As filed with the Securities and Exchange Commission
on October 30, 1995
Registration No. 33-_____
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
ENVIRODYNE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2677354
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Envirodyne Industries, Inc.
701 Harger Road, Suite 190
Oak Brook, Illinois 60521
(708) 571-8800
(Address of Principal Executive Offices)
VISKASE SAVE PROGRAM
(Full title of the plan)
STEPHEN M. SCHUSTER
Vice President, Secretary and General Counsel
Envirodyne Industries, Inc.
701 Harger Road, Suite 190
Oak Brook, Illinois 60521
(708) 571-8800
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Gary D. Gerstman
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-2060
CALCULATION OF REGISTRATION FEE
__________________________________________________________________________
<TABLE>
<CAPTION>
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
of to be registered (1) registered price per share offering price registration fee
____________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 500,000 shares $4.375 (2) $2,187,500 (2) $754.31
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rules 457(h)(1) and 457(c) under the
Securities Act of 1933, based upon the average of the high and
low sale prices of the Common Stock of Envirodyne Industries,
Inc. on The Nasdaq Stock Market on October 25, 1995.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
------------------------------------------------
The following documents heretofore filed with the
Securities and Exchange Commission (the "Commission") by
Envirodyne Industries, Inc. (the "Company") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K
for the fiscal year ended December 29, 1994.
(b) All other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
since December 29, 1994.
(c) The description of the Company's common
stock, par value $.01 per share (the "Common Stock"),
which is contained in the Registration Statement on
Form 8-A filed with the Commission on November 12, 1993
under the Exchange Act, including any subsequent
amendment or any report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act and all documents
filed by the employee benefit plan described herein pursuant to
Section 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated
Documents").
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
------------------------------------------
The Company's Amended and Restated Certificate of
Incorporation, as amended, provides that, in accordance with
Section 102(b)(7) of the General Corporation Law of the State of
Delaware (the "DGCL"), a director of the Company will not be
personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) unlawful payment so of dividends
under Section 174 of the DGCL or (iv) for any transaction from
which the director derived an improper personal benefit. It
further provides that if the DGCL is amended to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Company will be eliminated or limited to the fullest extent
permitted by the DGCL as so amended.
The Company's Amended and Restated Certificate of
Incorporation, as amended, provides indemnification for directors
or officers to the fullest extent permitted by the DGCL. The
Company's By-laws permit the Company to insure its directors,
officers, employees or agents against certain liabilities without
regard to whether they may be indemnified under Delaware law.
Reference is made to Section 145 of the DGCL which
provides for indemnification of directors and officers in certain
circumstances. Section 145 of the DGCL permits the
indemnification by a Delaware corporation of its directors,
officers, employees and other agents against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other
than derivative actions which are by or in the right of the
corporation) if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was
illegal. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with
defense or settlement of such an action and court approval is
required before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation.
To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action referred to above or in defense of any
claim, issue or matter therein, such representative shall be
indemnified against expenses (including attorney's fees) actually
and reasonably incurred in connection therewith.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibits accompanying this Registration Statement
are listed on the accompanying Exhibit Index.
Viskase Corporation will submit or has submitted the
employee benefit plan described herein and any amendments thereto
to the Internal Revenue Service (the "IRS") in a timely manner
and has made or 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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
-------- -------
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
- ---- ----
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
---- ----
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
--------------
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Village of Oak
Brook, State of Illinois, on this 30th day of October, 1995.
ENVIRODYNE INDUSTRIES, INC.
By: /s/
-------------------------
Donald P. Kelly
Chairman of the Board,
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated on this 30th day of October,
1995. Each person whose signature appears below hereby appoints
Stephen M. Schuster his or her true and lawful attorney-in-fact,
with power to act with or without the other and with full power
of substitution and resubstitution, in any and all capacities, to
sign any or all amendments (including post-effective amendments)
to this Registration Statement and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done
by virtue thereof.
Signature and Title Signature and Title
------------------- -------------------
/s/ /s/
- ---------------------------- -------------------------
Donald P. Kelly F. Edward Gustafson
Chairman of the Board, President, Director
Chief Executive Officer and Director
(Principal Executive Officer)
/s/
- ---------------------------- --------------------------
J.S. Corcoran Michael E. Heisley
Executive Vice President and Director
Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ /s/
- ----------------------------- --------------------------
Robert N. Dangremond Gregory R. Page
Director Director
/s/
- ----------------------------- ---------------------------
Avram A. Glazer Mark D. Senkpiel
Director Director
/s/
- -----------------------------
Malcolm I. Glazer
Director
The Plan. Pursuant to the requirements of the
--------
Securities Act of 1933, the Benefits Committee administering the
Viskase Save Program, has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Oak Brook, State of Illinois on
this 30th day of October, 1995.
VISKASE SAVE PROGRAM
By: /s/
_____________________________
John Cunningham
Member of the Benefits Committee
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit Description of Exhibit
- -------- ----------------------------------------------------
4.1 Amended and Restated Certificate of
Incorporation of the Company (incorporated
herein by reference to Exhibit 3.1 to
Form 8-K (File No. 0-5485) filed under the
Exchange Act).
4.2 Bylaws of the Company (incorporated herein by
reference to Exhibit 3.1 to Form 8-K (File
No. 0-5485) filed under the Exchange Act).
*4.3 Viskase Save Program
*23.1 Consent of Coopers & Lybrand L.L.P.
*24.1 Powers of Attorney (reference is made to the Signatures
section of this Registration Statement for the Power of
Attorney contained therein.)
_____________________
* Filed herewith.
THE SAVE PROGRAM
FOR EMPLOYEES OF
VISKASE CORPORATION
As Amended And Restated
Effective February 1, 1991
--------------------------
(Working Copy Incorporating Amendment Number One)
THE SAVE PROGRAM
FOR EMPLOYEES OF
VISKASE CORPORATION
TABLE OF CONTENTS
-----------------
Page
------
Article 1 - Title and Purpose
Article 2 - Definitions
Article 3 - Participation
Section 3.1. Eligibility for Participation
Section 3.2. Enrollment Forms
Section 3.3. Transfer of Employment to
Affiliates
Article 4 - Employer Contributions
Section 4.1. Before-Tax Basic Contributions
Section 4.2. Before-Tax Supplemental
Contributions
Section 4.3. Employer Matching Contributions
Section 4.4. Limitations on Contributions
for Highly-Compensated
Employees
Section 4.5. Limitation on Employer
Contributions
Section 4.6. Seven Thousand Dollar Annual
Limitation on Before-Tax
Contributions
Article 5 - Employee Contributions
Section 5.1. After-Tax Basic Contributions
Section 5.2. After-Tax Supplemental
Contributions
Section 5.3. Lump Sum Supplemental
Contributions <PAGE>
Section 5.4. Rollover Contributions
Article 6 - Trust
Article 7 - Investment Elections and Allocation of
Trust Income and Contributions to
Participants' Accounts
Section 7.1. Participant's Accounts and
Investment Elections
Section 7.2. Allocation to Participants'
Accounts of Net Income of Trust
and Fluctuation in Value of
Trust Assets
Section 7.3. Determination of Net Worth of an
Investment Fund
Section 7.4. Allocation of Contributions
and Forfeitures to Accounts
Section 7.5. Statutory Limitations on
Allocations to Accounts
Section 7.6. Correction of Error
Article 8 - Distributions, Withdrawals and Loans
Section 8.1. Termination of Employment Under
Circumstances Entitling Participant
to Full Distribution of His
Accounts
Section 8.2. Termination of Employment Under
Circumstances Resulting in Partial
Forfeiture of the Participant's
Accounts
Section 8.3. Time and Manner of Distribution
upon Termination of Employment
Section 8.4. Withdrawals Prior to Termination
of Employment
Section 8.5. Designation of Beneficiary
Section 8.6. Distributions to Minor and
Disabled Participants and
Beneficiaries
Section 8.7. Loans to Participants
Section 8.8. Direct Rollover Option
Article 9 - Special Participation and Distribution
Rules Relating to Reemployment of
Terminated Employees, Employment by
Affiliates and Leased Employees
Section 9.1. Change of Employment Status
Section 9.2. Reemployment of a Participant
Section 9.3. Determining Service
for a Reemployed Participant
Section 9.4. Employment by Affiliates
Section 9.5 Leased Employees
Article 10 - Administration
Section 10.1. The Committee
Section 10.2. Claims Procedure
Section 10.3. Procedures for Domestic
Relations Orders
Section 10.4. Notices to Participants and
Beneficiaries
Section 10.5. Notices to Employers or
Committee
Section 10.6. Records
Section 10.7. Reports of Trust Fund and
Accounting to Participants
<PAGE>
Article 11 - Participation by Other Employers
Section 11.1. Adoption of Plan
Section 11.2. Withdrawal from Participation
Section 11.3. Company as Agent for Employers
Article 12 - Continuance by a Successor
Article 13 - Miscellaneous
Section 13.1. Expenses
Section 13.2. Non-Assignability
Section 13.3. Employment Non-Contractual
Section 13.4. Limitation of Rights
Section 13.5. Merger or Consolidation with
Another Plan
Section 13.6. Gender and Plurals
Article 14 - Top-Heavy Plan Requirements
Section 14.1. Top-Heavy Plan Determination
Section 14.2. Minimum Contribution for
Top-Heavy Years
Section 14.3. Special Rules for Applying
Statutory Limitations on Benefits
Article 15 - Amendment, Establishment of Separate
Plan and Termination
Section 15.1. Amendment
Section 15.2. Establishment of Separate Plan
Section 15.3. Distribution upon Termination
of the Plan
Section 15.4. Trust To Be Applied Exclusively
for Participants and Their
Beneficiaries
THE SAVE PROGRAM
FOR EMPLOYEES OF
VISKASE CORPORATION
ARTICLE 1
---------
TITLE AND PURPOSE
-----------------
The title of this plan shall be "The SAVE Program for
Employees of Viskase Corporation". This plan constitutes a
merger, effective as of December 31, 1988, of the Viskase Corpo-
ration SAVE Program For Salaried Employees into the Viskase
Corporation SAVE Program For Hourly Employees. The provisions of
this amendment and restatement shall be effective for employees
who terminate employment on or after February 1, 1991, except as
otherwise provided herein. The rights and benefits of employees
whose employment terminated before February 1, 1991 shall be
determined under the Plan as in effect at the time of their
termination, including any provisions of this amendment and
restatement effective at such time. The account balances
determined as of February 1, 1991 of any participant under the
SAVE Program for Employees of Viskase Corporation shall not be
affected by the provisions of this amendment and restatement.
ARTICLE 2
----------
DEFINITIONS
-----------
As used herein the following words and phrases shall
have the following respective meanings unless the context clearly
indicates otherwise:
(1) Plan. This plan as set forth herein, as
----
from time to time amended.
(2) Company. Viskase Corporation, a Pennsylvania
-------
corporation, and any corporation which shall succeed
to the business of such corporation and adopt this plan
pursuant to Article 12.
(3) Employer. The Company and any other corpora-
--------
tion which shall, with the consent of the Company,
elect to participate in this plan in the manner
described in Section 11.1 and any successor corporation
which shall adopt this plan pursuant to Article 12. If
any such corporation shall withdraw from participation
in this plan pursuant to Section 11.2, or shall termi-
nate its participation in this plan pursuant to
Section 15.3, such corporation shall thereupon cease to
be an employer.
(4) Affiliate. (a) A corporation which is a
----------
member of the same controlled group of corporations
(within the meaning of section 414(b) of the Code) as
an employer, (b) a trade or business (whether or not
incorporated) which is under common control (within the
meaning of section 414(c) of the Code) with an
employer, (c) any organization (whether or not incorpo-
rated) which is a member of an affiliated service group
(within the meaning of section 414(m) of the Code)
which includes an employer, a corporation described in
clause (a) above or a trade or business described in
clause (b) above, or (d) any other entity which is
required to be aggregated with an employer pursuant to
regulations promulgated under Section 414(o) of the
Code.
(5) Employee. An individual whose relationship
--------
with an employer is, under common law, that of an
employee.
(6) Participant. An employee, excluding any
------------
temporary employee and any employee who is a member of
a group of employees excluded by an employer under a
nondiscriminatory classification and including any
employee included in a unit of employees covered by a
collective bargaining agreement between a union and an
employer or representative of an employer unless such
agreement specifically provides that such employees are
not eligible to participate in this plan. An employee
shall cease to be a participant as of the date the
remaining balance of his account is distributed in its
entirety.
(7) Active Participant. A participant for whom
------------------
or on whose behalf contributions are currently being
made pursuant to Article 4 or Article 5.
(8) Hours of Employment. Each hour for which an
--------------------
employee is entitled to receive compensation
(including hours for any period during which he
receives compensation without rendering services such
as paid holidays, vacations, sick leave, disability
leave, layoff, jury duty or military duty). For
purposes of determining the number of hours of
employment to be credited to an employee, compensation
shall mean the total earnings paid, directly or
indirectly, to the employee by an employer, including
any back pay, irrespective of mitigation of damages,
either awarded to the employee or agreed to by an
employer. The computation of hours of employment and
the periods to which hours of employment are to be
credited shall be determined under uniform rules
adopted by the committee in accordance with Department
of Labor regulations sections 2530.200b-2(b), (c) &
(f). With respect to any person who became an employee
as of February 1, 1986 and who immediately prior to
February 1, 1986 was an employee of the Films Packaging
business of Union Carbide Corporation, such employee
shall also be credited with an hour of employment for
each hour for which he was entitled to receive
compensation from Union Carbide Corporation which would
be included as an hour of employment described in the
preceding sentence if such compensation had instead
been paid by an employer.
(9) Service. The period of an employee's
-------
employment by an employer which includes (i) the total
of the periods of the employee's employment by an
employer computed in full years plus fractions computed
to the nearest complete day, (ii) any period of absence
from employment of less than 12 months' duration, and
(iii) the first 12 months of any period of absence from
employment for any reason other than the employee's
retirement, voluntary termination or discharge; pro-
---
vided, however, that with respect to any person who
--------------
became an employee as of February 1, 1986 and who
immediately prior to February 1, 1986 was an employee
of the Films Packaging business of Union Carbide Corpo-
ration, such employee's date of employment shall be his
date of employment with Union Carbide Corporation; and,
provided further, that in any case where it will
----------------
produce a result more favorable to the employee, an
employee's years of service with respect to employment
prior to August 1, 1986, if any, shall be credited to
the employee in accordance with the terms of either the
Savings Plan or the 401(k) Plan prior to August 1,
1986.
(10) Break in Service. Any period during which
-----------------
an employee is not employed by an employer. For pur-
poses of determining whether an employee has incurred a
break in service year, the employee shall be deemed to
be employed by an employer for any period during which
he (i) is in military service, provided that such
military service does not extend beyond the date on
which he could, with or without application, have been
discharged and after discharge from such military
service he returns to the employ of an employer within
the period prescribed by laws relating to the reemploy-
ment rights of persons in military service, (ii) is on
an uncompensated leave of absence duly granted by his
employer, or (iii) is absent from work for any period
not in excess of 24 consecutive months because of
(A) the employee's pregnancy, (B) birth of the
employee's child, (C) placement of a child with the
employee in connection with the employee's adoption of
such child, or (D) caring for any such child for a
period beginning immediately following such birth or
placement. Notwithstanding the foregoing, clause (iii)
above shall not apply unless the employee timely
furnishes to his employer such information as it may
reasonably require to establish that the absence is for
reasons set forth in such clause.
(11) Military Service. (a) Service on active
-----------------
duty, in time of national or local emergency, in the
armed forces of the United States or of any State
thereof; (b) service in the armed forces of the United
States or of any State thereof under any compulsory
service law; or (c) service in the armed forces of the
United States or any of its allies in time of war in
which the United States is engaged.
(12) Beneficiary. The person or persons who
-----------
shall be entitled under Section 8.5 to receive
benefits in the event of the death of a participant.
(13) Compensation. (a) With respect to
------------
employees paid on an hourly basis, the total regular,
basic hourly rate of pay for the regularly scheduled
hours of the employee, and (b) with respect to
employees paid on a salaried basis, the total regular,
basic salary for the regularly scheduled hours of the
employee, plus in either case shift premium and shift
bonus received by an employee from one or more
employers during a plan year plus any amounts that
would have been so received but for contributions made
on behalf of the employee pursuant to Sections 4.1(a)
and 4.2(a), but in either case excluding overtime and
any other amounts of pay or bonuses not specifically
described above. For plan years beginning on or after
January 1, 1989, "compensation" (as defined under
section 415 of the Code) of an employee in excess of
the limit set forth in section 401(a)(17) of the Code
(as adjusted for changes in the cost of living pursuant
thereto) shall not be taken into account in determining
an employee's compensation under this plan.
(14) Regulations. Written promulgations of the
-------------
Department of Labor construing Title I of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA") or the Internal Revenue Service construing
the Internal Revenue Code of 1986, as amended (the
"Code").
(15) Trustee. The trustee provided for in
-------
Article 6, or any successor trustee, or if there shall
be more than one trustee acting at any time, all of
such trustees collectively.
(16) Trust. The trust created by agreement
-----
between the employers and the trustee, as from time to
time amended.
(17) Committee. The committee appointed by the
---------
board of directors of the Company pursuant to
Section 10.1
(18) Plan Year. The period commencing
---------
February 1, 1986 and ending December 31, 1986, and
each calendar year thereafter.
(19) Valuation Date. The last business day of
---------------
each calendar month.
(20) Savings Plan. The Savings Plan For
------------
Employees Of Viskase Corporation as in effect on and
after February 1, 1986 and prior to August 1, 1986.
(21) 401(k) Plan. (a) With respect to employees
-----------
paid on an hourly basis, the 401(k) Opportunity Plan
For Hourly Employees Of Viskase Corporation as in
effect on and after February 1, 1986 and prior to
August 1, 1986, and (b) with respect to employees paid
on a salaried basis, the 401(k) Opportunity Plan For
Salaried Employees of Viskase Corporation as in effect
on and after February 1, 1986 and prior to August 1,
1986.
(22) Union Carbide Savings Plan. The Savings
----------------------------
Plan For Employees Of Union Carbide Corporation And
Its Participating Subsidiary Companies.
(23) Union Carbide 401(k) Plan. (a) With
--------------------------
respect to employees paid on an hourly basis, the
401(k) Opportunity Plan For Hourly Employees Of Union
Carbide Corporation And Its Participating Subsidiaries,
and (b) with respect to employees paid on a salaried
basis, the 401(k) Opportunity Plan for Salaried
Employees of Union Carbide Corporation and Its Partici-
pating Subsidiaries.
ARTICLE 3
---------
PARTICIPATION
--------------
Section 3.1. Eligibility for Participation. Each
----------- -----------------------------
employee who was a participant or active participant on January
31, 1991 shall continue to be a participant or active partici-
pant, respectively. Each other participant shall be eligible to
become an active participant in this plan on his first day of
employment.
Section 3.2. Enrollment Forms. A participant may
----------- ----------------
become an active participant by executing and delivering to his
employer an enrollment form in the time and manner prescribed by
the committee specifying his chosen rate of contributions pursu-
ant to Section 4.1(a), Section 4.2(a), Section 5.1(a) and Sec-
tion 5.2(a). The chosen rate of contribution to be made pursuant
to Section 4.1(a) and Section 5.1(a) shall equal, in the aggre-
gate, a whole percentage of not less than 1% and not more than
6%. A participant whose chosen rates of contributions to be made
pursuant to Sections 4.1(a) and 5.1(a) aggregates 6% shall be
entitled to make contributions pursuant to Section 4.2(a) and
Section 5.2(a). The chosen rate of contribution to be made
pursuant to Section 4.2(a) and Section 5.2(a) may be, in the
aggregate, a whole percentage of not less than 1% and not more
than 10%. Such enrollment form shall authorize the active par-
ticipant's employer to reduce his compensation by the amount of
contributions to be made pursuant to Section 4.1(a), if any; and
Section 4.2(a), if any; shall authorize his employer to deduct
from his compensation the amount of contributions to be made
pursuant to Section 5.1(a), if any; and Section 5.2(a), if any;
shall specify his investment elections as described in Sec-
tion 7.1; and shall evidence his acceptance of and agreement to
all provisions of this plan.
Section 3.3. Transfer of Employment to Affiliates. If
----------- ------------------------------------
a participant shall be transferred from one employer to another
or from an employer to an affiliate, such participant shall
continue to participate in this plan until an event shall occur
which would have terminated his participation had he continued in
the service of an employer until the occurrence of such event.
Employment by an affiliate shall be taken into account only to
the extent set forth in Article 9.
ARTICLE 4
----------
EMPLOYER CONTRIBUTIONS
-----------------------
Section 4.1. Before-Tax Basic Contributions. (a)
------------ -------------------------------
Election of Before-Tax Basic Contributions. Subject to the
- ------------------------------------------
limitations set forth in Sections 4.4, 4.5, 4.6 and 7.5, each
employer shall contribute Before-Tax Basic Contributions on
behalf of each active participant who is an employee thereof in
an amount equal to a whole percentage, designated by the
participant on his enrollment form pursuant to Section 3.2, that,
when added to the active participant's contributions pursuant to
Section 5.1(a), does not exceed 6% of such active participant's
compensation. Before-Tax Basic Contributions shall commence with
the first payroll month beginning on or next following the day
the participant has selected on his executed enrollment form
described in Section 3.2. Such contributions shall be delivered
to the trustee not less frequently than monthly.
(b) Changes in the Rate of Before-Tax Basic Contribu-
------------------------------------------------
tions. Before-Tax Basic Contributions at the rate designated by
- -----
an active participant pursuant to Section 4.1(a) shall continue
in effect until the participant shall change or suspend such
designation. An active participant may change or suspend such
designation as of the first day of any payroll month by giving
written directions to his employer in the form prescribed by the
committee at least 30 days (or such shorter period as may be
designated by the committee) prior to the effective date of the
change or suspension, but not more than once during any calendar
month. Any change or suspension shall be limited to those rates
described in Section 4.1(a).
Section 4.2. Before-Tax Supplemental Contributions.
----------- -------------------------------------
(a) Subject to the limitations set forth in Sections 4.4, 4.5
and 7.5, each active participant for whom the sum of the rates of
the contributions being made pursuant to Sections 4.1(a) and
5.1(a) equals 6% shall be entitled to elect to have his employer
make Before-Tax Supplemental Contributions each pay period on his
behalf in an amount equal to a whole percentage, designated by
the participant on his application pursuant to Section 3.2, that,
when added to the active participant's contributions pursuant to
Section 5.2(a) does not exceed 10% of such active participant's
compensation. Amounts contributed pursuant to this paragraph
shall be subject to the provisions regarding elections and
changes contained in Section 4.1(b) for Before-Tax Basic
Contributions to the same extent as are Before-Tax Contributions.
(b) Before-Tax Supplemental Contributions shall com-
mence with the first payroll month beginning on or next following
the day the participant has selected on his executed application
described in Section 3.2. Such contributions shall be delivered
to the trustee not less frequently than monthly.
Section 4.3. Employer Matching Contributions.
----------- -------------------------------
(a) Subject to the limitations set forth in Sections 4.4, 4.5 and
7.5, each employer shall contribute Matching Contributions on
behalf of each active participant who is an employee thereof in
an amount equal to 50% of the aggregate amount of Before-Tax
Basic Contributions made on behalf of such participant pursuant
to Section 4.1(a). Such Matching Contributions shall be
delivered to the trustee at the same time the participant's
Before-Tax Basic Contributions are delivered to the trustee, or
as soon thereafter as reasonably practicable.
(b) Subject to the limitations set forth in Sections
4.4, 4.5 and 7.5, each employer shall contribute Matching
Contributions on behalf of each active participant who is an
employee thereof in an amount equal to 50% of the After-Tax Basic
Contributions made by such participant pursuant to
Section 5.1(a). Such Matching Contributions shall be delivered
to the trustee at the same time the participant's After-Tax Basic
Contributions are delivered to the trustee, or as soon thereafter
as reasonably practicable.
Section 4.4. Limitations on Contributions for Highly-
----------- ---------------------------------------
Compensated Employees. (a) Limits Imposed by Section 401(k)(3)
- --------------------- -----------------------------------
of the Code. Notwithstanding the provisions of Sections 4.1(a)
- -----------
and 4.2(a), if the aggregate amount of Before-Tax Basic
Contributions and Before-Tax Supplemental Contributions made
pursuant to such Sections for a plan year shall fail to satisfy
both of the tests set forth in subparagraphs (1) and (2) of this
paragraph, the adjustments prescribed in Section 4.4(e)(1) shall
be made.
(1) The average deferral percentage for the group
consisting of participants who are highly-compensated
employees of all employers does not exceed the product
of the average deferral percentage for the group con-
sisting of participants who are not highly-compensated
employees of all employers multiplied by 1.25.
(2) The average deferral percentage for the group
consisting of participants who are highly-compensated
employees of all employers (i) does not exceed the
average deferral percentage of the group consisting of
all participants who are not highly-compensated
employees of all employers by more than 2 percentage
points, and (ii) does not exceed the product of the
average deferral percentage of such group multiplied by
2.0.
(b) Limits Imposed by Section 401(m) of the Code.
--------------------------------------------
Notwithstanding the provisions of sections 4.3, 5.1(a), 5.2(a)
and 5.3, if the Employer Matching Contributions, After-Tax Basic
Contributions, After-Tax Supplemental Contributions and Lump Sum
Supplemental Contributions made pursuant to such Sections for a
plan year shall fail to satisfy both of the tests set forth in
subparagraphs (1) and (2) of this paragraph, the adjustments pre-
scribed in Section 4.4(e)(2) shall be made.
(1) The average contribution percentage for the
group consisting of participants who are highly-compen-
sated employees of all employers does not exceed the
product of the average contribution percentage for the
group consisting of participants who are not highly-
compensated employees of all employers multiplied by
1.25
(2) The average contribution percentage for the
group consisting of participants who are highly-compen-
sated employees of all employers (i) does not exceed
the average contribution percentage of the group con-
sisting of all participants who are not highly-
compensated employees of all employers by more than 2
percentage points, and (ii) does not exceed the product
of the average contribution percentage of such group
multiplied by 2.0.
(c) Aggregate Limit on Contributions. Notwithstanding
--------------------------------
anything herein to the contrary, if the sum of the average defer-
ral percentage (as determined under Section 4.4(d)(1) after
making the adjustments required by Section 4.4(e)(1) for the plan
year) and the average contribution percentage (as determined
under Section 4.4(d)(2) after making the adjustments required by
Section 4.4(e)(2) for the plan year) for the group consisting of
participants who are highly-compensated employees of all
employers exceeds, or in the judgment of the committee is likely
to exceed, the aggregate limit for such plan year, the adjust-
ments prescribed in Section 4.4(e)(3) shall be made.
(d) Definitions. For purposes of this Section:
-----------
(1) the average deferral percentage for a group
of participants for a plan year shall be the average of
the ratios rounded to the nearest one-hundredth of one
percent, calculated separately for each participant in
such group to the nearest one-hundredth of one percent,
of the Before-Tax Basic Contributions and the Before-
Tax Supplemental Contributions made pursuant to Sec-
tions 4.1(a) and 4.2(a) for the benefit of such parti-
cipant for such year, but not including any such
contributions used in the calculation of the average
contribution percentage for such year, to the total
compensation for such plan year paid to such
participant;
(2) the average contribution percentage for a
group of participants for a plan year shall be the
average of the ratios rounded to the nearest one-
hundredth of one percent, calculated separately for
each participant in such group to the nearest one-
hundredth of one percent, of the Employer Matching
Contributions, After-Tax Basic Contributions, After-Tax
Supplemental Contributions and Lump Sum Supplemental
Contributions made pursuant to Sections 4.3, 5.1(a),
5.2(a) and 5.3 and, in the committee's sole discretion,
to the extent permitted under rules prescribed by the
Secretary of the Treasury or otherwise under the law,
the Before-Tax Basic Contributions and the Before-Tax
Supplemental Contributions made pursuant to Sections
4.1(a) and 4.2(a) during such year for the benefit of
such participant to such participant's compensation for
the plan year;
(3) the aggregate limit shall equal the greater
of (i) the sum of (A) 1.25 times the greater of (I) the
average deferral percentage for the group consisting of
participants who are not highly-compensated employees
or (II) the average contribution percentage for the
group consisting of participants who are not highly-
compensated employees, plus (B) two percentage points
plus the lesser of (I) or (II) above, but not greater
than 200% of the lesser of (I) or (II) above, or (ii)
the sum of (A) 1.25 times the lesser of (I) or (II)
above plus (B) two percentage points plus the greater
of (I) or (II) above, but not greater than 200% of the
greater of (I) or (II) above.
(4) "highly-compensated employee" shall mean any
employee described in section 414(q) of the Code;
(5) "compensation" shall have the meaning set
forth in Section 414(s) of the Code and regulations
promulgated thereunder;
(6) if this plan and one or more other plans of
any employer to which Before-Tax Basic Contributions,
Before-Tax Supplemental Contributions, Employer Match-
ing Contributions, After-Tax Basic Contributions,
After-Tax Supplemental Contributions and Lump Sum
Supplemental Contributions 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
Section. If a highly-compensated employee participates
in this plan and one or more other plans of an employer
to which any such contributions are made, all such
contributions shall be aggregated for purposes of this
Section; and
(7) if any participant is a 5% owner (under
section 416(i)(1)(B)(i) of the Code) or one of the ten
most highly-compensated employees of any employer, the
Before-Tax Basic Contributions, Before-Tax Supplemental
Contributions, Employer Matching Contributions, After-
Tax Basic Contributions, After-Tax Supplemental
Contributions, Lump Sum Supplemental Contributions and
compensation of such participant shall include the
Before-Tax Basic Contributions, Before-Tax Supplemental
Contributions, Employer Matching Contributions, After-
Tax Basic Contributions, After-Tax Supplemental
Contributions and Lump Sum Supplemental Contributions
and compensation of such participant's family members
(as defined in section 414(q)(6)(B) of the Code), and
such family members shall be disregarded for all other
purposes under this Section.
(e) Adjustments to Comply with Limits. (1) Adjust-
--------------------------------- -------
ments to Comply with Section 401(k)(3) of the Code. The
- --------------------------------------------------
committee shall cause to be made such periodic computations as it
shall deem necessary or appropriate to determine whether either
of the tests set forth in Sections 4.4(a)(1) or 4.4(a)(2) shall
be satisfied during a plan year, and, if it shall appear to the
committee that neither of such tests shall be satisfied, the
committee shall take such steps as it shall deem necessary or
appropriate including adjusting the Before-Tax Supplemental
Contributions made pursuant to Section 4.2(a) and, to the extent
necessary, the Before-Tax Basic Contributions made pursuant to
Section 4.1(a) for all or a portion of such plan year on behalf
of each participant who is a highly-compensated employee to the
extent necessary in order for one of such tests to be satisfied.
If after the end of a plan year it is determined that regardless
of any such steps taken neither of the tests set forth in Section
4.4(a)(1) or 4.4(a)(2) shall be satisfied with respect to such
plan year, the committee shall calculate the maximum deferral
percentage permissible for participants who are highly-
compensated employees under the tests set forth in Sections
4.4(a)(1) or 4.4(a)(2). The Before-Tax Supplemental Contribu-
tions and, to the extent necessary, the Before-Tax Basic Contri-
butions made on behalf of each participant who is a highly-com-
pensated employee and whose actual deferral percentage is the
highest shall be reduced until such actual deferral percentage
equals the greater of (A) such maximum deferral percentage and
(B) the actual deferral percentage of the highly-compensated
employee with the next highest actual deferral percentage. If
further reductions are necessary, then such contributions on
behalf of each participant who is a highly-compensated employee
and whose actual deferral percentage, after the reduction
described in the preceding sentence, is the highest shall be
reduced in accordance with the previous sentence. Such reduc-
tions shall continue to be made to the extent necessary so that
the actual deferral percentage of all participants who are
highly-compensated employees does not exceed such maximum defer-
ral percentage. The committee shall (A) treat the amount of such
reductions as After-Tax Basic Contributions made pursuant to
Section 5.1(a), After-Tax Supplemental Contributions made
pursuant to Section 5.2(a) or Lump Sum Supplemental Contributions
made pursuant to Section 5.3, to the extent that the limits
described in Section 5.1(a), Section 5.2(a) or Section 5.3,
whichever is applicable, are not exceeded, and to the extent the
reductions are treated as contributions other than After-Tax
Basic Contributions, distribute any corresponding Employer Match-
ing Contributions related to the reduced Before-Tax Basic Contri-
butions, plus any income and minus any loss allocable to such
Employer Matching Contributions to which such participant be
entitled under Section 8.1 or 8.2 if such participant had termi-
nated service on the last day of the plan year for which such
contributions were made (or earlier if any such participant
actually terminated service at an earlier date), and any remain-
ing amount of such corresponding Employer Matching Contributions
plus any income and minus any loss allocable thereto shall be
forfeited, and (B) to the extent the limits of Sections 5.1(a),
5.2(a) and 5.3 are exceeded, distribute no later than the last
day of the subsequent plan year to such participant (I) the
amount of such reductions plus any income and minus any loss
allocable thereto and (II) Employer Matching Contributions to the
extent that Before-Tax Basic Contributions are reduced plus any
income and minus any loss allocable thereto to which such parti-
cipant would be entitled under Section 8.1 or 8.2 if such parti-
cipant had terminated service on the last day of the plan year
for which such contributions were made (or earlier if any such
participant actually terminated service at any earlier date), and
any remaining amount of such Employer Matching Contributions plus
any income and minus any loss allocable thereto shall be for-
feited. The amount of any Before-Tax Basic Contributions and
Before-Tax Supplemental Contributions distributed, if any, shall
be reduced by any such contributions previously distributed to
such participant pursuant to Section 4.6(c) for such plan year.
The amount of any income or loss allocable to any such reductions
to be so distributed or forfeited shall equal the sum of the
allocable gain or loss for the plan year determined in accordance
with applicable regulations. The unadjusted amount of any such
reductions so distributed shall be treated as "annual additions"
for purposes of Section 7.5.
(2) Adjustments to Comply with Section 401(m) of the
------------------------------------------------
Code. The committee shall cause to be made such periodic compu-
- -----
tations as it shall deem necessary or appropriate to determine
whether either of the tests set forth in Sections 4.4(b)(1) or
4.4(b)(2) shall be satisfied during a plan year, and, if it shall
appear to the committee that neither of such tests shall be
satisfied, the committee shall take such steps as it shall deem
necessary or appropriate including adjusting the Employer Match-
ing Contributions, After-Tax Basic Contributions, After-Tax
Supplemental Contributions and Lump Sum Supplemental Contribu-
tions made pursuant to Sections 4.3, 5.1(a), 5.2(a) and 5.3 and
any Before-Tax Basic Contributions and Before-Tax Supplemental
Contributions treated as Employer Matching Contributions pursuant
to Section 4.4(d)(2) for all or a portion of such plan year on
behalf of each participant who is a highly-compensated employee
to the extent necessary in order for one of such tests to be
satisfied. If after the end of a plan year it is determined that
regardless of any steps taken neither of the tests set forth in
Sections 4.4(b)(1) or 4.4(b)(2) shall be satisfied with respect
to such plan year, the committee shall calculate the maximum
contribution percentage permissible for participants who are
highly-compensated employees under the tests set forth in
Sections 4.4(b)(1) and 4.4(b)(2) and reduce the employee
contributions made on behalf of each participant who is a highly-
compensated employee in the manner described in subparagraph (1)
of this paragraph. In making the adjustments described in the
preceding sentence, the Lump Sum Supplemental Contributions shall
be reduced first, After-Tax Supplemental Contributions shall be
reduced second and After-Tax Basic Contributions shall be reduced
last. If the adjustments required by this paragraph exceed the
amount of a participant's employee contributions made pursuant to
Article 5 for such plan year, Employer Matching Contributions
made on behalf of such participant pursuant to Section 4.3 for
such plan year shall be reduced in accordance with subparagraph
(1) of this paragraph to the extent necessary to comply with
Section 4.4(b), except that such Employer Matching Contributions
may not be recharacterized as employee contributions. If the
reductions required by this Section exceed the total amount of a
participant's employee contributions made pursuant to Article 5
for such plan year and exceed the amount of Employer Matching
Contributions made on behalf of such participant pursuant to
Section 4.3 for such plan year, any Before-Tax Basic
Contributions and Before-Tax Supplemental Contributions made on
behalf of such participant which the committee has elected to
treat as Employer Matching Contributions pursuant to
Section 4.4(d)(2) shall be adjusted in accordance with
subparagraph (1) of this paragraph to the extent necessary to
comply with Section 4.4(b).
(3) Adjustments to Comply with the Aggregate Limit.
-----------------------------------------------
If, after making the adjustments required by subparagraphs (1)
and (2) of this paragraph for a plan year, the committee shall
determine that the sum of the average deferral percentage and the
average contribution percentage for the group consisting of
participants who are highly-compensated employees of all
employers exceeds the aggregate limit for such plan year, the
committee shall no later than the last day of the subsequent plan
year first reduce the Lump Sum Supplemental Contributions made
pursuant to Section 5.3, next reduce the After-Tax Supplemental
Contributions made pursuant to Section 5.2(a) and next reduce the
After-Tax Basic Contributions made pursuant to Section 5.1(a) for
such plan year on behalf of each participant who is a highly-
compensated employee to the extent necessary to eliminate such
excess. Such reduction shall be effected by calculating the
maximum contribution percentage permissible for participants who
are highly-compensated employees under the aggregate limit for
such plan year and first reducing the Lump Sum Supplemental
Contributions, next reducing the After-Tax Supplemental
Contributions and next reducing the After-Tax Basic Contributions
made on behalf of each participant who is a highly-compensated
employee in the manner described in subparagraph (1) of this
paragraph. In the event that further reductions are necessary,
the committee shall no later than the last day of the subsequent
plan year first reduce the Before-Tax Supplemental contributions
made pursuant to Section 4.2(a) and next reduce the Before-Tax
Basic Contributions made pursuant to Section 4.1(a) on behalf of
each participant who is a highly compensated employee to the
extent necessary to eliminate such excess. Such reduction shall
be effected by calculating the maximum deferral percentage
permissible for participants who are highly compensated employees
under the aggregate limit for such plan year and first reducing
the Before-Tax Supplemental Contributions and next reducing the
Before-Tax Basic Contributions made on behalf of each participant
who is a highly compensated employee in the manner described in
subparagraph (1) of this paragraph.
Section 4.5. Limitation on Employer Contributions.
----------- ------------------------------------
The aggregate Before-Tax Basic Contributions, Before-Tax Supple-
mental Contributions and Matching Contributions of an employer
made pursuant to Sections 4.1(a), 4.2(a) and 4.3 for any plan
year shall not exceed the maximum amount for which a deduction is
allowable to such employer for federal income tax purposes for
the taxable year of such employer which ends with or within such
plan year on account of such contributions, and such contribu-
tions of any employer for any plan year shall not exceed the then
current or accumulated profits, as determined under generally
accepted accounting principles, of such employer, or if such
contributions do exceed such profits, then the aggregate of all
such contributions for any plan year of all employers which are
members of a controlled group of corporations (within the meaning
of Section 414(b) of the Code) which includes such employer shall
not exceed the then current or accumulated profits, as determined
under generally accepted accounting principles, of such
employers.
Any contribution made by an employer by reason of a
good faith mistake of fact, or any contribution made by an
employer which exceeds the maximum amount for which a deduction
is allowable to the employer for federal income tax purposes by
reason of a good faith mistake in determining the maximum
deductible amount shall upon the request of such employer be
returned by the trustee to such employer, and if any such contri-
bution was a Before-Tax Basic Contribution made pursuant to
Section 4.1(a) or a Before-Tax Supplemental Contribution made
pursuant to Section 4.2(a), then the amount thereof shall be paid
by the employer to the participant on whose behalf such contribu-
tion was made and included in the participant's compensation for
federal income tax purposes for the year of such payment. The
employer's request and the return of any such contribution must
be made within one year after such contribution was mistakenly
made or after the deduction of such excess portion of such con-
tribution was disallowed, as the case may be. The amount to be
returned to the employer pursuant to this paragraph shall be the
excess of (i) the amount contributed over (ii) the amount that
would have been contributed had there not been a mistake of fact
or a mistake in determining the maximum allowable deduction.
Earnings attributable to the mistaken contribution shall not be
returned to the employer, but losses attributable thereto shall
reduce the amount to be so returned. If the return to the
employer of the amount attributable to the mistaken contribution
would cause the balance of any account of a participant as of the
date such amount is to be returned (determined as if such date
coincided with the close of a plan year) to be reduced to less
than what would have been the balance of such account as of such
date had the mistaken amount not been contributed, the amount to
be returned to the employer shall be limited so as to avoid such
reduction.
Section 4.6. Seven Thousand Dollar Annual Limitation
----------- ---------------------------------------
on Before-Tax Contributions. (a) General Rule. Notwithstanding
- ---------------------------- -------------
Sections 4.1 and 4.2, effective January 1, 1987, no participant
shall be permitted to have aggregate Before-Tax Basic
Contributions and Before-Tax Supplemental Contributions made
under this plan during any calendar year that, when added to all
other elective deferrals (as defined in Section 402(g)(3) of the
Code) made on behalf of the participants to all other plans or
arrangements maintained by an employer or affiliate and described
in Section 401(k), 408(k) or 403(b) of the Code), exceed $7,000,
as adjusted for annual increases in the cost of living prescribed
by the Secretary of the Treasury under Section 415(d) of the
Code.
(b) Procedures to Suspend Before-Tax Contributions
----------------------------------------------
That May Exceed the Seven Thousand Dollar Limit. The committee
- -----------------------------------------------
may adopt such procedures and prescribe such election forms
whereby each participant may elect, prior to the time during any
calendar year that the aggregate of the participant's (i) Before-
Tax Basic Contributions, (ii) Before-Tax Supplemental
Contributions and (iii) amounts contributed under other plans or
arrangements maintained by an employer or an affiliate and
described in Sections 401(k), 408(k) or 403(b) of the Code would,
for the calendar year in which such contributions were made,
equal $7,000, adjusted as described in Section 4.6(a) (the
"adjusted $7,000 limit"), that when the aggregate of such
contributions for the year shall equal the adjusted $7,000 limit
(i) Before-Tax Supplemental Contributions and, to the extent
necessary, Before Tax Basic Contributions shall be suspended
until the beginning of the next calendar year or any later time
allowed by the committee and (ii) at the same time such
suspension is to become effective, After-Tax Basic Contributions
shall commence or, if already being made, shall increase by the
same percentage elected by the participant pursuant to Section
4.1(a) until the beginning of the next calendar year or any other
time allowed by the committee; provided, however, that no such
------------------
increase shall cause Before-Tax Basic Contributions and After-Tax
Basic Contributions to exceed, in the aggregate, 6%.
(c) Distribution of Excess Before-Tax Contributions.
-----------------------------------------------
If for any calendar year the aggregate of the (i) Before-Tax
Basic Contributions and Before-Tax Supplemental Contributions to
this plan and (ii) amounts contributed under other plans or
arrangements maintained by an employer or affiliate and described
in Sections 401(k), 408(k) or 403(b) of the Code will exceed the
adjusted $7,000 limit for the calendar year in which such
contributions were made ("Excess Before-Tax Contributions"), such
participant shall, pursuant to the rules and at the time
following such calendar year as determined by the committee, be
allowed to submit a written request that the Excess Before-Tax
Contributions plus any income and minus any loss allocable
thereto be distributed to him. The amount of any income or loss
allocable to such Excess Before-Tax Contributions shall equal the
sum of the allocable gain or loss for the plan year determined in
accordance with applicable regulations. The written request
submitted by the participant shall be made on a form provided by
the committee which specifies the participant's Excess Before-Tax
Contributions. The request shall be accompanied by the
participant's written statement that if such Excess Before-Tax
Contributions are not distributed, such Excess Before-Tax
Contributions, when added to amounts deferred under other plans
or arrangements described in Sections 401(k), 408(k) or 403(b) of
the Code, will exceed the adjusted $7,000 limit.
In making the adjustments described above, the Before-
Tax Supplemental Contributions shall be reduced first and the
Before-Tax Basic Contributions shall be reduced last. Such
adjusted amount of Excess Before-Tax Contributions shall be
distributed to the participant no later than April 15 following
the calendar year for which such contributions are made. The
amount of Excess Before-Tax Contributions to be so distributed
shall be reduced by any contributions previously distributed or
recharacterized pursuant to Section 4.4(e)(1) with respect to
such calendar year. Notwithstanding the provisions of this
paragraph, any such Before-Tax Contributions shall be treated as
"annual additions" for purposes of Section 7.5.
ARTICLE 5
---------
EMPLOYEE CONTRIBUTIONS
-----------------------
Section 5.1. After-Tax Basic Contributions. (a) Each
----------- ------------------------------
active participant shall be entitled to make periodic After-Tax
Basic Contributions by means of a payroll deduction each pay
period in an amount equal to a percentage, designated by the
participant on his enrollment form pursuant to Section 3.2, that,
when added to the active participant's contributions pursuant to
Section 4.1(a), does not exceed 6% of such active participant's
compensation. Each active participant shall be deemed to have
made After-Tax Basic Contributions to this plan pursuant to this
paragraph to the extent that the Before-Tax Basic Contributions
made on his behalf pursuant to Section 4.1(a) are treated as
After-Tax Basic Contributions pursuant to Section 4.4(e)(1).
Amounts contributed pursuant to this paragraph shall be subject
to the provisions regarding elections and changes contained in
Section 4.1(b) for Before-Tax Basic Contributions to the same
extent as are such Before-Tax Basic Contributions.
(b) After-Tax Basic Contributions shall commence with
the first payroll month beginning on or next following the day
the participant has selected on his executed application de-
scribed in Section 3.2. Such contributions shall be delivered to
the trustee not less frequently than monthly.
Section 5.2. After-Tax Supplemental Contributions.
----------- ------------------------------------
(a) Each active participant for whom the sum of the rates of the
contributions being made pursuant to Sections 4.1(a) and 5.1(a)
equals 6% shall be entitled to make After-Tax Supplemental Con-
tributions by means of a payroll deduction each pay period in an
amount equal to a whole percentage, designated by the participant
on his application pursuant to Section 3.2, that, when added to
the active participant's contributions pursuant to Section
4.2(a), does not exceed 10% of such active participant's
compensation. Amounts contributed pursuant to this paragraph
shall be subject to the provisions regarding elections and
changes contained in Section 4.1(b) for Before-Tax Basic
Contributions to the same extent as are such Before-Tax Basic
Contributions.
(b) After-Tax Supplemental Contributions shall com-
mence with the first payroll month beginning on or next following
the day the participant has selected on his executed application
described in Section 3.2. Such contributions shall be delivered
to the trustee not less frequently than monthly.
Section 5.3. Lump Sum Supplemental Contributions. As
----------- -----------------------------------
of any time during a plan year an active participant for whom the
sum of the rates of the contributions being made pursuant to
Sections 4.1(a) and 5.1(a) equals 6% of his compensation may make
a Lump Sum Supplemental Contribution of no less than $500 by
delivering to the Company an amount which, when added to all of
the aggregate annual additions (as defined in Section 7.5) for
the plan year to the participant's accounts and the benefits
accrued for the plan year by the participant do not exceed the
limitations of Section 7.5. Such Lump Sum Supplemental
Contributions shall be delivered by the Company to the trustee as
soon as reasonably practicable. Any Lump Sum Supplemental
Contribution shall be credited to the appropriate subaccounts in
accordance with the investment direction given by the participant
for this purpose.
Section 5.4. Rollover Contributions. If a participant
----------- ----------------------
receives either before or after becoming an active participant an
eligible rollover distribution or distributions (within the
meaning of Section 402 of the Code) from an employees' trust
described in Section 401(a) of the Code which is exempt from tax
under Section 501(a) of the Code (other than a trust which forms
part of a plan which was a top-heavy plan as defined in
Section 416(i) of the Code under which the participant was a key
employee within the meaning of Section 416(i) of the Code at the
time contributions were made on his behalf under such trust),
then such participant may contribute to this plan an amount which
does not exceed the amount of such distribution or distributions
(including the proceeds from the sale of any property received as
a part of such distribution or distributions) less the amount
considered contributed to such trust by the participant.
If a participant receives either before or after becom-
ing an active participant a distribution or distributions from an
individual retirement account or individual retirement annuity
(within the meaning of Section 408 of the Code) or from a retire-
ment bond (within the meaning of Section 409 of the Code) and the
amount received represents the entire amount in such account, the
entire value of such annuity or the entire value of such bond,
and if no amount in such account, no part of the value of such
annuity or no part of the value of the proceeds of such bond is
attributable to any source other than a rollover distribution or
distributions (within the meaning of Section 402 of the Code)
from an employees' trust described in Section 401(a) of the Code
which is exempt from tax under Section 501(a) of the Code (other
than a trust which forms part of a plan which was a top-heavy
plan as defined in Section 416(i) of the Code under which the
participant was a key employee within the meaning of
Section 416(i) of the Code at the time contributions were made on
his behalf under such trust), and if such distribution is en-
tirely in cash, then such participant may contribute to this plan
an amount equal to the amount of such distribution or distribu-
tions.
Any Rollover Contribution pursuant to this Section
shall either (i) be delivered by the participant to the Company
and by the Company to the trustee on or before the 60th day after
the day on which the participant receives the distribution or on
or before such later date as may be prescribed by law, or (ii) be
directly transferred on behalf of the participant directly from
the trustee of an employees' trust described in Section 401(a) of
the Code that is exempt from tax under Section 501(a) of the
Code. Any such contribution must be accompanied by (i) a
statement of the participant that to the best of his knowledge
the amount so transferred meets the conditions specified in this
Section, and (ii) a copy of such documents as may have been
received by the participant advising him of the amount of and the
character of such distribution. Notwithstanding the foregoing,
the Company shall not accept a rollover contribution if in its
judgment accepting such contribution would cause this plan to
violate any provision of the Code or regulations.
ARTICLE 6
---------
TRUST
------
A trust shall be created by the execution of a trust
agreement between the employers and the trustee. All employer
and employee contributions under this plan shall be paid to the
trustee. The trustee shall hold all monies and other property
received by it. The trustee shall invest and reinvest the same,
together with the income therefrom, on behalf of the participants
collectively in accordance with the provisions of the trust
agreement, except to the extent that such monies and other pro-
perty are invested in the Fixed Income Investment Fund through an
insurance contract, or in the Equity Investment Fund through a
mutual fund, or in funds managed by an investment manager or
otherwise as provided for in Section 7.l. The trustee shall make
distributions from the trust fund at such time or times to such
person or persons and in such amounts as the committee shall
direct in accordance with this plan.
ARTICLE 7
---------
INVESTMENT ELECTIONS AND ALLOCATION OF TRUST
INCOME AND CONTRIBUTIONS TO PARTICIPANTS' ACCOUNTS
--------------------------------------------------
Section 7.1. Participant's Accounts and Investment
----------- -------------------------------------
Elections. (a) The committee shall establish and maintain or
- ----------
cause to be established and maintained one or more separate
accounts for each participant. The number and type of accounts
established and maintained for a participant will be determined
by the type of contributions made on behalf of or by the
participant. A separate account shall be established and
maintained for a participant for each of the following types of
contributions made on behalf of or by the participant, and any
earnings thereon which account shall be credited with such
contributions and earnings:
(i) Before-Tax Basic Contributions made pursuant
to Section 4.1(a);
(ii) Matching Contributions made pursuant to
Section 4.3(a) with respect to Before-Tax Basic Contri-
butions made pursuant to Section 4.1(a);
(iii) Matching Contributions made pursuant to
Section 4.3(b) with respect to After-Tax Basic
Contributions made pursuant to Section 5.1(a);
(iv) Before-Tax Supplemental Contributions made
pursuant to Section 4.2(a);
(v) After-Tax Basic Contributions made pursuant
to Section 5.1(a);
(vi) After-Tax Supplemental Contributions made
pursuant to Section 5.2(a) and Lump Sum Supplemental
Contributions made pursuant to Section 5.3; and
(vii) Rollover Contributions made pursuant to
Section 5.4.
A participant shall elect that each of his accounts be divided
into a Fixed Income Investment Fund subaccount, an Equity
Investment Fund subaccount, and a Balanced Fund subaccount. Each
such account may also be divided from time to time if the
committee so determines in its sole discretion in so many
additional investment fund subaccounts each of which is managed
by an investment manager or managers, as defined in Section 3(38)
of ERISA, appointed by the committee. Any such election shall
specify that contributions credited to a specific account be
invested either (1) wholly in one of such investment funds, or
(2) divided among two or more of such investment funds in
increments of 25%. A single investment election chosen by a
participant will apply to contributions to be credited to the
participant's accounts described in clauses (i), (ii) and (iv) of
the third sentence of this Section. A separate single investment
election chosen by a participant will apply to contributions to
be credited to the participant's accounts described in clauses
(iii), (v) and (vi) of the third sentence of this Section. As
indicated in Sections 5.3 and 5.4, a participant making a Lump
Sum Supplemental Contribution or a Rollover Contribution is
entitled to make a separate investment election with respect to
any such contribution. Earnings and losses in each investment
fund shall be credited or debited to each subaccount, except as
provided otherwise herein. All such subaccounts shall be solely
for accounting purposes, and there shall be no segregation of
assets of the trust among the separate accounts or subaccounts.
In addition, the committee shall establish and maintain, or cause
to be established and maintained, a loan subaccount as required
by Section 8.7(b).
(b) Any amounts allocated to any investment fund may
be invested temporarily in obligations of a short-term nature,
including prime commercial obligations or part interests therein,
or in interests in any trust fund that has been or shall be
created and maintained by the trustee or any other person or
entity as trustee for the collective short-term investment of
funds of trusts for employee benefit plans qualified under
Section 401(a) of the Code.
(c) All charges and expenses incurred in connection
with the purchase and sale of investments for an investment fund
shall be charged to such fund except to the extent paid by an
employer.
(d) Change of Investment Election. A participant may
-----------------------------
elect to change his investment election during any calendar month
effective (i) in the case of future contributions made pursuant
to Articles 4 and 5, or both, as designated by the participant,
as of the first payroll month, and (ii) in the case of the
balance in his accounts determined as of the valuation date
immediately preceding such change, as of the first day of any
calendar month, after the election is timely received by
submitting to his employer a written form specified by the
committee at least 21 days (or such shorter period as may be
specified by the committee) prior to the date as of which the
change is to be effective. Such change shall be limited to the
investment choices described in Section 7.1(a). Any such change
shall specify that such contributions be invested either
(i) wholly in one of the funds described in Section 7.1(a), or
(ii) divided among two or more of such funds. Any change in
investment election applicable to contributions made subsequent
to such change shall be in 25% increments and subject to the
provisions regarding elections contained in Section 7.1(a). Any
change in investment election applicable to amounts already
contributed to the various accounts prior to such change shall be
in 25% increments of the total value of all accounts of the
participant described in clauses (i), (ii) and (iv) of the third
sentence of Section 7.1(a), or described in clauses (iii), (v)
and (vi) of such sentence, or described in clause (vii) of such
sentence, respectively.
Section 7.2. Allocation to Participants' Accounts
----------- ------------------------------------
of Net Income of Trust and Fluctuation in Value of Trust Assets.
- ----------------------------------------------------------------
As soon as practicable after each valuation date, the net worth
(as defined in Section 7.3) of each investment fund as of such
valuation date shall be determined. If the net worth of such
fund so determined shall be more or less than the total of all
balances credited as of such valuation date to the subaccounts of
participants as of such valuation date the amount of such excess
or deficiency shall be prorated and credited or charged to the
subaccounts of all such participants invested in such investment
fund in the proportion that the adjusted balance of each such
subaccount as of the preceding valuation date increased by the
following amounts invested in such investment fund: (i) 50% of
the sum of the participant's Before-Tax Basic Contributions,
Before-Tax Supplemental Contributions, After-Tax Basic
Contributions and After-Tax Supplemental Contributions; (ii) any
Lump Sum Supplemental Contributions made by the participant after
the preceding valuation date; and (iii) 50% of any loan
repayments made after the preceding valuation date and reduced by
the amount of any withdrawals from such subaccount after such
preceding valuation date (but not less than zero) bears to the
total of such balances of all such subaccounts.
Section 7.3. Determination of Net Worth of an Invest-
----------- ---------------------------------------
ment Fund. The net worth of an investment fund as of any
- ---------
valuation date shall be the fair market value of all assets
(including any uninvested cash) held by such fund, as determined
by the trustee on the basis of such evidence and information as
it may deem pertinent and reliable, reduced by any liabilities of
such fund other than participants' accounts.
Section 7.4. Allocation of Contributions and
----------- -------------------------------
Forfeitures to Accounts. Contributions made pursuant to
- -----------------------
Sections 4.1(a), 4.2(a), 4.3, 5.1(a), 5.2(a), 5.3 and 5.4 shall
be allocated to the appropriate accounts of each participant on
whose behalf or by whom each such contribution is made as of the
date on which such contributions are delivered to the trustee.
Forfeitures described in Section 8.2(b) shall be allocated as of
the last day of the plan year following the plan year during
which the participant terminated his employment. Such
forfeitures shall be allocated to the same accounts to which
contributions made pursuant to Section 4.3(a) or Section 4.3(b)
are allocated during such year in proportion to such amounts so
allocated to such accounts during such plan year.
Section 7.5. Statutory Limitations on Allocations
----------- ------------------------------------
to Accounts. Notwithstanding Section 7.4, the amount allocated
- -----------
to a participant's accounts pursuant to Section 7.4 for any plan
year shall be limited so that (i) the aggregate annual additions
for such plan year to the participant's accounts in this plan and
in all other defined contribution plans maintained by any
employer shall not exceed the lesser of (A) $30,000 (adjusted for
increases in the cost of living as set forth in regulations) or,
if greater, one-fourth of the defined benefit limitation set
forth in Section 415(b)(1) of the Code as in effect for the
limitation year, and (B) 25% of the participant's compensation
for such plan year, and (ii) the sum of (A) and (B) below shall
not exceed 1.
(A) The sum of the annual additions to the
participant's accounts in this plan and the aggregate
annual additions to the participant's accounts in all
other defined contribution plans maintained by an
employer (determined as of the close of the plan year
for which these computations are being made) for each
plan year during which the participant shall have
participated in any such plan divided by the sum of,
calculated with respect to each such plan year, the
lesser of
(I) 125% of the maximum dollar amount
which under Section 415(c)(1)(A) of the Code
could have been contributed on behalf of the
participant to a defined contribution plan
for such plan year, and
(II) 35% of the participant's annual
compensation for such plan year.
(B) The aggregate projected annual benefit of the
participant under all defined benefit plans maintained
by an employer (determined as of the close of the plan
year for which these determinations are being made),
divided by the lesser of
(I) 125% of the maximum dollar limita-
tion contained in Section 415(b)(1)(A) of the
Code as adjusted for increases in the cost of
living as set forth in Section 415(d) of the
Code, and
(II) 140% of the average of the parti-
cipant's compensation for the three consecu-
tive calendar years of his participation in
such defined benefit plans during which his
compensation was the highest.
If the amounts allocable pursuant to Section 7.4 would exceed
either of the limitations set forth above, then, notwithstanding
Section 7.4, no amounts which would exceed such limitations shall
be allocated to the participant's accounts and any contributions
made by the participant under Sections 5.2(a) and 5.3 for such
plan year shall be refunded to the extent of such excess. If
either limitation would continue to be exceeded, any contribu-
tions made by the participant under Section 5.1(a) shall then be
refunded to the extent of such excess. If either limitation
would continue to be exceeded, then the amount otherwise allo-
cable, and contributions made by such participant's employer,
under Sections 4.1(a), 4.2(a) and 4.3 shall be reduced, pro rata,
to the extent necessary to comply with such limitation and the
contributions made by such employer pursuant to Sections 4.1(a)
and 4.2(a) shall be distributed to such participant.
If in any plan year, a participant's annual additions
exceed the limitations set forth above as a result of (i) an
error in estimating an employee's compensation, (ii) the
allocation of forfeitures, (iii) a reasonable error in
determining the amount of elective deferrals (within the meaning
of Section 402(g)(3) of the Code) that may be allocated to the
participant's accounts, or (iv) under other limited facts and
circumstances as determined by the Commissioner of Internal
Revenue, then the committee shall reduce the participant's annual
additions in the same manner as described in the preceding
sentence; provided, however, that to the extent that the amount
-------- --------
of any such reductions cannot be refunded to the participant, the
employer shall pay to such participant additional compensation in
an amount equal to such reduction.
The "annual additions" for a plan year to a partici-
pant's accounts in this plan and in any other defined contribu-
tion plan is the sum during such plan year of
(i) the amount of employer contributions allo-
cated to such participant's accounts,
(ii) the amount of forfeitures allocated to such
participant's accounts,
(iii) the amount allocated to any individual
medical benefit account (as defined in Section 415(l)
of the Code) maintained on behalf of the participant,
and
(iv) the amount of contributions by the partici-
pant to such plan but excluding any rollover contribu-
tion (within the meaning of Sections 402(a)(5),
403(a)(4), 408(d)(3) and 409(b)(3)(C) of the Code) made
to such plan.
As used in this Section, the terms "defined contri-
bution plan", "projected annual benefit", "compensation" and
"defined benefit plan" shall have the meaning set forth in
Section 415 of the Code and the regulations thereunder, and a
participant's employer shall include entities which are members
of the same controlled group (within the meaning of
Section 414(b) of the Code as modified by Section 415(g) of the
Code) or affiliated service group (within the meaning of
Section 414(m) of the Code) as his employer or under common
control (within the meaning of Section 414(c) of the Code as
modified by Section 415(g) of the Code) with his employer or such
entities.
Section 7.6. Correction of Error. If it shall come to
----------- -------------------
the attention of the committee that an error has been made in any
of the allocations prescribed by this Article, appropriate
adjustment shall be made to the accounts of all participants
which are affected by such error, except that no adjustment need
be made with respect to any participant whose account has been
distributed in full prior to the discovery of such error.
ARTICLE 8
---------
DISTRIBUTIONS, WITHDRAWALS AND LOANS
-------------------------------------
Section 8.1. Termination of Employment Under Circum-
----------- --------------------------------------
stances Entitling Participant to Full Distribution of His
- ---------------------------------------------------------
Accounts. If a participant's employment shall terminate under
- --------
any of the following circumstances, the participant or his
designated beneficiary, as the case may be, shall be entitled to
receive the balance of all of his accounts as of the valuation
date coincident with or next following the participant's termina-
tion of employment:
(1) After attaining age 65.
(2) Because of the participant's death.
(3) Because of total and permanent disability of
the participant which entitles the participant to a
disability benefit under the terms of the long term
disability maintained by the Company or, if the
participant became disabled after February 16, 1986 and
before November 30, 1990, a benefit under the terms of
the Retirement Program For Employees of Viskase
Corporation.
(4) After the participant has three years of
service.
(5) For any other reason other than the partici-
pant voluntarily quitting his employment or being
terminated for cause.
A participant shall be considered terminated for cause if a good
faith determination is made by the committee, either before or
after the participant's termination of employment, that the
participant has, prior or subsequent to his termination of
employment:
(1) participated in any fraud, dishonesty, or act
of theft or embezzlement toward an employer; or
(2) intentionally and materially damaged or
misappropriated the property or business of an em-
ployer; or
(3) committed a crime injurious to an employer as
to which he has confessed in writing or as to which he
has been found guilty by a court from which there is no
further appeal or as to which the time for appeal has
elapsed; or
(4) violated the provisions of a written covenant
not to compete with an employer or any other written
covenant prohibiting the participant's use, to the
detriment of an employer, of trade secrets or any
information in which an employer has a proprietary
interest.
Section 8.2. Termination of Employment Under Circum-
----------- --------------------------------------
stances Resulting in Partial Forfeiture of the Participant's
- ------------------------------------------------------------
Accounts. (a) If a participant's employment shall terminate
- --------
under circumstances other than those set forth in Section 8.1, he
shall be entitled to receive the value as of the valuation date
coincident with or next following his termination of employment
of (1) the balance of each of his accounts described in clauses
(i), (iv), (v), (vi) and (vii) of the third sentence of
Section 7.1(a), and (2) that percentage of his accounts described
in clauses (ii) and (iii) of the third sentence of Section 7.1(a)
determined by his years of service as of his termination of
employment as indicated in the following table:
Years of Vested
Service Percentage
---------- ----------
less than 3 0%
3 or more 100%
(b) The difference between the balance of any partici-
pant's accounts and the amount to which the participant is enti-
tled under Section 8.2(a) shall be immediately charged to such
accounts and shall be forfeited and reallocated pursuant to
Section 7.4 as of the end of the plan year following the plan
year during which the participant terminates his employment. If
the participant is reemployed prior to receiving a distribution
and prior to the date such forfeiture of any amount occurs, the
amount shall not be forfeited and the distribution of such
amount, along with any additional amounts credited to such
accounts pursuant to Article 7 or Article 9, shall be determined
pursuant to Section 8.1 or this Section, as the case may be, upon
the participant's subsequent termination of employment. If the
participant is reemployed after receiving a distribution and
prior to the date such forfeiture occurs, then the difference
shall not be forfeited if the participant repays the full amount
of the distribution prior to the time such forfeiture would
otherwise occur in which case the amount previously distributed
and the amount which would otherwise have been forfeited, along
with any additional amounts credited to the participant's
accounts pursuant to Article 7 or Article 9, shall be determined
pursuant to Section 8.1 or this Section, as the case may be, upon
the participant's subsequent termination of employment. Any
forfeitures shall be allocated among the accounts of participants
pursuant to Section 7.4.
Section 8.3. Time and Manner of Distribution upon
----------- -------------------------------------
Termination of Employment. (a) Form of Distribution. Except as
- ------------------------- --------------------
provided in the following sentence, any distribution to which a
participant becomes entitled upon termination of employment shall
be distributed by the trustee in the form of a lump sum cash
payment. For any distribution made on or after October 1, 1993
to a participant who is eligible to commence receiving a benefit
under the Retirement Program for Employees of Viskase Corporation
immediately upon such participant's termination of employment,
regardless of when such termination occurred, such distribution
shall be made by the trustee at the direction of the committee by
whichever of the following two methods the participant elects,
which election may be changed at any time prior to the date
distribution commences by advance written notice to the
committee:
(i) By payment in a lump sum, or
(ii) By payment in a series of approximately
equal, monthly installments, over a period that is not
longer than 180 months. If a balance remains in a
participant's account at the expiration of the period
of time over which installments are to be paid, the
remaining balance shall be paid to the participant in
the form of a lump sum payment. If the balance in the
participant's account is insufficient to complete the
number of installments initially contemplated, payment
of installments shall terminate upon exhaustion of the
account.
(b) Time of Distribution. (i) General Rule. The
-------------------- ------------
distribution of a lump sum payment shall be made no later than
the end of the plan year following the plan year in which the
participant terminates employment, unless the Participant termi-
nates employment on or after his 65th birthday, in which case
distribution shall be made no later than 60 days after the end of
the plan year in which he terminates employment; provided, how-
-------------
ever, that if the value of that portion of the participant's
- ----
accounts to which the participant is entitled is equal to or
greater than $3,500, then, unless the participant timely elects
to receive a lump sum payment as of any date following the date
on which he terminates employment and before April 1 of the
calendar year following the calendar year in which he attains age
70-1/2, the committee shall distribute the participant's accounts
as soon as administratively practicable after the participant
attains age 65, but in no event later than 60 days after the plan
year during which the participant attains age 65.
In the case of a distribution paid after the partici-
pant's death, such payment shall be made as soon as reasonably
practicable after the participant's death but not more than 5
years after the participant's death.
(b) Special rule for participants who attain age
--------------------------------------------
70-1/2 while employed. A participant who
- ---------------------
(i) is a 5-percent owner (as defined in section
416 of the Code) and any other participant who attained
age 70-1/2 after 1988, and
(ii) remains in employment beyond April 1 of the
year following the year in which he attains age 70-1/2
(other than an employee, who attained age 70-1/2 before
January 1, 1988 and who was not a 5% owner during any
plan year ending with or within the calendar year in
which he attained age 66-1/2 or any subsequent year)
shall commence receiving a minimum distribution, determined in
accordance with applicable regulations, on such April 1.
(c) Miscellaneous. All distributions made to any
-------------
participant or beneficiary shall be charged to his accounts. Any
distribution to be made to a participant or beneficiary shall be
made entirely in cash.
Section 8.4. Withdrawals Prior to Termination of
Employment. (a) Withdrawals of Amounts Attributable to After
- ---------- --------------------------------------------
- -Tax Contributions and Matching Contributions Attributable to
- -------------------------------------------------------------
After-Tax Basic Contributions. A participant may elect:
- ------------------------------
(i) to withdraw from his account described in
clause (vi) of the third sentence of Section 7.1(a) any
amount that is not more than the amount credited to
such account as of the valuation date next following
the day the election described below is made and, after
or concurrently with a withdrawal of the entire balance
of such account, to withdraw from his account described
in clause (v) of the third sentence of Section 7.1(a)
any amount that is not more than the amount credited to
such account as of the valuation date next following
the day the election described below is made. Any
withdrawal made by a participant within the twenty-four
month period beginning on the later of (1) the day of
the participant's commencement of active participation
in this plan, and (2) the day of the participant's most
recent withdrawal under the terms of this
subparagraph (i) or subparagraph (ii) of this
paragraph shall cause the participant to be ineligible
for contributions pursuant to Section 4.3 for a period
of three months beginning on the first day of the first
full payroll month of the first month following the day
of such withdrawal and ending on the last day of the
last payroll month beginning during the third month
following the day of such withdrawal.
(ii) after or concurrently with a withdrawal of
all amounts which can be withdrawn pursuant to subpara-
graph (i) of this paragraph, but only if the par-
ticipant has completed at least three years of service
as determined for purposes of Sections 8.1 and 8.2(a),
to withdraw from that portion of his account described
in clause (iii) of the third sentence of Section 7.l(a)
an amount that does not exceed the participant's
Matching Contributions attributable to After-Tax Basic
Contributions that have been credited to such account
for at least twenty-four months, plus an allocable
amount of earnings determined as of the valuation date
next following the day the election described below is
made.
(iii) after or concurrently with a withdrawal of
all amounts which can be withdrawn pursuant to
subparagraphs (i) and (ii) of this paragraph, to
withdraw from that portion of his account described in
clause (vii) of the third sentence of Section 7.1(a)
any amount that is not more than the amount credited to
such account as of the valuation date next following
the day the election described below is made.
Any election under this paragraph shall be made by giving written
notice to the committee in the form prescribed by the committee
at least 30 days (or such shorter period as the committee may
determine) prior to the elected withdrawal date. Any amounts so
withdrawn shall be withdrawn from the participant's investment
fund subaccounts in the manner specified by the participant in
his request for withdrawal and charged to the appropriate
accounts immediately upon such withdrawal. If no such
specification is made, the committee shall determine, in a
uniform and nondiscriminatory manner, the amounts to be withdrawn
from each of the participant's investment fund subaccounts.
(b) Withdrawals of Amounts Attributable to Before-
----------------------------------------------
Tax Basic Contributions and Matching Contributions Attributable
- ----------------------------------------------------------------
to Before-Tax Basic Contributions. Upon the participant's demon-
- ---------------------------------
stration to the committee's satisfaction of financial hardship, a
participant may elect to withdraw amounts from the portions of
his account described in clauses (i) and (iv) of the third
sentence of Section 7.1(a), and if he has completed at least
three years of service as determined for purposes of Sections 8.1
and 8.2(a), he may elect to withdraw any amount from the portion
of his account described in clause (ii) of such sentence that
does not exceed the participant's Matching Contributions attri-
butable to Before-Tax Basic Contributions that have been credited
to the participant's account for at least twenty-four months.
Financial hardship shall be deemed to exist only if the
distribution is necessary because of immediate and substantial
financial needs of the participant in connection with the educa-
tion of the participant's dependents, the acquisition or con-
struction of the participant's principal residence, or the sick-
ness, involvement in an accident or total and permanent dis-
ability of a member of the participant's immediate family or in
other circumstances determined in a nondiscriminatory manner by
the committee, and if the participant certifies, in writing, to
the committee that such financial hardship exists and the funds
necessary to satisfy such financial hardship are not reasonably
available to the participant from other sources. The maximum
amount which can be withdrawn on account of financial hardship
shall not exceed the lesser of (1) the amount determined by the
committee to satisfy the participant's financial hardship, which
amount shall include any amounts necessary to pay federal, state
and local income taxes or penalties reasonably anticipated to
result from the distribution, and (2) the amounts credited to
such accounts as of the valuation date coincident with or immedi-
ately preceding the day the election described above is made,
except that no amount attributable to earnings accrued after
December 31, 1988 in respect of the portions of his account
described in clauses (i) and (iv) of the third sentence of
Section 7.1(a) shall be available for withdrawal. Any amounts
withdrawn under this Section shall be withdrawn from the partici-
pant's investment fund subaccounts in the manner specified by the
participant in his request for withdrawal and charged to the
appropriate accounts immediately upon such withdrawal. If no
such specification is made, the committee shall determine, in a
uniform and nondiscriminatory manner, the amounts to be withdrawn
from each of the participant's investment fund subaccounts. The
committee may adopt such rules and procedures as it deems neces-
sary to implement the provisions of this Section.
Section 8.5. Designation of Beneficiary. Each parti-
------------ --------------------------
cipant shall have the right to designate a beneficiary or benefi-
ciaries (who may be designated contingently or successively and
who may be an entity other than a natural person) to receive any
distribution to be made under Section 8.3 upon the death of such
participant or, in the case of a participant who dies subsequent
to termination of his employment but prior to the distribution of
the entire amount to which he is entitled under this plan, any
undistributed balance to which such participant would have been
entitled; provided, however, that such designation shall not be
effective if the participant has been married throughout the one-
year period ending on the date of the participant's death unless
such designation specifically identifying the beneficiary or
beneficiaries has been consented to by the person who was the
participant's spouse during such period in writing acknowledging
the effect of such consent and witnessed by a plan representative
designated by the committee or a notary public, or it is estab-
lished to the satisfaction of a plan representative that such
consent cannot be obtained because the participant's spouse
cannot be located or because of such other circumstances as may
be prescribed in regulations. A participant may from time to
time, without the consent of any beneficiary, change any such
designation, but only upon obtaining the consent of the partici-
pant's spouse as set forth in the preceding sentence if the
participant's new designated beneficiary is any person other than
the participant's spouse. Such designation and each change
therein shall be made in the form prescribed by the committee and
shall be filed with the committee. If (i) no beneficiary has
been named by a deceased participant, (ii) such designation is
not effective pursuant to the proviso contained in the first
sentence of this Section 8.5, or (iii) the designated beneficiary
has predeceased the participant, the balance of the deceased
participant's accounts shall be distributed by the trustee at the
direction of the committee (a) to the surviving spouse of such
deceased participant, if any, or (b) if there shall be no surviv-
ing spouse, to the surviving children of such deceased partici-
pant, if any, in equal shares, or (c) if there shall be no sur-
viving spouse or surviving children, to the executor or adminis-
trator of the estate of such deceased participant, or (d) if no
executor or administrator shall have been appointed for the
estate of such deceased participant within six months following
the date of the participant's death, in equal shares to the
person or persons who would be entitled under the intestate
succession laws of the state of the participant's domicile to
receive the participant's personal estate. The marriage of a
participant shall be deemed to revoke any prior designation of a
beneficiary made by him and a divorce shall be deemed to revoke
any prior designation of the participant's divorced spouse if
written evidence of such marriage or divorce shall be received by
the committee before distribution shall have been made in accor-
dance with such designation. If within a period of three years
following the death or other termination of employment of any
participant the committee in the exercise of reasonable diligence
has been unable to locate the person or persons entitled to
benefits under this Article in respect of such participant, the
rights of such person or persons shall be forfeited and the
committee shall direct the trustee to pay such benefit or bene-
fits to the person or persons next entitled thereto under the
succession prescribed by this Section 8.5.
Section 8.6. Distributions to Minor and Disabled
----------- -----------------------------------
Participants and Beneficiaries. Any distribution under this
- ------------------------------
Article which is payable to a participant or beneficiary who is a
minor or who, in the opinion of the committee, is unable to
manage his affairs by reason of illness or mental incompetency
may be made to or for the benefit of any such participant or
beneficiary in such of the following ways as the committee shall
direct: (a) directly to any such minor participant or benefici-
ary if, in the opinion of the committee, he is able to manage his
affairs, (b) to the legal representative of any such participant
or beneficiary, (c) to a custodian under a Uniform Gifts to
Minors Act for any such minor participant or beneficiary, or
(d) to some near relative of any such participant or beneficiary
to be used for the latter's benefit. Neither the committee nor
the trustee shall be required to see to the application by any
third party of any distribution made to or for the benefit of a
participant or beneficiary pursuant to this Section.
Section 8.7. Loans to Participants. (a) Making of
------------ --------------------- ---------
Loans; Restrictions. Subject to the restrictions set forth in
- -------------------
this Section 8.7, the committee shall maintain a loan program
whereby any participant who is an employee may upon 30 days' (or
such shorter period as the committee may determine) written
application to the committee, borrow as of any day an amount
representing a multiple of $250 but not less than $1,000;
provided, however, that such borrowed amount shall not exceed the
- -----------------
lesser of (1) 50% of (a) for periods prior to October 1, 1993,
the sum of the amounts credited to the participant's account
described in clauses (i) and (iv) of the third sentence of
Section 7.1(a) as of the valuation date coincident with or
immediately preceding the date of such loan and (b) for periods
on or after October 1, 1993, the sum of the amounts credited to
the participant's account described in clauses (i) through (vii)
of the third sentence of Section 7.1(a) as of the valuation date
coincident with or immediately preceding the date of such loan,
and (2) $50,000. Prior to October 1, 1993, successive loans may
be made at intervals of not more than two years, provided, that
--------
there are no outstanding loans with respect to the participant;
on and after October 1, 1993, successive loans may be made to a
participant provided, that a participant may receive within any
--------
calendar year a maximum of three new loans and may have at any
time a maximum of two loans outstanding. The principal amount of
any outstanding loan shall not at any time be increased, except
by reason of amounts in arrears. Amounts equal to such loans
shall be transferred from the participant's investment fund
subaccounts as the participant shall specify in written direc-
tions to the committee. If no such specification is made, the
committee shall determine, in a uniform and nondiscriminatory
manner, the amounts to be transferred from each of the
participant's investment fund subaccounts. Participants who are
employees shall be permitted to borrow from this plan only upon
the following terms and conditions.
(1) The period for repayment of the loan shall be
arrived at by mutual agreement between the
committee and the participant, but such period
shall not exceed five years from the date of the
loan; provided, however, that (a) for loans made
-----------------
before January 1, 1987, if the purpose of the
loan is to acquire, construct, reconstruct or
substantially rehabilitate a structure which
is or will be the principal residence of the
participant, his or her spouse, or their
children, and (B) for loans made after Decem-
ber 31, 1986, if the purpose of the loan is
to acquire any dwelling unit which within a
reasonable time is to be used as the
principal residence of the participant, then
such period for repayment shall not exceed
ten years. Such loan may be prepaid, without
penalty, by delivery to the committee of cash
in an amount equal to the entire unpaid
balance of such loan, and no other prepayment
shall be permitted.
(2) No loan shall be made unless the participant
consents to have such loan repaid in the manner of a
substantially level amortization of such loan of not
less than $20 per month deducted from regular payments
of compensation during the term of the loan or to some
other method of repayment agreed upon by the committee
providing for substantially level amortization of such
loan.
(3) Each loan shall be evidenced by the partici-
pant's collateral promissory note for the amount of the
loan, with interest, payable to the order of the
trustee, and shall be secured by an assignment of 50%
of the participant's entire right, title and interest
in and to the participant's accounts. Additional
security may be required by the committee.
(4) Each loan shall bear a fixed interest rate
commensurate with the interest rates then being charged
by persons in the business of lending money for loans
which would be made under similar circumstances.
(5) No distribution shall be made to any partici-
pant who has borrowed from the fund, or to a benefici-
ary of any such participant unless and until the loan,
including interest, has been repaid out of the funds
otherwise distributable.
The provisions of this paragraph shall also apply to any person
who is a participant but who is not an employee and any benefi-
ciary of a deceased participant provided, that such participant
--------------
or beneficiary is a "party in interest" as defined in Section
3(14) of ERISA. The grant of a loan and the terms and conditions
thereof shall apply to any such participant or beneficiary in the
same manner as to a participant who is an employee, except that
repayment of the loan may not be made by payroll deductions.
(b) Loan Subaccount. The trustee shall establish,
---------------
operate and maintain a loan subaccount for the receipt of amounts
transferred from a participant's investment fund accounts pursu-
ant to Section 8.7(a). Appropriate accounting entries reflecting
such transfers shall be concurrent with the disbursement to the
participant or beneficiary of amounts borrowed. Interest re-
ceived by the trustee in respect of amounts borrowed by a partic-
ipant or beneficiary shall be credited to the loan subaccount of
the participant on each valuation date. Interest so allocated to
a participant's account shall then be allocated among such
participant's investment fund subaccounts in accordance with
investment fund direction in effect at the time of such
allocation with respect to contributions to be credited to the
participant's accounts described in clauses (i), (ii) and (iv) of
the third sentence of Section 7.1(a). A repayment of principal
by a participant or beneficiary shall be invested among the
investment funds and credited to the appropriate investment fund
subaccounts of the participant in accordance with the investment
direction in effect at the time of such prepayment with respect
to contributions to be credited to the participant's accounts
described in clauses (i), (ii) and (iv) of the third sentence of
Section 7.1(a). If no contributions are to be credited to the
participant's accounts described in clauses (i), (ii) and (iv) of
the third sentence of Section 7.1(a) at the time of any interest
payment or principal repayment, such payments or repayments shall
be invested in accordance with the participant's investment
direction.
Section 8.8. Direct Rollover Option. (a) In General.
------------ ---------------------- ----------
For distributions made on or after January 1, 1993, in the case
of a distribution that is an "eligible rollover distribution"
within the meaning of section 402 of the Code, a participant (or
surviving spouse of a participant) may elect that all or any
portion of such distribution to which he is entitled shall be
directly transferred as a rollover contribution from the Plan to
(i) an individual retirement account described in section 408(a)
of the Code, (ii) an individual retirement annuity described in
section 408(b) of the Code, (iii) an annuity plan described in
section 403(a) of the Code, or (iv) another plan qualified under
section 401(a) of the Code (the terms of which permit the
acceptance of rollover distributions) (provided, however, that a
-------- -------
surviving spouse of a participant may only elect to have such
distribution transferred directly to an individual retirement
account or individual retirement annuity). Notwithstanding the
foregoing, a participant (or his surviving spouse) shall not be
entitled to elect to have an eligible rollover distribution
transferred as a rollover contribution where the total of all
eligible rollover distributions with respect to such participant
for a plan year is reasonably expected to total less than $200,
and shall not be entitled to elect to have an amount which is
less than the total amount of any such distribution transferred
as a rollover contribution unless such portion equals at least
$500.
(b) Timing of Distribution. If a distribution is one
-----------------------
to which sections 401(a)(11) and 417 of the Code do not apply,
such distribution may commence less than 30 days after the notice
required under section 1.411(a)-11(c) of the regulations is
given, provided that:
(i) the committee clearly informs the participant
that the participant has a right to a period of at
least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution
(and, if applicable, a particular distribution option),
and
(ii) the participant, after receiving the notice,
affirmatively elects a distribution.
ARTICLE 9
---------
SPECIAL PARTICIPATION AND
DISTRIBUTION RULES RELATING TO
REEMPLOYMENT OF TERMINATED EMPLOYEES,
EMPLOYMENT BY AFFILIATES AND LEASED EMPLOYEES
---------------------------------------------
Section 9.1. Change of Employment Status. If a person
----------- ----------------------------
who is not a participant shall become a participant because of a
change in his employment status, such person shall become a
participant as of the date of such change.
Section 9.2. Reemployment of a Participant. If a
------------ -----------------------------
participant is reemployed after receiving a distribution of less
than the full value of his account balances and therefore incurs
a forfeiture of an amount pursuant to Section 8.2(b), then the
amount of such forfeiture shall be restored to the participant's
accounts if the participant repays the full amount of the distri-
bution prior to the end of the period beginning on the date of
his prior termination of employment and ending on the date on
which he would have incurred a five-year break in service if he
had not been reemployed. Such restoration shall occur as soon as
reasonably practicable after the participant's repayment of his
distribution.
Section 9.3. Determining Service for a Reemployed
----------- -------------------------------------
Participant. Service shall be the aggregate of all periods of
- -----------
service; provided, however, that if after termination of employ-
-----------------
ment a participant has a break in service of at least five con-
secutive years, service before such break in service shall not be
increased by service after such break, and separate accounts
shall be maintained for benefits accrued after and before such
break; and, provided further, that if a participant has a break
----------------
in service of one or more consecutive years, then service after
such break shall be increased by service before such break only
if (a) the participant had three or more years of service before
such break or such break did not total five or more years, and
(b) the participant completes at least one year of service after
such break.
Section 9.4. Employment by Affiliates. If a person is
----------- ------------------------
employed by an affiliate, then any period of such employment
shall be taken into account for the purpose of determining when
such person is entitled to receive the payment of benefits upon
termination of employment under Article 8, to the same extent it
would have been had such period of employment been with an em-
ployer.
Section 9.5. Leased Employees. If a person who per-
----------- -----------------
formed services as a leased employee (within the meaning of
section 414(n)(2) of the Code) of any employer or an affiliate
becomes an employee, or if an employee becomes such a leased
employee, then any period during which such services were so
performed shall be taken into account for the purposes of deter-
mining when such person is entitled to receive the payment of
benefits upon termination of employment under Article 8, to the
same extent it would have been had such service been employment
as a participant. This Section shall not apply to any period of
service during which such a leased employee was covered by a plan
described in Section 414(n)(5) of the Code. An individual shall
not be eligible to participate under this plan solely as a result
of being a leased employee.
ARTICLE 10
-----------
ADMINISTRATION
---------------
Section 10.1. The Committee. (a) The board of
------------ --------------
directors of the Company shall appoint a committee consisting of
three or more directors, officers or other employees which shall
be known as the Benefits Committee. The committee shall be the
"administrator" of this plan and a "named fiduciary" within the
meaning of such terms as used in ERISA. The committee shall be
responsible, except for duties specifically vested in the trust-
ee, for the administration of the provisions of this plan. The
board of directors of the Company shall have the right at any
time, with or without cause, to remove any member or members of
the committee. A member of the committee may resign and his
resignation shall be effective upon delivery of his written
resignation to the Company. Upon the resignation, removal or
failure or inability for any reason of any member of the
committee to act hereunder, the board of directors of the Compa-
ny, shall appoint a successor member. All successor members of
the committee shall have all the rights, privileges and duties of
their predecessors, but shall not be held accountable for the
acts of their predecessors.
(b) No member of the committee who is a participant
shall take part in any action of the committee or any matter
involving solely his rights under this plan.
(c) Promptly after the appointment of the original
members of the committee and, from time to time thereafter,
promptly after the appointment of any successor member of the
committee, the trustees shall be notified as to the names of the
persons appointed as members or successor members of the commit-
tee by delivery to the trustee of a certified copy of the resolu-
tion of the board of directors of the Company making such ap-
pointment.
(d) The committee shall have the duty and authority to
interpret and construe this plan in regard to all questions of
eligibility, the status and rights of participants and other
persons under this plan, and the manner, time, and amount of
payment of any distributions under this plan.
(e) Each employer shall, from time to time, upon
request of the committee, furnish to the committee such data and
information as the committee shall require in the performance of
its duties.
(f) The committee shall direct the trustees to make
payments of amounts to be distributed from the trust under
Article 8.
(g) The committee shall supervise the collection of
participants' contributions and the delivery of such amounts to
the trustees.
(h) The members of the committee may allocate their
responsibilities among themselves and may designate any person,
partnership or corporation to carry out any of their responsibil-
ities. Any such allocation or designation may be reduced to
writing and such writing shall be kept with the records of the
meetings of the committee.
(i) The committee may act at a meeting, or by writing
without a meeting, by the vote or written assent of a majority of
its members. The committee shall elect one of its members as
secretary. The secretary shall be this plan's agent for service
of legal process, keep records of all meetings of the committee,
and forward all necessary communications to the trustees. The
committee may adopt such rules and procedures as it deems
desirable for the conduct of its affairs and the administration
of this plan, provided that any such rules and procedures shall
be consistent with the provisions of this plan and ERISA.
(j) The members of the committee, and each of them,
shall discharge their duties with respect to this plan (i) solely
in the interest of the participants and beneficiaries, (ii) for
the exclusive purpose of providing benefits to employees partici-
pating in this plan and their beneficiaries and of defraying
reasonable expenses of administering the plan and (iii) with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. The employers
hereby jointly and severally indemnify the members of the
committee, and each of them, from the effects and consequences of
their acts, omissions and conduct in their official capacity,
except to the extent that such effects and consequences shall
result from their own willful misconduct.
(k) No member of the committee shall receive any
compensation or fee for his services, unless otherwise agreed
between such member of the committee and the employers, but the
employers shall reimburse the committee members for any necessary
expenditures incurred in the discharge of their duties as
committee members.
(l) The committee may employ such counsel (who may be
of counsel for any employer) and agents and may arrange for such
clerical and other services as it may require in carrying out the
provisions of this plan.
Section 10.2. Claims Procedure. If any participant or
------------ ----------------
beneficiary believes he is entitled to benefits in an amount
greater than those which he is receiving or has received, he may
file a claim with the secretary of the committee. Such a claim
shall be in writing and state the nature of the claim, the facts
supporting the claim, the amount claimed, and the address of the
claimant. The secretary of the committee shall review the claim
and, unless special circumstances require an extension of time,
within 90 days after receipt of the claim, give written notice to
the claimant of his decision with respect to the claim. If
special circumstances require an extension of time, the claimant
shall be so advised in writing within the initial 90-day period
and in no event shall such an extension exceed 90 days. The
notice of the secretary's decision with respect to the claim
shall be written in a manner calculated to be understood by the
claimant and, if the claim is wholly or partially denied, set
forth the specific reasons for the denial, specific references to
the pertinent plan provisions on which the denial is based, 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 an explanation of
the claim review procedure under the plan. The secretary shall
also advise the claimant that he or his duly authorized represen-
tative may request a review by the full committee of the denial
by filing with the secretary of the committee, within 65 days
after notice of the denial has been received by the claimant, a
written request for such review. The claimant shall be informed
that he may have reasonable access to pertinent documents and
submit comments in writing to the committee within the same 65-
day period. If a request is so filed, review of the denial shall
be made by the full committee within, unless special circum-
stances require an extension of time, 60 days after receipt of
such request, and the claimant shall be given written notice of
the final decision. If special circumstances require an exten-
sion of time, the claimant shall be so advised in writing within
the initial 60-day period and in no event shall such an extension
exceed 60 days. The notice of the final decision shall include
specific reasons for the decision and specific references to the
pertinent plan provisions on which the decision is based and
shall be written in a manner calculated to be understood by the
claimant.
Section 10.3. Procedures for Domestic Relations
------------ ---------------------------------
Orders. If the committee shall receive any judgment, decree or
- ------
order (including approval of a property settlement agreement)
pursuant to State domestic relations or community property law
relating to the provision of child support, alimony or marital
property rights of a spouse, former spouse, child or other depen-
dent of a participant and purporting to provide for the payment
of all or a portion of the balance of the participant's accounts
to or on behalf of one or more of such persons (such judgment,
decree or order being hereinafter called a "domestic relations
order"), the secretary of the committee shall within a reasonable
time notify the participant and each other payee specified in
such domestic relations order of its receipt and of the following
procedures. After receipt of a domestic relations order, the
secretary of the committee shall determine whether such order
constitutes a "qualified domestic relations order" as defined in
Section 13.2(b) and, within a reasonable time, shall notify the
participant and each other payee named in such order in writing
of its determination. Such notice shall be written in a manner
calculated to be understood by the parties and shall set forth
specific reasons for the secretary's determination within a
reasonable time after receipt of the request for review, and
shall contain an explanation of the review procedure under this
plan. The secretary shall also advise each party that he or his
duly authorized representative may request a review by the full
committee of the secretary's determination by filing with the
committee a written request for such review. The secretary of
the committee shall give each party affected by such request
notice of such request for review. Each party also shall be
informed that he may have reasonable access to pertinent
documents and submit comments in writing to the committee in
connection with such request for review. Each party shall be
given written notice of the committee's final determination,
which notice shall be written in a manner intended to be under-
stood by the parties and shall include specific reasons for such
final determination.
Section 10.4. Notices to Participants and
------------ ---------------------------
Beneficiaries. All notices, reports and statements given, made,
- -------------
delivered or transmitted to a participant or beneficiary shall be
deemed to have been duly given, made or transmitted when mailed
by first class mail with postage prepaid and addressed to the
participant or beneficiary at the address last appearing on the
records of the committee. A participant or beneficiary may
record any change of his address from time to time by written
notice filed with the committee.
Section 10.5. Notices to Employers or Committee.
------------ ----------------------------------
Written directions, notices and other communications from parti-
cipants or beneficiaries to the employers or the committee shall
be deemed to have been duly given, made or transmitted either
when delivered to such location as shall be specified upon the
forms prescribed by the committee for the giving of such
directions, notices and other communications, or when mailed by
first class mail with postage prepaid and addressed to the
addressee at the address specified upon such forms.
Section 10.6. Records. The committee shall keep a
------------ -------
record of all of its proceedings and shall keep or cause to be
kept all books of account, records and other data as may be
necessary or advisable in its judgment for the administration of
this plan.
Section 10.7. Reports of Trust Fund and Accounting
------------ -------------------------------------
to Participants. The committee shall keep on file, in such form
- ---------------
as it shall deem convenient and proper, all reports concerning
the trust fund received by it from the trustee. The committee
may, at any time, advise each participant and beneficiary in
writing of the balances credited to his accounts as of any valua-
tion date.
ARTICLE 11
-----------
PARTICIPATION BY OTHER EMPLOYERS
--------------------------------
Section 11.1. Adoption of Plan. With the consent of
------------ -----------------
the Company, any corporation may become a participating employer
under this plan by (a) taking such action as shall be necessary
to adopt this plan, (b) filing with the committee a duly certi-
fied copy of this plan as adopted by such corporation,
(c) becoming a party to the trust agreement establishing the
trust fund, and (d) executing and delivering such instruments and
taking such other action as may be necessary or desirable to put
this plan into effect with respect to such corporation.
Section 11.2. Withdrawal from Participation. Any
------------ -----------------------------
employer may, with the consent of the Company, withdraw from
participation in this plan at any time by filing with the commit-
tee a duly certified copy of a resolution of its board of direc-
tors to that effect and giving notice of its intended withdrawal
to the committee, the other employers and the trustee prior to
the effective date of withdrawal.
Section 11.3. Company as Agent for Employers. Each
------------ -------------------------------
corporation which shall become a participating employer pursuant
to Section 11.1 or Article 12, other than an employer who is
substituted for the Company under Article 12, by so doing shall
be deemed to have appointed the Company its agent to exercise on
its behalf all of the powers and authorities hereby conferred
upon the Company by the terms of this plan, including, but not by
way of limitation, the power to amend and terminate this plan.
The authority of the Company to act as such agent shall continue
unless and until the portion of the trust fund held for the
benefit of employees of the particular employer and their benefi-
ciaries is set aside in a separate trust as provided in Sec-
tion 15.2.
ARTICLE 12
-----------
CONTINUANCE BY A SUCCESSOR
--------------------------
In the event that any employer shall be reorganized by
way of merger, consolidation, transfer of assets or otherwise, so
that a corporation, partnership or person other than an employer
shall succeed to all or substantially all of such employer's
business, such successor may be substituted for such employer
under this plan by adopting this plan and becoming a party to the
trust agreement. Contributions by such employer shall be auto-
matically suspended from the effective date of any such reorgani-
zation until the date upon which the substitution of such succes-
sor corporation for the employer under this plan becomes effec-
tive. If, within 90 days following the effective date of any
such reorganization, such successor shall not have elected to
become a party to this plan, or if the employer shall adopt a
plan of complete liquidation other than in connection with a
reorganization, this plan shall be automatically terminated with
respect to employees of such employer as of the close of business
on the 90th day following the effective date of such reorganiza-
tion or as of the close of business on the date of adoption of
such plan of complete liquidation, as the case may be, and the
committee shall direct the trustee to distribute the portion of
the trust applicable to such employer in the manner provided in
Section 15.3.
ARTICLE 13
----------
MISCELLANEOUS
--------------
Section 13.1. Expenses. All costs and expenses
------------ --------
incurred in administering this plan and the trust fund, including
the expenses of the committee, the fees of counsel and any agents
for the committee, the fees and expenses of the trustee, the fees
of counsel for the trustee and other administrative expenses
shall be paid by the trustee from the trust fund, unless they are
paid by the Company or any other employer.
Section 13.2. Non-Assignability. (a) It is a condi-
------------ ------------------
tion of the plan, and all rights of each participant and
beneficiary shall be subject thereto, that no right or interest
of any participant or beneficiary in this plan shall be
assignable or transferable in whole or in part, either directly
or by operation of law or otherwise, including, but not by way of
limitation, execution, levy, garnishment, attachment, pledge or
bankruptcy, but excluding devolution by death or mental
incompetency, and no right or interest of any participant or
beneficiary in this plan shall be liable for, or subject to, any
obligation or liability of such participant or beneficiary,
including claims for alimony or the support of any spouse, except
as provided in Section 13.2(b).
(b) Notwithstanding any provision of this plan to the
contrary, if a participant's interest in this plan, or any por-
tion thereof, shall be the subject of one or more qualified
domestic relations orders, as defined below, such interest or
portion thereof shall be paid to the participant at the time and
in the manner specified in any such order. For purposes of this
paragraph (b), "qualified domestic relations order" shall mean
any "domestic relations order" as defined in Section 10.3 which
creates (or recognizes the existence of) or assigns to a person
other than the participant (an "alternate payee") rights to all
or a portion of the participant's interest in this plan, and:
(A) clearly specifies
(i) the name and last known mailing
address (if any) of the participant and each
alternate payee covered by such order,
(ii) the amount or percentage of the
participant's benefits to be paid by this
plan to each such alternate payee, or the
manner in which such amount or percentage is
to be determined,
(iii) the number of payments to, or
period of time for which such order applies,
and
(iv) each plan to which such order
applies; and
(B) does not require
(i) this plan to provide increased
benefits (determined on the basis of
actuarial equivalence) and
(ii) require the payment of benefits to
an alternate payee which at the time such
order is issued, already are required to be
paid to a different alternate payee under a
prior qualified domestic relations order; and
(C) does not require the payment of benefits to
any alternate payee before the first to occur of
(i) the date on which the participant is entitled to a
distribution under the plan, and (ii) the participant's
attainment of age 50,
all as determined pursuant to the procedures contained in Section
10.3. Any amounts subject to a domestic relations order prior to
determination of its status as a qualified domestic relations
order which would otherwise be paid to the participant shall be
segregated in a separate account or an escrow account pending
such determination. If within a reasonable time after receipt of
such order by the committee, it is finally determined that a
domestic relations order constitutes a qualified domestic rela-
tions order, the amount so segregated (plus any interest thereon)
shall be paid to the alternate payee. If such determination is
not made within a reasonable time after receipt of such order by
the committee, then the amount so segregated (plus any interest
thereon) shall, as soon as practicable after the end of period,
be paid to the participant. Any determination after such period
shall be applied only to payments made on or after the date of
such determination.
Section 13.3. Employment Non-Contractual. This plan
------------ --------------------------
confers no right upon any employee to continue in employment.
Section 13.4. Limitation of Rights. A participant or
------------ --------------------
beneficiary shall have no right, title or claim in or to any
specific asset of the trust, but shall have the right only to
distributions from the trust fund on the terms and conditions
herein provided.
Section 13.5. Merger or Consolidation with Another
------------ -------------------------------------
Plan. A merger or consolidation with, or transfer of assets or
- ----
liabilities to, any other plan shall not be effected unless the
terms of such merger, consolidation or transfer are such that
each participant, beneficiary or other person entitled to receive
benefits from this plan would, if this plan were to terminate
immediately after the merger, consolidation or transfer, receive
a benefit equal to or greater than the benefit such person would
be entitled to receive if this plan were to terminate immediately
before the merger, consolidation, or transfer.
Section 13.6. Gender and Plurals. Wherever used in
------------ ------------------
this plan, words in the masculine gender shall include masculine
or feminine gender, and, unless the context otherwise requires,
words in the singular shall include the plural, and words in the
plural shall include the singular.
ARTICLE 14
-----------
TOP-HEAVY PLAN REQUIREMENTS
----------------------------
Section 14.1. Top-Heavy Plan Determination. If as of
------------- ----------------------------
the determination date (as hereinafter defined) for any plan year
the aggregate of (a) the sum of the account balances under all
defined contribution plans in the aggregation group (as defined
below) and (b) the present value of accrued benefits under all
defined benefit plans in such aggregation group, in each case
with respect to all participants in such plans who are key
employees (as defined in section 416(i) of the Code) for such
plan year, exceeds 60% of the aggregate of the account balances
and present value of accrued benefits of all participants in such
plans as of the determination date (as hereinafter defined), then
this plan shall be a top-heavy plan for such plan year, and the
requirements of Sections 14.2, 14.3 and 14.4 shall be applicable
for such plan year as of the first day thereof. If the plan
shall be a top-heavy plan for any plan year and not be a top-
heavy plan for any subsequent plan year, such requirements shall
not be applicable for such subsequent plan year except to the
extent provided in Section 14.3.
The aggregation group shall consist of (a) if a key
employee was a participant in this plan during the plan year
containing the determination date or any or any of the four
preceding plan years, then this plan and each other plan of an
employer which is qualified under Section 401(a) of the Code and
in which a key employee is a participant (regardless of whether
the plan terminated) during any of such plan years, (b) this plan
and each other plan which enables this plan to meet the require-
ments of Section 401(a)(4) or 410(b) of the Code during the plan
year containing the determination date or any of the four preced-
ing plan years, and (c) this plan and each other plan of an
employer which it shall so designate and which together with this
plan shall satisfy the requirements of Sections 401(a)(4) and 410
of the Code.
For purposes of this Article (i) the determination date
for all plans in the aggregation group shall be the last day of
the preceding plan year, but for the first plan year of the plan
shall be the last day of the first plan year, and (ii) the valua-
tion date applicable to a determination date shall be (a) in the
case of a defined contribution plan, the date as of which account
balances are determined which is coincident with or immediately
precedes the determination date, and (b) in the case of a defined
benefit plan, the date as of which the most recent actuarial
valuation for the plan year which includes the determination date
is prepared, except that if any such plan specifies a different
determination or valuation date, such different date shall be
used with respect to such plan. For the purpose of determining
the accrued benefit or account balance of a participant, any
person who received a distribution from a plan in the aggregation
group during the 5-year period ending on the last day of the
preceding plan year shall be treated as a participant in such
plan, and any such distribution shall be included in such parti-
cipant's account balance or accrued benefit as the case may be.
Section 14.2. Minimum Contribution for Top-Heavy
------------- ----------------------------------
Years. The sum of the employer contributions under Sections 4.1,
- -----
4.2 and 4.3 allocated to the accounts of the participant (other
than a key employee as defined in section 416(i) of the Code) for
any plan year shall in no event be less than the lesser of (i) 3
percent of such participant's compensation (as defined under
section 415 of the Code) during such plan year and (ii) the
highest percentage at which contributions are made on behalf of
any key employee (as defined in section 416(i) of the Code) for
such plan year. If during any plan year for which this
Section 14.2 is applicable a defined benefit plan is included in
the aggregation group and such defined benefit plan is a top-
heavy plan for such plan year, the percentage set forth in
clause (i) above shall be 5 percent. The percentage referred to
in clause (ii) of the first sentence of this Section shall be
obtained by dividing the aggregate of contributions made pursuant
to Sections 4.1, 4.2 and 4.3, and pursuant to any other defined
contribution plan which is required to be included in the aggre-
gation group (other than a defined contribution plan which
enables a defined benefit plan which is required to be included
in such group to be qualified under section 401(a) of the Code)
during the plan year on behalf of such key employee by such key
employee's compensation (as defined in section 415 of the Code)
for the plan year which is not in excess of $200,000 (as adjusted
for increases in the cost of living in accordance with regula-
tions).
Section 14.3. Special Rules for Applying Statutory
------------ ------------------------------------
Limitations on Benefits. In any plan year for which the plan is
- -----------------------
a top-heavy plan, clauses (A)(I) and (B)(I) of Section 7.5 shall
be applied by substituting "100%" for "125%" appearing therein,
unless, for such plan year, (i) the percentage of account bal-
ances of participants who are key employees determined under
Section 14.1 does not exceed 90%, and (ii) employer contributions
and forfeitures allocated to the accounts of participants who are
not key employees equals at least 4% of the compensation (as
defined in section 415 of the Code) of each such participant;
provided, however, that with respect to participants who are also
participants in a defined benefit plan in the aggregation group,
7-1/2% shall be substituted for 4% appearing above.
ARTICLE 15
-----------
AMENDMENT, ESTABLISHMENT OF
SEPARATE PLAN AND TERMINATION
-----------------------------
Section 15.1. Amendment. The Board of Directors of
------------ ----------
the Company may at any time and from time to time amend or modify
the plan by written instrument duly adopted by the Company. Any
such amendment or modification shall become effective on such
date as the Company shall determine and may apply to participants
in the plan at the time thereof as well as to future
participants.
Section 15.2. Establishment of Separate Plan. If an
------------ -------------------------------
employer shall withdraw from this plan under Section 10.2, the
committee shall determine the portion of the trust fund held by
the trustee which is applicable to the participants of such
employer and direct the trustee to segregate such portion in a
separate trust. Such separate trust shall thereafter be held and
administered as a part of the separate plan of such employer.
The portion of the trust fund applicable to the parti-
cipants of a particular employer shall be the sum of:
(a) the total amount credited to all accounts
which are applicable to the participants of such em-
ployer and
(b) an amount which bears the same ratio to the
excess, if any, of
(i) the total value of the trust fund
over
(ii) the total amount credited to all
accounts
as the total amount credited to the accounts which are
applicable to the participants of such employer bears
to the total amount credited to the accounts of all
participants.
Section 15.3. Distribution upon Termination of
------------ --------------------------------
the Plan. Any employer may at any time terminate its participa-
- --------
tion in this plan by resolution of its board of directors. In
the event of any such termination the committee shall determine
the portion of the trust fund held by the trustee which is appli-
cable to the participants of such employer and direct the trustee
to distribute such portion as follows:
(a) The balance in any participant account shall
be distributed to the participant or beneficiary
entitled to receive such account.
(b) The remaining assets of such portion of the
trust fund shall be distributed to participants ratably
in proportion to the balances of their respective
accounts.
Notwithstanding the preceding sentence, no distribution shall be
made to affected participants if a successor plan, as defined in
applicable regulations, is established or maintained by an
employer. A complete discontinuance of contributions by an
employer shall be deemed a termination of such employer's parti-
cipation in this plan for purposes of this Section.
If the Internal Revenue Service shall refuse to issue
an initial favorable determination letter that the plan and trust
as adopted by an employer meet the requirements of Section 401(a)
of the Code and that the trust is exempt from tax under
Section 501(a) of the Code, the employer may terminate its par-
ticipation in this plan and the committee shall direct the trus-
tee to pay and deliver the portion of the trust fund applicable
to the participants of such employer, determined pursuant to
Section 15.2, to such employer and such employer shall pay to
participants or their beneficiaries the part of such employer's
portion of the trust fund as is attributable to contributions
made by participants.
Section 15.4. Trust To Be Applied Exclusively
------------ -------------------------------
for Participants and Their Beneficiaries. Subject only to the
- ----------------------------------------
provisions of the second paragraph of Section 4.5 and
Section 13.2(b) and the second paragraph of Section 15.3 and any
other provision of this plan to the contrary notwithstanding, it
shall be impossible for any part of the trust to be used for or
diverted to any purpose not for the exclusive benefit of
participants and their beneficiaries either by operation or
termination of this plan, power of amendment or other means.
IN WITNESS WHEREOF, and as evidence of the adoption of
this plan, the Company has caused this instrument to be signed by
its duly authorized officer and attested this _____ day of
_______________, 1994.
VISKASE CORPORATION
By:___________________________
Title:________________________
ATTEST:
___________________________
Secretary
AMENDMENT NUMBER TWO
TO
THE SAVE PROGRAM FOR EMPLOYEES OF
VISKASE CORPORATION
WHEREAS, Viskase Corporation, a Pennsylvania
corporation (the "Company"), has adopted and maintains a profit
sharing plan with a qualified cash or deferred arrangement for
the benefit of its employees titled "The SAVE Program for
Employees of Viskase Corporation" (the "Plan") which has been
amended and restated generally effective February 1, 1991; and
WHEREAS, the Company desires to amend the Plan to
clarify the limit on the amount of outstanding loans under the
Plan in accordance with section 72(p) of the Internal Revenue
Code of 1986, as amended.
NOW, THEREFORE, pursuant to the power of amendment
contained in Section 15.1 of the Plan, Section 8.7(a) of the Plan
is hereby amended (i) by inserting the words "the vested portion
of" immediately after the words "50% of" contained in the first
sentence of the first paragraph thereof and (ii) by inserting the
following clause immediately after the words "and (2) $50,000"
contained in the first sentence of the first paragraph thereof:
, reduced by the excess, if any, of the highest
outstanding loan balance of the participant under the
plan during the one year period ending on the day
before the date on which such loan is to be made over
the outstanding balance of loans from the plan on the
date on which such loan is to be made
IN WITNESS WHEREOF, the Company has caused this
instrument to be signed by its duly authorized officer and its
corporate seal to be hereunto affixed and attested this _____ day
of ____________________, 1995.
VISKASE CORPORATION
By:______________________
Title:___________________
Attest:
_________________________________
Secretary
AMENDMENT NUMBER THREE
TO
THE SAVE PROGRAM FOR EMPLOYEES OF
VISKASE CORPORATION
WHEREAS, Viskase Corporation, a Pennsylvania
corporation (the "Company"), has adopted and maintains a profit
sharing plan with a qualified cash or deferred arrangement for
the benefit of its employees titled "The SAVE Program for
Employees of Viskase Corporation" (the "Plan") which has been
amended and restated generally effective as of February 1, 1991;
and
WHEREAS, the Company desires to further amend the Plan.
NOW THEREFORE, pursuant to the power of amendment
contained in Section 15.1 of the Plan, clause (C) of the second
sentence of paragraph (b) of Section 13.2 of the Plan is hereby
amended, effective as of the date hereof, to read as follows:
"(C) does not require the payment of benefits to
any alternate payee before the first to occur of (i)
the earliest date as of which payment of the
Participant's account balance could commence (I) if he
terminated employment on his 50th birthday or (II)
following his termination of employment, whichever
shall first occur, and (ii) as soon as administratively
practicable after the date such order is determined by
the committee to be a "qualified domestic relations
order;"
IN WITNESS WHEREOF, the Company has adopted this
instrument by causing it to be executed by its duly authorized
officer on this ____ day of __________, 19__.
VISKASE CORPORATION
By____________________________
Attest:
_________________________
Secretary
AMENDMENT NUMBER FOUR
TO
THE SAVE PROGRAM FOR EMPLOYEES OF
VISKASE CORPORATION
WHEREAS, Viskase Corporation, a Pennsylvania
corporation (the "Company"), has adopted and maintains a profit
sharing plan with a qualified cash or deferred arrangement for
the benefit of its employees titled "The SAVE Program for
Employees of Viskase Corporation" (the "Plan"); and
WHEREAS, the Company desires to amend the Plan to
change the investment elections permitted under the Plan and to
make certain other changes.
NOW, THEREFORE, pursuant to the power of amendment
contained in Section 15.1 of the Plan, the Plan is amended
effective November 1, 1995 as follows:
1. The definition of Trustee contained in paragraph
(15) of Article 2 of the Plan is hereby amended by adding the
following new sentence at the end thereof:
The term "Envirodyne Stock Fund Trustee" shall refer to
the trustee or trustees with responsibility only with
respect to matters involving the Envirodyne Stock Fund
described in Section 6.2.
2. The definition of Valuation Date contained in
paragraph (19) of Article 2 of the Plan is hereby amended by
adding the phrase ", or such other days established by the
committee from time to time" immediately after the word "month"
contained therein.
3. Section 3.2 of the Plan is hereby amended by
deleting the words "Section 7.1" contained in the last sentence
therein and inserting in lieu thereof the words "Section 6.2".
4. Article 6 of the Plan is hereby amended (a) by
changing the title thereof to read as follows: "TRUST AND
INVESTMENT FUNDS"; (b) by inserting the subheading "Section 6.1.
-----------
Trust." immediately before the first sentence thereof; and (c) by
- -----
deleting the fourth sentence thereof and inserting in lieu
thereof the following new sentence:
The trustee shall invest and reinvest the same,
together with the income therefrom, on behalf of the
participants collectively in accordance with the
provisions of the trust agreement, except to the extent
that such monies and other property are invested in one
or more investment funds established pursuant to
Section 6.2.
5. Article 6 of the Plan is hereby further amended by
inserting the following new section at the end thereof:
Section 6.2. Investment Funds. The trustee shall
----------- ----------------
establish and maintain, or shall cause to be
established and maintained, an investment fund
herein called the "Envirodyne Stock Fund" which
shall be invested in common stock, with par value
of $.01 per share, of Envirodyne Industries, Inc.
("Common Stock"), and shall also include such
short-term obligations purchased at the direction
of the Envirodyne Stock Fund Trustee, in
accordance with the trust agreement, pending the
selection and purchase of Common Stock. In
addition, as directed by the committee, one or
more additional separate investment funds shall be
established and maintained and shall be invested
as directed by the committee. For purposes of the
preceding sentence, the committee may purchase a
group annuity contract from an insurance company
that permits investment in one or more separate
investment funds. The committee also may, from
time to time, and in its sole discretion,
segregate any of the assets held under any
investment fund established pursuant to this
Section and allocate the investment results from
such segregated assets among all or a portion of
the accounts of participants in such manner as it
shall determine to be appropriate.
6. Section 7.1(a) of the Plan is hereby amended by
deleting the fourth, fifth and sixth sentences contained therein
and inserting in lieu thereof the following new sentences:
A participant shall elect that contributions to each of
his accounts be invested either (i) wholly in one of
the investment funds maintained by the trustee pursuant
to Section 6.2 or (ii) divided among such investment
funds in 5% increments or such other increments
established by the committee from time to time. In the
event any participant fails to make an election
described in the preceding sentence with respect to
contributions to each of his accounts under the Plan,
such contributions shall be invested by the trustee in
the investment fund with the least risk of loss of
principal.
7. Section 7.1(d) of the Plan is hereby amended to
read as follows:
(d) Change of Investment Election. A participant
-----------------------------
may elect to change his investment election during
any calendar month, or such other time established
by the committee from time to time, effective (i)
in the case of future contributions made pursuant
to Articles 4 and 5, or both, as designated by the
participant as of the first payroll month, or such
other time established by the committee from time
to time, and (ii) in the case of the balance in
his accounts determined as of the valuation date
immediately preceding such change, as of the first
day of any calendar month, or such other time
established by the committee from time to time,
after the election is timely received by
submitting to his employer a written form provided
by the committee for such purpose at least 21
days, or such shorter period as may be specified
by the committee, prior to the date as of which
the change is to be effective. Such change shall
be limited to the investment choices described in
Section 6.2; provided, however, that unless the
committee specifies otherwise, the balance in a
participant's accounts may not be transferred to
the Envirodyne Stock Fund. Any such change shall
specify that, except as described in the preceding
sentence, such contributions be invested either
(i) wholly in one of the funds described in
Section 6.2, or (ii) divided among two or more of
such funds. Any change in investment election
applicable to contributions made subsequent to
such change shall be in 5% increments, or such
other increments established by the committee from
time to time, and subject to the provisions
regarding elections contained in Section 6.2. Any
change in investment election applicable to
amounts already contributed to the various
accounts prior to such change shall be in 5%
increments, or such other increments established
by the committee from time to time, of the total
value of all accounts of the participant described
in clauses (i), (ii) and (iv) of the third
sentence of Section 7.1(a), or described in
clauses (iii), (v) and (vi) of such sentence, or
described in clause (vii) of such sentence,
respectively.
8. Section 8.4(b) of the Plan is hereby amended by
deleting the second sentence thereof and inserting in lieu
thereof the following new sentence:
Financial hardship shall be deemed to exist only if the
distribution is necessary because of immediate and
substantial financial needs of the participant in
connection with the education (including tuition,
related educational fees and room and board expenses)
of the participant or the participant's spouse or
dependents, the acquisition or construction of the
participant's principal residence, the need to prevent
the eviction of the participant from the participant's
principal residence or foreclosure on the mortgage on
that residence, or the sickness (including expenses for
medical care described in section 213(d) of the Code),
involvement in an accident or total and permanent
disability of a member of the participant's immediate
family, and if the participant certifies, in writing,
to the committee that such financial hardship exists
and the funds necessary to satisfy such financial
hardship are not reasonably available to the
participant from other sources.
9. Article 8 of the Plan is hereby amended by
inserting the following new section at the end thereof:
Section 8.9. Distributions in the Form of Stock.
----------- ----------------------------------
Notwithstanding anything contained herein to the
contrary, if the participant's account is paid in a
lump sum, then the participant may request that all of
his account invested in the Envirodyne Stock Fund be
distributed in whole shares of Common Stock held in
such Fund with any fractional share being paid in cash.
The number of shares of Common Stock to be distributed
shall be based on the current fair market value of a
share of Common Stock as determined by the Envirodyne
Stock Fund Trustee as of the valuation date coinciding
with or immediately preceding the date payment of the
participant's account is to be made. Requests for
distribution in the form of Common Stock shall be made
at such time and in such manner as the committee shall
determine under rules and regulations which are
uniformly applied.
10. Section 10.1 of the Plan is hereby amended by
inserting the following new subparagraph (m) at the end thereof:
(m) The committee is the fiduciary responsible for
ensuring that (i) adequate procedures are established
and followed to maintain confidentiality with respect
to the participants' purchases, holdings and sales of
securities under the Envirodyne Stock Fund and the
participants' exercise of voting, tender and similar
rights with respect to the Envirodyne Stock Fund, and
(ii) a fiduciary independent of the employers is
appointed to carry out activities with respect to the
Envirodyne Stock Fund that the committee determines
involve a potential for undue employer influence upon
participants with regard to the direct or indirect
exercise of shareholder rights.
11. Article 10 of the Plan is hereby amended by
inserting the following new section at the end thereof:
Section 10.8. Participants' Stockholder Rights.
------------ --------------------------------
(a) Voting Shares of Common Stock. Each participant
-----------------------------
and beneficiary shall be entitled to direct the
Envirodyne Stock Fund Trustee as to the exercise of any
voting rights attributable to shares of Common Stock
then allocated to his accounts and the Envirodyne Stock
Fund Trustee shall vote such shares according to the
voting directions of the participant or beneficiary
that have been timely submitted to the Envirodyne Stock
Fund Trustee on forms provided by the Envirodyne Stock
Fund Trustee for such purpose. Participants and
beneficiaries shall be permitted to direct the
Envirodyne Stock Fund Trustee as to the exercise of any
voting rights, including, but not limited to, any
corporate matter that involves the voting of shares of
Common Stock with respect to the approval or
disapproval of any corporate merger or consolidation,
recapitalization, reclassification, liquidation,
dissolution, sale of substantially all assets of a
trade or business, or similar transaction prescribed in
regulations. The Envirodyne Stock Fund Trustee shall
with respect to any matter vote the shares of Common
Stock credited to participants' accounts with respect
to which the Envirodyne Stock Fund Trustee does not
timely receive voting instructions in the same
proportion as to shares the Envirodyne Stock Fund
Trustee has received voting instructions. Written
notice of any meeting of stockholders of Envirodyne
Industries, Inc. and a request for voting instructions
shall be given by the committee or the Envirodyne Stock
Fund Trustee, at such time and in such manner as the
committee shall determine, to each participant or
beneficiary entitled to give instructions for voting
shares of Common Stock at such meeting. The committee
shall establish and pay for a means by which
participants and beneficiaries can expeditiously
deliver such voting instructions to the Envirodyne
Stock Fund Trustee. All instructions delivered by
participants or beneficiaries shall be confidential and
shall not be disclosed to any person, including the
employer.
(b) Tender Offers. (i) In the event a tender
-------------
offer is made generally to the stockholders of
Envirodyne Industries, Inc. to transfer all or a
portion of their shares of Common Stock in return for
valuable consideration, including but not limited to,
offers regulated by section 14(d) of the Securities
Exchange Act of 1934, as amended, each participant or
beneficiary shall be entitled to direct the Envirodyne
Stock Fund Trustee regarding how to respond to any such
tender offer with respect to the number of shares of
Common Stock then allocated to his accounts and the
Envirodyne Stock Fund Trustee shall vote such shares
according to the voting directions of the participant
or beneficiary that have been timely submitted to the
Envirodyne Stock Fund Trustee on forms provided by the
Envirodyne Stock Fund Trustee for such purpose. A
participant or beneficiary shall not be limited in the
number of directions to tender or withdraw from tender
that he can give, but shall not have the right to give
directions to tender or withdraw from tender after a
reasonable time established by the Envirodyne Stock
Fund Trustee pursuant to paragraph (iii) of this
Section. The Envirodyne Stock Fund Trustee shall
tender the shares of Common Stock credited to
participants' accounts with respect to which the
Envirodyne Stock Fund Trustee does not timely receive
directions on how to respond to a tender offer in the
same proportion as to shares the Envirodyne Stock Fund
Trustee has received directions to tender. All such
directions shall be confidential and shall not be
disclosed to any person, including the employer.
(ii) Within a reasonable time after the
commencement of a tender offer, the committee shall
provide to each participant and beneficiary:
(a) the offer to purchase as distributed by the
offeror to the stockholders of Envirodyne Industries,
Inc.,
(b) a statement of the shares of Common Stock
allocated to his accounts, and
(c) directions as to the means by which a
participant can give directions with respect to the
tender offer.
The committee shall establish and pay for a means by
which a participant and beneficiary can expeditiously
deliver directions to the Envirodyne Stock Fund Trustee
with respect to a tender offer. The committee shall
transmit or cause to be transmitted to the Envirodyne
Stock Fund Trustee aggregate numbers of shares to be
tendered or withheld from tender representing
directions of participants and beneficiaries. The
committee, at its election, may engage an agent to
receive directions from participants and beneficiaries
and transmit them to the Envirodyne Stock Fund Trustee.
(iii) The Envirodyne Stock Fund Trustee may
establish a reasonable time, taking into account the
time restrictions of the tender offer, after which it
shall not accept directions of participants or
beneficiaries.
IN WITNESS WHEREOF, the Company has caused this
instrument to be signed by its duly authorized officer effective
as of the first day of November, 1995.
VISKASE CORPORATION
By:______________________
Title:___________________
Attest:
_________________________________
Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
COOPERS & LYBRAND L.L.P.
We consent to the inclusion in this registration statement on
Form S-8 (File No. ) of our report dated March 15,
-------------
1995, except for Note 21, as to which the date is July 19, 1995,
on our audits of the consolidated financial statements and the
financial statement schedules of Envirodyne Industries, Inc. and
Subsidiaries.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
October 30, 1995
