<PAGE> 1
As filed with the Securities and Exchange Commission on July 1, 1998
===============================================================================
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
THE ELDER-BEERMAN STORES CORP.
(Exact name of registrant as specified in charter)
Ohio 31-0271980
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3155 El-Bee Road, Dayton, Ohio 45439
(Address, including ZIP Code, of registrant's principal executive offices)
THE ELDER-BEERMAN STORES CORP. RETIREMENT SAVINGS PLAN
(AMENDED AND RESTATED EFFECTIVE AS OF JULY 1, 1998)
(Full title of the plan)
Scott J. Davido, Esq.
Senior Vice President, General Counsel and
Secretary
The Elder-Beerman Stores Corp.
3155 El-Bee Road
Dayton, Ohio 45439
(937) 296-2700
(Name, address, including ZIP Code, and telephone number, including
area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==============================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) per Share (2) Offering Price(2) Fee
==============================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
without par value 500,000 $25.94 $12,970,000 $3,826.15
==============================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) of the Securities Act of 1933 (the "Securities
Act"), an indeterminate amount of interests in The Elder-Beerman Stores
Corp. Retirement Savings Plan (the "Plan") are deemed to be registered
hereby.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h)(1) of Rule 457 of the
General Rules and Regulations under the Securities Act, on the basis of the
average high and low sale prices for such common stock, without par value
of The Elder-Beerman Stores Corp. (the "Common Stock") on the Nasdaq
National Market System on June 26, 1998.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Elder-Beerman Stores Corp. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) the Company's Annual Report on Form 10-K for the year ended
January 31, 1998;
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended
May 2, 1998;
(3) the Company's Current Report on Form 8-K dated January 29, 1998;
and
(4) the description of the Common Stock of the Company contained in
the Company's Registration Statement on Form 10 (Commission File
No. 0-2788) filed on November 26, 1997, as amended by Form 10/A-1
on January 23, 1998 and Form 10/A-2 on February 12, 1998 (the
"Form 10"), including any amendment filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date hereof and prior to the termination of the
offering of the securities registered pursuant to this Registration Statement
shall be deemed to be incorporated by reference into this Registration Statement
and to be part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock to be issued in connection with this
Registration Statement will be passed upon by Scott J. Davido, Esq., Senior Vice
President, General Counsel and Secretary of the Company. Mr. Davido has options
to purchase 21,000 shares of the Common Stock.
Item 6. Indemnification of Directors and Officers.
Reference is hereby made to Section 1701.13(E) of the Ohio Revised
Code, which sets forth conditions and limitations concerning indemnification of
officers, directors and agents of an Ohio
II-1
<PAGE> 3
corporation. Section 29 of the Company's Amended Code of Regulations provides,
in relevant part, as follows:
The Corporation shall indemnify, to the full extent then permitted by
law, any person who was or is a party 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 he is or
was a member of the Board of Directors or an officer of the Corporation, or is
or was serving at the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise. The Corporation
shall pay, to the full extent then required by law, expenses, including
attorney's fees, incurred by a member of the Board of Directors in defending any
such action, suit or proceeding as they are incurred, in advance of the final
disposition thereof, and may pay, in the same manner and to the full extent then
permitted by law, such expenses incurred by any other person. The
indemnification and payment of expenses provided hereby shall not be exclusive
of, and shall be in addition to, any other rights granted to those seeking
indemnification under any law, the Amended Articles of Incorporation, any
agreement, vote of shareholders or disinterested members of the Board of
Directors, or otherwise, both as to action in official capacities and as to
action in another capacity while he or she is a member of the Board of Directors
or an officer of the Corporation, and shall continue as to a person who has
ceased to be a member of the Board of Directors or an officer of the Corporation
or as to a person who has served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation, and shall
inure to the benefit of the heirs, executors, and administrators of such
persons.
In addition, the Company maintains directors' and officers'
reimbursement and liability insurance. The risks covered by such policies
include certain liabilities under the securities laws.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
4.1 The Elder-Beerman Stores Corp. Retirement Savings Plan.
4.2 Amended Articles of Incorporation of the Company (filed as
Exhibit 3(a) to the Form 10 and incorporated herein by
reference).
4.3 Amended Code of Regulations of the Company (filed as Exhibit 3(b)
to the Form 10 and incorporated herein by reference).
4.4 Rights Agreement By and Between The Elder-Beerman Stores Corp.
and Norwest Bank Minnesota, N.A., dated as of December 30,
1997 (filed as Exhibit 4(c) to the Company's Annual Report on
Form 10-K for the year ended January 31, 1998, and
incorporated herein by reference).
5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President,
General Counsel and Secretary of the Company.
23.1 Consent of Independent Auditors.
23.2 Consent of Scott J. Davido, Esq. (set forth in the opinion filed
as Exhibit 5 to this Registration Statement).
24 Power of Attorney.
II-2
<PAGE> 4
UNDERTAKING:
The undersigned Company will submit the Plan and any amendments thereto
to the Internal Revenue Service (the "IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be in the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or
II-3
<PAGE> 5
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT ON FORM S-8
AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF DAYTON, STATE OF
OHIO, ON THIS 30th DAY OF JUNE, 1998.
THE ELDER-BEERMAN STORES CORP.
By: /s/ Scott J. Davido
---------------------------------
Name: Scott J. Davido, Esq.
Title: Senior Vice President, General
Counsel and Secretary
II-5
<PAGE> 7
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON JUNE 30, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Chairman of the Board of Directors and
- --------------------------------- Chief Executive Officer, Director
Frederick J. Mershad (Principal Executive Officer)
* President, Chief Operating Officer and
- --------------------------------- Chief Financial Officer, Director
John A. Muskovich (Principal Financial Officer)
* Senior Vice President, Controller
- --------------------------------- (Principal Accounting Officer)
Steven D. Lipton
* Director
- ---------------------------------
Stewart M. Kasen
* Director
- ---------------------------------
Steven C. Mason
* Director
- ---------------------------------
Thomas J. Noonan, Jr.
* Director
- ---------------------------------
Bernard Olsoff
* Director
- ---------------------------------
Laura H. Pomerantz
* Director
- ---------------------------------
Jack A. Staph
* Director
- ---------------------------------
John J. Wiesner
</TABLE>
* This Registration Statement has been signed on behalf of the above
officers and directors by Scott J. Davido, Esq., Senior Vice President, General
Counsel and Secretary of the Company, as attorney-in-fact pursuant to a power of
attorney filed as Exhibit 24 to this Registration Statement.
DATED: June 30, 1998 By: /s/ Scott J. Davido
--------------------------
Scott J. Davido, Esq.
Attorney-in-Fact
II-6
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
as amended, the trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the city of Dayton, State of
Ohio, on the 29th day of June, 1998.
THE ELDER-BEERMAN STORES CORP. RETIREMENT
SAVINGS PLAN
By: /s/ Patricia L. Gifford
--------------------------------------
Name: Patricia L. Gifford
------------------------------------
Title: Vice President, Human Resources
-----------------------------------
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C>
4.1 The Elder-Beerman Stores Corp. Retirement Savings Plan.
4.2 Amended Articles of Incorporation of the Company (filed as Exhibit 3(a) to the Form
10 and incorporated herein by reference).
4.3 Amended Code of Regulations of the Company (filed as Exhibit 3(b) to the Form 10
and incorporated herein by reference).
4.4 Rights Agreement By and Between The Elder-Beerman Stores Corp. and Norwest
Bank Minnesota, N.A., dated as of December 30, 1997 (filed as Exhibit 4(c) to the
Company's Annual Report on Form 10-K for the year ended January 31, 1998, and
incorporated herein by reference).
5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President, General Counsel and
Secretary of the Company.
23.1 Consent of Independent Auditors.
23.2 Consent of Scott J. Davido, Esq. (set forth in the opinion filed as Exhibit 5 to this
Registration Statement).
24 Power of Attorney.
</TABLE>
II-8
<PAGE> 1
Exhibit 4.1
THE ELDER-BEERMAN STORES CORP.
RETIREMENT SAVINGS PLAN
(Amended and Restated Effective as of July 1, 1998)
<PAGE> 2
The Elder-Beerman Stores Corp.
Retirement Savings Plan
(Amended and Restated as of July 1, 1998)
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
ARTICLE I - DEFINITIONS
<S> <C> <C> <C>
1.1 Definitions............................................................................................ 2
(a) Account and Sub-Account....................................................................... 2
(b) Before-Tax Contributions...................................................................... 2
(c) Beneficiary................................................................................... 2
(d) Code.......................................................................................... 2
(e) Company....................................................................................... 2
(f) Company Stock.................................................................................. 2
(g) Company Stock Fund............................................................................. 2
(h) Compensation.................................................................................. 3
(i) Compensation Deferral Agreement............................................................... 3
(j) Controlled Group.............................................................................. 3
(k) Controlled Group Member....................................................................... 3
(l) Covered Employee.............................................................................. 3
(m) Disability or Disabled........................................................................ 4
(n) EBSOP Rollover Amounts......................................................................... 4
(o) Effective Date................................................................................ 4
(p) Eligible Participant.......................................................................... 4
(q) Employee...................................................................................... 4
(r) Employer...................................................................................... 5
(s) Employment Commencement Date.................................................................. 5
(t) ERISA......................................................................................... 5
(u) Hardship...................................................................................... 5
(v) Highly Compensated Employee................................................................... 5
(w) Hour of Service............................................................................... 6
(x) Investment Funds.............................................................................. 8
(y) Investment Manager............................................................................ 8
(z) Loan Sub-Account.............................................................................. 8
(aa) Matching Contributions........................................................................ 8
(bb) Old Plan Amounts............................................................................... 8
(cc) One Year Break-in-Service.......................................................................8
(dd) Participant................................................................................... 8
(ee) Period of Severance............................................................................ 8
(ff) Plan.......................................................................................... 8
(gg) Plan Administrator............................................................................ 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
(hh) Plan Year..................................................................................... 8
(ii) Qualified Nonelective Contributions........................................................... 8
(jj) Reemployment Commencement Date................................................................. 9
(kk) Retirement Security Contributions.............................................................. 9
(ll) Rollover Contributions........................................................................ 9
(mm) Service........................................................................................ 9
(nn) Severance from Service........................................................................ 10
(oo) Severance from Service Date................................................................... 10
(pp) Spouse....................................................................................... 10
(qq) Trust Agreement.............................................................................. 10
(rr) Trustee...................................................................................... 10
(ss) Trust Fund................................................................................... 11
(tt) Valuation Date................................................................................ 11
(uu) Vested Interest.............................................................................. 11
(vv) Year of Service............................................................................... 12
1.2 Construction........................................................................................... 13
ARTICLE II - PARTICIPATION
2.1 Eligibility for Participation ......................................................................... 14
2.2 Enrollment............................................................................................. 14
2.3 Duration of Participation.............................................................................. 14
ARTICLE III - PARTICIPANT CONTRIBUTIONS
3.1 Before-Tax Contributions............................................................................... 15
3.2 Payments to Trustee.................................................................................... 15
3.3 Changes in Before-Tax Contributions.................................................................... 15
3.4 Rollover Contributions................................................................................. 16
ARTICLE IV - EMPLOYER CONTRIBUTIONS
4.1 Amount of Matching Contributions....................................................................... 17
4.2 Time of Matching Contributions......................................................................... 18
4.3 Allocation of Matching Contributions................................................................... 18
4.4 Amount of Retirement Security Contributions............................................................ 18
4.5 Time of Retirement Security Contributions.............................................................. 18
4.6 Allocation of Retirement Security Contributions........................................................ 18
4.7 Qualified Nonelective Contributions.................................................................... 18
4.8 Allocation of Qualified Nonelective Contributions...................................................... 18
4.9 Forfeitures............................................................................................ 18
4.10 Funding Policy......................................................................................... 19
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE V - LIMITATIONS ON CONTRIBUTIONS
5.1 Excess Before-Tax Contributions........................................................................ 20
5.2 ADP Test............................................................................................... 20
5.3 ACP Test............................................................................................... 22
5.4 Multiple Use of Alternative Limitation................................................................. 23
5.5 Monitoring Procedures...................................................................................24
5.6 Testing Procedures..................................................................................... 25
5.7 Maximum Additions...................................................................................... 25
ARTICLE VI - INVESTMENTS
6.1 Investment of Funds.................................................................................... 28
6.2 Account and Sub-Accounts............................................................................... 28
6.3 Investment of Contributions............................................................................ 29
6.4 Asset Transfers Among Investment Funds................................................................ 29
ARTICLE VII - DISTRIBUTIONS, WITHDRAWALS AND LOANS
7.1 Distributions Only as Provided......................................................................... 30
7.2 Distributions on Termination of Employment or Disability............................................... 30
7.3 Distributions on Death................................................................................. 31
7.4 Distribution Options.................................................................................. 31
7.5 Lump-Sum Payment of Small Benefits..................................................................... 32
7.6 Form and Valuation of Distributions.................................................................... 32
7.7 Mandatory Commencement of Distributions............................................................... 33
7.8 Withdrawals............................................................................................ 34
7.9 Hardship Withdrawal Requirements....................................................................... 34
7.10 Order of Distributions and Withdrawals................................................................. 35
7.11 Special Provisions Applicable to Qualified Domestic Relations Order.....................................35
7.12 Distribution on Sale of Assets or Disposition of Business............................................. 36
7.13 Loans.................................................................................................. 36
ARTICLE VIII - ADMINISTRATION OF TRUST FUND
8.1 Appointment of Trustee................................................................................. 37
8.2 Exclusive Purpose...................................................................................... 37
8.3 Disclaimer of Liability................................................................................ 37
8.4 No Responsibility for Investments...................................................................... 38
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE IX - INVESTMENT MANAGER
9.1 Duties and Functions................................................................................... 39
9.2 Compensation........................................................................................... 39
ARTICLE X - THE COMMITTEE
10.1 Members and Officers................................................................................... 40
10.2 Certification of Members and Officers.................................................................. 40
10.3 Duties................................................................................................. 40
10.4 Revocability of Committee Action....................................................................... 40
10.5 Rules and Procedures................................................................................... 40
10.6 Plan Interpretation and Findings of Fact............................................................... 41
10.7 Directions to Trustee.................................................................................. 42
10.8 Costs and Expenses..................................................................................... 42
10.9 Filing of Documents.................................................................................... 42
ARTICLE XI - CLAIMS PROCEDURES
11.1 Claims................................................................................................. 43
11.2 Review of Claims....................................................................................... 43
ARTICLE XII - ADMINISTRATION OF THE PLAN AND
FIDUCIARY RESPONSIBILITY
12.1 Responsibility for Administration...................................................................... 45
12.2 Named Fiduciaries...................................................................................... 45
12.3 Delegation of Fiduciary Responsibilities............................................................... 45
12.4 Immunities............................................................................................. 46
12.5 Limitation on Exculpatory Provisions................................................................... 46
ARTICLE XIII - AMENDMENT, TERMINATION AND MERGER
13.1 Right to Amend........................................................................................ 47
13.2 Prohibition on Decreasing Accrued Benefits............................................................ 47
13.3 Plan Merger........................................................................................... 47
13.4 Terminations.......................................................................................... 47
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE XIV - GUARANTEES AND LIABILITIES
14.1 Non-Guarantee of Employment........................................................................... 48
14.2 Rights to Trust Assets................................................................................. 48
14.3 Non-Alienation of Benefits............................................................................. 48
14.4 Incapacity to Receive Payment.......................................................................... 48
14.5 Unclaimed Benefits..................................................................................... 49
14.6 Severability Provision................................................................................. 49
ARTICLE XV - ADOPTION PROCEDURE BY CONTROLLED GROUP MEMBERS
15.1 Adoption Procedure..................................................................................... 50
15.2 Additional Terms and Conditions Relating to Instrument of Adoption..................................... 50
15.3 Effect of Adoption by Controlled Group Member.......................................................... 50
15.4 Withdrawal of an Employer.............................................................................. 51
ARTICLE XIV - TOP-HEAVY PLAN REQUIREMENTS
16.1 Definitions............................................................................................ 52
16.2 Determination of Top-Heavy Status...................................................................... 54
16.3 Determination of Extra Top-Heavy Status................................................................ 54
16.4 Top-Heavy Plan Requirements............................................................................ 55
16.5 Minimum Contribution Requirement....................................................................... 55
16.6 Adjustment to Minimum Benefits and Allocations......................................................... 56
16.7 Coordination With Other Plans.......................................................................... 56
Exhibit A - Units Subject to Special Vesting Schedule
Exhibit B - Investment Funds
</TABLE>
v
<PAGE> 7
The Elder-Beerman Stores Corp.
Retirement Savings Plan
(Amended and Restated as of July 1, 1998)
The Elder-Beerman Stores Corp. (the "Company") hereby amends and
restates The Elder- Beerman Stores Corp. Profit Sharing and Stock Ownership Plan
(the "Plan"). Except as otherwise provided in the Plan, the effective date of
such amendment and restatement is July 1, 1998.
The Plan as hereby amended and restated is intended to continue to
qualify as a profit sharing plan under Section 401(a) of the Code with
contributions thereto by the Employers being deductible under Section 404 of the
Code or any other applicable sections thereof, and to continue to meet the
requirements of ERISA. The Plan contains a cash or deferred arrangement
described in Section 401(k) of the Code.
The Plan was established as of July 1, 1980 as The Elder-Beerman
Stores Corp. Profit Sharing Plan. Effective as of January 1, 1991, the Plan was
amended to include a component meeting the requirements of an employee stock
ownership plan as described in Section 4975(e)(7) of the Code and was intended
to invest primarily in preferred stock of the Company.
As of the effective date of this amendment and restatement, the name
of the Plan is changed to The Elder-Beerman Stores Corp. Retirement Savings
Plan.
The terms and conditions of the Plan are as follows:
<PAGE> 8
ARTICLE I
---------
Definitions
-----------
1.1 DEFINITIONS. Where the following words and phrases appear in the Plan,
they shall have the respective meanings set forth below, unless their context
clearly indicates otherwise:
(a) ACCOUNT AND SUB-ACCOUNT: The Accounts and Sub-Accounts provided
for in Section 6.2.
(b) BEFORE-TAX CONTRIBUTIONS: The Before-Tax Contributions provided
for in Section 3.1(a).
(c) BENEFICIARY: The person or persons designated by a Participant to
receive benefits under the Plan payable upon the death of the Participant.
Such designation may be made, revoked or changed (without the consent of
any previously designated Beneficiary, except as otherwise provided herein)
only by an instrument (in a form acceptable by the Plan Administrator)
signed by a Participant and filed with the Plan Administrator before the
Participant's death. In the absence of such a designation, a Participant's
Beneficiary shall be his Spouse, or if the Participant has no Spouse, then
his estate. No designation, change or revocation under the provisions of
this Subsection shall be effective with respect to a married Participant
unless (1) the Participant's Spouse consents in writing to such
designation, change or revocation (unless such action results in the Spouse
being named as the Participant's sole Beneficiary), the Spouse's consent
acknowledges the effect of such designation, change or revocation and is
witnessed by a Plan representative or by a notary public or (2) it is
established to the satisfaction of a Plan representative that the consent
required under (1) cannot be obtained because there is no Spouse, because
the Spouse cannot be located, or because of such other circumstances as the
Secretary of the Treasury may prescribe by regulations. Any consent by a
Spouse (or establishment that such consent may not be obtained) under the
provisions of this Subsection shall be effective only with respect to such
Spouse.
(d) CODE: The Internal Revenue Code of 1986, as amended.
(e) COMPANY: The Elder-Beerman Stores Corp., an Ohio corporation, or
any successor thereto.
(f) COMPANY STOCK: The common stock, without par value, of the
Company.
(g) COMPANY STOCK FUND: The Investment Fund which is invested in
Company Stock and, as appropriate to meet the needs of the Plan, cash.
2
<PAGE> 9
(h) COMPENSATION:
(1) The total cash compensation paid by the Employer for a Plan
Year, including regular salary and wages, overtime pay, bonuses,
commissions and other monetary remuneration, if any, which is paid to
an Employee on account of services rendered to the Employers, but
excluding nontaxable fringe benefits, amounts designated as signing
bonuses and severance pay. Notwithstanding the foregoing, Compensation
shall include any amount which would have been paid to a Participant
by an Employer had he not signed a compensation deferral agreement
which satisfies the requirements of Section 401(k), 125 or 129 of the
Code, which is subject to withholding for Federal income tax purposes,
or which would have been subject to such withholding if the
Participant had not signed such a compensation deferral agreement.
(2) Notwithstanding the foregoing provisions of this Subsection,
Compensation of a Participant taken into account for purposes of
Sections 3.1, 4.1 and 4.4 for any Plan Year shall not exceed $160,000,
as adjusted for increases in the cost-of-living in accordance with
Section 401(a)(17)(B) of the Code.
(i) COMPENSATION DEFERRAL AGREEMENT: An arrangement made under the
Plan pursuant to which an Eligible Employee agrees to reduce, or to forego
an increase in, his Compensation and his Employer agrees to contribute to
the Trust Fund the amount of the reduction or the amount foregone as a
Pre-Tax Contribution.
(j) CONTROLLED GROUP: An Employer and any and all other corporations,
trades and/or businesses, the employees of which together with Employees of
the Employer are required by Section 414 of the Code to be treated as if
they were employed by a single employer.
(k) CONTROLLED GROUP MEMBER: Each corporation or unincorporated trade
or business that is or was a member of the Controlled Group but only during
such period as it is or was a member of the Controlled Group.
(l) COVERED EMPLOYEE: Any Employee of an Employer and any Employee
designated as a Covered Employee in any instrument of adoption executed by
a Controlled Group Member which adopts the Plan as provided in Article XV,
excluding, however:
(1) Leased employees, as defined in Subsection (q) of this
Section;
(2) Any Employee who is covered by a collective bargaining
agreement unless the collective bargaining agreement provides for
inclusion in the Plan;
(3) Prior to January 1, 1999, any Employee classified as a
seasonal employee;
3
<PAGE> 10
(4) Any employee of an unrelated employer whose business activity
is conducted on the Company's premises, regardless of whether the
Company permits employees of such employer to participate in its
benefit programs; and
(5) Non-resident aliens.
(m) DISABILITY OR DISABLED: A physical or mental condition arising
after the original date of employment of the Participant which totally and
permanently prevents the Participant from engaging in any occupation or
employment for remuneration or profit, except for the purpose of
rehabilitation not incompatible with a finding of total and permanent
disability. The determination as to whether a Participant is totally and
permanently disabled shall be made (1) on evidence that the Participant is
eligible for disability benefits under any long-term disability plan
sponsored by his Employer but administered by an independent third party,
or (2) on evidence that the Participant is eligible for disability benefits
under the Social Security Act in effect at the date of disability.
(n) EBSOP ROLLOVER AMOUNTS: Amounts transferred to the Plan from The
Elder- Beerman Stores Corp. Payroll-Based Stock Ownership Plan.
(o) EFFECTIVE DATE: The effective date of this amendment and
restatement of the Plan is July 1, 1998.
(p) ELIGIBLE PARTICIPANT:
(1) With respect to Matching Contributions for a Plan Year, a
Participant who is an active Employee on the last day of such Plan
Year (or is on an approved leave of absence on such date);
(2) With respect to Retirement Security Contributions for a Plan
Year, a Participant who (i) is an active Employee on the last day of
such Plan Year (or is on an approved leave of absence on such date)
and completed at least 1,000 Hours of Service during such Plan Year.
(q) EMPLOYEE: Any person employed by a Controlled Group Member. To the
extent required by Section 414(n) of the Code, the term "Employee" includes
any person who, pursuant to an agreement between a Controlled Group Member
and any other person ("leasing organization"), has performed services for a
Controlled Group Member on a substantially full-time basis for a period of
at least one year, and such services are performed under the primary
direction or control of the Controlled Group Member. Contributions or
benefits provided a leased employee by the leasing organization which are
attributable to services performed for a Controlled Group Member will be
treated as provided by the Controlled Group Member. A leased employee will
not be considered an Employee of a Controlled Group Member, however, if (1)
leased employees do not constitute more than 20% of the Controlled Group
Member's nonhighly compensated work force (within the meaning of Section
414(n)(5)(C)(ii)
4
<PAGE> 11
of the Code) and (2) such leased employee is covered by a money purchase
pension plan maintained by the leasing organization that provides (i) a
nonintegrated employer contribution rate of at least 10% of compensation,
including amounts contributed pursuant to a salary reduction agreement
which are excludable from the leased employee's gross income under Section
125, 402(e)(3), 402(h) or 403(b) of the Code, (ii) immediate participation
and (iii) full and immediate vesting.
(r) EMPLOYER: The Company and any other Controlled Group Member that
adopts the Plan as specified in Article XV. As the Effective Date, the
Controlled Group Members that have adopted the Plan are The Bee-Gee Shoe
Corp. and The El-Bee Charge-It Corp.
(s) EMPLOYMENT COMMENCEMENT DATE: The date with respect to which an
Employee first is credited with an Hour of Service.
(t) ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
(u) HARDSHIP: Immediate and heavy financial need on the part of a
Participant who is an Employee for:
(1) The purchase of the Employee's principal residence (other
than mortgage payments);
(2) Tuition payments, related educational fees and room and board
expenses for the next 12 months, semester, or quarter of
post-secondary education for the Employee, his Spouse or dependents;
(3) Unreimbursed medical expenses described in Section 213(d) of
the Code for which payment is necessary in advance in order to obtain
medical services for the Employee, his Spouse or dependents or for
such medical expenses already incurred by the Employee, his Spouse or
dependents;
(4) Threatened eviction from, or foreclosure of mortgage on, the
principal residence of the Employee; or
(5) Any other events that may be deemed to cause a financial
hardship under applicable regulations issued by the Internal Revenue
Service.
(v) HIGHLY COMPENSATED EMPLOYEE:
(1) Effective as of January 1, 1997, for a particular Plan Year,
any Employee who (i) was a 5% owner (as such term is defined in
Section 416(i)(1) of the Code) at any time during the Plan Year or the
preceding Plan Year or (ii) for the preceding Plan Year (A) had
compensation from the Controlled Group in excess of $80,000, as
adjusted for increases in the cost-of-living in accordance with
Section 414(q)(1)(B) of the Code, and
5
<PAGE> 12
(B) if elected by the Employer, was in the top-paid group of Employees
for such preceding Plan Year.
(2) "Highly Compensated Employee" shall include a former Employee
whose termination of employment with the Controlled Group occurred
prior to the Plan Year and who was a Highly Compensated Employee for
the Plan Year in which his termination of employment occurred or for
any Plan Year ending on or after his 55th birthday.
(3) For the purposes of this Subsection, (i) for Plan Years
commencing prior to January 1, 1998, the term "compensation" shall
mean an Employee's compensation under Section 5.7(a), including any
amount which would have been paid to the Employee by an Employer had
he not signed a compensation deferral agreement satisfying the
requirements of Section 401(k), 125 or 129 of the Code, and for Plan
Years commencing on or after January 1, 1998, the term "compensation"
shall have the meaning given such term by Section 415(c)(3) of the
Code and (ii) the term "top-paid group of Employees" shall mean that
group of Employees of the Controlled Group consisting of the top 20%
of such Employees when ranked on the basis of compensation as defined
in this Paragraph paid by the Controlled Group during the Plan Year.
(w) HOUR OF SERVICE:
(1) An hour (i) for which an Employee is paid, or entitled to
payment, by one or more Controlled Group Members for the performance
of duties for a Controlled Group Member or (ii) for which back pay,
irrespective of mitigation of damages, has been either awarded or
agreed to by a Controlled Group Member; provided, however, that an
hour shall not be credited under both Subparagraphs (i) and (ii) of
this Paragraph.
(2) (i) An Employee shall also be credited with one Hour of
Service (on the basis set forth in Subparagraph (iv) of this
Paragraph) for each hour for which he is paid, or entitled to
payment, by a Controlled Group Member for reasons (such as
vacation, sickness or disability) other than for the performance
of duties.
(ii) Notwithstanding the foregoing provisions of this
Paragraph:
(A) no more than 501 Hours of Service shall be credited
under this Paragraph to an Employee on account of any single
continuous period during which the Employee performs no
duties (whether or not such period occurs in a single Plan
Year);
(B) an hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a
period during which no duties are performed shall not be
credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying
with applicable workers' compensation or unemployment
compensation or disability insurance laws; and
6
<PAGE> 13
(C) Hours of Service shall not be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee.
(iii) For purposes of this Paragraph, a payment shall be
deemed to be made by or due from a Controlled Group Member
regardless of whether such payment is made by or due from such
Controlled Group Member directly, or indirectly through, among
others, a trust fund, or insurer, to which such Controlled Group
Member 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 on behalf
of a group of Employees in the aggregate.
(iv) For purposes of this Paragraph, an Employee shall be
credited with Hours of Service on the basis of his regularly
scheduled working hours per week (or per day if he is paid on a
daily basis) or, in the case of an Employee without a regular
work schedule, on the basis of 40 Hours of Service per week (or
eight Hours of Service per day if he is paid on a daily basis)
for each week (or day) during such period of time during which no
duties are performed. Notwithstanding the foregoing provisions of
this Subparagraph, an Employee shall not be credited with a
greater number of Hours of Service for a period during which no
duties are performed than (A) the number of hours for which he is
regularly scheduled for the performance of duties during such
period or (B) in the case of an Employee without a regular work
schedule, 40 Hours of Service per week (or eight Hours of Service
per day if he is paid on a daily basis).
(v) No hour shall be counted more than once or be counted as
more than one Hour of Service even though the Employee may
receive more than straight-time pay for it. With respect to
Employees whose compensation is not determined on the basis of
certain amounts for each hour worked during a given period and
for whom hours are not required to be counted and recorded by any
federal law (other than ERISA), Hours of Service shall be
credited on the basis of 45 Hours of Service per week or 10 Hours
of Service per day for each week or day for which he receives
compensation from any Controlled Group Member. The Plan
Administrator may adopt uniform rules for counting additional
hours as Hours of Service for any purpose or purposes hereof,
provided such rules to not discriminate in favor of shareholders,
officers or Highly Compensated Employees.
(3) Hours of Service shall be credited to eligibility computation
periods and Plan Years in accordance with the provisions of Department
of Labor Regulations section 2530.200b-2(c), which provisions are
incorporated herein by reference.
(4) Anything in the Plan to the contrary notwithstanding, an
Employee shall be credited with such Hours of Service not otherwise
credited to him under the Plan as may be required by any applicable
law.
7
<PAGE> 14
(x) INVESTMENT FUNDS: The Investment Funds provided for in Section
6.1.
(y) INVESTMENT MANAGER: The Investment Manager acting pursuant to
Article IX. Each Investment Manager must satisfy the provisions of Section
3(38) of ERISA.
(z) LOAN SUB-ACCOUNT: The separate recordkeeping account within a
Participant's Account established by the Plan Administrator to reflect a
loan made pursuant to rules and procedures established pursuant to Section
7.13.
(aa) MATCHING CONTRIBUTIONS: The Matching Contributions provided for
in Section 4.1.
(bb) OLD PLAN AMOUNTS: Amounts attributable to a Participant's basic
and supplemental deposits under the terms of the Plan prior to September 1,
1983.
(cc) ONE YEAR BREAK-IN-SERVICE:
(1) For any period of absence beginning before January 1, 1999, a
12-consecutive month period beginning on an Employee's Severance from
Service Date and ending on the first anniversary of such date, during
which the Employee is not credited with an Hour of Service.
(2) For any period of absence beginning on or after January 1,
1999, a calendar year in which an Employee is credited with less than
501 Hours of Service.
(dd) PARTICIPANT: Any Employee or former Employee who has become and
continues to be a Participant in the Plan in accordance with the provisions
of Article II.
(ee) PERIOD OF SEVERANCE: The period of time commencing on an
Employee's Severance from Service Date and ending on the date on which the
Employee again performs an Hour of Service.
(ff) PLAN: The Elder-Beerman Stores Corp. Retirement Savings Plan.
(gg) PLAN ADMINISTRATOR: The Company.
(hh) PLAN YEAR: The calendar year.
(ii) QUALIFIED NONELECTIVE CONTRIBUTIONS: A contribution made by an
Employer pursuant to Section 4.7 that (1) Participants eligible to share
therein may not elect to receive in cash until distribution from the Plan,
(2) is nonforfeitable when made, (3) is distributable only in accordance
with the distribution rules applicable to Before-Tax Contributions and (4)
is paid to the Trust Fund during the Plan Year for which made or within the
time following the close of such Plan Year which is prescribed by law for
the filing by an Employer of its federal income tax return (including
extensions thereof).
8
<PAGE> 15
(jj) REEMPLOYMENT COMMENCEMENT DATE: The first date following a Period
of Severance which is not required to be taken into account under the
Service Spanning Rules in Section 1.1(mm)(3) with respect to which an
Employee is first credited with an Hour of Service.
(kk) RETIREMENT SECURITY CONTRIBUTIONS: The Retirement Security
Contributions provided for in Section 4.4.
(ll) ROLLOVER CONTRIBUTIONS: An amount transferred to a Covered
Employee's Account pursuant to Section 3.4.
(mm) SERVICE: For purposes of determining a Participant's eligibility
to participate in the Plan under Article III and his Vested Interest only:
(1) GENERAL: The aggregate of an Employee's initial Period of
Service and all subsequent Periods of Service, if any. Periods of
Service shall be aggregated on the basis that (i) 12 calendar months
of Service equals one Year of Service and (ii) any Period of Service
in excess of completed full years will be counted to the nearest
fractional one-twelfth of a year.
(2) PERIOD OF SERVICE: A period commencing on an Employee's
Employment Commencement Date or Reemployment Commencement Date,
whichever is applicable, and ending on his Severance from Service
Date.
(3) SERVICE SPANNING RULES: In measuring a Period of Service, the
Plan shall take into account as Periods of Service (in addition to an
Employee's Period of Service under Paragraph (2) of this Subsection)
the following Periods of Severance:
(i) in the case of an Employee who incurs a Severance from
Service by reason of a quit, discharge or retirement and who then
is credited with an Hour of Service within 12 months of the
Severance from Service Date, such Period of Severance; and
(ii) Subparagraph (i) of this Paragraph notwithstanding, in
the case of an Employee who incurs a Severance from Service by
reason of a quit, discharge or retirement during an absence from
active employment of 12 months or less for any reason other than
a quit, discharge, retirement or death and who then is credited
with an Hour of Service within 12 months of the date on which the
Employee was first absent from Service, such Period of Severance.
(4) MATERNITY/PATERNITY LEAVE OF ABSENCE: If an Employee is
absent from work (other than on an approved leave of absence) for any
period due to:
(i) the pregnancy of the Employee;
(ii) the birth of a child of the Employee;
9
<PAGE> 16
(iii) the placement of a child with the Employee in
connection with the adoption of such child by the Employee; or
(iv) caring for a child for a period beginning immediately
following the birth or placement of such child,
such Employee shall not, solely by reason of such absence, be
considered to have incurred a Period of Severance until the
expiration of the 24-consecutive month period commencing on the
first day of such absence and shall incur a One-Year Period of
Severance if he does not perform an Hour of Service during the
12-month period immediately following such 24- month period.
(nn) SEVERANCE FROM SERVICE: An Employee's Severance from Service
occurs on the latest of:
(i) the date an Employee quits, resigns, retires, is
discharged or terminates from the employ of the Controlled Group,
fails to return to work when an absence is not authorized, or (in
the case of a layoff) the date on which an Employee's recall
rights expire;
(ii) an Employee's death; or
(iii) the expiration of a 12-month period after an Employee
remains absent from Service for any reason other than those
enumerated in Subparagraph (i) or (ii) of this Paragraph.
Anything in this Paragraph to the contrary notwithstanding, no
Employee shall be considered to have incurred a Severance from Service
solely because he has transferred from the employ of one Controlled
Member to the employ of another Controlled Group Member.
(oo) SEVERANCE FROM SERVICE DATE: The last day of the calendar month
in which an Employee incurs a Severance from Service.
(pp) SPOUSE: The person to whom an Employee is legally married at the
time in question; provided, however, that a former Spouse may be treated as
a Spouse or a surviving Spouse to the extent required under a "qualified
domestic relations order" (as such term is defined by Section 414(p) of the
Code).
(qq) TRUST AGREEMENT: The agreement between the Company and the
Trustee (or any successor Trustee) establishing the Trust Fund and
specifying the duties of the Trustee and the Company.
(rr) TRUSTEE: The Trustee (and any successor Trustee) designated by
the Company to administer the Trust Fund.
10
<PAGE> 17
(ss) TRUST FUND: The trust established to hold and invest
contributions made under the Plan for the exclusive benefit of the
Participants and their Beneficiaries and from which the benefits will be
distributed from time to time.
(tt) VALUATION DATE: The last day of each calendar year and such other
dates as the Plan Administrator may designate.
(uu) VESTED INTEREST: The portion of a Participant's Account that is
nonforfeitable.
(1) BEFORE-TAX CONTRIBUTIONS SUB-ACCOUNT, EBSOP ROLLOVER
SUB-ACCOUNT, OLD PLAN SUB-ACCOUNT, QUALIFIED NONELECTIVE CONTRIBUTIONS
SUB-ACCOUNT AND ROLLOVER CONTRIBUTIONS SUB-ACCOUNT: A Participant's
Before-Tax Contributions Sub-Account, EBSOP Rollover Sub-Account, Old
Plan Sub-Account, Qualified Nonelective Contributions Sub-Account and
his Rollover Contributions Sub-Account shall at all times be
nonforfeitable.
(2) MATCHING CONTRIBUTIONS SUB-ACCOUNT AND RETIREMENT SECURITY
CONTRIBUTIONS SUB-ACCOUNT: A Participant's Matching Contributions
Sub-Account and Retirement Security Contributions Sub-Account shall
become nonforfeitable in accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C> <C>
Less than 5 0%
5 or more 100%
</TABLE>
Notwithstanding the foregoing vesting schedule, a Participant's
Matching Contributions Sub-Account and Retirement Security
Contributions Sub-Account shall become nonforfeitable when a
Participant attains age 65, becomes Disabled or dies.
(3) SPECIAL VESTING SCHEDULE. Notwithstanding the preceding
provisions of this Subsection, the entire Account of a Participant
affected by the closing of a store or elimination of a business unit
or other event listed on Exhibit A hereto as of the date of such
closing or elimination or as provided on Exhibit A shall become
nonforfeitable in accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C> <C>
0 0%
1 20%
2 40%
3 60%
4 80%
5 100%
</TABLE>
11
<PAGE> 18
(vv) YEAR OF SERVICE:
(1) ELIGIBILITY SERVICE: For purposes of determining an
Employee's eligibility to participate in the Plan:
(i) EMPLOYEES HIRED PRIOR TO JANUARY 1, 1999: With respect
to Employees hired prior to January 1, 1999 only, an Employee's
entire Period of Service ending on the anniversary of his
Employment Commencement Date or Reemployment Commencement Date,
whichever is applicable, that occurs during 1999.
(ii) EMPLOYEES HIRED ON OR AFTER JANUARY 1, 1999: With
respect to Employees hired on or after January 1, 1999, an
Employee will be credited with a Year of Service if he is
credited with at least 1,000 Hours of Service in the 12-month
period beginning with his Employment Commencement Date or
Reemployment Commencement Date, whichever is applicable, either
of which 12-month periods shall be the "Initial Eligibility
Computation Period." If an Employee is not credited with at least
1,000 Hours of Service during an Initial Eligibility Computation
Period, such Employee shall be credited with a Year of
Eligibility Service if he is credited with at least 1,000 Hours
of Service during the Plan Year beginning during the Initial
Eligibility Computation Period or any Plan Year thereafter.
(iii) EMPLOYEES HIRED PRIOR TO JANUARY 1, 1999 BUT NOT
CREDITED WITH A YEAR OF SERVICE PRIOR TO DECEMBER 31, 1999: An
Employee described in Subparagraph (i) of this Paragraph who has
not been credited with a Year of Service pursuant to Subparagraph
(i) of this Paragraph will be credited with a Year of Service if
he is credited with at least 1,000 Hours of Service during the
1999 Plan Year or any Plan Year thereafter.
(iv) EXCEPTION FOR FIVE CONSECUTIVE ONE-YEAR BREAKS IN
SERVICE: Notwithstanding the preceding Subparagraphs of this
Paragraph, if a Participant has five or more consecutive One-Year
Breaks in Service and the Participant does not have a Vested
Interest in his Matching Contributions Sub-Account or his
Retirement Security Contributions Sub-Account, the Participant's
Years of Service for purposes of determining his eligibility to
participate in the Plan will not include any Years of Service
completed before such Breaks in Service.
(2) VESTING SERVICE: For purposes of determining an Employee's
Vested Interest in the Plan:
(i) EMPLOYEES HIRED PRIOR TO JANUARY 1, 1999: With respect
to Employees hired prior to January 1, 1999 only, an Employee's
entire Period of Service ending on the anniversary of his
Employment Commencement Date or Reemployment Commencement Date,
whichever is applicable, that occurs during 1999. An Employee
hired prior to January 1, 1999 shall also be credited with a Year
of Service if he is
12
<PAGE> 19
credited with at least 1,000 Hours of Service during any Plan
Year commencing on or after January 1, 1999.
(ii) EMPLOYEES HIRED ON OR AFTER JANUARY 1, 1999: With
respect to Employees hired on or after January 1, 1999, an
Employee will be credited with a Year of Service if he is
credited with at least 1,000 Hours of Service during any Plan
Year.
(iii) EXCEPTION FOR FIVE CONSECUTIVE ONE-YEAR BREAKS IN
SERVICE: Notwithstanding the preceding Subparagraphs of this
Paragraph, if a Participant has five or more consecutive One-Year
Breaks in Service and the Participant does not have a Vested
Interest in his Matching Contributions Sub-Account or his
Retirement Security Contributions Sub-Account, the Participant's
Years of Service for purposes of determining his Vested Interest
in his Account will not include any Years of Service completed
before such Breaks in Service.
1.2 CONSTRUCTION.
(a) GENDER AND NUMBER: The masculine gender, where appearing in the
Plan, shall be deemed to include the feminine gender and the singular shall
be deemed to include the plural, unless the context clearly indicates to
the contrary.
(b) GOVERNING LAW: Interpretation and administration of the Plan shall
be governed by federal law under ERISA, consistent with other applicable
federal law, and to the extent not preempted by federal law, shall be
governed (1) as to any trust holding plan assets, by the law of the state
in which the Trustee is chartered, (2) as to any law governing personal
property, legal death, decedent's estates, community property or related
matters, by the law of the state in which the person affected by such law
is domiciled and (3) as to all other matters, by the law of the State of
Ohio.
(c) EFFECT OF AMENDMENT AND RESTATEMENT: This amendment and
restatement of the Plan shall constitute a continuation of the Plan. This
amendment and restatement is generally effective July 1, 1998. However,
certain provisions of this amendment and restatement of the Plan are
effective as of some other date. The provisions of this amendment and
restatement that are effective prior to July 1, 1998 shall be deemed to
amend the corresponding provisions of the Plan as in effect before this
amendment and restatement and all amendments thereto. Events occurring
before the applicable effective date of any provision of this amended and
restated Plan shall be governed by the applicable provision of the Plan in
effect on the date of the event.
(d) MILITARY SERVICE: Notwithstanding any provisions of the Plan to
the contrary, an authorized leave of absence due to service in the Armed
Forces of the United States shall not constitute a One-Year Break in
Service and contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section
414(u) of the Code. "Qualified military service" means any service in the
uniformed services (as defined
13
<PAGE> 20
in chapter 43 of title 38 of the United States Code) by any individual if
such individual is entitled to reemployment rights under such chapter with
respect to such service.
14
<PAGE> 21
ARTICLE II
----------
Participation
-------------
2.1 ELIGIBILITY FOR PARTICIPATION.
(a) A Covered Employee shall become a Participant as of the date he
(1) has completed one Year of Service as described in Section 1.1(vv)(1),
and (2) attained age 18.
(b) Notwithstanding the foregoing, a person who was a Participant in
the Plan on the day before the Effective Date shall continue to be a
Participant in the Plan as of the Effective Date.
2.2 ENROLLMENT. Any Participant who is a Covered Employee may enroll in the
Plan for the purpose of making Before-Tax Contributions on the date on which he
is initially eligible or on any subsequent date in accordance with procedures
established by the Plan Administrator which shall include (a) his election, to
have Before-Tax Contributions made for him to the Trust Fund, (b) his
authorization to his Employer to withhold from his Compensation, commencing on
or after such effective date, any designated Before-Tax Contributions, if any,
and to pay the same to the Trust Fund, and (c) his direction that the Before-Tax
Contributions made for him be invested in the manner described in Section 6.3.
2.3 DURATION OF PARTICIPATION. Once a Covered Employee becomes a
Participant, he shall remain a Participant so long as (a) he continues to be an
Employee whether or not he continues to be a Covered Employee or (b) a portion
of the Trust Fund is credited to his Account and held for his benefit by the
Trustee; provided, however, that if a Participant ceases to be a Covered
Employee (while remaining an Employee), Before-Tax Contributions may not be made
for him pursuant to Section 3.1 until he again becomes a Covered Employee and he
again enrolls as a contributing Participant pursuant to Sections 2.2 and 3.1.
15
<PAGE> 22
ARTICLE III
-----------
Participant Contributions
-------------------------
3.1 BEFORE-TAX CONTRIBUTIONS.
(a) BEFORE-TAX CONTRIBUTIONS: Upon enrollment pursuant to Section 2.2,
a Participant who is a Covered Employee may, pursuant to a Compensation
Deferral Agreement, have his Employer make Before-Tax Contributions to the
Plan in an amount not less than 1% or more than 15% (in 1% increments) of
his Compensation.
(b) REDUCTIONS TO COMPLY WITH LEGAL LIMITS: If a Participant's
Before-Tax Contributions must be reduced to comply with the requirements of
Section 5.2 and/or 5.4, as applicable, or the requirements of applicable
law, his Before-Tax Contributions as so reduced shall be the maximum
percentage of his unreduced Compensation permitted by such Section or law.
3.2 PAYMENTS TO TRUSTEE. Before-Tax Contributions made for a Participant
shall be transmitted by the Employers to the Trustee as soon as practicable, but
in no event later than 15 business days after the end of the calendar month for
which such Contributions are withheld or such shorter time as may be required by
law.
3.3 CHANGES IN BEFORE-TAX CONTRIBUTIONS.
(a) CHANGE OF CONTINUING ELECTION: The percentage designated by a
Participant pursuant to Section 3.1(a) shall continue in effect,
notwithstanding any changes in the Participant's Compensation. A
Participant may, however, in accordance with the percentages permitted by
Section 3.1(a), change the percentage of or suspend entirely his Before-Tax
Contributions, upon at least 30 days (or such shorter period as the Plan
Administrator may permit on a uniform and nondiscriminatory basis) prior
notice provided in accordance with procedures established by the Plan
Administrator, effective as of the next payroll period following the
expiration of such 30-day (or shorter) period.
(b) RESUMPTION FOLLOWING SUSPENSION: A Participant who has suspended
his Before-Tax Contributions described in Section 3.1(a) may resume making
such Contributions as soon as administratively feasible but not later than
the next payroll period provided that (1) the Participant is eligible to
participate in the Plan under Section 2.1 on such date and (2) the
Participant notifies the Plan Administrator in accordance with procedures
established by the Plan Administrator of the resumption no later than 30
days (or such shorter period as the Plan Administrator may permit on a
uniform and nondiscriminatory basis) prior to the date it is to become
effective.
16
<PAGE> 23
(c) RESUMPTION FOLLOWING HARDSHIP WITHDRAWAL: A Participant for whom
Before-Tax Contributions have been suspended pursuant to Section 7.9(b)(1)
may resume making such Contributions as soon as administratively feasible
after the end of the suspension period but not later than the next payroll
period provided that (1) the Participant is eligible to participate in the
Plan under Section 2.1 on such date and (2) the Participant notifies the
Plan Administrator in accordance with procedures established by the Plan
Administrator of the resumption no later than 30 days (or such shorter
period as the Plan Administrator may permit on a uniform and
nondiscriminatory basis) prior to the date it is to become effective.
3.4 ROLLOVER CONTRIBUTIONS.
(a) IN GENERAL: The Trustee, at the direction of the Plan
Administrator, shall also receive and thereafter hold and administer as
part of the Trust Fund for a Covered Employee cash or other property which
shall have been distributed to or at the direction of the Covered Employee
from (1) a trust held under another plan in which the Covered Employee was
a participant in a distribution which constitutes an "eligible rollover
distribution" under Section 401(a)(31)(C) or Section 402(c)(4) of the Code,
or (2) an individual retirement account or an individual retirement annuity
(in each case described in Section 408(d) of the Code). Notwithstanding the
foregoing, a Rollover Contribution shall not include any after-tax employee
contributions.
(b) ADOPTION OF RULES: The Plan Administrator shall adopt, and may
amend from time to time, general rules of uniform application which shall
govern the administration of Rollover Contributions. Rollover Contributions
transferred to the Trustee pursuant to this Section shall be allocated to
such existing or new Sub-Account(s) as the Plan Administrator shall
determine.
17
<PAGE> 24
ARTICLE IV
----------
Employer Contributions
----------------------
4.1 Amount of Matching Contributions.
(a) ELIGIBILITY AND AMOUNT: For each Plan Year, each Employer shall
make a Matching Contribution to the Plan on behalf of the Employer's
Eligible Participants described in Section 1.1(p)(1). The amount of the
Matching Contribution shall be an amount equal to the percentage of a
Participant's Before-Tax Contributions not in excess of 3% of such Eligible
Participant's Compensation while a Participant made to the Plan for that
Plan Year based on the following table:
<TABLE>
<CAPTION>
Employer's Percent of Pre-Tax Contribution as a Percentage of an
Earnings to Employer's Net Sales Eligible Participant's Before-Tax
(Exclusive of Extraordinary Contributions (Not in Excess of 3% of
Income) Compensation while a Participant)
=====================================================================================
<S> <C> <C>
Less than 1% 0%
1% but less than 2% 12 1/2%
2% but less than 3% 25%
3% but less than 4% 37 1/2%
4% but less than 5% 50%
5% but less than 5 1/2% 100%
5 1/2% but less than 6% 125%
6% but less than 6 1/2% 150%
6 1/2% but less than 7% 200%
7% and over 225%
</TABLE>
(b) LIMITATION ON AMOUNT: Notwithstanding any provision of the Plan to
the contrary, the Matching Contributions to the Trust Fund on account of
any Plan Year shall in no event exceed the amount that would be deductible
for such Year for purposes of federal taxes on income under applicable
provisions of the Code and shall be made on the condition that such
Contributions are deductible under applicable provisions of the Code.
18
<PAGE> 25
4.2 TIME OF MATCHING CONTRIBUTIONS. Matching Contributions shall be made to
the Trust Fund no later than the Employer's tax filing deadline for the
Employer's fiscal year beginning in the applicable Plan Year.
4.3 ALLOCATION OF MATCHING CONTRIBUTIONS. Matching Contributions shall,
subject to the provisions of Sections 5.1(c), 5.2(e) and 5.3(c), be allocated
when made and credited by the Plan Administrator to the Account of each Eligible
Participant described in Section 1.1(p)(1).
4.4 AMOUNT OF RETIREMENT SECURITY CONTRIBUTIONS.
(a) ELIGIBILITY AND AMOUNT: For each Plan Year, each Employer may make
a Retirement Security Contribution to the Plan on behalf of each Eligible
Participant described in Section 1.1(p)(2). The amount of such Retirement
Security Contribution may not exceed 3 1/4% of such Eligible Participant's
Compensation while a Participant for such Plan Year.
(b) LIMITATION ON AMOUNT: Notwithstanding any provision of the Plan to
the contrary, a Retirement Security Contribution to the Trust Fund on
account of any Plan Year shall in no event exceed the amount that would be
deductible for such Year for purposes of federal taxes on income under
applicable provisions of the Code and shall be made on the condition that
such Contributions are deductible under applicable provisions of the Code.
4.5 TIME OF RETIREMENT SECURITY CONTRIBUTIONS. An Employer shall make its
Retirement Security Contribution, if any, to the Trust Fund no later than the
Employer's tax filing deadline for the Employer's fiscal year beginning in the
applicable Plan Year.
4.6 ALLOCATION OF RETIREMENT SECURITY CONTRIBUTIONS. Retirement Security
Contributions shall be allocated and credited by the Plan Administrator to the
Account of each Eligible Participant described in Section 4.4(a) in the amount
described in Section 4.4(a).
4.7 QUALIFIED NONELECTIVE CONTRIBUTIONS. For any Plan Year, an Employer may
make Qualified Nonelective Contributions (a) in such amount, (b) for such
Participants who are not Highly Compensated Employees for such Plan Year and (c)
in such proportions among such Participants as such Employer shall deem
necessary to cause Section 5.2 or 5.3 to be satisfied for such Plan Year. Each
Employer shall designate to the Plan Administrator the Plan Year for which, and
the Participants for whom, any Qualified Nonelective Contribution is made.
4.8 ALLOCATION OF QUALIFIED NONELECTIVE CONTRIBUTIONS. Qualified
Nonelective Contributions shall be allocated to the Accounts of Participants who
are designated by an Employer as eligible to share therein in such amounts as
such Employer directs.
4.9 FORFEITURES. Amounts forfeited from Matching Contributions Sub
Accounts, if any, for a Plan Year pursuant to Section 7.2(c) shall be
reallocated to the Matching Contributions Sub- Accounts of Eligible Participants
described in Section 1.1(p)(1) for such Plan Year based on each Eligible
Participant's Before-Tax Contributions (not in excess of 3% of his Compensation
while
19
<PAGE> 26
he was a Participant for such Plan Year) to all such Eligible Participants'
Before-Tax Contributions (not in excess of 3% of Compensation while they were
Participants for such Plan Year). Amounts forfeited from Retirement Security
Contributions Sub-Accounts, if any, for a Plan Year pursuant to Section 7.2(c),
shall be used to reduce current year or future Retirement Security Contributions
or, at the discretion of the Plan Administrator, pay costs and expenses of the
Plan as provided in Section 10.8.
4.10 FUNDING POLICY. The Committee shall determine, establish and carry out
a funding policy and method consistent with the objectives of the Plan and the
requirements of applicable law.
20
<PAGE> 27
ARTICLE V
---------
Limitations on Contributions
----------------------------
5.1 EXCESS BEFORE-TAX CONTRIBUTIONS.
(a) LIMITATIONS ON BEFORE-TAX CONTRIBUTIONS: Notwithstanding the
provisions of Article III, a Participant's Before-Tax Contributions for any
taxable year of such Participant shall not exceed the limitation in effect
under Section 402(g) of the Code. Except as otherwise provided in this
Section, a Participant's Before-Tax Contributions for purposes of this
Section shall include (1) any employer contribution made under any
qualified cash or deferred arrangement as defined in Section 401(k) of the
Code to the extent not includible in gross income for the taxable year
under Section 402(e)(3) of the Code (determined without regard to Section
402(g) of the Code), (2) any employer contribution to the extent not
includible in gross income for the taxable year under Section 402(h)(1)(B)
of the Code (determined without regard to Section 402(g) of the Code) and
(3) any employer contribution to purchase an annuity contract under Section
403(b) of the Code under a salary reduction agreement within the meaning of
Section 3121(a)(5)(D) of the Code.
(b) CORRECTION OF EXCESS DEFERRALS: In the event that a Participant's
Before-Tax Contributions to the Plan exceed the amount described in
Subsection (a) of this Section (hereinafter called the "excess deferrals")
or by March 1 following the close of the taxable year, he notifies the Plan
Administrator that he is allocating a portion of his excess deferrals to
his Before-Tax Contributions made to the Plan, such excess deferrals (and
any income allocable thereto) shall be distributed to the Participant by
April 15 following the close of the taxable year in which such excess
deferrals occurred.
(c) MATCHING CONTRIBUTIONS: In the event that a Participant's
Before-Tax Contributions under the Plan exceed the amount described in
Subsection (a) of this Section, or in the event that a Participant's
Before-Tax Contributions made under the Plan do not exceed such amount but
he allocates a portion of his excess deferrals to his Before-Tax
Contributions made to the Plan, Matching Contributions, if any, made with
respect to such Before-Tax Contributions (and any income applicable
thereto) shall be deducted from such Participant's Matching Contributions
Sub-Account and applied to reduce subsequent Matching Contributions
required under the Plan.
5.2 ADP TEST.
(a) ADP LIMITATION: Notwithstanding the foregoing provisions of this
Article and Article III, for any Plan Year:
(1) The actual deferral percentage (as defined in Subsection (b)
of this Section) for the group of Highly Compensated Eligible
Employees (as defined in Subsection (c) of
21
<PAGE> 28
this Section) for such Plan Year shall not exceed the actual deferral
percentage for all other Eligible Employees (as defined in Subsection
(c) of this Section) for such Plan Year multiplied by 1.25; or
(2) The excess of the actual deferral percentage for the group of
Highly Compensated Eligible Employees for such Plan Year over the
actual deferral percentage for all other Eligible Employees for such
Plan Year shall not exceed 2 percentage points, and the actual
deferral percentage for the group of Highly Compensated Eligible
Employees for such Plan Year shall not exceed the actual deferral
percentage for all other Eligible Employees for such Plan Year
multiplied by 2.
(3) If two or more plans which include cash or deferred
arrangements are considered as one plan for purposes of Section
401(a)(4) or 410(b) of the Code, such arrangements included in such
plans shall be treated as one arrangement for the purposes of this
Subsection; and if any Highly Compensated Eligible Employee is a
participant under two or more cash or deferred arrangements of the
Controlled Group, all such arrangements shall be treated as one cash
or deferred arrangement for purposes of determining the deferral
percentage with respect to such Highly Compensated Eligible Employee.
(b) ACTUAL DEFERRAL PERCENTAGE: For the purposes of this Section, the
actual deferral percentage for a specified group of Eligible Employees for
a Plan Year shall be the average of the ratios (calculated separately for
each Eligible Employee in the group) of (1) the sum of Before-Tax
Contributions and, at the election of an Employer, any Qualified
Nonelective Contributions actually paid to the Trust Fund for each such
Eligible Employee for the Plan Year (including any "excess deferrals"
described in Section 5.1(b)) to (2) the Eligible Employee's compensation
for such Plan Year. For the purposes of this Subsection, for Plan Years
commencing prior to January 1, 1998, the term "compensation" shall mean the
sum of an Eligible Employee's compensation under Section 5.7(a) and his
Before-Tax Contributions and compensation deferrals made pursuant to
Section 125 or 129 of the Code for the applicable Plan Year (subject to the
limitations described in Section 1.1(h)(2)) and for Plan Years commencing
on or after January 1, 1998, the term "compensation" shall have the meaning
given such term by Section 415(c)(3) of the Code (subject to the
limitations described in Section 1.1(h)(2)). Notwithstanding the foregoing,
with respect to an Eligible Employee's initial year of participation in the
Plan, compensation may be limited to the portion of the Plan Year during
which the Eligible Employee participated in the Plan, as determined by the
Plan Administrator.
(c) ELIGIBLE EMPLOYEES: For the purposes of this Section, the term
"Highly Compensated Eligible Employee" for a particular Plan Year shall
mean any Highly Compensated Employee who is an Eligible Employee.
22
<PAGE> 29
(d) CORRECTION OF EXCESS CONTRIBUTIONS: Effective for Plan Years
commencing on or after January 1, 1997, in the event that excess
contributions (as such term is hereinafter defined) are made to the Trust
Fund for any Plan Year, then, prior to the end of the following Plan Year,
such excess contributions (and any income allocable thereto) shall be
distributed to the Highly Compensated Eligible Employees on the basis of
the dollar amount of Before- Tax Contributions made by or on behalf of each
such Eligible Employee. For the purposes of this Subsection, the term
"excess contributions" shall mean, for any Plan Year, the excess of (1) the
aggregate amount of Before-Tax Contributions actually paid to the Trust
Fund on behalf of Highly Compensated Eligible Employees for such Plan Year
over (2) the maximum amount of such Before-Tax Contributions permitted for
such Plan Year under Subsection (a) of this Section, determined by reducing
Before-Tax Contributions made on behalf of Highly Compensated Eligible
Employees in order of the dollar amount of Before-Tax Contributions made
for each Highly Compensated Eligible Employee beginning with the highest of
such dollar amounts.
(e) MATCHING CONTRIBUTIONS: Matching Contributions made with respect
to a Participant's excess contributions (and any income applicable thereto)
shall be applied to reduce subsequent Matching Contributions required under
the Plan.
5.3 ACP TEST.
(a) ACP LIMITATION: Notwithstanding the foregoing provisions of this
Article or the provisions of Articles III and IV, for any Plan Year:
(1) The contribution percentage (as defined in Subsection (b) of
this Section) for the group of Highly Compensated Eligible Employees
(as defined in Section 5.2(c)) for such Plan Year shall not exceed the
greater of (1) 125% of the contribution percentage for all other
Eligible Employees for such Plan Year or (2) the lesser of 200% of the
contribution percentage for all other Eligible Employees for such Plan
Year, or the contribution percentage for all other Eligible Employees
for such Plan Year plus two percentage points.
(2) If two or more plans of the Controlled Group to which
matching contributions, employee after-tax contributions or Pre-Tax
Contributions (as defined in Section 5.1(a)) are made are treated as
one plan for purposes of Section 410(b) of the Code, such plans shall
be treated as one plan for purposes of this Subsection; and if an
Highly Compensated Eligible Employee participates in two or more plans
of the Controlled Group to which such contributions are made, all such
contributions shall be aggregated for purposes of this Subsection.
(b) CONTRIBUTION PERCENTAGE: For the purposes of this Section, the
percentage for a specified group of Eligible Employees for a Plan Year
shall be the average of the ratios (calculated separately for each Eligible
Employee in such group) of (1) the sum of the Matching Contributions and,
at the election of an Employer, any Qualified Nonelective
23
<PAGE> 30
Contributions paid under the Plan on behalf of such Eligible Employee for
such Plan Year and forfeitures allocated to the Eligible Employee's
Matching Contributions Sub-Account pursuant to Section 4.9 for such Plan
Year to (2) the Eligible Employee's compensation (as defined in Section
5.2(b)) for such Plan Year.
(c) CORRECTION OF EXCESS AGGREGATE CONTRIBUTIONS: Effective for Plan
Years commencing on or after January 1, 1997, in the event that excess
aggregate contributions (as such term is hereinafter defined) are made to
the Trust Fund for any Plan Year, then, prior to the end of the following
Plan Year, such excess aggregate contributions (and any income allocable
thereto) to the extent vested shall be distributed to the Highly
Compensated Eligible Employees on the basis of the dollar amount of
Matching Contributions made on behalf of each such Eligible Employee and
forfeitures reallocated to the Matching Contributions Sub- Account of each
such Eligible Employee. To the extent such excess aggregate contributions
are not vested, such amounts will be forfeited from the Matching
Contributions Sub-Account of the Highly Compensated Eligible Employee and
will be used to reduce future Matching Contributions. For the purposes of
this Subsection, the term "excess aggregate contributions" shall mean, for
any Plan Year, the excess of (1) the sum of the aggregate amount of the
Matching Contributions actually paid to the Trust Fund on behalf of Highly
Compensated Eligible Employees for such Plan Year and forfeitures
reallocated to the Matching Contributions Sub-Account of Highly Compensated
Employees for such Plan Year over (2) the maximum amount of such Matching
Contributions and reallocated forfeitures permitted for such Plan Year
under Subsection (a) of this Section, determined by reducing Matching
Contributions made on behalf of Highly Compensated Eligible Employees and
forfeitures reallocated to the Matching Contributions Sub-Account of Highly
Compensated Employees in order of the dollar amount of such Contributions
and reallocated forfeitures made by or on behalf of each Highly Compensated
Eligible Employee beginning with the highest of such dollar amounts.
(d) ORDER OF DETERMINATION: The determination of excess aggregate
contributions under this Section shall be made after (1) first determining
the excess deferrals under Section 5.1 and (2) then determining the excess
contributions under Section 5.2.
5.4 MULTIPLE USE OF ALTERNATIVE LIMITATION.
(a) AGGREGATE LIMIT: Notwithstanding the foregoing provisions of this
Article or the provisions of Articles III and IV, if, after the application
of Sections 5.1, 5.2 and 5.3, the sum of the actual deferral percentage and
the contribution percentage for the group of Highly Compensated Eligible
Employees (as defined in Section 5.2(c)) exceeds the aggregate limit (as
defined in Subsection (b) of this Section), then the contributions made for
such Plan Year for Highly Compensated Eligible Employees will be reduced so
that the aggregate limit is not exceeded. Such reductions shall be made
first in Before-Tax Contributions (but only to the extent that they are not
matched by Matching Contributions or by forfeitures reallocated pursuant to
Section 4.9), and then in Matching Contributions and reallocated
forfeitures. Reductions in Contributions and reallocated forfeitures shall
be made in the manner provided
24
<PAGE> 31
in Section 5.2 or 5.3, as applicable. The amount by which each such Highly
Compensated Eligible Employee's Contributions and reallocated forfeitures
are reduced shall be treated as excess contributions or excess aggregate
contributions under Section 5.2 or 5.3, as applicable. For the purposes of
this Section, the actual deferral percentage and contribution percentage of
the Highly Compensated Eligible Employees are determined after any
reductions required to meet those tests under Sections 5.2 and 5.3.
Notwithstanding the foregoing provisions of this Section, no reduction
shall be required by this Subsection if either (1) the actual deferral
percentage of the Highly Compensated Eligible Employees does not exceed
1.25 multiplied by the actual deferral percentage of all other Eligible
Employees or (2) the contribution percentage of the Highly Compensated
Eligible Employees does not exceed 1.25 multiplied by the contribution
percentage of all other Eligible Employees.
(b) AGGREGATE LIMIT DEFINED: For purposes of this Section, the term
"aggregate limit" means the sum of (1) 125% of the greater of (i) the
actual deferral percentage of the eligible non-Highly Compensated Employees
for the Plan Year or (ii) the contribution percentage of the non-eligible
Highly Compensated Employees for the Plan Year and (2) the lesser of (A)
200% of, or (B) two plus the lesser of, such actual deferral percentage or
contribution percentage. If it would result in a larger aggregate limit,
the word "lesser" is substituted for the word "greater" in Paragraph (1) of
this Subsection, and the word "greater" is substituted for the word
"lesser" the second place such word appears in Paragraph (2) of this
Subsection.
5.5 MONITORING PROCEDURES.
(a) MONITORING ADP, ACP AND THE AGGREGATE LIMIT: In order to ensure
that at least one of the actual deferral percentages specified in Section
5.2(a) and at least one of the contribution percentages specified in
Section 5.3(a) and the aggregate limit specified in Section 5.4(b) are
satisfied for each Plan Year, the Plan Administrator shall monitor (or
cause to be monitored) the amount of Before-Tax Contributions and Matching
Contributions being made to the Plan for each Eligible Employee during each
Plan Year. In the event that the Plan Administrator determines that neither
of such actual deferral percentages, neither of such contribution
percentages nor the aggregate limit will be satisfied for a Plan Year, the
Before- Tax Contributions and/or the Matching Contributions made thereafter
by or for each Highly Compensated Eligible Employee (as defined in Section
5.2(c)) shall be reduced (pursuant to non-discriminatory rules adopted by
the Plan Administrator) to the extent necessary to decrease the actual
deferral percentage and/or the contribution percentage for Highly
Compensated Eligible Employees for such Plan Year to a level which
satisfies either of the actual deferral percentages, either of the
contribution percentages and/or the aggregate limit.
(b) MONITORING BEFORE-TAX CONTRIBUTIONS: In order to ensure that
excess deferrals (as such term is defined in Section 5.1(b)) shall not be
made to the Plan for any taxable year for any Participant, the Plan
Administrator shall monitor (or cause to be monitored) the amount of
Before-Tax Contributions being made to the Plan for each Participant during
each taxable year and shall take such action (pursuant to
non-discriminatory rules adopted by the Plan
25
<PAGE> 32
Administrator) to prevent Before-Tax Contributions made for any Participant
under the Plan for any taxable year from exceeding the maximum amount
applicable under Section 5.1(a).
(c) OTHER ACTIONS PERMITTED: The actions permitted by this Section are
in addition to, and not in lieu of, any other actions that may be taken
pursuant to other Sections of the Plan or that may be permitted by
applicable law or regulation in order to ensure that the limitations
described in Sections 5.1, 5.2, 5.3, 5.4 and 5.5 are met.
5.6 TESTING PROCEDURES. In applying the limitations set forth in Sections
5.2 and 5.3, the Plan Administrator may, at its option, utilize such testing
procedures as may be permitted under Sections 401(a)(4), 401(k), 401(m) or
410(b) of the Code, including, without limitation, (a) aggregation of the Plan
with one or more other qualified plans of the Controlled Group, (b) inclusion of
Qualified Nonelective Contributions or elective deferrals described in, and
meeting the requirements of, Treasury Regulations under Sections 401(k) and
401(m) of the Code to any other qualified plan of the Controlled Group in
applying the limitations set forth in Sections 5.1, 5.2 and 5.3, (c) effective
January 1, 1999, exclusion of all Eligible Employees (other than Highly
Compensated Eligible Employees) who have not met the minimum age and service
requirements of Section 410(a)(1)(A) of the Code in applying the limitations set
forth in Sections 5.2 and 5.3, or (d) any permissible combination thereof.
5.7 MAXIMUM ADDITIONS.
(a) IN GENERAL: Notwithstanding anything contained herein to the
contrary, the maximum "annual addition" which may be contributed or
allocated to a Participant's Account under the Plan for any Plan Year shall
not exceed the lesser of $30,000 (or, if greater, one-fourth of the defined
benefit dollar limitation set forth in Section 415(b)(1) of the Code as in
effect for the Plan Year) or 25% of the Participant's compensation (within
the meaning of Section 415(c)(3) of the Code and regulations thereunder).
The foregoing compensation limitation shall not apply to (1) any
contribution for medical benefits (within the meaning of Section 419A(f)(2)
of the Code) after separation from service which is otherwise treated as an
annual addition or (2) any amount otherwise treated as an annual addition
under Section 415(l)(1) of the Code. The term "annual addition" means the
sum for any Plan Year of (i) all contributions made by the Employer and/or
its Controlled Groups which are allocated to the Participant's account
pursuant to a defined contribution plan maintained by the Employer and/or
its Controlled Group, (ii) all employee contributions made by the
Participant to a defined contribution plan maintained by an Employer and/or
its Controlled Group, (iii) all forfeitures allocated to the Participant's
account pursuant to a defined contribution plan maintained by an Employer
and/or its Controlled Group and (iv) amounts described in Sections
415(l)(2) and 419A(d)(2) of the Code.
(b) AGGREGATION OF PLANS: For purposes of this Section, all qualified
defined contribution plans of an Employer and/or its Controlled Group
shall, for purposes of these limitations, be considered as a single plan.
26
<PAGE> 33
(c) ADJUSTMENTS TO ANNUAL ADDITIONS: If the sum of the annual
additions allocated to the Account of any Participant (and the accounts of
such Participant in any other defined contribution plan of the Controlled
Group) would exceed the limitations of Subsection (a) of this Section for a
Plan Year, unless the Participant otherwise elects, adjustments shall be
made in the following order:
(1) Voluntary employee contributions (if any) to any defined
contribution plan of the Controlled Group in which the Participant
has an account made by the Participant for such Plan Year which
constitute part of the annual addition (together with any gains
attributable thereto) shall be returned to the Participant to the
extent necessary to effectuate such reduction;
(2) If the return of all such voluntary employee contributions
is not sufficient to effectuate such reduction, matching
contributions, including any forfeitures reallocated pursuant to
Section 4.9, as described in Section 401(m)(4)(A) of the Code (if
any) to any defined contribution plan of the Controlled Group in
which the Participant has an account made on behalf of the
Participant for such Plan Year which constitute part of the annual
addition (together with any gains attributable thereto) shall be
reduced in accordance with the provisions of such plan;
(3) If the return of all such voluntary employee contributions
and the reduction of all such matching contributions is not
sufficient to effectuate such reduction, elective deferral
contributions as described in Section 402(g)(3) of the Code (if any)
to any defined contribution plan of the Controlled Group in which the
Participant has an account made on behalf of the Participant for such
Plan Year which constitute part of the annual addition (together with
any gains attributable thereto) shall be returned to the Participant
to the extent necessary to effectuate such reduction;
(4) If the return of all such voluntary employee contributions,
the reduction of all such matching contributions and the return of
all such elective deferral contributions is not sufficient to
effectuate such reduction, employer contributions (other than
elective deferral contributions and matching contributions) (if any)
to any defined contribution plan of the Controlled Group in which the
Participant has an account made on behalf of the Participant for such
Plan Year which constitute part of the annual addition shall be
reduced in accordance with the provisions of such plan; and
(5) In applying each Paragraph of this Subsection, reductions to
contributions shall be made in the reverse order in which such
contributions were made.
In the event the provisions of this Subsection would require the reduction
of Matching Contributions or Retirement Security Contributions, such
contributions shall be held unallocated in a suspense account for the Plan
Year and allocated and reallocated in the next Plan Year to all of the
remaining Participants (subject to the limitation of this Section) before
any contributions that would otherwise constitute annual additions may be
made to the Plan
27
<PAGE> 34
for the Plan Year. Investment gains and losses shall not be allocated to
the suspense account during the period such suspense account is required to
be maintained pursuant to this Subsection. In the event of a termination of
the Plan, any then remaining balance of the suspense account, to the extent
it may not then be allocated to Participants, shall revert to the
Employers. In applying each Paragraph of this Subsection, reductions to
contributions shall be made in the reverse order in which such
contributions were made.
(d) COMBINED PLAN FRACTION: With respect only to Plan Years beginning
prior to January 1, 2000, in any case in which an individual is a
participant in both a defined benefit plan and a defined contribution plan
maintained by his Employer and/or its Controlled Group, the sum of the
defined benefit plan fraction and the defined contribution plan fraction
for any year shall not exceed 1.0, where the terms "defined benefit plan
fraction" and "defined contribution plan fraction" for each year shall have
the meanings and be calculated as set forth in Section 415 of the Code and
the regulations thereunder. If the sum of the defined benefit plan fraction
and the defined contribution plan fraction shall exceed 1.0 in any year for
any Participant in the Plan, the Plan Administrator shall adjust the
numerator of the defined contribution plan fraction so that the sum of both
fractions shall not exceed 1.0 in any year for such Participant.
(e) CONTROLLED GROUP MEMBER DEFINITION: For purposes of this Section,
the term "Controlled Group Member" shall be construed in accordance with
the provisions of Section 415(h) of the Code.
28
<PAGE> 35
ARTICLE VI
----------
INVESTMENTS
-----------
6.1 INVESTMENT OF FUNDS.
(a) DESIGNATION OF INVESTMENT FUNDS: The Trust Fund (other than the
portion of the Trust Fund consisting of the Loan Sub-Accounts) will be
divided into such Investment Funds as the Committee may in its discretion
select or establish from time to time. Before-Tax Contributions, EBSOP
Amounts, Matching Contributions, Old Plan Amounts, Retirement Security
Contributions, Qualified Nonelective Contributions and Rollover
Contributions will be invested in the Investment Funds as provided in
Sections 6.3 and 6.4. Subject to the provisions of Articles VIII and IX and
to other applicable provisions of the Plan, the Trustee shall hold, manage,
administer, value, invest, reinvest, account for and otherwise deal with
each Investment Fund separately. The Trustee shall invest and reinvest the
principal and income of each such Investment Fund and will keep each
Investment Fund invested, without distinction between principal and income,
as required under the terms of the Plan and the Trust Agreement.
(b) REINVESTMENT OF EARNINGS: Dividends, interest and other
distributions received by the Trustee in respect to each Investment Fund
shall be reinvested in the same Investment Fund.
(c) ADOPTION OF RULES: The Plan Administrator shall adopt, and may
amend from time to time, general rules of uniform application that shall
provide for the administration of each Investment Fund, including, but not
limited to, rules providing for (1) the method of valuing each such
Investment Fund as of each applicable Valuation Date, (2) procedures
pursuant to which a Participant may elect to have all or a designated part
of his Account invested in any Investment Fund (if more than one such
Investment Fund is established), (3) the method of changing any such
election by either the Participant or his Beneficiary and the frequency
with which such elections may be made and (4) any other matters which the
Plan Administrator deems necessary or advisable in the administration of
any Investment Fund.
6.2 ACCOUNT AND SUB-ACCOUNTS. The Plan Administrator shall, as applicable,
cause an Account to be established for each Participant to reflect (a)
Before-Tax Contributions ("Before- Tax Contributions Sub-Account", formerly
called the "Current Plan Contribution Account"), (b) EBSOP Amounts ("EBSOP
Sub-Account"), (c) Matching Contributions ("Matching Contributions
Sub-Account"), (d) Old Plan Amounts ("Old Plan Sub-Account"), (e) Qualified
Nonelective Contributions ("Qualified Nonelective Contributions Sub-Account"),
(f) Retirement Security Contributions ("Retirement Security Contributions
Sub-Account"), and (g) Rollover Contributions ("Rollover Contributions
Sub-Account"). The Plan Administrator shall cause to be maintained separate
records for each such Sub-Account showing the portion of such Sub-Account
invested in each Investment Fund and showing the amount of contributions to each
such Sub-
29
<PAGE> 36
Account, payments and withdrawals therefrom and the amount of income,
expenses, gains and losses attributable thereto. All such Sub-Accounts of a
Participant shall constitute a Participant's Account and the interest of
each Participant hereunder at any time shall consist of his Account balance
as of the last preceding Valuation Date plus credits and minus debits to
such Account since that Valuation Date plus the value of the Participant's
Loan Sub-Account on the last preceding Valuation Date on which the Loan
Sub-Account has been valued pursuant to rules and procedures established
pursuant to Section 7.13.
6.3 INVESTMENT OF CONTRIBUTIONS.
(a) PARTICIPANT DIRECTION: Except as provided in Subsection (c) of
this Section, each Participant shall direct the investment of his
Before-Tax Contributions, Matching Contributions, Qualified Nonelective
Contributions, Retirement Security Contributions and Rollover Contributions
among the Investment Funds.
(b) EFFECT OF DIRECTION: A direction provided by a Participant
pursuant to Subsection (a) of this Section shall be applicable to all
subsequent Contributions described in Subsection (a) of this Section made
by or for him unless or until he provides a new direction pursuant to
Subsection (a) of this Section.
(c) INVESTMENT IN ABSENCE OF DIRECTION: In the absence of any
direction as to the investment of Contributions described in Subsection (a)
of this Section, such Contributions shall be invested in the Investment
Fund designated from time to time by the Committee.
6.4 ASSET TRANSFERS AMONG INVESTMENT FUNDS. A Participant may elect to
transfer all or any part of the value of his Account invested in any Investment
Fund to a different Investment Fund, in the manner prescribed by the Plan
Administrator from time to time.
30
<PAGE> 37
ARTICLE VII
-----------
DISTRIBUTIONS, WITHDRAWALS AND LOANS
------------------------------------
7.1 DISTRIBUTIONS ONLY AS PROVIDED.
(a) APPLICATION FOR DISTRIBUTION: Participants' interests hereunder
shall only be distributable as provided in this and the following Sections
of this Article. A Participant or Beneficiary eligible to receive a
distribution under the Plan shall obtain an application for that purpose
from the Plan Administrator and file with the Plan Administrator his
application in writing on such form and furnishing such information as the
Plan Administrator may reasonably require, including any authority in
writing that the Plan Administrator may request authorizing it to obtain
pertinent information, certificates, transcripts and/or other records from
any public office.
(b) INFORMATION PROVIDED BY PLAN ADMINISTRATOR: The Plan
Administrator shall provide the Participant or Beneficiary with the
application form and such other information required to be provided under
Section 402(f) of the Code no less than 30 days and no more than 90 days
before a distribution or withdrawal is to be made. Notwithstanding the
foregoing, such distribution or withdrawal may commence less than 30 days
after such form and information are provided to the Participant or
Beneficiary, provided that (1) the Plan Administrator clearly informs the
recipient that he has a right to a period of at least 30 days after
receiving the information to consider whether or not to elect a
distribution or withdrawal (and, if applicable, a particular form of
benefit) and (2) the recipient, after receiving the information,
affirmatively elects the distribution or withdrawal.
7.2 DISTRIBUTIONS ON TERMINATION OF EMPLOYMENT OR DISABILITY.
(a) IN GENERAL: Subject to the provisions of Sections 7.4, the Vested
Interest, valued as of the Valuation Date specified in Section 7.6(b), of a
Participant who terminates employment with the Controlled Group (whether on
account of retirement or other termination) or becomes Disabled shall be
paid to him in the manner described in Section 7.4 and in the form
specified in Section 7.6(a).
(b) TIME OF PAYMENT: Distributions pursuant to this Section shall be
paid to a Participant (1) as soon as practicable after receipt by the Plan
Administrator of a proper application filed pursuant to Section 7.1 or (2)
if later, the date designated by the Participant for payment of the
distribution on such application, but in no event prior to the date the
Participant terminates employment as described in Subsection (a) of this
Section.
(c) FORFEITURES: The portion of a Participant's Account in which he
does not have a Vested Interest upon his termination of employment with the
Controlled Group (his "Non- Vested Account") will be forfeited and
allocated pursuant to Section 4.9. If a Participant
31
<PAGE> 38
whose Non-Vested Account has been forfeited in accordance with the
preceding sentence is subsequently reemployed by an Employer before
incurring five consecutive One-Year Breaks in Service, upon reemployment,
his Non-Vested Account will be reinstated as of the date he is so
reemployed. Such reinstatement will be made from current forfeitures from
Retirement Security Contributions Sub-Accounts and, to the extent
necessary, from additional contributions from the Employer.
7.3 DISTRIBUTIONS ON DEATH.
(a) IN GENERAL: Subject to the provisions of Section 7.7(b), after
the death of a Participant at any time whatsoever, his entire Account,
valued as of the Valuation Date specified in Section 7.6(b), shall be paid
to his Beneficiary in the manner described in Section 7.4 and in the form
specified in Section 7.6(a).
(b) TIME OF PAYMENT: Distributions pursuant to this Section shall be
paid to the Beneficiary as soon as practicable after receipt by the Plan
Administrator of a proper application filed pursuant to Section 7.1, but in
no event prior to the date of the Participant's death.
(c) PAYMENT FOLLOWING DEATH OF BENEFICIARY: In the event of the death
of a Beneficiary following the death of a Participant, the balance of the
Participant's Account payable to such Beneficiary shall be paid to the
Beneficiary's designated beneficiary, or in the absence of such
designation, to the estate of the deceased Beneficiary (unless otherwise
specified by the Participant) in the manner described in Section 7.4(a) and
in the form specified in Section 7.6(a).
(d) MULTIPLE BENEFICIARIES: If a Participant (or Beneficiary) has
designated more than one Beneficiary (or, in the case of a Beneficiary,
more than one alternate beneficiary), the provisions of this Section shall
be applied to each Beneficiary or alternate beneficiary, as the case may
be, with respect to the portion of the Participant's Account allocable to
each such Beneficiary or alternate beneficiary, as the case may be.
7.4 DISTRIBUTION OPTIONS. A Participant or Beneficiary, as applicable, may
elect distribution of a Participant's Vested Interest in either of the forms
described in Subsections (a) and (b) of this Section. Notwithstanding the
preceding sentence, a Participant or Beneficiary, as applicable, may elect
distribution of the sum of a Participant's Vested Interest in his Retirement
Security Contributions Sub-Account and Matching Contributions Sub-Account in the
form described in Subsection (c) of this Section.
(a) SINGLE LUMP SUM: A single lump sum. In the absence of an election
pursuant to this Section, distribution of a Participant's Vested Interest
shall be made in the form described in this Subsection.
32
<PAGE> 39
(b) ELIGIBLE ROLLOVER: To the extent that a distribution or
withdrawal pursuant to this Article is an "eligible rollover distribution"
(as defined in Section 401(a)(31) or 402(c)(4) of the Code), the
Participant, Beneficiary (provided such Beneficiary is a surviving Spouse)
or Alternate Payee as described in Section 7.11 who will receive such a
distribution or withdrawal may elect a direct rollover of that distribution
into an "eligible retirement plan" (as defined in Section 401(a)(31)(D) of
the Code). A direct rollover is a payment made by the Plan to an eligible
retirement plan specified by the Participant, surviving Spouse or Alternate
Payee pursuant to Section 401(a)(31) of the Code and the regulations
thereunder.
(c) INSTALLMENTS OF RETIREMENT SECURITY CONTRIBUTIONS SUB-ACCOUNT AND
MATCHING CONTRIBUTIONS SUB-ACCOUNT: Installments over a period not to
exceed five years; provided, however, that such five year period shall be
increased by one year, up to an additional five years, for each $145,000
(or fraction thereof) by which the sum of the balances of such
Participant's Retirement Security Contributions Sub-Account and Matching
Contributions Sub- Account exceeds $725,000 (as each amount may be adjusted
for increases in the cost-of-living in accordance with Section 409(o)(2) of
the Code).
(d) TIMING OF PAYMENT: Distributions pursuant to this Section shall
commence to be paid to a Participant as soon as practicable after receipt
by the Plan Administrator of a proper application filed pursuant to Section
7.1 or, if later, the date designated by the Participant for commencement
of the distribution on such application.
7.5 LUMP-SUM PAYMENT OF SMALL BENEFITS. Any provision of the Plan to the
contrary notwithstanding, effective as of January 1, 1998, if the value of a
Participant's Vested Interest does not exceed $5,000 as of his Severance from
Service Date (and never exceeded $5,000 at the time of any previous withdrawal
or distribution), his Vested Interest shall be paid to the Participant (or, if
applicable, his Beneficiary) as soon as administratively feasible following the
Valuation Date coinciding with or next following the Participant's Severance
from Service Date, without regard to any requirement for consent of the
Participant or his Beneficiary and whether or not an application for such
benefit has been filed pursuant to Section 7.1. Distributions pursuant to this
Section shall be paid as described in Section 7.4(a) and in the form specified
in Section 7.6(a).
7.6 FORM AND VALUATION OF DISTRIBUTIONS.
(a) FORM: The distribution of a Participant's Vested Interest (or
portion thereof) pursuant to this Article shall be made as follows:
(1) The Participant's Vested Interest shall be distributed in
cash, unless the Participant or Beneficiary, as the case may be,
elects to receive the entire portion of the Participant's Vested
Interest invested in the Company Stock Fund in kind.
(2) A distribution in kind shall be made by the transfer of
whole shares of Company Stock and cash in lieu of a fractional share,
if any.
33
<PAGE> 40
(b) VALUATION: Distributions pursuant to this Article shall be valued
as of the Valuation Date coincident with or immediately preceding the date
of distribution.
7.7 MANDATORY COMMENCEMENT OF DISTRIBUTIONS.
(a) TIME OF COMMENCEMENT: Unless a Participant elects otherwise in
writing, distribution of the Participant's Vested Interest must commence
not later than 60 days after the close of the Plan Year in which the latest
of the following events occur:
(1) The Participant attains age 65;
(2) The Participant's 10th anniversary of participation in
the Plan; or
(3) The Participant's termination of employment with the
Controlled Group.
If the value of the Participant's Vested Interest cannot be ascertained by
such date, or the Participant (or Beneficiary) is unavailable to receive a
distribution, distribution can be delayed until 60 days after such time as
the amount can be ascertained or the Participant (or Beneficiary) is
available.
(b)(1) REQUIRED MINIMUM DISTRIBUTIONS: Notwithstanding any other
provision of the Plan, to the extent required under Section 401(a)(9)
of the Code, effective as of January 1, 1997, distribution of a
Participant's Vested Interest must commence not later than (i) April
1 of the calendar year following the calendar year in which he
attains age 70 1/2, or (ii) if later, the calendar year in which he
retires. Notwithstanding the preceding sentence, Subparagraph (ii) of
this Paragraph shall not apply to an Employee who is a 5% owner (as
defined in Section 416 of the Code) with respect to the Plan Year
ending in the calendar year in which such Employee attains age 70
1/2. A Participant who attains age 70 1/2 during the 1996, 1997 or
1998 calendar year shall be permitted to elect, within the time
established by the Plan Administrator, to (A) receive a distribution
of his entire Account in a single lump sum payment as of April 1 of
the year following such calendar year, (B) as of April 1 of the year
following such calendar year, commence receiving annual distributions
from his Account in an amount necessary to satisfy the minimum
distribution requirements of Section 401(a)(9) of the Code and
regulations issued thereunder, or (C) defer distribution of his
Account until the date described in Subparagraph (ii) of this
Paragraph.
(2) DISTRIBUTIONS IN ACCORDANCE WITH REGULATIONS: Distributions
under the Plan shall be made in accordance with the provisions of
Section 401(a)(9) of the Code and Treasury regulations issued
thereunder, including Treasury Regulation section 1.401(a)(9)-2,
which provisions are hereby incorporated into the Plan by reference,
provided that such provisions shall override the other distribution
provisions of the Plan only to the extent that such other Plan
provisions provide for distribution that is less rapid than required
under such provisions of the Code and regulations. Nothing
34
<PAGE> 41
contained in this Subsection shall be construed as providing any
optional form of payment that is not available under the other
distribution provisions of the Plan.
7.8 WITHDRAWALS.
(a) IN-SERVICE WITHDRAWALS: Upon such prior written notice filed with
the Plan Administrator as the Plan Administrator shall require, a
Participant may withdraw portions of his Account according to the following
provisions:
(1) WITHDRAWAL FROM OLD PLAN SUB-ACCOUNT: A Participant may
withdraw all or a portion of the balance of his Old Plan Sub-Account
as of any Valuation Date. Any such withdrawal may not be less than
$500 or 100% of the balance of such Sub-Account if less than $500,
and no more than two withdrawals may be made from a Participant's Old
Plan Sub-Account during any Plan Year, unless the Plan Administrator
determines that any additional withdrawal is necessary to meet a
Hardship.
(2) WITHDRAWAL FROM ROLLOVER CONTRIBUTIONS SUB-ACCOUNT: A
Participant may withdraw all or a portion of the balance of his
Rollover Contributions Sub-Account as of any Valuation Date. Any such
withdrawal may not be less than $500 or 100% of the balance of such
Sub-Account if less than $500, and no more than two withdrawals may
be made from a Participant's Rollover Contributions Sub-Account
during any Plan Year, unless the Plan Administrator determines that
any additional withdrawal is necessary to meet a Hardship.
(3) WITHDRAWAL UPON ATTAINMENT OF AGE 59 1/2: On or after
attainment of age 59 1/2, a Participant may withdraw all or a portion
of his Vested Interest for any reason. The amount of any such
withdrawal may not be less than $500 or 100% of the balance of his
Vested Interest if less than $500.
(b) FORM AND VALUATION OF WITHDRAWAL: Any withdrawal under this
Section shall be valued as of the Valuation Date coincident with or
immediately preceding the date of withdrawal and shall be made in a single
lump sum payment in cash.
7.9 HARDSHIP WITHDRAWAL REQUIREMENTS.
(a) ELIGIBILITY: A Participant who is an Employee, has not attained
the age 59 1/2, and who has obtained all withdrawals, other than Hardship
withdrawals, and all nontaxable loans currently available under all plans
maintained by the Controlled Group may request, on a form provided by and
filed with the Plan Administrator, a withdrawal on account of Hardship of
all or a portion (but not less than $500) of his Before-Tax Contributions
Sub-Account (other than earnings credited to such Sub-Account after
December 31, 1988). Upon making a determination that the Participant is
entitled to a withdrawal on account of Hardship, the Plan Administrator
shall direct the Trustee to distribute to such Participant all or a portion
of such Sub-Account, provided that the amount of the withdrawal shall not
be in excess of the amount
35
<PAGE> 42
necessary to alleviate such Hardship (including amounts necessary to pay
any taxes or penalties reasonably anticipated to result from such
withdrawal).
(b) SPECIAL RULES FOLLOWING HARDSHIP WITHDRAWAL: If a withdrawal on
account of Hardship is made by a Participant pursuant to this Section, the
following rules shall apply notwithstanding any other provision of the Plan
(or any other plan maintained by the Controlled Group) to the contrary:
(1) The Participant's Before-Tax Contributions (or any
comparable contributions to any other plan maintained by any
Controlled Group Member) shall be suspended for a period of 12 months
following receipt of the Hardship withdrawal; and
(2) The amount of the Participant's Before-Tax Contributions
(and any comparable contributions to any other plan maintained by any
Controlled Group Member) for the Participant's taxable year
immediately following the taxable year of the Hardship withdrawal
shall not be in excess of the applicable limit under Section 402(g)
of the Code for such next taxable year less the amount of such
Participant's Before-Tax Contributions (and any comparable
contributions to any other plan maintained by any Controlled Group
Member) for the taxable year of the Hardship withdrawal.
(3) For purposes of this Subsection, the phrase "any other plan
maintained by a Controlled Group Member" includes any other qualified
or non qualified plan other than a health or welfare plan.
(c) FORM AND VALUATION OF WITHDRAWAL: Any withdrawal under this
Section shall be valued as of the Valuation Date coincident with or
immediately preceding the date of withdrawal and shall be made in a single
lump sum payment in cash.
7.10 ORDER OF DISTRIBUTIONS AND WITHDRAWALS. Unless otherwise specified in
the Plan, the order in which distributions and withdrawals are to be made from
the applicable portion of a Participant's Account invested in the Investment
Funds will be determined in accordance with procedures established by the Plan
Administrator.
7.11 SPECIAL PROVISIONS APPLICABLE TO QUALIFIED DOMESTIC RELATIONS ORDERS.
(a) ALTERNATE PAYEE ACCOUNT: Upon determination by the Plan
Administrator that a domestic relations order is a qualified domestic
relations order (as defined in Section 414(p) of the Code) (the "Order"),
the Plan Administrator shall, in accordance with the provisions of such
Order and the procedures adopted by the Plan Administrator in accordance
with Subsection (c) of this Section, cause an Account to be established for
the alternate payee (as such term is defined in Section 414(p)(8) of the
Code) (the "Alternate Payee") designated in such Order or, if so provided
in the Order, distribute to such Alternate Payee the designated portion of
the Participant's Account.
36
<PAGE> 43
(b) IMMEDIATE DISTRIBUTION: Notwithstanding any other provision of
the Plan to the contrary, but subject to the requirement that the Alternate
Payee file an application with the Plan Administrator, if an Order so
provides, the Alternate Payee's Account may be distributed to the Alternate
Payee at any time on or after the date on which the Plan Administrator
receives such Order, regardless of whether the Participant is entitled to a
distribution from the Plan at such time.
(c) ADOPTION OF PROCEDURES: The Plan Administrator shall establish
procedures to determine the qualified status of domestic relations orders
and to administer the provisions of the Plan under Orders.
7.12 DISTRIBUTION ON SALE OF ASSETS OR DISPOSITION OF BUSINESS. In the
event that a Participant's termination of employment from the Controlled Group
is caused by the disposition of substantially all of the assets of a trade or
business, or the interest in a subsidiary and (a) such Participant continues
employment with the entity acquiring such assets or such subsidiary, (b) such
entity does not maintain the Plan following the disposition and (c) the
Controlled Group continues to maintain the Plan following the disposition, the
Participant, if he so elects, shall be entitled to a distribution of his Account
valued as of the Valuation Date specified in Section 7.2; provided, however,
that such Account may only be distributed in the form of a lump sum and shall be
made in accordance with the requirements of Section 401(k)(10) of the Code and
Treasury regulations issued thereunder.
7.13 LOANS. The Plan Administrator is authorized to establish and
administer a Participant loan program. The Plan Administrator shall establish
rules and procedures for the loan program. Such rules and procedures, which are
incorporated herein by reference, shall meet all the pertinent requirements of
the Code and ERISA.
37
<PAGE> 44
ARTICLE VIII
------------
ADMINISTRATION OF TRUST FUND
----------------------------
8.1 APPOINTMENT OF TRUSTEE. The Company has authorized the Trustee to act
as such under the Plan and has adopted the Trust Agreement with the Trustee.
8.2 EXCLUSIVE PURPOSE.
(a) EXCLUSIVE BENEFIT: All property and funds of the Trust Fund,
including income from investments and from all other sources, shall be
retained for the exclusive benefit of the Participants, as provided in the
Plan, and shall be used to pay benefits to Participants or their
Beneficiaries, or to pay expenses of administration of the Plan and Trust
Fund to the extent not paid by the Employer, except as provided in this
Section.
(b) RETURN OF CONTRIBUTIONS: Anything in the Plan to the contrary
notwithstanding, there shall be returned to the Employers, to the extent
permitted by law, any amount contributed:
(1) Which was contributed by reason of a mistake of fact; or
(2) Which was conditioned upon deductibility of such
contribution under Section 404 of the Code, if the amount is not so
deductible.
(c) AMOUNT RETURNED: If a contribution to the Trust Fund is made by
an Employer by a mistake of fact, the excess of the amount contributed over
the amount that would have been contributed had there not occurred a
mistake of fact shall be returned to such Employer within one year after
the payment of such contribution. If a contribution to the Trust Fund is
made by an Employer that is not fully deductible under Section 404 of the
Code (or any successor thereto), such contribution, to the extent the
deduction therefor is disallowed, shall be returned to the Employer within
one year after the disallowance of the deduction. Earnings attributable to
contributions returned to an Employer pursuant to this Section may not be
returned, but losses attributable thereto shall reduce the amount to be
returned.
8.3 DISCLAIMER OF LIABILITY. Except as otherwise provided under Sections
404 through 409 of ERISA and Section 12.4, neither the board of directors of the
Company, board of directors or other governing body of a Controlled Group
Member, an Investment Manager, the Trustee nor any person designated to carry
out fiduciary responsibilities pursuant to this Article shall be liable for any
act, or failure to act, which is made in good faith pursuant to the provisions
of the Plan.
38
<PAGE> 45
8.4 NO RESPONSIBILITY FOR INVESTMENTS.
(a) PARTICIPANT SOLELY RESPONSIBLE: Neither the board of directors of
the Company, board of directors or other governing body of a Controlled
Group Member, an Investment Manager, the Trustee nor any person designated
to carry out fiduciary responsibilities pursuant to this Article is
authorized to advise a Participant as to the manner in which contributions
to the Plan and income thereon should be invested and reinvested. The
election of the Investment Fund or Funds in which a Participant
participates is his sole responsibility, and the fact that designated
Investment Funds are available to a Participant for investment shall not be
construed as a recommendation for the investment of contributions hereunder
in all or any of such Funds.
(b) PARTICIPANT CONTROL OF ACCOUNT: Any decision by a Participant to
invest in any Investment Fund pursuant to Sections 6.3 or 6.4 shall
constitute an exercise of control over the assets allocated to his Account
by such Participant (to the extent of such exercise of control) within the
meaning of Section 404(c) of ERISA, and each Participant who so exercises
such control shall, by such exercise, release and agree, on his behalf and
on behalf of his heirs and Beneficiaries, to indemnify and hold harmless
the board of directors of the Company, board of directors or other
governing body of a Controlled Group Member, each Investment Manager, the
Trustee and any person designated to carry out fiduciary responsibilities
pursuant to this Article, from and against any claim, demand, loss,
liability, costs or expense (including reasonable attorney's fees) caused
by or arising out of such exercise, including without limitation any
diminution in value or losses incurred from such exercise.
39
<PAGE> 46
ARTICLE IX
----------
INVESTMENT MANAGER
------------------
9.1 DUTIES AND FUNCTIONS.
(a) The Committee shall have the exclusive authority and
responsibility at any time or from time to time to appoint (and revoke the
appointment of) an Investment Manager with respect to one or more of the
Investment Funds. The Committee shall notify the Trustee of any such
appointment (or revocation thereof) in writing, and the Trustee may rely
upon any such appointment continuing in effect until it receives a written
notice from the Committee of its revocation.
(b) Any Investment Manager appointed by the Committee shall have such
duties and functions as specified by the Committee in its notice of
appointment. Unless otherwise specified in such notice of appointment, the
Investment Manager shall have control over (but not custody of) all assets
in the Investment Fund to which it has been appointed except such amounts
of cash and short-term obligations as the Trustee may from time to time
deem to be advisable to maintain sufficient liquidity to meet the
obligations of the Plan (such as making distributions to Participants), all
of which shall remain under the control (as well as the custody) of the
Trustee.
(c) During the period when the appointment of an Investment Manager
is in effect, the Investment Manager (and not the Trustee) shall, with
respect to the investments over which the Investment Manager has control
and to the extent delegated to such Investment Manager and permitted by
law, have the corresponding powers and be subject to the corresponding
duties and limitations conferred or imposed upon the Trustee by the Trust
Agreement (except as such powers, duties and limitations may be altered by
any agreement as to investment management entered into between the
Committee and the Investment Manager), but the Trustee shall make and
accept such deliveries of securities and disburse and receive such funds to
or from the Trust Fund as the Investment Manager may direct.
(d) In addition to the foregoing powers, the Investment Manager may
designate the broker or brokers through which sales and purchases are to be
made, provided that no greater brokerage fees are incurred than those
chargeable by other brokers in the community for like or comparable
services.
9.2 COMPENSATION. The Investment Manager shall receive such
reasonable compensation as may be agreed upon by it and the Committee, and upon
the receipt by the Trustee of written instructions from the Committee as to any
amount so approved, payment thereof shall be made from the Trust Fund.
40
<PAGE> 47
ARTICLE X
---------
THE COMMITTEE
-------------
10.1 MEMBERS AND OFFICERS. The Committee shall consist of five or more
members who may be, but are not required to be, Participants, Employees or
directors or officers of any Controlled Group Member. The members of the
Committee shall be appointed by, and serve at the pleasure of the board of
directors of the Company. Any vacancy on the Committee due to death,
resignation, removal or any other reason shall be filled by the Company. The
Committee shall elect a Secretary of the Committee (who shall be a member of the
Committee) and such other officers as the Committee shall deem advisable (who do
not need to be members of the Committee) to serve until resignation or
replacement by the Committee.
10.2 CERTIFICATION OF MEMBERS AND OFFICERS. The Company may certify the
number and names of the Committee members and officers to the Trustee. The
Trustee may rely on any such certification until it receives written notice from
the Company as to a change in the Committee's members or officers.
10.3 DUTIES. The members of the Committee shall serve without remuneration
for such services unless the board of directors of the Company shall provide for
remuneration for such services. The Committee shall have such functions and
duties with respect to the Plan, and only such functions and duties with respect
to the Plan, as are specifically conferred upon it by the Plan or the Trust
Agreement or as may be delegated to it pursuant to Section 12.3. The Committee
shall maintain records of all meetings, proceedings and actions held, undertaken
or performed by it. A Committee member shall not be disqualified from acting
because of any interest, benefit or advantage, inasmuch as members of the
Committee may be Participants, Employees or directors or officers of any
Controlled Group Member, but no such member shall vote or act in connection with
the Committee's action relating solely to himself. Except as may be required by
law, no bond or other security need be required of any Committee member in such
capacity in any jurisdiction.
10.4 REVOCABILITY OF COMMITTEE ACTION. Any action taken by the Committee
with respect to the rights or benefits under the Plan of any Participant or
Beneficiary shall be revocable by the Committee as to payments or distributions
not theretofore made pursuant to such action, and appropriate adjustments may be
made in future payments or distributions to a Participant or his Beneficiaries
to offset any excess payment or underpayments theretofore made to such
Participant or his Beneficiaries.
10.5 RULES AND PROCEDURES. The Committee may adopt and amend, from time to
time, such rules for the administration of the Plan and rules for its government
and the conduct of its business as it deems advisable, including a rule
authorizing one or more of its members or officers to execute instruments in its
behalf evidencing its action, and the Trustee and other persons may rely upon
any instrument signed by such person or persons so authorized as properly
evidencing the action of the Committee. The Committee may from time to time, by
resolution adopted by
41
<PAGE> 48
it, delegate to one or more of its members or officers, to an employee or
employees of the Committee, to a subcommittee or subcommittees of the Committee,
or to an agent or agents of the Committee, such of the Committee's functions and
duties as the Committee deems advisable. Except as may otherwise be provided by
rules or procedures adopted by the Committee, the Committee may act by majority
action either at a meeting or in writing without a meeting and an action
evidenced by the signatures of a majority of the members of the Committee, or by
any single person who has been designated to act for the Committee by an
instrument in writing which is signed by all members of the Committee and filed
with the Trustee, shall be deemed to be the action of the Committee.
10.6 PLAN INTERPRETATION AND FINDINGS OF FACT.
(a) The Committee shall have sole and absolute discretion (1) to
interpret the provisions of the Plan (including, without limitation, by
supplying omissions from, correcting deficiencies in, or resolving
inconsistencies or ambiguities in, the language of the Plan), (2) to make
factual findings with respect to any issue arising under the Plan, (3) to
determine the rights and status under the Plan of Participants and other
persons, (4) to decide disputes arising under the Plan, and (5) to make any
determinations and findings (including factual findings) with respect to
the benefits payable thereunder and the persons entitled thereto as may be
required for the purposes of the Plan.
(b) In furtherance of, but without limiting, the foregoing, the
Committee is hereby granted the following specific authorities, which it
shall discharge in its sole and absolute discretion in accordance with the
terms of the Plan (as interpreted, to the extent necessary, by the
Committee):
(1) To resolve all questions (including factual questions)
arising under the Plan as to any individual's entitlement to become a
Participant;
(2) To determine the amount of benefits, if any, payable to any
person under the Plan (including, to the extent necessary, making any
factual findings with respect thereto); and
(3) To the extent applicable, to conduct the claims review
procedure specified in Article XI.
(c) All decisions of the Committee as to the facts of any case, as to
the interpretation of any provision of the Plan or its application to any
case, and as to any other interpretative matter or other determination or
questions under the Plan shall be final and binding on all persons affected
thereby, subject to the provisions of Section 10.4 and Article XI. The
Committee shall direct the Trustee relative to benefits to be paid under
the Plan and shall furnish the Trustee with any information reasonably
required by it for the purpose of paying benefits under the Plan.
42
<PAGE> 49
10.7 DIRECTIONS TO TRUSTEE. The Committee shall direct the Trustee as to
the method of payment of, and the time at which, any benefit is to be paid to a
Participant or a Beneficiary from the Trust Fund and the particular Investment
Fund and Sub-Account from which each such payment is to be made. The Trustee
shall be entitled to rely conclusively on any such direction given to it by the
Committee in accordance with the provisions hereof.
10.8 COSTS AND EXPENSES.
(a) The Committee may hire such employees and retain such agents as
it deems necessary or advisable in connection with the performance of its
functions or duties.
(b) The costs and expenses incurred in connection with the
administration of the Plan and Trust Fund (including expenses incurred by
the Committee) shall be paid from the Trust Fund; provided, however, that
the Company, in its absolute discretion, may elect at any time to have the
Employers pay part or all thereof directly, but any such election shall not
bind the Company as to its right to elect with respect to the same or other
expenses at any other time to have such expenses reimbursed or paid from
the Trust Fund.
10.9 FILING OF DOCUMENTS. Although various provisions of the Plan provide
for the filing of various documents or other instruments with the Company or the
Committee, the Company or the Committee (as applicable) may, by general
announcement, (a) specifically designate some other person with whom or which
such instruments may be filed, or (b) authorize the use of telephonic or
electronic designations and elections in lieu of written documents and
instruments.
43
<PAGE> 50
ARTICLE XI
----------
CLAIMS PROCEDURES
-----------------
11.1 CLAIMS.
(a) FILING OF CLAIM: Any Participant or Beneficiary (hereafter
referred to as a "claimant") who believes that he is entitled to receive a
benefit under the Plan that he has not received may file a written claim
with the Committee (on a form furnished by the Committee) specifying the
basis for his claim and the facts upon which he relies in making such
claim. Such claim must be signed by the claimant or his authorized
representative and shall be deemed filed when delivered to the Committee.
(b) NOTICE FROM THE COMMITTEE: Unless such claim is allowed in full,
within 90 days after such claim is filed (plus an additional period of 90
days if required for processing and if notice of the extension is given to
the claimant within the first 90-day period), the Committee shall cause
written notice to be mailed to the claimant of the total or partial denial
of such claim. Such notice shall be written in a manner calculated to be
understood by the claimant and shall state:
(1) The specific reason(s) for the denial of the claim;
(2) Specific reference(s) to pertinent Plan provisions on which
the denial of the claim was based;
(3) A description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of
why such material or information is necessary; and
(4) An explanation of the review procedures specified in Section
11.2.
(c) FAILURE TO PROVIDE NOTICE OF DENIAL: If notice of denial of a
claim is not furnished within the time specified above, the claim shall be
deemed to have been denied in full.
11.2 REVIEW OF CLAIMS.
(a) FILING OF APPEAL: Within 60 days after the denial of his claim,
the claimant may appeal such denial by filing with the Company (or its
delegee) a written request for a review of such claim on a form provided by
the Company (or its delegee). If the claimant does not file such a request
with the Company (or its delegee) within such 60-day period, the claimant
shall be conclusively presumed to have accepted as final and binding the
initial decision of the Committee on his claim.
44
<PAGE> 51
(b) ACTIONS OF COMPANY: If such an appeal is so filed within such 60
days, the Company (or its delegee) shall (1) conduct a full and fair review
of such claim and (2) mail or deliver to the claimant a written decision on
the matter based on the facts and pertinent provisions of the Plan within a
period of 60 days after the receipt of the request for review unless
special circumstances require an extension of time, in which case such
decision shall be rendered not later than 120 days after receipt of such
request. If an extension of time for review is required, written notice of
the extension shall be furnished to the claimant prior to the commencement
of the extension.
(c) NOTICE OF DECISION: Such decision (1) shall be written in a
manner calculated to be understood by the claimant, (2) shall state the
specific reason(s) for the decision, (3) shall make specific reference(s)
to pertinent provisions of the Plan on which the decision is based and (4)
shall, to the extent permitted by applicable law, be final and binding on
all interested persons.
(d) RIGHT TO REVIEW DOCUMENTS: During such full review, the claimant
or his duly authorized representative shall be given an opportunity to
review documents that are pertinent to the claimant's claim and to submit
issues and comments in writing.
(e) FAILURE TO PROVIDE NOTICE OF DENIAL: If the decision on review is
not furnished within such 60-day or 120-day period, as the case may be, the
claim shall be deemed denied in full on review.
(f) AUTHORITY OF THE COMPANY: In conducting its review pursuant to
this Section, the Company shall have the same authorities as those granted
to the Committee pursuant to Section 10.6.
45
<PAGE> 52
ARTICLE XII
-----------
ADMINISTRATION OF THE PLAN AND FIDUCIARY RESPONSIBILITY
-------------------------------------------------------
12.1 RESPONSIBILITY FOR ADMINISTRATION. Except to the extent that
particular responsibilities are assigned or delegated to other fiduciaries
pursuant to the Trust Agreement or some other Section hereof, the Company (as
the Plan Administrator) shall be responsible for the administration of the Plan.
Each other fiduciary shall have only such powers, duties, responsibilities and
authorities as are specifically conferred upon him pursuant to provisions of the
Plan or Trust Agreement. Any person may serve in more than one fiduciary
capacity with respect to the Plan or Trust Fund, if pursuant to the Plan and/or
Trust Agreement, he is assigned or delegated any multiple fiduciary capacities.
12.2 NAMED FIDUCIARIES. For the purposes of the Plan, the Named Fiduciaries
shall be the Committee and the Company. A Named Fiduciary may, by written
instrument, designate any other person as a Named Fiduciary to perform functions
specified in such instrument (or in a delegation pursuant to Section 12.3) which
relate to the administration of the Plan or the Trust Fund, provided such
designee accepts such designation. Such a designation may be terminated at any
time by written notice from the Named Fiduciary is the designee or by written
notice from the designee to Named Fiduciary.
12.3 DELEGATION OF FIDUCIARY RESPONSIBILITIES.
(a) POWER TO DELEGATE: The Committee or the Company may delegate to
any person any one or more powers, functions, duties and/or
responsibilities with respect to the Plan or the Trust Fund (other than
Trustee responsibilities, as defined in Section 405(c) of ERISA, assigned
to the Trustee by the Trust Agreement or some other Section hereof).
However, no such power, function, duty or responsibility which is assigned
to a fiduciary (other than to the Company or the Committee) pursuant to the
Trust Agreement or some other Section hereof shall be so delegated without
the written consent of such fiduciary.
(b) WRITTEN DELEGATION: Any delegation pursuant to Subsection (a) of
this Section, (1) shall be in writing, signed on behalf of the Named
Fiduciary, and be delivered to and accepted in writing by the delegatee
and, if the Company is the delegator, delivered to the Committee, (2) shall
contain such provisions and conditions relating to such delegation as the
Named Fiduciary deems appropriate, (3) shall specify the powers, functions,
duties and/or responsibilities therein delegated, (4) may be amended from
time to time by written agreement signed on behalf of the Named Fiduciary
and by the delegatee and, if the Company signs the amendment, delivered to
the Committee and (5) may be revoked (in whole or in part) at any time by
written notice from one party to the other. A fully executed copy of any
instrument relating to any delegation (or revocation of any delegation)
under the Plan shall be filed with each of the Named Fiduciaries.
46
<PAGE> 53
12.4 IMMUNITIES. Except as otherwise provided in Section 12.5 or by
applicable law:
(a) No fiduciary shall have the duty to discharge any duty, function
or responsibility which is specifically assigned exclusively to another
fiduciary or fiduciaries by the terms of the Plan or Trust Agreement or is
delegated to another fiduciary pursuant to procedures for such delegation
provided for herein or the Trust Agreement;
(b) No fiduciary shall be liable for any action taken or not taken
with respect to the Plan or Trust Fund except for his own negligence or
willful misconduct;
(c) No fiduciary shall be personally liable upon any contract or
other instrument made or executed by him or on his behalf in the
administration of the Plan or Trust Fund;
(d) No fiduciary shall be liable for the neglect, omission or
wrongdoing of another fiduciary;
(e) Any fiduciary may rely and shall be fully protected in acting in
good faith (1) upon the advice of counsel acceptable to the Company (who
may be counsel for another fiduciary), (2) upon the records of a Controlled
Group Member, (3) upon the opinion, certificate, valuation, report,
recommendation or determination of the certified public accountants
appointed to audit a Controlled Group Member's financial statements of the
Trustee or of any person acceptable to the Company that is employed by such
fiduciary to render advice with regard to any responsibility such fiduciary
has under the Plan or Trust Agreement, and (4) upon any certificate,
statement or other representation made by an Employee, a Participant, a
Beneficiary or the Trustee; and
(f) The Committee and its members shall not be required to make
inquiry into the propriety of any action by the Company or the Trustee.
12.5 LIMITATION ON EXCULPATORY PROVISIONS. Notwithstanding any other
provision of the Plan or Trust Agreement, no provision of the Plan or Trust
Agreement shall be construed to relieve (or have the effect of relieving) any
fiduciary from any responsibility or liability for any obligation,
responsibility or liability for any obligation, responsibility or duty imposed
on such fiduciary by Part 4 of Title 1 of ERISA.
47
<PAGE> 54
ARTICLE XIII
------------
AMENDMENT, TERMINATION AND MERGER
---------------------------------
13.1 RIGHT TO AMEND. The Company reserves the right, acting through and
pursuant to resolutions of its board of directors or action of its delegee, to
make from time to time any amendment or amendments to the Plan, including
amendments which are retroactive in effect, so long as those amendments do not
permit any reversion of assets of the Trust Fund to an Employer except as
provided in Section 8.2.
13.2 PROHIBITION ON DECREASING ACCRUED BENEFITS. No amendment to the Plan
shall (a) retroactively reduce the vested rights of Participants, (b) eliminate
an optional benefit form nor (c) permit any part of the Trust Fund to be
diverted or used for any purpose other than for the exclusive benefit of
Participants and Beneficiaries.
13.3 PLAN MERGER. The Company shall have the right, acting through and
pursuant to resolutions of its board of directors or action of its delegee, to
merge or transfer all or any part of the assets and liabilities of the Plan with
or to those of any other qualified plan at any time. After any merger or
transfer of Plan assets or liabilities, benefits will be no less, if the merged
plan were then terminated, than they would have been before such merger or
transfer if the Plan had then been terminated.
13.4 TERMINATIONS.
(a) RIGHT TO TERMINATE: The Company may at any time, acting through
and pursuant to resolutions of its board of directors or action of its
delegee, terminate the Plan in whole or in part and may direct and require
the Trustee to liquidate the share of the Trust Fund allocable to such
Participants or their Beneficiaries. Upon termination or partial
termination (within the meaning of Section 411(d)(3) of the Code) of the
Plan, the Accounts of all Participants in the Plan as of the date of
termination of the Plan shall be considered as nonforfeitable. In the event
the Company shall for any reason cease to exist, the Plan, unless continued
by another employer, shall terminate.
(b) MANNER OF DISTRIBUTION: If the Plan is terminated by the Company
as to all Employers, no contributions shall thereafter be required to be
made to the Trust Fund, except as otherwise required by applicable law, and
the assets remaining in the Trust Fund (available to provide benefits)
shall be allocated in accordance with applicable law for the purposes of
paying benefits provided for in the Plan.
48
<PAGE> 55
ARTICLE XIV
-----------
Guarantees and Liabilities
--------------------------
14.1 NON-GUARANTEE OF EMPLOYMENT. Nothing contained in the Plan shall be
construed as a contract of employment between an Employer and any Participant,
or as a right of any Participant to be continued in the employment of an
Employer, or as a limitation of the right of an Employer to discharge any of the
Participants, with or without cause.
14.2 RIGHTS TO TRUST ASSETS. No Participant shall have any right to, or
interest in, any assets of the Trust Fund upon termination of his employment or
otherwise, except as provided from time to time under the Plan, and then only to
the extent of the benefits payable to such Participant out of the assets of the
Trust Fund. Except as provided by ERISA, all payments of benefits as provided
for in the Plan shall be made solely out of the assets of the Trust Fund.
Neither the board of directors of the Company, board of directors or other
governing body of a Controlled Group Member, an Investment Manager, the Trustee
nor any person designated to carry out fiduciary responsibilities pursuant to
Article XII shall be liable for any insufficiency of the Trust Fund's assets.
14.3 NON-ALIENATION OF BENEFITS. Benefits payable under the Plan shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary (but excluding devolution by death or
mental incompetency) prior to being actually received by the person entitled to
the benefit under the terms of the Plan. Any attempt to anticipate, alienate,
sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any
right to benefits payable hereunder shall be void. The preceding sentences shall
not apply to the creation, assignment or recognition of a right to any benefit
payable with respect to a Participant pursuant to a qualified domestic relations
order (as defined in Section 414(p) of the Code), the enforcement of a federal
tax levy pursuant to Section 6331 of the Code, or the collection by the United
States on a judgment resulting from an unpaid tax assessment. The Trust Fund
shall not in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any person entitled to benefits hereunder.
The Plan Administrator shall develop procedures to determine whether a domestic
relations order is qualified under Section 414(p) of the Code.
14.4 INCAPACITY TO RECEIVE PAYMENT. In the event that the Plan
Administrator finds that any Participant or Beneficiary entitled to receive
benefits hereunder is (at the time such benefits are payable) unable to care for
his affairs because of a physical, mental, or legal incompetence, the Plan
Administrator may, in its sole discretion, cause any payment due him, for which
prior claim has not been made by a duly qualified guardian or other legal
representative, to be paid to such one or more persons as may be chosen by the
Plan Administrator from among the following: the institution maintaining or
responsible for the maintenance of such Participant or Beneficiary, his
Beneficiary, his children, or other relative by blood or marriage. Any payment
made pursuant to this Section shall be a complete discharge of all liability
under the Plan with respect of such payment.
49
<PAGE> 56
14.5 UNCLAIMED BENEFITS.
(a) BENEFITS UNCLAIMED FOR ONE YEAR: In the event that all or any
portion of the benefit payable hereunder to a Participant or Beneficiary
shall, at the expiration of one year after it shall become payable, remain
unpaid solely by reason of the inability of the Plan Administrator to
ascertain the whereabouts of such Participant or Beneficiary, the amount so
distributable shall be forfeited and applied to reduce contributions by an
Employer to the Plan; provided, however, that such amount shall be
reinstated (without provision for interest thereon) upon a proper claim
therefore made by the Participant or if applicable, his Beneficiary. Such
reinstatement will be made from current forfeitures from Retirement
Security Contributions Sub-Accounts and, to the extent necessary, from
additional contributions from the Employer
(b) SEARCH FOR MISSING PARTICIPANT OR BENEFICIARY: The Plan
Administrator shall take reasonable steps to ascertain the whereabouts of
Participants or Beneficiaries to whom distributions are payable. Such steps
shall include sending a registered letter, return receipt requested, to the
last known address of such person, and making such further inquiries as the
Plan Administrator deems appropriate.
14.6 SEVERABILITY PROVISION. If any provision of the Plan or the
application thereof to any circumstance(s) or person(s) is invalid, the
remainder of the Plan and the application of such provision to other
circumstances or persons shall not be affected thereby.
50
<PAGE> 57
ARTICLE XV
----------
Adoption Procedure by Controlled Group Members
----------------------------------------------
15.1 ADOPTION PROCEDURE. A Controlled Group Member may become an Employer
under the Plan provided that (a) the Company or its delegee approves the
adoption of the Plan by the Controlled Group Member and designates the
Controlled Group Member as an Employer, (b) the Controlled Group Member executes
an instrument of adoption adopting the Plan, together with all amendments then
in effect, upon appropriate action of the Controlled Group Member and (c) the
instrument of adoption provides that the Controlled Group Member agrees to be
bound by any other terms and conditions that may be required by the Company or
its delegee, provided that such terms and conditions are not inconsistent with
the purposes of the Plan.
15.2 ADDITIONAL TERMS AND CONDITIONS RELATING TO INSTRUMENT OF ADOPTION.
Each instrument of adoption executed by a Controlled Group Member may contain
such terms and conditions governing the application of the Plan to its Employees
covered by such instrument as may be specified by such Controlled Group Member
and approved by the Company or its delegee and, without limiting the generality
of the foregoing, may specify the Employees of the Controlled Group Member who
will be considered Covered Employees under the Plan, additional eligibility
requirements for membership in the Plan and any other provision that such
Controlled Group Member (with the approval of the Company or its delegee) shall
consider necessary or appropriate to carry out the provisions of the Plan as to
its Employees covered by such instrument. In the event of inconsistency between
the other provisions of the Plan and such terms and conditions set forth in any
instrument of adoption, the latter shall control as to the Employees (or former
Employees) covered by such instrument; provided, however, that if such
inconsistency results from changes made in provisions of the Plan to comply with
applicable law, then such provisions of the Plan shall control as to the
Employees (or former Employees) covered by such instrument.
15.3 EFFECT OF ADOPTION BY CONTROLLED GROUP MEMBER. A Controlled Group
Member that adopts the Plan pursuant to an instrument of adoption will be deemed
to be an Company for all purposes hereunder, unless otherwise specified in the
instrument of adoption or by the Company or its delegee. In addition, the
Company or its delegee may provide, in its discretion and by appropriate action,
that the Employees of such Controlled Group Member will receive credit for their
employment with the Controlled Group Member prior to the date it became a
Controlled Group Member for purposes of determining the eligibility of such
Employees to participate in the Plan, provided that such credit will be applied
in a uniform and nondiscriminatory manner with respect to all such Employees.
51
<PAGE> 58
15.4 WITHDRAWAL OF AN EMPLOYER. Any Employer that adopts the Plan may elect
separately to withdraw from the Plan and such withdrawal shall constitute a
termination of the Plan as to such Employer. Any such withdrawal and termination
shall be expressed in an instrument executed by the terminating Employer and
filed with the Company or its delegee, and shall (except as may otherwise be
required by applicable law) become effective when so filed unless some other
effective date is designated in such instrument and approved by the Company or
its delegee.
52
<PAGE> 59
ARTICLE XVI
-----------
Top-Heavy Plan Requirements
---------------------------
16.1 DEFINITIONS. For the purposes of this Article, the following terms,
when used with initial capital letters shall have the following respective
meanings:
(a) AGGREGATION GROUP: Permissive Aggregation Group or Required
Aggregation Group, as the context shall require.
(b) COMPENSATION: Except as specifically provided elsewhere in this
Article, "compensation" as defined in Section 5.7(a), subject to the
limitation in effect for the Plan Year under Section 401(a)(17) of the
Code.
(c) DEFINED BENEFIT PLAN: A qualified plan as defined in Section
414(j) of the Code.
(d) DEFINED CONTRIBUTION PLAN: A qualified plan as defined in Section
414(i) of the Code.
(e) DETERMINATION DATE: For any Plan Year, the last day of the
immediately preceding Plan Year.
(f) EXTRA TOP-HEAVY GROUP: An Aggregation Group if, as of a
Determination Date, the aggregate present value of accrued benefits for Key
Employees in all plans in the Aggregation Group (whether Defined Benefit
Plans or Defined Contribution Plans) is more than 90% of the aggregate
present value of all accrued benefits for all employees in such plans.
(g) EXTRA TOP-HEAVY PLAN: See Section 16.3.
(h) FORMER KEY EMPLOYEE: A Non-Key Employee with respect to a Plan
Year who was a Key Employee in a prior Plan Year. Such term shall also
include his Beneficiary in the event of his death.
(i) KEY EMPLOYEE: An Employee or former Employee who is or was a
Participant and who, at any time during the current Plan Year or any of the
four preceding Plan Years, is (1) an officer of a Controlled Group Member
(as the term "officer" is limited in Section 416(i)(1)(A) of the Code)
having an annual Compensation greater than 50% of the dollar amount in
effect under Section 415(b)(1)(A) of the Code for any such Plan Year, (2)
one of the 10 Employees having annual Compensation from the Controlled
Group 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 a Controlled Group Member, (3) a
5% owner (as such term is defined in Section 416(i)(1)(B)(i) of the Code),
or (4) a 1% owner (as such term is defined in Section 416(i)(1)(B)(ii) of
the Code) having an annual Compensation of more than $150,000. For purposes
of Paragraph (2) of this Subsection, if two Employees have the same
interest in a Controlled Group Member, the Employee having greater annual
Compensation from the Employer shall be treated as having a larger
interest. The term "Key Employee" shall also
53
<PAGE> 60
include such Employee's Beneficiary in the event of his death. For purposes
of this Subsection, "Compensation" has the meaning given such term by
Section 414(q)(7) of the Code.
(j) NON-KEY EMPLOYEE: An Employee or former Employee who is or was a
Participant and who is not a Key Employee. Such term shall also include his
Beneficiary in the event of his death.
(k) PERMISSIVE AGGREGATION GROUP: The group of qualified plans of the
Controlled Group consisting of:
(1) The plans in the Required Aggregation Group; plus
(2) One or more plans designated from time to time by the Company
that are not part of the Required Aggregation Group but that satisfy
the requirements of Sections 401(a)(4) and 410 of the Code when
considered with the Required Aggregation Group.
(l) PLAN: For the purposes of this Article, the benefits provided by
the Plan to Employees of each Employer as a result of service with such
Employer, determined separately and without regard to benefits provided by
the Plan to Participants who are not Employees of such Employer.
(m) REQUIRED AGGREGATION GROUP: The group of qualified plans of the
Controlled Group consisting of:
(1) Each plan in which a Key Employee participates; plus
(2) Each other plan which enables a plan in which a Key Employee
participates to meet the requirements of Section 401(a)(4) or 410 of
the Code.
(n) TOP-HEAVY ACCOUNT BALANCE: A Participant's (including a
Participant who has received a total distribution from the Plan) or a
Beneficiary's aggregate balance standing to his Account as of the most
recent Valuation Date coinciding with or immediately preceding the
Determination Date (as adjusted by the amount of any Employer Contributions
made or due to be made after such Valuation Date but before the expiration
of the extended payment period in Section 412(c)(10) of the Code);
provided, however, that such balance shall include the aggregate
distributions made to such Participant or Beneficiary during the 5
consecutive Plan Years ending with the Plan Year that includes the
Determination Date (including distributions under a terminated plan which
if it had not been terminated would have been included in a Required
Aggregation Group), and provided further that if an Employee or former
Employee has not performed services for any Controlled Group Member
maintaining the Plan at any time during the 5-year period ending on the
Determination Date, his Account (and/or the Account of his Beneficiary)
shall not be taken into account.
54
<PAGE> 61
(o) TOP-HEAVY GROUP: An Aggregation Group if, as of a Determination
Date, the aggregate present value of accrued benefits for Key Employees in
all plans in the Aggregation Group (whether Defined Benefit Plans or
Defined Contribution Plans) is more than 60% of the aggregate present value
of accrued benefits for all Employees in such plans.
(p) TOP-HEAVY PLAN: See Section 16.2.
(q) VALUATION DATE: The valuation date for computing Plan costs for
minimum funding under Section 412 of the Code.
16.2 DETERMINATION OF TOP-HEAVY STATUS.
(a) TOP-HEAVY TEST: Except as provided by Subsections (b) and (c) of
this Section, the Plan shall be a Top-Heavy Plan if, as of the
Determination Date:
(1) The aggregate Top-Heavy Account Balances for Key Employees is
more than 60% of the aggregate of all Top-Heavy Account Balances,
excluding for this purpose the aggregate Top-Heavy Account Balances of
Former Key Employees; or
(2) The Plan is included in a Required Aggregation Group which is
a Top-Heavy Group.
(b) INCLUSION IN REQUIRED AGGREGATION GROUP: If the Plan is included
in a Required Aggregation Group which is not a Top-Heavy Group, the Plan
shall not be a Top-Heavy Plan notwithstanding the fact that the Plan would
otherwise be a Top-Heavy Plan under Paragraph (1) of Subsection (a) of this
Section.
(c) INCLUSION IN PERMISSIVE AGGREGATION GROUP: If the Plan is included
in a Permissive Aggregation Group which is not a Top-Heavy Group, the Plan
shall not be a Top-Heavy Plan notwithstanding the fact that the Plan would
otherwise be a Top-Heavy Plan under Subsection (a) of this Section.
16.3 DETERMINATION OF EXTRA TOP-HEAVY STATUS.
(a) EXTRA TOP-HEAVY TEST: Except as provided by Subsections (b) and
(c) of this Section, the Plan shall be an Extra Top-Heavy Plan if, as of
the Determination Date:
(1) The aggregate of Top-Heavy Account Balances for Key Employees
is more than 90% of the aggregate of all Top-Heavy Account Balances,
excluding for this purpose the aggregate Top-Heavy Account Balances of
Former Key Employees; or
(2) The Plan is included in a Required Aggregation Group which is
an Extra Top- Heavy Group.
55
<PAGE> 62
(b) INCLUSION IN REQUIRED AGGREGATION GROUP: If the Plan is included
in a Required Aggregation group which is not an Extra Top-Heavy Group, the
Plan shall not be an Extra Top- Heavy Plan notwithstanding the fact that
the Plan would otherwise be an Extra Top-Heavy Plan under Paragraph (1) of
Subsection (a) of this Section.
(c) INCLUSION IN PERMISSIVE AGGREGATION GROUP: If the Plan is included
in a Permissive Aggregation Group which is not an Extra Top-Heavy Group,
the Plan shall not be an Extra Top- Heavy Plan notwithstanding the fact
that the Plan would otherwise be an Extra Top-Heavy Plan under Subsection
(a) of this Section.
16.4 TOP-HEAVY PLAN REQUIREMENTS. Notwithstanding any other provisions of
the Plan to the contrary, if the Plan is a Top-Heavy Plan for any Plan Year, the
Plan shall then satisfy the following requirements for such Plan Year:
(a) MINIMUM CONTRIBUTION: The minimum contribution requirement as set
forth in Section 16.5; and
(b) ADJUSTMENTS: The adjustment to minimum benefits and allocations as
set forth in Section 16.6.
16.5 MINIMUM CONTRIBUTION REQUIREMENT. Except as provided in Sections 16.6
and 16.7, if the Plan is a Top-Heavy Plan for any Plan Year:
(a) ELIGIBILITY: Each Non-Key Employee who is eligible to share in any
Employer Contribution for such Plan Year (or who would have been eligible
to share in any such Employer Contribution if a Tax-Deferred Contribution
had been made for him during such Plan Year) shall be entitled to receive
an allocation of such Employer Contribution, which is at least equal to 3%
of his Compensation for such Plan Year.
(b) MINIMUM CONTRIBUTION REQUIREMENT WHERE EMPLOYER ALSO MAINTAINS
DEFINED BENEFIT PLAN: The 3% minimum contribution requirement under
Subsection (a) of this Section for a Non- Key Employee shall be increased
to 4% if the Employer maintains a Defined Benefit Plan which does not cover
such Non-Key Employee.
(c) CONTRIBUTION PERCENTAGE: The percentage minimum contribution
requirement set forth in Subsections (a) and (b) of this Section with
respect to a Plan Year shall not exceed the percentage at which Employer
Contributions are made (or required to be made) under the Plan for such
Plan Year for the Key Employee for whom such percentage is the highest for
such Year.
(d) REDUCTION OF PERCENTAGE MINIMUM CONTRIBUTION: The percentage
minimum contribution requirements set forth in Subsections (b) and (c) of
this Section may also be reduced or eliminated in accordance with Section
16.7(b).
56
<PAGE> 63
(e) CONTRIBUTIONS TAKEN INTO ACCOUNT: For the purpose of Subsection
(c) of this Section, contributions taken into account shall include like
contributions under all other Defined Contribution Plans in the Required
Aggregation Group as well as elective deferral contributions made pursuant
to a salary reduction agreement, excluding any such plan in the Required
Aggregation Group if that plan enables a Defined Benefit Plan in such
Required Aggregation Group to meet the requirements of Section 401(a)(4) or
410 of the Code.
(f) EMPLOYER CONTRIBUTIONS DEFINED: For purposes of this Section, the
term "Employer Contributions" shall include Tax-Deferred Contributions made
for an Employee.
16.6 ADJUSTMENT TO MINIMUM BENEFITS AND ALLOCATIONS. If the Plan is a
Top-Heavy Plan for any Plan Year, and if the Employer maintains a Defined
Benefit Plan which could or does provide benefits to Participants in the Plan:
(a) TOP-HEAVY ADJUSTMENT: If the Plan is not an Extra Top-Heavy Plan
(but is a Top- Heavy Plan), then the percentage minimum contribution
requirement in Section 16.5(a) shall be 7 1/2% for a Non-Key Employee who
is covered by the Plan and the Defined Benefit Plan.
(b) EXTRA TOP-HEAVY ADJUSTMENT: If the Plan is an Extra Top-Heavy
Plan, then the defined contribution plan fraction and the defined benefit
plan fraction described in Section 5.7(d) shall be calculated by
substituting "1.0" for "1.25" for each place such "1.25" figure appears,
and Section 415(e)(6)(B)(I) of the Code shall be calculated by substituting
"$41,500" for "$51,875" for each place such "$51,875" amount appears.
(c) COMBINED LIMIT: If the Plan is an Extra Top-Heavy Plan, then the
percentage minimum contribution requirement in Section 16.5(a) shall be 5%
for a Non-Key Employee who is covered by the Plan and the Defined Benefit
Plan.
16.7 COORDINATION WITH OTHER PLANS.
(a) PLANS OF CONTROLLED GROUP MEMBERS: In applying this Article, an
Employer and all Controlled Group Members shall be treated as a single
employer, and the qualified plans maintained by such single employer shall
be taken into account.
(b) CONTRIBUTIONS OR BENEFITS UNDER OTHER PLANS TAKEN INTO ACCOUNT: In
the event that another Defined Contribution Plan or Defined Benefit Plan
maintained by the Controlled Group provides contributions or benefits on
behalf of Participants in the Plan, such other plan(s) shall be taken into
account in determining whether the Plan has satisfied Section 16.4; and the
minimum contribution required for a Non-Key Employee in the Plan under
Section 16.5 shall, in accordance with the provisions of this Article and
as permitted by Section 416 of the Code and the regulations thereunder, be
reduced or eliminated if a minimum contribution or benefit is made or
accrued in whole or in part in respect of such other plan(s).
57
<PAGE> 64
(c) APPLICATION TO OTHER PLANS: Principles similar to those
specifically applicable to the Plan under this Article, and in general, as
provided for in Section 416 of the Code and the regulations thereunder,
shall be applied to the other plan(s) required to be taken into account
under this Article in determining whether the Plan and such other plan(s)
meet the requirements of such Section 416 of the Code and the regulations
thereunder.
* * * * * * * * * * * * * * * * *
58
<PAGE> 65
IN WITNESS WHEREOF, and as conclusive evidence of the adoption
of the foregoing, THE ELDER-BEERMAN STORES CORP., an Ohio Company, has caused
its corporate seal to be affixed hereto and has caused the Plan to be duly
executed in its name and on its behalf this 30th day of June, 1998, to be
effective July 1, 1998.
ATTEST: THE ELDER-BEERMAN STORES CORP.
/s/ Patricia M. Gilmore By: /s/ Patricia L. Gifford
- -------------------- --------------------------------------
<PAGE> 1
Exhibit 5
June 30, 1998
The Elder-Beerman Stores Corp.
3155 El-Bee Road
Dayton, Ohio 45439
Re: Form S-8 Registration Statement
Gentlemen:
As Senior Vice President, General Counsel and Secretary for The
Elder-Beerman Stores Corp. (the "Company"), I am familiar with the Registration
Statement being filed by the Company with the Securities and Exchange Commission
in connection with the registration under the Securities Act of 1933, as
amended, of common stock, without par value ("Common Stock"), of the Company to
be issued pursuant to the Company's Retirement Savings Plan (the "Plan"). It is
my opinion that the shares of Common Stock that may be issued pursuant to the
Plan and the agreements contemplated thereunder (the "Agreements") will be, when
issued in accordance with the Plan and such Agreements, validly issued, fully
paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
above-referenced Registration Statement.
Very truly yours,
/s/ Scott J. Davido
Scott J. Davido, Esq.
Senior Vice President, General Counsel
and Secretary
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Elder-Beerman Stores Corp. on Form S-8 of our report dated April 10, 1998
(which expresses an unqualified opinion and includes an explanatory paragraph
concerning the Company's plan of reorganization), appearing in the Annual Report
on Form 10-K of The Elder-Beerman Stores Corp. for the year ended January 31,
1998.
DELOITTE & TOUCHE LLP
June 26, 1998
Dayton, Ohio
<PAGE> 1
Exhibit 24
THE ELDER-BEERMAN STORES CORP.
REGISTRATION STATEMENT ON FORM S-1
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
The undersigned officer and/or director of The Elder-Beerman Stores
Corp., an Ohio corporation (the "Company"), does hereby make, constitute and
appoint Scott J. Davido and Steven D. Lipton, and each of them, with full power
of substitution and resubstitution, as attorneys or attorney of the undersigned,
to execute and file (i) a Registration Statement on Form S-1 (the "Form S-1
Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended (the "Act"), of shares of common stock, without par
value (the "Common Stock"), of the Company, (ii) a Registration Statement
pursuant to Rule 462(b) under the Act (the "Rule 462 Registration Statement"),
(iii) Registration Statements on Form S-8 (the "Form S-8 Registration
Statements") with respect to the registration under the Act, of shares of Common
Stock of the Company issuable in connection with the Company's Retirement
Savings Plan, (iv) any and all amendments, including post-effective amendments,
and exhibits to the Form S-1 Registration Statement, the Form S-8 Registration
Statement and the Rule 462 Registration Statement and (v) any and all
applications or other documents to be filed with the Securities and Exchange
Commission or any state securities commission or other regulatory authority with
respect to the securities covered by the Form S-1 Registration Statement, the
Form S-8 Registration Statement and the Rule 462 Registration Statement, with
full power and authority to do and perform any and all acts and things
whatsoever necessary, appropriate or desirable to be done in the premises, or in
the name, place and stead of the said director and/or officer, hereby ratifying
and approving the acts of said attorneys and any of them and any such
substitute.
IN WITNESS WHEREOF, the undersigned have subscribed these presents as
of the 18th day of June, 1998.
<TABLE>
<S> <C>
/s/ Frederick J. Mershad /s/ John A. Muskovich
- -------------------------------------------- --------------------------------------------
Frederick J. Mershad John A. Muskovich
Chairman of the Board of Directors and Chief President, Chief Operating Officer and Chief
Executive Officer Financial Officer; Director
(Principal Executive Officer) (Principal Financial and Officer)
/s/ Steven D. Lipton /s/ Thomas J. Noonan, Jr.
- -------------------------------------------- --------------------------------------------
Steven D. Lipton Thomas J. Noonan, Jr.
Senior Vice President, Controller Director
(Principal Accounting Officer)
/s/ Bernard Olsoff /s/ Laura H. Pomerantz
- -------------------------------------------- --------------------------------------------
Bernard Olsoff Laura H. Pomerantz
Director Director
/s/ Stewart M. Kasen /s/ John J. Wiesner
- -------------------------------------------- --------------------------------------------
Stewart M. Kasen John J. Wiesner
Director Director
/s/ Steven C. Mason /s/ Jack A. Staph
- -------------------------------------------- --------------------------------------------
Steven C. Mason Jack A. Staph
Director Director
</TABLE>
