . 63
17.1. Company's Power to Amend or Terminate. . . . . . . . . 63
17.2. Termination by a Participating Employer. . . . . . . . 64
17.3. Disposition of Assets on Termination . . . . . . . . . 64
17.4. Effect of Termination by the Company . . . . . . . . . 66
ARTICLE XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Administrative Committee. . . . . . . . . . . . . . . . . . . . . . 67
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18.1. Appointment. . . . . . . . . . . . . . . . . . . . . . 67
18.2. Organization . . . . . . . . . . . . . . . . . . . . . 67
18.3. Powers . . . . . . . . . . . . . . . . . . . . . . . . 67
18.4. Forms and Procedures . . . . . . . . . . . . . . . . . 69
18.5. Meetings . . . . . . . . . . . . . . . . . . . . . . . 69
18.6. Records. . . . . . . . . . . . . . . . . . . . . . . . 70
18.7. Applications for Benefits; Appeal From Denial of
Benefits. . . . . . . . . . . . . . . . . . . . . . . 70
18.8. Liability of Committee . . . . . . . . . . . . . . . . 71
ARTICLE XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Prohibition Against Voluntary or Involuntary Assignments. . . . . 73
19.1. No Liability for Participants' Debts . . . . . . . . . 73
ARTICLE XX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Competency of Distributees. . . . . . . . . . . . . . . . . . . . 74
20.1. Distributees Presumed Competent. . . . . . . . . . . . 74
20.2. Facility of Payment. . . . . . . . . . . . . . . . . . 74
ARTICLE XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Becoming a Participating Employer . . . . . . . . . . . . . . . . 75
21.1. Authorization and Procedure. . . . . . . . . . . . . . 75
21.2. Effect of Being a Participating Employer . . . . . . . 75
21.3. Pooled Funds . . . . . . . . . . . . . . . . . . . . . 75
21.4. Costs and Expenses . . . . . . . . . . . . . . . . . . 76
21.5. Adoption of Plan Conditional . . . . . . . . . . . . . 76
ARTICLE XXII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Limitations Applicable to All Contributions to This Plan. . . . . 77
22.1. Special Limitation on Annual Additions For Any
Participant For Any Year . . . . . . . . . . . . . . 77
ARTICLE XXIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Special Rules for Years When Plan is Top-Heavy. . . . . . . . . . 78
23.1. Special Definitions and Rules of Construction. . . . . 78
23.2. Special Rules Applicable to Top-Heavy Years. . . . . . 80
23.3. Operating Rules. . . . . . . . . . . . . . . . . . . . 81
ARTICLE XXIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 83
24.1. Return of Contributions. . . . . . . . . . . . . . . . 83
24.2. Limitations of Liability and Rights. . . . . . . . . . 83
24.3. General Administration and Expenses. . . . . . . . . . 84
24.4. Notice of Address. . . . . . . . . . . . . . . . . . . 84
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24.5. Data . . . . . . . . . . . . . . . . . . . . . . . . . 84
24.6. Trust Agreement Related. . . . . . . . . . . . . . . . 84
24.7. Severability Clause. . . . . . . . . . . . . . . . . . 85
24.8. Situs. . . . . . . . . . . . . . . . . . . . . . . . . 85
24.9. Succession . . . . . . . . . . . . . . . . . . . . . . 85
24.10.Execution. . . . . . . . . . . . . . . . . . . . . . . 85
24.11.Merger of Plan or Transfer of Trust Assets . . . . . . 85
24.12.Miscellaneous Rules of Construction. . . . . . . . . . 85
24.13.Delayed Payments . . . . . . . . . . . . . . . . . . . 86
24.14.Mistakes in Benefit Payments . . . . . . . . . . . . . 86
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<PAGE>
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
ARTICLE I
Establishment of Plan
1.1. Action By Company. Effective as of April l, l976, 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.
Effective April 1, 1992, the Company again divided the Plan and established
this separate plan for hourly employees of Busch Entertainment Corporation
and certain of its subsidiaries. This Plan is a continuation of the former
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan but only for
such separate group of employees. The Plan was subsequently amended to add
Section 20.2. The Company does hereby adopt this current amendment and
restatement of the Plan in order to make certain changes intended to
simplify and enhance the Plan; to cover certain employees of Campbell
Taggart, Inc. and its subsidiaries; and to change the name of the Plan to
the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (for
Certain Hourly Employees of Anheuser-Busch Companies, Inc. and its
Subsidiaries). The provisions of this amendment and restatement are
effective as of April 1, 1994, unless otherwise expressly provided.
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 further is intended to constitute a cash or deferred
arrangement pursuant to Section 401(k) of the Code.
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 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
<PAGE>
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, as described in Sections 8.15 and 8.16, 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 9.1.
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. "Before-Tax Contributions". A Participant's Personal
Contributions which are properly excluded from gross income pursuant to
Section 401(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
(b) "Before-Tax Unmatched Contributions", which are Personal
Contributions for which no Company Matching Contribution will be made.
2.4. "Beneficiary". Any person designated by a Partici-pant pursuant
to Article XV to receive benefits hereunder or any other person deemed to
be a Beneficiary by any other provision of this Plan or by law.
2.5. "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, excluding any over-time pay,
supplemental unemployment benefits, or supplemental workers' compensation
benefits. Base Pay
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<PAGE>
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.
(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 415 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
additional 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 from time to time
for any applicable increases in the cost of living.
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<PAGE>
2.6. "Board". The Board of Directors of the Company.
2.7. "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.
2.8. "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.
2.9. "Committee". The Committee appointed under the provisions of
Section 18.1 to administer this Plan.
2.10. "Company". Anheuser-Busch Companies, Inc., a corporation
organized and existing under the laws of the State of Delaware, and any
successor corporation which assumes this Plan and agrees to be bound by the
terms and provisions hereof.
2.11. "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.
2.12. "Company Stock Fund". The separate portion of the Fund which
is to be invested in accordance with Section 8.7.
2.13. "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.
2.14. "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 (a) taxes on
income and (b) earnings of, and direct and indirect expenses attributable
to Campbell Taggart, Inc. and its subsidiaries and any other Subsidiary
acquired after October 1, 1982 that is not a Participating Employer under
this Plan or a Related Plan. For purposes of the foregoing (c) all
determinations of earnings and expenses shall be made in accordance with
rules of uniform application adopted by the Committee, (d) 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
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<PAGE>
Employing Companies may purchase the shares thereof, and (e) 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%.
2.15. "Effective Date". When used with respect to the provisions of
this amendment and restatement of the Plan, April 1, 1994, unless otherwise
expressly provided. The rights and benefits of any Participant for any
period before April 1, 1994 shall be determined in accordance with the
provisions of the Plan then in effect.
2.16. "Eligible Employee". An Employee of any Partici- pating
Employer who has satisfied the service requirement for eligibility to
participate in this Plan set forth in Article III hereof.
2.17. "Employee". Any common-law employee employed by a
Participating Employer in any full or part-time capacity who: (a) in the
case of Campbell Taggart, Inc. or any of its subsidiaries, is a resident of
the United States and is compensated by the hour or is classified as a
sales supervisor or route salesperson; or (b) in the case of Busch
Entertainment Corporation or any of its subsidiaries, is compensated by the
hour, or classified as regular or seasonal, and who is a resident of the
United States or Puerto Rico.
2.18. "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.
2.19. "Equity Index Fund". The separate portion of the Fund which is
to be invested in accordance with Section 8.10.
2.20. "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
-6-
<PAGE>
sections as originally enacted or as subsequently amended or superseded, as
appropriate at the time of reference.
2.21. "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.
2.22. "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 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 2.22, (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.
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<PAGE>
(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.
(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.
2.23. "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
-8-
<PAGE>
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 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.
-9-
<PAGE>
(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.
(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.
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<PAGE>
(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., 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 2.23.
(e) 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 2.23.
This provision shall be effective for purposes of both Article III and
Article XI.
2.24. "Indexed Balanced Fund". The separate portion of the Fund
which is to be invested in accordance with Section 8.11.
2.25. "Investment Fund". The Company Stock Fund, the Equity Index
Fund, the Indexed Balanced Fund, the Managed Balance Fund, the Medium-Term
Fixed Income Fund, the Short-Term Fixed Income Fund, and any other fund
established by the Committee for investments under this Plan, or any one or
more of them, as the context may require.
2.26. "Managed Balanced Fund". The separate portion of the Fund
which is to be invested in accordance with Section 8.12.
2.27. "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.
2.28. "Medium-Term Fixed Income Fund". The separate portion of the
Fund which is to be invested in accordance with Section 8.9.
2.29. "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.
2.30. "Participant". Any Eligible Employee who has elected to
participate in this Plan in the manner provided in
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<PAGE>
Section 3.2 and any former Eligible Employee who has assets credited to an
Account.
2.31. "Participating Employer". (a) As of April 1, 1994, the
following Subsidiaries:
Busch Entertainment Corporation
Sea World, Inc.
Sea World of Texas, Inc.
Sea World of Florida, Inc.
Florida Cypress Gardens, Inc.
Boardwalk and Baseball, Inc.
(b) As of November 1, 1994, the following Subsidiaries:
Busch Entertainment Corporation
Sea World, Inc.
Sea World of Texas, Inc.
Sea World of Florida, Inc.
Florida Cypress Gardens, Inc.
Boardwalk and Baseball, Inc.
Bell-Art Advertising, Inc.
Campbell Taggart Baking Companies, Inc.
Campbell Taggart, Inc.
Earth Grains of Lexington, Inc.
Merico, Inc.
(c) Any other Subsidiary which may hereafter become a party
hereto in the manner provided in Article XXI.
(d) 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.
2.32. "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.
2.33. "Plan". This Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (for Hourly Employees of Busch Entertainment Corporation) as
herein established and as it may be amended from time to time. Effective
November 1, 1994, the name of the Plan shall be the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (for Certain Hourly Employees of
Anheuser-Busch Companies, Inc. and its Subsidiaries).
2.34. "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.
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2.35. "Processing Period". Each calendar month or such other period
as may be designated by the Committee from time to time.
2.36. "Related Plans". The Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan, the Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan (For Employees Covered by a Collective Bargaining
Agreement) and the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Certain Employees of Campbell Taggart, Inc. and its
Subsidiaries).
2.37. "Share". A share of common stock of the Company.
2.38. "Short-Term Fixed Income Fund". The separate portion of the
Fund which is to be invested in accordance with Section 8.8.
2.39. "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.
2.40. "Supplemental Contributions". Amounts contributed to this Plan
by Participating Employers pursuant to Section 6.1(b).
2.41. "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.
2.42. "Trust Agreement". The separate Master Defined Contribution
Trust Agreement entered into by and between Anheuser-Busch Companies, Inc.
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.
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<PAGE>
2.43. "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, or (ii) 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 Campbell Taggart, Inc. or one of its subsidiaries as
of September 30, 1994, shall become an Eligible Employee who is eligible to
participate in the Plan effective as of November 1, 1994, unless the
individual's employment as an Employee is terminated before November 1,
1994.
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 eligibility computation period
during which an Employee performs at least 1,000 Hours of Service.
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(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 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
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increases or decreases to reflect the results of the valuations made in
accordance with Section 9.5.
(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) An Employee who ceases to be a resident of the United States
or Puerto Rico (if applicable), after once having become a Participant
shall then be treated as if the Participant had been transferred from the
employ of a Participating Employer to the employ of another of the
Employing Companies which is not a Participating Employer and such
Participant's rights thereafter shall be determined pursuant to this
Section 3.5.
(e) If, as a result of an employment transfer or otherwise, 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 Partici- pant 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 1, 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.
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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, 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 for such Participating Employer.
(b) Busch Entertainment Corporation and its subsidiaries that
are Participating Employers shall also contribute, for each Plan Year (or
portion thereof) of their Employees' participation in this Plan, their
respective proportionate shares 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 make its proportionate share of any additional
contributions determined by the Company, in its absolute discretion.
6.2. Contribution Rate For Company Matching Contributions. (a) In
the case of Busch Entertainment Corporation and its subsidiaries that are
Participating Employers, the contribution rate for Company Matching
Contributions is a decimal fraction, expressed to four places, 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 (i) 2-1/2% of the Company's Consolidated Net Income for Plan
Purposes for the Company Year most recently ended, by (ii) 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 (iii) 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, (iv) 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
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Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (for Certain
Employees of Campbell Taggart, Inc. and its Subsidiaries), and (v) 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., 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.
(b) In the case of Campbell Taggart, Inc. and any of its
subsidiaries that are Participating Employers, the contribution rate for
Company Matching Contributions shall be 50% for the period beginning
November 1, 1994, and ending March 31, 1995, and thereafter shall be a rate
determined by the Company between 16-2/3% and 37%.
6.3 Determination of Supplemental Contribution. 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. It is intended that the Supplemental Contribution shall, when
expressed as a matching rate, be substantially equivalent to the
"supplemental contribution" computed under the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan when expressed as a matching rate.
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
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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 made by Busch Entertainment Corporation and its subsidiaries
that are Participating Employers that are allocated (and not then
forfeited) for such Plan Year bears to the total Company Matching
Contributions made by Busch Entertainment Corporation and its subsidiaries
that are Participating Employers that are 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.
(c) Notwithstanding anything, Campbell Taggart, Inc. and its
subsidiaries that are Participating Employers shall not make any
Supplemental Contributions.
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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 recharacteriza-tions 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 2.22(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 Contri- bution 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 recharac- terizations 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
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taken into account as provided in Section 2.22(g). Excess 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
After Withdrawal. (a) A Participant who has made a withdrawal pursuant to
Article XII 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
13.1 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
Investment of Contributions
8.1. Investment of Company Matching and Supplemental Contributions.
All Company Matching and Supplemental Contributions shall be invested in
the Company Stock Fund at all times.
8.2. 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 8.6, 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.
8.3. 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.
8.4. 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.
8.5. 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 9.4 between or among available Investment
Funds, in 1% increments, provided that all Shares or units required under
Section 8.2 to be purchased for any Plan Year with a Participant's matched
Personal Contributions must remain invested in the Company Stock Fund for
at least one full
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Plan Year beginning after the date of contribution. Except as provided in
Section 8.6 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.
8.6. 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.
8.7. The Company Stock Fund. Except for interim invest- ments 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; or
(ii) purchases on the open market.
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8.8. 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.
8.9. 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;
(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;
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(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.
8.10. The Equity Index Fund. Except for interim invest- ments 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 funds 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 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
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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.
8.11. 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.
8.12. 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,
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 & Poors 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
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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.
8.13. Earnings, etc. 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.
8.14. 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.
8.15. 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 Shares or 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
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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 Shares or 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) 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) Shares or Share Equivalents, a pro rata
portion of the votes attributable to the aggregate number of Shares as to
which voting instructions have not been timely received from Participants
(or Beneficiaries). Such pro rata portion shall be equal to the aggregate
number of votes attributable to Shares or Share Equivalents as to which
timely instructions were not received multiplied by a fraction, the
numerator of which is the number of votes attributable to such Participant
(or Beneficiary) and the denominator of which is the total number of votes
attributable to all Participants (and Beneficiaries) who have provided
timely instructions to the Trustee under this Section 8.15.
(c) For purposes of this Section 8.15, 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 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.
(d) For purposes of this Section 8.15 and Section 8.16, the term
"Share Equivalent" shall mean the equivalent to the number of Shares that
will be credited to a Participant's Account if and when the Committee
changes from Share accounting to unit accounting under the Company Stock
Fund. Share Equivalents held in the Company Stock Fund shall be equal to
the number of full and fractional Shares held in such fund as of a
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valuation date, divided by the number of units in such fund 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
subsection, the term valuation date shall mean any date as of which Share
value or unit value is determined as directed by the Committee.
8.16. 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 Shares or 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) 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 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
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directions to any other person, including employees, officers and directors
of the Company or its affiliates.
8.17. 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 8.1, 8.2, or 8.5 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 IX
Maintenance and Valuation of Accounts
9.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.
9.2. 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 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 before such contributions are allocated to the Accounts
of Participants shall be applied to compute the average price per Share,
(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
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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).
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.
(c) Dividends and other cash distributions received on 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),
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
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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.
9.3. 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 respective managers.
9.4. Transfers Between Funds. All transfers of investments between
Investment Funds to comply with a Parti-cipant's investment direction or to
comply with Section 11.7 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 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.
9.5. 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
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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 fund's
manager.
9.6. 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 Participating Employers, the
Committee, and all Participants and their respective Beneficiaries.
9.7. 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.
9.8. 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 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 character-istics
(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
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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.
9.9. 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.
9.10. 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 X
Vesting
10.1. 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.
10.2. 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.
10.3. 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
2.23(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.
10.4. Change in Control of the Company. Notwithstanding the
foregoing provisions of this Article X, 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 XI
Distributions
11.1. 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 X, shall receive (or if not then living,
the Participant's Beneficiary shall receive), at the time provided in
Section 11.2 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 11.2 hereof, in
a single distribution, the portions of the Participant's Account
attributable to Personal Contributions. Such Participant shall forfeit the
portion of the Participant's Account which is attributable to Company
Matching and Supplemental Contributions in accordance with Section 10.3(i).
11.2. Time and Method of Distribution. (a) Except as provided
otherwise in this Section 11.2, every distribution under Section 11.1 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.
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Notwithstanding anything to the contrary herein, distributions under this
Plan shall commence not later than 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
11.7, 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 XII, the Committee shall
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provide to the Participant a notice describing the right to defer 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 VIII;
(iii) the right to vote and tender Shares or Share Equivalents
held in the Participant's Account in accordance with Sections 8.15 and
8.16, respectively;
(iv) the right to change the Participant's designated
Beneficiary or Beneficiaries from time to time in accordance with Section
15.1;
(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 administra-tively 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 11.1. 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.
11.3. 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.
11.4. 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.
11.5. 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
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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.
11.6. 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 XI of any
amount distributable to the alternate payee under the order.
11.7. 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 9.4, to the Company Stock Fund and
thereafter distributed. Under no circumstances will a fractional Share be
distributed.
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ARTICLE XII
Withdrawals While Employed
12.1. 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 11.7, 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 VIII
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.
12.2. 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.
12.3. Withdrawal Procedure. A Participant may request a withdrawal
under this Article XII 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 12.2, withdrawals shall be
distributed in Shares or cash at the Participant's election.
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12.4. 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 XIII
Hardship Withdrawals
l3.l. Eligibility and Procedure. This Article is appli- cable only
to the portions of a Participant's vested Account which cannot be withdrawn
under Article XII 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 Partici-pant. 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 11.7 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 XIV.
(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 XIV
Loans to Participants
14.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 thereafter 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 11.2.
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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 14.1(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 XV
Designation of a Beneficiary
15.1. 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 Section, any applicable U.S. Treasury or Department of Labor
Regulations shall be complied with.
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(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.
15.2. 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 proportions) to which
such benefit would have been distributable if the disclaiming Beneficiary
had predeceased the Participant.
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ARTICLE XVI
Lost Distributees
16.1. 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 the
person is deceased, and if, under this Plan, the 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 the person's 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 the Participant's
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, the
Participant's Beneficiary(ies) or estate, as otherwise provided by this
Plan.
16.2. 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 XVII
Amendment or Termination
17.1. Company's Power to Amend or Terminate. (a) The Company, for
itself and for each 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 18.3(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 Partici- pant'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 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 24.1); 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.
17.2. Termination by a Participating Employer. 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
recapitalization 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 17.3(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.
17.3. Disposition of Assets on Termination. (a) Notwithstanding
that the participation of a Participating Employer in this Plan may be
terminated pursuant to Section 17.2, 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 terminating Participating Employer ceases to be an
Employing Company or the assets 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
17.3, 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.
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17.4. Effect of Termination by the Company. If the Company
terminates its sponsorship in this Plan, such 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.
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ARTICLE XVIII
Administrative Committee
18.1. 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.
18.2. 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.
18.3. 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 determine 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 deem
necessary or desirable, and all fees, charges and costs
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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 XIII.
(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 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 Beneficiaries. 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.
18.4. 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 period or other requirement stated in
this Plan or established by the Committee.
18.5. 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,
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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.
18.6. 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.
18.7. 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 following:
(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 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.
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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.
18.8. 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 compromised 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
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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 XIX
Prohibition Against Voluntary or Involuntary Assignments
19.1. No Liability for Participants' Debts. Except as otherwise
required by law or provided in Article XIV, 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 XX
Competency of Distributees
20.1. 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.
20.2. 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 20.2, 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 XXI
Becoming a Participating Employer
21.1. 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.
21.2. 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.
21.3. 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 IX hereof.
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<PAGE>
21.4. 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.
21.5. 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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<PAGE>
ARTICLE XXII
Limitations Applicable to
All Contributions to This Plan
22.1. 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's
"defined contribu-tion 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.
(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
in effect from time to time, and regulations promulgated thereunder, are
incorporated herein by reference.
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<PAGE>
ARTICLE XXIII
Special Rules for Years
When Plan is Top-Heavy
23.1. 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 the determination date (including distributions
under any
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<PAGE>
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 compensation 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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<PAGE>
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.
23.2. 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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<PAGE>
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.
23.3. 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 23.2.
(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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<PAGE>
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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<PAGE>
ARTICLE XXIV
Miscellaneous
24.1. 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 contribu-tions
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.
24.2. 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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<PAGE>
(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.
24.3. 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 administration may be paid by the
Participating Employers, in such proportions as the Company shall
determine.
24.4. 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 XVI.
24.5. 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.
24.6. Trust Agreement Related. The Trust Agreement and each of the
provisions thereof shall be deemed a part of the
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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.
24.7. 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.
24.8. Situs. This Plan shall be construed, regulated and
administered according to ERISA.
24.9. 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 recapitalization 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.
24.10. 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.
24.11. 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).
24.12. 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 application 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 or the context
otherwise requires.
(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.
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<PAGE>
24.13. Delayed Payments. Notwithstanding any other provision of the
Plan, if the amount of a payment required to be 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).
24.14. 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 /s/ JERRY E. RITTER
________________________
Jerry E. Ritter
Chief Financial Officer
Attest: /s/ JOBETH BROWN
__________________________
JoBeth Brown
Secretary
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Exhibit 4.4
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
3
<PAGE>
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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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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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 5.3
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Employer Identification Number:
Date: January 30, 1995 43-9162835
File Folder Number
480002090
ANHEUSER-BUSCH COMPANIES, INC. Person to Contact:
ONE BUSCH PLACE FRITZ PEARSON
ST. LOUIS, MO 63118 Contact Telephone Number
(414) 798-0860
Plan Name:
DEFERRED INCOME STOCK PURCHASE
AND SAVINGS PLAN (BEC)
Plan Number: 067
Dear Applicant:
We have made a favorable determination on your plan,
identified above, based on the information supplied. Please keep
this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its effect in operation. (See Section 1.401.4(b)(3)
of the Income Tax Regulations). We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some features that may
affect the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It is
very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated December 18, 1994. The
proposed amendments should be adopted on or before the date
prescribed by the registration under Code section 401(b).
This determination letter is applicable for the plan adopted
on March 31, 1992.
This plan is an employee stock ownership plan with a cash or
deferred arrangement described in Code section 401(k).
This plan satisfies the minimum coverage and nondiscrimination
requirements of sections 410(b) and 401(a)(4) of the Code because
the plan benefits no highly compensated employees. This letter may
not be relied on with respect to the aforementioned requirements of
the Code for any plan year in which the plan benefits any highly
compensated employees.
This letter is issued under Rev. Proc. 73-89 and considers the
amendments
Letter 835 (DO/CG)
<PAGE>
-2-
ANHEUSER-BUSCH COMPANIES INC
required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This plan qualifies for Extended Reliance described in the
last paragraph of Publication 794 under the caption"Limitations of
a favorable Determination Letter".
If you have any questions concerning this matter, please
contact the person whose name and telephone number are shown above.
Sincerely yours,
Marilyn W. Bay
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Letter 835 (DO/CG)
Exhibit 5.4
February 14, 1995
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-8 Relating to 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
(For Certain Hourly Employees of Anheuser-Busch Companies, Inc.
and Its Subsidiaries)
Ladies and Gentlemen:
Anheuser-Busch Companies, Inc. (the "Company") proposes to file with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, post-effective amendment No. 1 to Registration Statement on Form
S-8 (No. 33-46846) (the "Registration Statement"), relating to shares of
common stock, par value $1.00 per share, which are proposed to be sold to
certain employees of the Company pursuant to the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (For Certain Hourly Employees of
Anheuser-Busch Companies, Inc. and its Subsidiaries) Effective Date April
1, 1994 (the "Plan"). The Plan formerly was known as Anheuser-Busch
Deferred Income Stock Purchase and Savings Plan (For Hourly Employees of
Busch Entertainment Corporation), but has been amended, restated, and
renamed effective April 1, 1994.
The Plan (as originally adopted in 1992) has been submitted to the
Internal Revenue Service for determination regarding its compliance with
the applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). The Company recently has received a favorable
written determination letter in response to its submission, which letter is
being filed as an Exhibit to the Registration Statement.
In connection with the Registration Statement, I have examined the
Plan as amended and restated effective April 1, 1994, corporate records of
the Company, and such other documents and materials as I have considered
relevant to the matters set forth below, and I have made such investigation
of matters of law and fact as I have considered appropriate. Based on the
foregoing, I am of the opinion that the Plan, as amended and restated
effective April 1, 1994, continues to be in compliance with all
requirements of ERISA applicable thereto.
I consent to the filing of this opinion as an exhibit to the aforesaid
Registration Statement, and I consent to the use of my name in such
Registration Statement.
Very truly yours,
ROBERTA WARREN
Roberta Warren
POWER OF ATTORNEY
The undersigned Vice President and Controller 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 (a) Registration
Statement No. 2-71762 on Form S-8 of shares of the common stock of the
Company for issuance under Anheuser-Busch Employee Stock Purchase and
Savings Plan; (b) Registration Statement No. 33-39715 on Form S-8 for
5,000,000 shares of the common stock of the Company for issuance under the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan; (c)
Registration Statement No. 33-39714 on Form S-8 for 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); and (d) Registration Statement No.
33-46846 on Form S-8 for 400,000 shares of common stock of the Company for
issuance under the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Hourly Employees of Busch Entertainment Corporation);
this authorization to include the authority to sign the name of the
undersigned in the capacity indicated below to the said Registration
Statements to be filed with the Securities and Exchange Commission in
respect of said securities, and to any amendments to said Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed a copy of this Power
of Attorney as of July 18, 1994.
GERALD C. THAYER
Gerald C. Thayer
Vice President and Controller
(Principal Accounting Officer)
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)
ANHEUSER-BUSCH DEFERRED INCOME STOCK PURCHASE
AND SAVINGS PLAN (FOR CERTAIN EMPLOYEES OF
CAMPBELL-TAGGART, INC. AND ITS SUBSIDIARIES)
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, the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(For Employees Covered by a Collective Bargaining Agreement) and the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Employees of Campbell-Taggart, Inc. and its subsidiaries). 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 amendment to
Registration Statement No. 33-39715 on Form S-8 for 5,000,000 shares of the
common stock of the Company for issuance under the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan; (b) the proposed amendment to
Registration Statement No. 33-39714 on Form S-8 for 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); (c) the proposed amendment to the
existing registration statement on Form S-8 for the issuance of shares of
common stock of the Company under the Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan (For Hourly Employees of Busch Entertainment
Corporation); and (d) the proposed registration under said Act pursuant to
a Registration Statement on Form S-8 of 1,000,000 shares of the common
stock of the Company for issuance under the Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan (For Certain Employees of Campbell-Taggart,
Inc. and its Subsidiaries); 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 May 6, 1994.
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
