As filed with the Securities and Exchange Commission
on September 27, 1996
Registration No. 333-_____
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
(630) 571-8800
(Address of Principal Executive Offices)
Envirodyne Retirement Income Plan
---------------------------------
(Full title of the plan)
Stephen M. Schuster Copy to:
Vice President,
Secretary and General Counsel Gary D. Gerstman
Envirodyne Industries, Inc. Sidley & Austin
701 Harger Road, Suite 190 One First National Plaza
Oak Brook, IL 60521 Chicago, IL 60603
(630) 571-8800 (312) 853-2060
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount 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 $3.9375 (2) $1,968,750 (2) $678.88
Common Stock Purchase Rights 500,000 (3) -- (3) -- (3) -- (3)
<FN>
================================================================================================================
(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 the Registrant on The Nasdaq National Market on
September 24, 1996.
(3) Rights are initially carried and traded with the Common Stock of the
Registrant. Value attributable to such rights, if any, is reflected
in the market price of the Common Stock.
</TABLE>
<PAGE>
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 28, 1995.
(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 28, 1995.
(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.
(d) The description of the Company's common stock
purchase rights, which is contained in the Registration Statement
filed with the Commission on June 26, 1996 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(a) 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 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.
The Company 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.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in 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 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 27th day of September,
1996.
ENVIRODYNE INDUSTRIES, INC.
By: _______________________
F. Edward Gustafson
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 27th
day of September, 1996. 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
- ------------------- ---------------------
- -------------------------- ------------------------
F. Edward Gustafson Michael E. Heisley
Chairman of the Board, President, Director
Chief Executive Officer and
Director
(Principal Executive Officer)
- -------------------------- ------------------------
Gordon S. Donovan Gregory R. Page
Vice President and Treasurer Director
(Principal Financial
and Accounting Officer)
- -------------------------- ------------------------
Robert N. Dangremond Mark D. Senkpiel
Director Director
- -------------------------- ------------------------
Avram A. Glazer Malcolm I. Glazer
Director Director
The Plan. Pursuant to the requirements of the
--------
Securities Act of 1933, the Plan Administrator under the
Envirodyne Retirement Income Plan 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 27th day of September,
1996.
ENVIRODYNE RETIREMENT INCOME PLAN
By: ____________________________
Gordon S. Donovan
As Plan Administrator
under the Trust Agreement
<PAGE>
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 filed under the Exchange Act,
File No. 0-5485).
4.2 Bylaws of the Company (incorporated herein by
reference to Exhibit 3.1 to Form 8-K filed under the
Exchange Act, File No. 0-5485).
4.3 Rights Agreement dated as of June 26, 1996 between
the Company and Harris Trust and Savings Bank, as
rights agent, together with the specimen certificate
representing common stock purchase rights attached as
Exhibit A thereto (incorporated herein by reference
to Exhibit 1 of the Company's Registration Statement
on Form 8-A filed under the Exchange Act, File
No. 0-5485).
*4.4 Envirodyne Retirement Income Plan (January 1, 1995
Restatement)
*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.
ENVIRODYNE RETIREMENT INCOME PLAN
(January 1, 1995 Restatement)
TABLE OF CONTENTS
PREAMBLE
ARTICLE I
DEFINITIONS
1.1 Plan Definitions 2
1.2 Interpretation 6
ARTICLE II
SERVICE
2.1 Definitions 8
2.2 Crediting of Hours of Service 9
2.3 Hours of Service Equivalencies 10
2.4 Limitations on Crediting of Hours of Service 11
2.5 Department of Labor Rules 11
2.6 Crediting of Continuous Service 11
2.7 Eligibility Service 12
2.8 Years of Vesting Service 12
ARTICLE III
ELIGIBILITY
3.1 Eligibility 13
3.2 Transfers of Employment 13
3.3 Reemployment 13
3.4 Notification Concerning New Eligible Employees 13
3.5 Effect and Duration 14
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 Tax-Deferred Contributions 15
4.2 Amount of Tax-Deferred Contributions 15
4.3 Changes in Reduction Authorization 15
4.4 Suspension of Tax-Deferred Contributions 16
4.5 Resumption of Tax-Deferred Contributions 16
4.6 Delivery of Tax-Deferred Contributions 16
4.7 Vesting of Tax-Deferred Contributions 16
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 After-Tax Contributions 17
5.2 Amount of After-Tax Contributions by Payroll
Withholding 17
5.3 Changes in Payroll Withholding Authorization 17
5.4 Suspension of After-Tax Contributions by
Payroll Withholding 18
5.5 Resumption of After-Tax Contributions by
Payroll Withholding 18
5.6 Rollover Contributions 18
5.7 Delivery of After-Tax Contributions 19
5.8 Vesting of After-Tax Contributions and
Rollover Contributions 19
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 Definitions 20
6.2 Contribution Period 20
6.3 Profit-Sharing Contributions 20
6.4 Allocation of Profit-Sharing Contributions 20
6.5 Matching Contributions 20
6.6 Allocation of Matching Contributions 21
6.7 Verification of Amount of Employer
Contributions by the Sponsor 22
6.8 Payment of Employer Contributions 22
6.9 Eligibility to Participate in Allocation 22
6.10 Vesting of Employer Contributions 23
6.11 Election of Former Vesting Schedule 23
6.12 Forfeitures to Reduce Employer Contributions 24
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 Definitions 25
7.2 Code Section 402(g) Limit 28
7.3 Limitation on Tax-Deferred Contributions of
Highly Compensated Employees 29
7.4 Distribution of Excess Tax-Deferred Contributions 30
7.5 Limitation on Matching Contributions and
After-Tax Contributions of Highly
Compensated Employees 31
7.6 Forfeiture or Distribution of Excess Contributions 32
7.7 Multiple Use Limitation 33
7.8 Determination of Income or Loss 34
7.9 Code Section 415 Limitations on Crediting
of Contributions and Forfeitures 34
7.10 Coverage Under Other Qualified Defined
Contribution Plan 35
7.11 Coverage Under Qualified Defined Benefit Plan 35
7.12 Scope of Limitations 36
ARTICLE VIII
TRUST FUNDS AND PARTICIPANT ACCOUNTS
8.1 General Fund 37
8.2 Investment Funds 37
8.3 Loan Investment Fund 37
8.4 Appointment of Investment Managers 37
8.5 Income on Trust 37
8.6 Participant Accounts 38
8.7 Sub-Accounts 38
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 No Life Insurance Contracts 39
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 Future Contribution Investment Elections 40
10.2 Deposit of Contributions 40
10.3 Election to Transfer Between Funds 40
10.4 404(c) Plan 41
ARTICLE XI
CREDITING AND VALUING PARTICIPANT ACCOUNTS
11.1 Crediting Participant Accounts 42
11.2 Valuing Participant Accounts 42
11.3 Plan Valuation Procedures 42
11.4 Finality of Determinations 43
11.5 Notification 43
ARTICLE XII
LOANS
12.1 Application for Loan 44
12.2 Reduction of Account Upon Distribution 44
12.3 Requirements to Prevent a Taxable Distribution 44
12.4 Administration of Loan Investment Fund 45
12.5 Default 46
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 Withdrawals of After-Tax Contributions
and/or Rollover Contributions 47
13.2 Withdrawals of Tax-Deferred Contributions 47
13.3 Limitations on Withdrawals Other than
Hardship Withdrawals 47
13.4 Order of Withdrawal from a Participant's
Sub-Accounts 48
13.5 Conditions and Limitations on Hardship
Withdrawals 48
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 Termination of Employment and Settlement Date 50
14.2 Separate Accounting for Non-Vested Amounts 50
14.3 Disposition of Non-Vested Amounts 50
14.4 Recrediting of Forfeited Amounts 51
ARTICLE XV
DISTRIBUTIONS
15.1 Distributions to Participants 53
15.2 Distributions to Beneficiaries 53
15.3 Cash Outs and Participant Consent 54
15.4 Required Commencement of Distribution 54
15.5 Reemployment of a Participant 55
15.6 Restrictions on Alienation 55
15.7 Facility of Payment 55
15.8 Inability to Locate Payee 55
15.9 Distribution Pursuant to Qualified
Domestic Relations Orders 56
ARTICLE XVI
FORM OF PAYMENT
16.1 Form of Payment 57
16.2 Direct Rollover 57
16.3 Notice Regarding Form of Payment 58
ARTICLE XVII
BENEFICIARIES
17.1 Designation of Beneficiary 59
17.2 Spousal Consent Requirements 59
ARTICLE XVIII
ADMINISTRATION
18.1 Authority of the Sponsor 60
18.2 Action of the Sponsor 60
18.3 Claims Review Procedure 61
18.4 Qualified Domestic Relations Orders 62
18.5 Indemnification 62
18.6 Actions Binding 62
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 Amendment 63
19.2 Limitation on Amendment 63
19.3 Termination 63
19.4 Reorganization 64
19.5 Withdrawal of an Employer 65
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 Adoption by Related Companies 66
20.2 Effective Plan Provisions 66
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 No Commitment as to Employment 67
21.2 Benefits 67
21.3 No Guarantees 67
21.4 Expenses 67
21.5 Precedent 67
21.6 Duty to Furnish Information 67
21.7 Withholding 68
21.8 Merger, Consolidation, or Transfer of Plan Assets 68
21.9 Back Pay Awards 68
21.10 Condition on Employer Contributions 69
21.11 Return of Contributions to an Employer 69
21.12 Validity of Plan 69
21.13 Trust Agreement 70
21.14 Parties Bound 70
21.15 Application of Certain Plan Provisions 70
21.16 Leased Employees 70
21.17 Transferred Funds 71
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 Definitions 72
22.2 Applicability 75
22.3 Minimum Employer Contribution 75
22.4 Adjustments to Section 415 Limitations 75
22.5 Accelerated Vesting 76
ARTICLE XXIII
EFFECTIVE DATE
23.1 Effective Date of Amendment and Restatement 77
<PAGE>
PREAMBLE
The Envirodyne Retirement Income Plan, originally effective as of
January 1, 1990, and heretofore known as the Envirodyne
Industries, Inc. Retirement Savings Plan, is hereby amended and
restated in its entirety. The Plan, as amended and restated
hereby, is intended to qualify as a profit-sharing plan under
Section 401(a) of the Code, and includes a cash or deferred
arrangement that is intended to qualify under Section 401(k) of
the Code. The Plan is maintained for the exclusive benefit of
eligible employees and their beneficiaries.
Notwithstanding any other provision of the Plan to the contrary,
a Participant's vested interest in his Participant Account under
the Plan on and after the effective date of this amendment and
restatement shall be not less than his vested interest in his
account on the day immediately preceding the effective date. In
addition, notwithstanding any other provision of the Plan to the
contrary, the forms of payment and other Plan provisions that
were available under the Plan immediately prior to the later of
the effective date of this amendment and restatement or the date
this amendment and restatement is adopted and that may not be
eliminated under Section 411(d)(6) of the Code shall continue to
be available to Participants who had an account under the Plan on
the day immediately preceding the later of the effective date or
the date this amendment and restatement is adopted.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Plan Definitions
----------------
As used herein, the following words and phrases have the meanings
hereinafter set forth, unless a different meaning is plainly
required by the context:
The "Administrator" means the Sponsor unless the Sponsor
-------------
designates another person or persons to act as such.
An "After-Tax Contribution" means any after-tax employee
----------------------
contribution made by a Participant as may be permitted under
Article V.
The "Beneficiary" of a Participant means the person or persons
-----------
entitled under the provisions of the Plan to receive distribution
hereunder in the event the Participant dies before receiving
distribution of his entire interest under the Plan.
The "Code" means the Internal Revenue Code of 1986, as amended
----
from time to time. Reference to a section of the Code
includes such section and any comparable section or sections of
any future legislation that amends, supplements, or supersedes
such section.
The "Compensation" of a Participant for any period means the
------------
wages as defined in Section 3401(a) of the Code, determined
without regard to any rules that limit compensation included in
wages based on the nature or location of the employment or
services performed, and all other payments made to him for such
period for services as an Employee for which his Employer is
required to furnish the Participant a written statement under
Sections 6041(d) and 6051(a)(3) of the Code, and excluding
reimbursements or other expense allowances, fringe benefits,
moving expenses, deferred compensation, and welfare benefits, but
determined prior to any exclusions for Tax-Deferred Contributions
or amounts deferred under Section 125, 402(e)(3), 402(h), 403(b),
or 457(b) of the Code.
In no event, however, shall the Compensation of a Participant
taken into account under the Plan for any Plan Year exceed (1)
$200,000 for Plan Years beginning prior to January 1, 1994, or
(2) $150,000 for Plan Years beginning on or after January 1, 1994
(subject to adjustment annually as provided in Section
401(a)(17)(B) and Section 415(d) of the Code; provided, however,
that the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in such
calendar year). If the Compensation of a Participant is
determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation
described above shall be adjusted with respect to that
Participant by multiplying the annual compensation limitation in
effect for the Plan Year by a fraction the numerator of which is
the number of full months in the period and the denominator of
which is 12; provided, however, that no proration is required for
a Participant who is covered under the Plan for less than one
full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In determining
the Compensation, for purposes of applying the annual
compensation limitation described above, of a Participant who is
a five percent owner or among the ten Highly Compensated
Employees receiving the greatest Compensation for the Plan Year,
the Compensation of the Participant's spouse and of his lineal
descendants who have not attained age 19 as of the close of the
Plan Year shall be included as Compensation of the Participant
for the Plan Year. If as a result of applying the family
aggregation rule described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation shall
be prorated among the affected family members in proportion to
each member's Compensation as determined prior to application of
the family aggregation rules.
A "Contribution Period" means the period specified in Article VI
-------------------
for which Employer Contributions shall be made.
The "Early Retirement Date" of an employee means the date he
---------------------
attains age 55 and completes at least 5 years of service.
An "Eligible Employee" means any Employee who has met the
-----------------
eligibility requirements of Article III to have Tax-Deferred
Contributions made to the Plan on his behalf.
The "Eligibility Service" of an employee means the period or
-------------------
periods of service credited to him under the provisions of
Article II for purposes of determining his eligibility to
participate in the Plan as may be required under Article III.
An "Employee" means any salaried, hourly, or clerical employee of
--------
the Employer other than an employee who is covered by a
collective bargaining agreement that does not specifically
provide for coverage under the Plan.
An "Employer" means the Sponsor and any entity which has adopted
--------
the Plan as may be provided under Article XX.
An "Employer Contribution" means the amount, if any, that an
---------------------
Employer contributes to the Plan as may be provided under
Article VI or Article XXII.
An "Enrollment Date" means the first day of each Plan Year
---------------
quarter.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended from time to time. Reference to a section of
ERISA includes such section and any comparable section or
sections of any future legislation that amends, supplements, or
supersedes such section.
The "General Fund" means a Trust Fund established by the Trustee
------------
as required to hold and administer any assets of the Trust that
are not allocated among any separate Investment Funds as may be
provided in the Plan or the Trust Agreement. No General Fund
shall be established if all assets of the Trust are allocated
among separate Investment Funds.
A "Highly Compensated Employee" means an Employee or former
---------------------------
Employee who is a highly compensated active employee or highly
compensated former employee as defined hereunder.
A "highly compensated active employee" includes any Employee who
performs services for an Employer during the determination year
and who (i) was a five percent owner at any time during the
determination year or the look back year, (ii) received
compensation from an Employer during the look back year in excess
of $75,000 (subject to adjustment annually at the same time and
in the same manner as under Section 415(d) of the Code), (iii)
was in the top paid group of employees for the look back year and
received compensation from an Employer during the look back year
in excess of $50,000 (subject to adjustment annually at the same
time and in the same manner as under Section 415(d) of the Code),
(iv) was an officer of an Employer during the look back year and
received compensation during that year in excess of 50 percent of
the dollar limitation in effect for that year under Section
415(b)(1)(A) of the Code or, if no officer received compensation
in excess of that amount for the look back year or the
determination year, received the greatest compensation for the
look back year of any officer, or (v) was one of the 100
employees paid the greatest compensation by an Employer for the
determination year and would be described in (ii), (iii), or (iv)
above if the term "determination year" were substituted for "look
back year".
A "highly compensated former employee" includes any Employee who
separated from service from an Employer and all Related Companies
(or is deemed to have separated from service from an Employer and
all Related Companies) prior to the determination year, performed
no services for an Employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after the
date the Employee attains age 55.
The determination of who is a Highly Compensated Employee
hereunder, including determinations as to the number and identity
of employees in the top paid group, the 100 employees receiving
the greatest compensation from an Employer, the number of
employees treated as officers, and the compensation considered,
shall be made in accordance with the provisions of Section 414(q)
of the Code and regulations issued thereunder. For purposes of
this definition, the following terms have the following meanings:
(a) The "determination year" means the Plan Year.
(b) The "look back year" means the 12-month period immediately
preceding the determination year.
An "Hour of Service" with respect to a person means each hour, if
---------------
any, that may be credited to him in accordance with the
provisions of Article II.
An "Investment Fund" means any separate investment Trust Fund
---------------
established from time to time by the Trustee as may be provided
in the Plan or the Trust Agreement or any separate investment
fund maintained by the Trustee, to the extent that there are
Participant Sub-Accounts under such funds, to which assets of the
Trust may be allocated and separately invested.
The "Normal Retirement Date" of an employee means the date he
----------------------
attains age 65.
A "Participant" means any person who has a Participant Account in
-----------
the Trust.
A "Participant Account" means the account maintained by the
-------------------
Trustee in the name of a Participant that reflects his interest
in the Trust and any Sub-Accounts established thereunder, as
provided in Article VIII.
The "Plan" means the Envirodyne Retirement Income Plan, as from
----
time to time in effect.
A "Plan Year" means the 12-consecutive-month period ending
---------
December 31, 1990 and each 12-consecutive-month period
thereafter.
A "Related Company" means any corporation or business, other than
---------------
an Employer, which would be aggregated with an Employer for a
relevant purpose under Section 414 of the Code.
A "Rollover Contribution" means any rollover contribution to the
---------------------
Plan made by a Participant as may be permitted under Article V.
The "Settlement Date" of a Participant means the date on which a
---------------
Participant's interest under the Plan becomes distributable in
accordance with Article XV.
The "Sponsor" means Envirodyne Industries, Inc., and any
-------
successor thereto.
A "Sub-Account" means any of the individual sub-accounts of a
-----------
Participant's Participant Account that is maintained as provided
in Article VIII.
A "Tax-Deferred Contribution" means the amount contributed to the
-------------------------
Plan on a Participant's behalf by his Employer in accordance with
his reduction authorization executed pursuant to Article IV.
The "Trust" means the trust maintained by the Trustee under the
-----
Trust Agreement.
The "Trust Agreement" means the agreement entered into between
---------------
the Sponsor and the Trustee relating to the holding, investment,
and reinvestment of the assets of the Plan, together with all
amendments thereto and shall include any agreement establishing a
custodial account, an annuity contract, or an insurance contract
(other than a life, health or accident, property, casualty, or
liability insurance contract) for the investment of assets if the
custodial account or contract would, except for the fact that it
is not a trust, constitute a qualified trust under Section 401 of
the Code.
The "Trustee" means the trustee or any successor trustee which at
-------
the time shall be designated, qualified, and acting under the
Trust Agreement and shall include any insurance company that
issues an annuity or insurance contract pursuant to the Trust
Agreement or any person holding assets in a custodial account
pursuant to the Trust Agreement.
A "Trust Fund" means any fund established under the Trust by the
----------
Trustee.
A "Valuation Date" means June 30 and December 31 of each Plan
--------------
Year and any other date or dates designated by the Sponsor and
communicated in writing to the Trustee for the purpose of valuing
the General Fund and each Investment Fund and adjusting
Participant Accounts and Sub-Accounts hereunder, which other
dates need not be uniform with respect to the General Fund, each
Investment Fund, Participant Account, or Sub-Account.
The "Vesting Service" of an employee means the period or periods
---------------
of service credited to him under the provisions of Article II for
purposes of determining his vested interest in his Employer
Contributions Sub-Account, if Employer Contributions are provided
for under either Article VI or Article XXII.
1.2 Interpretation
Where required by the context, the noun, verb, adjective, and
adverb forms of each defined term shall include any of its other
forms. Wherever used herein, the masculine pronoun shall include
the feminine, the singular shall include the plural, and the
plural shall include the singular.
<PAGE>
ARTICLE II
SERVICE
2.1 Definitions
For purposes of this Article, the following terms shall have the
following meanings:
(a) A "break in service" means any computation period during
which a person completes less than 501 Hours of Service
except that no person shall incur a break in service solely
by reason of temporary absence from work not exceeding 12
months resulting from illness, layoff, or other cause if
authorized in advance by an Employer or a Related Company
pursuant to its uniform leave policy, if his employment
shall not otherwise be terminated during the period of such
absence.
(b) A "computation period" for purposes of determining an
employee's years of Vesting Service means each Plan Year;
provided, however, that if an employee first completed an
Hour of Service prior to the effective date of the Plan, a
Plan Year shall not mean any short Plan Year beginning on
the effective date of the Plan, if any, but shall mean any
12-consecutive-month period beginning after the first date
the employee completes an Hour of Service and before the
effective date of the Plan that would have been a Plan Year
if the Plan had been in effect.
(c) The "continuous service" of an employee means the service
credited to him in accordance with the provisions of
Section 2.6 of the Plan.
(d) The "employment commencement date" of an employee means the
date he first completes an Hour of Service.
(e) A "maternity/paternity absence" means a person's absence
from employment with an Employer or a Related Company
because of the person's pregnancy, the birth of the
person's child, the placement of a child with the person in
connection with the person's adoption of the child, or the
caring for the person's child immediately following the
child's birth or adoption. A person's absence from
employment will not be considered a maternity/paternity
absence unless the person furnishes the Administrator such
timely information as may reasonably be required to
establish that the absence was for one of the purposes
enumerated in this paragraph and to establish the number of
days of absence attributable to such purpose.
(f) The "reemployment commencement date" of an employee means
the first date following a severance date on which he again
completes an Hour of Service.
(g) The "severance date" of an employee means the earlier of
(i) the date on which he retires, dies, or his employment
with an Employer and all Related Companies is otherwise
terminated, or (ii) the first anniversary of the first date
of a period during which he is absent from work with an
Employer and all Related Companies for any other reason;
provided, however, that if he terminates employment with or
is absent from work with an Employer and all Related
Companies on account of service with the armed forces of
the United States, he shall not incur a severance date if
he is eligible for reemployment rights under Federal law
and he returns to work with an Employer or a Related
Company within the period during which he retains such
reemployment rights.
2.2 Crediting of Hours of Service
-----------------------------
A person shall be credited with an Hour of Service for:
(a) each hour for which he is paid, or entitled to payment, for
the performance of duties for an Employer or a Related
Company during the applicable computation period; provided,
however, that hours compensated at a premium rate shall be
treated as straight-time hours;
(b) subject to the provisions of Section 2.4, each hour for
which he is paid, or entitled to payment, by an Employer or
a Related Company on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability),
lay-off, jury duty, military duty, or leave of absence;
(c) each hour for which he would have been scheduled to work
for an Employer or a Related Company during the period that
he is absent from work because of service with the armed
forces of the United States provided he is eligible for
reemployment rights under Federal law and returns to work
with an Employer or a Related Company within the period
during which he retains such reemployment rights; and
(d) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or a
Related Company; provided, however, that the same Hour of
Service shall not be credited both under paragraph (a) or
(b) or (c) of this Section, as the case may be, and under
this paragraph (d); and provided, further, that the
crediting of Hours of Service for back pay awarded or
agreed to with respect to periods described in such
paragraph (b) shall be subject to the limitations set forth
therein and in Section 2.4.
Notwithstanding the foregoing and solely for purposes of
determining whether a person who is on a maternity/paternity
absence beginning on or after the first day of the first Plan
Year that commences on or after January 1, 1985, has incurred a
break in service, Hours of Service shall include those hours with
which such person would otherwise have been credited but for such
maternity/paternity absence, or shall include eight Hours of
Service for each day of maternity/paternity absence if the actual
hours to be credited cannot be determined; except that not more
than 501 hours are to be credited by reason of any
maternity/paternity absence. Any hours included as Hours of
Service pursuant to the immediately preceding sentence shall be
credited to the computation period in which the absence from
employment begins, if such person otherwise would incur a break
in service in such computation period, or, in any other case, to
the immediately following computation period.
2.3 Hours of Service Equivalencies
------------------------------
Notwithstanding any other provision of the Plan to the contrary,
an Employer may elect to credit Hours of Service to its employees
under Section 2.2 in accordance with one of the following
equivalencies, and if an Employer does not maintain records that
accurately reflect actual hours of service, such Employer shall
credit Hours of Service to its employees under Section 2.2 in
accordance with one of the following equivalencies:
(a) If the Employer maintains its records on the basis of days
worked, an employee shall be credited with 10 Hours of
Service for each day on which he performs an Hour of
Service.
(b) If the Employer maintains its records on the basis of weeks
worked, an employee shall be credited with 45 Hours of
Service for each week in which he performs an Hour of
Service.
(c) If the Employer maintains its records on the basis of semi-
monthly payroll periods, an employee shall be credited with
95 Hours of Service for each semi-monthly payroll period in
which he performs an Hour of Service.
(d) If the Employer maintains its records on the basis of
months worked, an employee shall be credited with 190 Hours
of Service for each month in which he performs an Hour of
Service.
2.4 Limitations on Crediting of Hours of Service
--------------------------------------------
In the application of the provisions of paragraph (b) of Section
2.2, the following shall apply:
(a) An hour for which a person is directly or indirectly paid,
or entitled to payment, on account of a period during
which no duties are performed shall not be credited to him
if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or
disability insurance laws.
(b) Hours of Service shall not be credited with respect to a
payment which solely reimburses a person for medical or
medically-related expenses incurred by him.
(c) For purposes of such paragraph (b), a payment shall be
deemed to be made by or due from an Employer or a Related
Company (i) regardless of whether such payment is made by
or due from such employer directly or indirectly, through
(among others) a trust fund or insurer to which any such
employer contributes or pays premiums, and (ii) regardless
of whether contributions made or due to such trust fund,
insurer, or other entity are for the benefit of particular
persons or are on behalf of a group of persons in the
aggregate.
(d) No more than 501 Hours of Service shall be credited to a
person on account of any single continuous period during
which he performs no duties (whether or not such period
occurs in a single computation period), unless no duties
are performed due to service with the armed forces of the
United States, provided that such person is eligible for
reemployment rights under Federal law and returns to work
during the period in which he retains such reemployment
rights.
2.5 Department of Labor Rules
-------------------------
The rules set forth in paragraphs (b) and (c) of Department of
Labor Regulations Section 2530.200b-2, which relate to determining Hours
of Service attributable to reasons other than the performance of
duties and crediting Hours of Service to computation periods, are
hereby incorporated into the Plan by reference.
2.6 Crediting of Continuous Service
-------------------------------
A person shall be credited with continuous service for the
aggregate of the periods of time between his employment
commencement date or any reemployment commencement date and the
severance date that next follows such employment commencement
date or reemployment commencement date; provided, however, that
an employee who has a reemployment commencement date within the
12-consecutive-month period following the earlier of the first
date of his absence or his severance date shall be credited with
continuous service for the period between such severance date and
reemployment commencement date.
2.7 Eligibility Service
-------------------
An employee shall be credited with Eligibility Service equal to
his continuous service.
2.8 Years of Vesting Service
------------------------
Years of Vesting Service shall be determined in accordance with
the following provisions:
(a) An employee shall be credited with a year of Vesting
Service for each computation period during which he
completes at least 1,000 Hours of Service.
(b) Notwithstanding the provisions of paragraph (a), the
following service shall not be included in determining an
employee's years of Vesting Service:
(i) service completed by the employee prior to a break in
service unless either (1) the employee had a
nonforfeitable right to any portion of his
Participant Account, excluding that portion of his
Participant Account that is attributable to After-Tax
or Rollover Contributions, before his break in
service commenced, or (2) the number of his
consecutive breaks in service is less than the
greater of five or the aggregate number of his years
of Vesting Service before his break in service
commenced; and
(ii) service completed by the employee prior to his
attainment of age 18.
<PAGE>
ARTICLE III
ELIGIBILITY
3.1 Eligibility
-----------
Each Employee who was an Eligible Employee immediately prior to
the effective date of this amendment and restatement shall
continue to be an Eligible Employee. Each other person who is an
Employee on the effective date of this amendment and restatement
shall become an Eligible Employee as of such date. Each Employee
who does not meet the foregoing requirements shall become an
Eligible Employee as of the Enrollment Date coinciding with or
next following the date on which he has completed six full
calendar months of Eligibility Service.
3.2 Transfers of Employment
-----------------------
If a person is transferred directly from employment with an
Employer or with a Related Company in a capacity other than as an
Employee to employment as an Employee, he shall become an
Eligible Employee as of the date he is so transferred if prior to
an Enrollment Date coinciding with or preceding such transfer
date he has met the eligibility requirements of Section 3.1.
Otherwise, the eligibility of a person who is so transferred to
elect to have Tax-Deferred Contributions made to the Plan on his
behalf or to make After-Tax Contributions to the Plan shall be
determined in accordance with Section 3.1.
3.3 Reemployment
------------
If a person who terminated employment with an Employer and all
Related Companies is reemployed as an Employee and if he had been
an Eligible Employee prior to his termination of employment, he
shall again become an Eligible Employee on the date he is
reemployed. Otherwise, the eligibility of a person who
terminated employment with an Employer and all Related Companies
and who is reemployed by an Employer or a Related Company to
elect to have Tax-Deferred Contributions made to the Plan on his
behalf or to make After-Tax Contributions to the Plan shall be
determined in accordance with Section 3.1 or 3.2.
3.4 Notification Concerning New Eligible Employees
----------------------------------------------
Each Employer shall notify the Administrator as soon as
practicable of Employees becoming Eligible Employees as of any
date.
3.5 Effect and Duration
-------------------
Upon becoming an Eligible Employee, an Employee shall be entitled
to elect to have Tax-Deferred Contributions made to the Plan on
his behalf and to make After-Tax Contributions to the Plan and
shall be bound by all the terms and conditions of the Plan and
the Trust Agreement. A person shall continue as an Eligible
Employee eligible to have Tax-Deferred Contributions made to the
Plan on his behalf and to make After-Tax Contributions to the
Plan only so long as he continues in employment as an Employee.
<PAGE>
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 Tax-Deferred Contributions
--------------------------
Effective as of the date he becomes an Eligible Employee, or any
subsequent Enrollment Date, each Eligible Employee may elect in
writing in accordance with rules prescribed by the Administrator
to have Tax-Deferred Contributions made to the Plan on his behalf
by his Employer as hereinafter provided. An Eligible Employee's
written election shall include his authorization for his Employer
to reduce his Compensation and to make Tax-Deferred Contributions
on his behalf and his election as to the investment of his
contributions in accordance with Article X. Tax-Deferred
Contributions on behalf of an Eligible Employee shall commence
with the first payroll period beginning on or after the date on
which his election is effective.
4.2 Amount of Tax-Deferred Contributions
------------------------------------
The amount of Tax-Deferred Contributions to be made to the Plan
on behalf of an Eligible Employee by his Employer shall be an
integral percentage of his Compensation of not less than two
percent nor more than 15 percent. In the event an Eligible
Employee elects to have his Employer make Tax-Deferred
Contributions on his behalf, his Compensation shall be reduced
for each payroll period by the percentage he elects to have
contributed on his behalf to the Plan in accordance with the
terms of his currently effective reduction authorization.
4.3 Changes in Reduction Authorization
----------------------------------
An Eligible Employee may change the percentage of his future
Compensation that his Employer contributes on his behalf as
Tax-Deferred Contributions at such time or times during the Plan
Year as the Administrator may prescribe by filing an amended
reduction authorization with his Employer such number of days
prior to the date such change is to become effective as the
Administrator shall prescribe. An Eligible Employee who changes
his reduction authorization shall be limited to selecting a
percentage of his Compensation that is otherwise permitted under
Section 4.2. Tax-Deferred Contributions shall be made on behalf
of such Eligible Employee by his Employer pursuant to his amended
reduction authorization filed in accordance with this Section
commencing with Compensation paid to the Eligible Employee on or
after the date such filing is effective, until otherwise altered
or terminated in accordance with the Plan.
4.4 Suspension of Tax-Deferred Contributions
----------------------------------------
An Eligible Employee on whose behalf Tax-Deferred Contributions
are being made may have such contributions suspended at any time
by giving such number of days advance written notice to his
Employer as the Administrator shall prescribe. Any such
voluntary suspension shall take effect commencing with
Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in
effect until Tax-Deferred Contributions are resumed as
hereinafter set forth.
4.5 Resumption of Tax-Deferred Contributions
----------------------------------------
An Eligible Employee who has voluntarily suspended his
Tax-Deferred Contributions in accordance with Section 4.4 may
have such contributions resumed at such time or times during the
Plan Year as the Administrator may prescribe, by filing a new
reduction authorization with his Employer such number of days
prior to the date as of which such contributions are to be
resumed as the Administrator shall prescribe.
4.6 Delivery of Tax-Deferred Contributions
--------------------------------------
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets,
each Employer shall cause to be delivered to the Trustee in cash
all Tax-Deferred Contributions attributable to such amounts.
4.7 Vesting of Tax-Deferred Contributions
-------------------------------------
A Participant's vested interest in his Tax-Deferred Contributions
Sub-Account shall be at all times 100 percent.
<PAGE>
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 After-Tax Contributions
-----------------------
An Eligible Employee may elect in writing in accordance with
rules prescribed by the Administrator to make After-Tax
Contributions to the Plan. After-Tax Contributions may be made
by payroll withholding. If the Eligible Employee does not
already have an investment election on file with the
Administrator, his election to make After-Tax Contributions to
the Plan shall include his election as to the investment of his
contributions in accordance with Article X. An Eligible
Employee's election to make After-Tax Contributions by payroll
withholding may be made effective as of any Enrollment Date
occurring on or after the date on which he becomes an Eligible
Employee. After-Tax Contributions by payroll withholding shall
commence with the first payroll period beginning on or after the
Enrollment Date on which the Eligible Employee's election is
effective.
5.2 Amount of After-Tax Contributions by Payroll Withholding
--------------------------------------------------------
The amount of After-Tax Contributions made by an Eligible
Employee by payroll withholding shall be an integral percentage
of his Compensation of not less than one percent nor more than
ten percent.
5.3 Changes in Payroll Withholding Authorization
--------------------------------------------
An Eligible Employee may change the percentage of his future
Compensation that he contributes to the Plan as After-Tax
Contributions by payroll withholding at such time or times during
the Plan Year as the Administrator may prescribe by filing an
amended payroll withholding authorization with his Employer such
number of days prior to the date such change is to become
effective as the Administrator shall prescribe. An Eligible
Employee who changes his payroll withholding authorization shall
be limited to selecting a percentage of his Compensation that is
otherwise permitted under Section 5.2. After-Tax Contributions
shall be made pursuant to an Eligible Employee's amended payroll
withholding authorization filed in accordance with this Section
commencing with Compensation paid to the Eligible Employee on or
after the date such filing is effective, until otherwise altered
or terminated in accordance with the Plan.
5.4 Suspension of After-Tax Contributions by Payroll
------------------------------------------------
Withholding
-----------
An Eligible Employee who is making After-Tax Contributions by
payroll withholding may have such contributions suspended at any
time by giving such number of days advance written notice to his
Employer as the Administrator shall prescribe. Any such
voluntary suspension shall take effect commencing with
Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in
effect until After-Tax Contributions are resumed as hereinafter
set forth.
5.5 Resumption of After-Tax Contributions by Payroll
------------------------------------------------
Withholding
-----------
An Eligible Employee who has voluntarily suspended his After-Tax
Contributions made by payroll withholding in accordance with
Section 5.4 may have such contributions resumed at such time or
times during the Plan Year as the Administrator may prescribe by
filing a new payroll withholding authorization with his Employer
such number of days prior to the date as of which such
contributions are to be resumed as the Administrator shall
prescribe.
5.6 Rollover Contributions
----------------------
An Employee who was a participant in a plan qualified under
Section 401 or 403 of the Code and who receives a cash
distribution from such plan that he elects either (i) to roll
over immediately to a qualified retirement plan or (ii) to roll
over into a conduit IRA from which he receives a later cash
distribution, may elect to make a Rollover Contribution to the
Plan if he is entitled under Section 402(c)(1), Section
403(a)(4), or Section 408(d)(3)(A) of the Code to roll over such
distribution to another qualified retirement plan. The
Administrator may require an Employee to provide it with such
information as it deems necessary or desirable to show that he is
entitled to roll over such distribution to another qualified
retirement plan. An Employee shall make a Rollover Contribution
to the Plan by delivering, or causing to be delivered, to the
Trustee the cash that constitutes the Rollover Contribution
amount within 60 days of receipt of the distribution from the
plan or from the conduit IRA in the manner prescribed by the
Administrator. If the Employee does not already have an
investment election on file with the Administrator, the Employee
shall also deliver to the Administrator his election as to the
investment of his contributions in accordance with Article X.
5.7 Delivery of After-Tax Contributions
-----------------------------------
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets
or as soon as reasonably practicable after an amount has been
delivered to an Employer by an Employee, the Employer shall cause
to be delivered to the Trustee in cash the After-Tax
Contributions attributable to such amount.
5.8 Vesting of After-Tax Contributions and Rollover
-----------------------------------------------
Contributions
-------------
A Participant's vested interest in his After-Tax Contributions
Sub-Account and his Rollover Contributions Sub-Account shall be
at all times 100 percent.
<PAGE>
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 Definitions
-----------
For purposes of this Article, the following terms have the
following meanings:
(a) The "matching contribution" means any Employer Contribution
made to the Plan in accordance with the provisions of
Section 6.5.
(b) The "profit-sharing contribution" means any Employer
Contribution made to the Plan in accordance with the
provisions of Section 6.3.
6.2 Contribution Period
-------------------
The Contribution Period for matching contributions under the Plan
shall be semi-monthly. The Contribution Period for profit-
sharing contributions under the Plan shall be each Plan Year.
6.3 Profit-Sharing Contributions
----------------------------
Each Employer may, in its discretion, make a profit-sharing
contribution to the Plan for the Contribution Period in an amount
determined by the Sponsor.
6.4 Allocation of Profit-Sharing Contributions
------------------------------------------
Any profit-sharing contribution made by an Employer for a
Contribution Period shall be allocated among its Employees during
the Contribution Period who are eligible to participate in the
allocation of profit-sharing contributions for the Contribution
Period, as determined under Section 6.9. The allocable share of
each such Employee shall be in the ratio which his Compensation
from the Employer for the Contribution Period bears to the
aggregate of such Compensation for all such Employees.
6.5 Matching Contributions
----------------------
Each Employer shall make a matching contribution to the Plan for
each Contribution Period in an amount equal to a percentage,
determined as provided below, of the aggregate "eligible
Tax-Deferred Contributions" for the Contribution Period made on
behalf of its Employees during the Contribution Period who are
eligible to participate in the allocation of matching
contributions for the Contribution Period, as determined under
Section 6.9. The matching percentage shall be 50 percent, unless
an Employee makes Tax-Deferred Contributions for the Contribution
Period in excess of six percent of his Compensation for the
Contribution Period and has completed more than ten "years of
participation." The matching percentage for Employees who make
Tax-Deferred Contributions of at least six percent of
Compensation and have completed more than ten "years of
participation" shall be (i) 75 percent, for Employees who have
completed 11 to 20 "years of participation, and (ii) 100 percent,
for Employees who have completed more than 20 "years of
participation."
In addition, each Employer may make a further matching
contribution to the Plan for the Contribution Period in an amount
equal to a percentage, determined by the Sponsor, in its
discretion, of the aggregate Tax-Deferred Contributions made on
behalf of its eligible Employees for the Contribution Period.
Such additional matching contribution shall not exceed $500,
which may be adjusted based on the Consumer Price Index (CPI).
For purposes of this Section and Section 6.6, the following terms
have the following meanings:
(a) An Employee's "eligible Tax-Deferred Contributions" mean
the Tax-Deferred Contributions made on his behalf for the
Contribution Period in an amount up to, but not exceeding,
the "match level".
(b) The "match level" means six percent of an Employee's
Compensation for the Contribution Period.
For purposes of this Section, an Employee shall be credited with
"years of participation" equal to his years of Vesting Service;
provided, however, that the following shall be excluded: (i)
years that were not included as "Years of Participation" under
the terms of the Plan immediately prior to the effective date of
this amendment and restatement; (ii) years in which an Employee
is eligible to make Tax-Deferred Contributions under the Plan but
elects not to do so; and (iii) years in which an Employee is not
eligible to make Tax-Deferred Contributions to the Plan because
of a suspension of contributions required under Article XIII.
6.6 Allocation of Matching Contributions
------------------------------------
Any matching contribution made by an Employer for the
Contribution Period shall be allocated among its Employees during
the Contribution Period who are eligible to participate in the
allocation of matching contributions for the Contribution Period,
as determined under Section 6.9. The allocable share of each
such Employee shall be an amount equal to the applicable
percentage, determined under Section 6.5, of the "eligible
Tax-Deferred Contributions" made on his behalf for the
Contribution Period. If an Employer makes a further
discretionary matching contribution for the Contribution Period,
the allocable share of each such Employee in the further matching
contribution shall be equal to the percentage determined by the
Sponsor as provided in Section 6.5 of the Tax-Deferred
Contributions made on his behalf for the Contribution Period.
6.7 Verification of Amount of Employer Contributions by the
-------------------------------------------------------
Sponsor
-------
The Sponsor shall verify the amount of Employer Contributions to
be made by each Employer in accordance with the provisions of the
Plan. Notwithstanding any other provision of the Plan to the
contrary, the Sponsor shall determine the portion of the Employer
Contribution to be made by each Employer with respect to an
Employee who transfers from employment with one Employer as an
Employee to employment with another Employer as an Employee.
6.8 Payment of Employer Contributions
---------------------------------
Employer Contributions made for a Contribution Period shall be
paid in cash to the Trustee within the period of time required
under the Code in order for the contribution to be deductible by
the Employer in determining its Federal income taxes for the Plan
Year.
6.9 Eligibility to Participate in Allocation
----------------------------------------
Each Employee shall be eligible to participate in the allocation
of Employer Contributions in accordance with Sections 6.4 and 6.6
beginning on the date he becomes, or again becomes, an Eligible
Employee in accordance with the provisions of Article III.
Notwithstanding the foregoing, no person shall be eligible to
participate in the allocation of Employer Contributions for a
Plan Year unless he is employed by an Employer or a Related
Company on the last day of the Contribution Period and no person
shall be eligible to participate in the allocation of profit-
sharing contributions or any additional matching contributions
unless he has also completed at least 1,000 Hours of Service
during the Plan Year; provided, however, that the foregoing
provisions shall not apply to a person who terminates employment
during the Plan Year on or after his Normal Retirement Date or
the date he attains age 55 and completes five years of Vesting
Service or because of death or physical or mental disability such
that he can no longer continue in the service of his Employer and
is eligible to receive a benefit under the terms of his
Employer's long term disability plan; and provided, further, that
if the Plan would not otherwise meet the minimum coverage
requirements of Section 410(b) of the Code in any Plan Year, the
group of Employees eligible to participate in the allocation of
profit-sharing contributions shall be expanded to include the
minimum number of Employees who would be eligible to participate
except for their failure to complete the required number of Hours
of Service during the Plan Year that is necessary to meet the
minimum coverage requirements. The Employees who become eligible
to participate under the provisions of the immediately preceding
clause shall be those Employees who have completed the greatest
number of Hours of Service during the Plan Year. If the Plan
still would not meet the minimum coverage requirements of Section
410(b) of the Code, the group of Employees shall be expanded
further to include the minimum number of Employees who are not
employed by an Employer or a Related Company on the last day of
the Plan Year that is necessary to meet the minimum coverage
requirements. The Employees who become eligible to participate
under the provisions of the immediately preceding sentence shall
be those Employees who have completed the greatest number of
Hours of Service during the Plan Year.
6.10 Vesting of Employer Contributions
---------------------------------
A Participant's vested interest in his Employer Contributions
Sub-Account shall be determined in accordance with the following
schedule:
Years of Vesting Service Vested Interest
Less than one 0%
one but less than two 20%
two but less than three 40%
three but less than four 60%
four but less than five 80%
five or more 100%
Notwithstanding the foregoing, if a Participant is employed by an
Employer or a Related Company on his Early Retirement Date or
Normal Retirement Date, the date he becomes physically or
mentally disabled such that he can no longer continue in the
service of his Employer and is eligible to receive a benefit
under the terms of his Employer's long term disability plan, his
vested interest in his Employer Contributions Sub-Account shall
be 100 percent.
6.11 Election of Former Vesting Schedule
-----------------------------------
If the Sponsor adopts an amendment to the Plan that directly or
indirectly affects the computation of a Participant's vested
interest in his Employer Contributions Sub-Account, any
Participant with three or more years of Vesting Service shall
have a right to have his vested interest in his Employer
Contributions Sub-Account continue to be determined under the
vesting provisions in effect prior to the amendment rather than
under the new vesting provisions, unless the vested interest of
the Participant in his Employer Contributions Sub-Account under
the Plan as amended is not at any time less than such vested
interest determined without regard to the amendment. A
Participant shall exercise his right under this Section by giving
written notice of his exercise thereof to the Administrator
within 60 days after the latest of (i) the date he receives
notice of the amendment from the Administrator, (ii) the
effective date of the amendment, or (iii) the date the amendment
is adopted. Notwithstanding the foregoing, a Participant's
vested interest in his Employer Contributions Sub-Account on the
effective date of such an amendment shall not be less than his
vested interest in his Employer Contributions Sub-Account
immediately prior to the effective date of the amendment.
6.12 Forfeitures to Reduce Employer Contributions
--------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
the amount of the Employer Contribution required under this
Article for a Plan Year shall be reduced by the amount of any
forfeitures occurring during the Plan Year that are not used to
pay Plan expenses.
<PAGE>
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 Definitions
-----------
For purposes of this Article, the following terms have the
following meanings:
(a) The "actual deferral percentage" with respect to an
Eligible Employee for a particular Plan Year means the
ratio of the Tax-Deferred Contributions made on his behalf
for the Plan Year to his test compensation for the Plan
Year; provided, however, that contributions made on a
Participant's behalf for a Plan Year shall be included in
determining his actual deferral percentage for such Plan
Year only if the contributions are made to the Plan prior
to the end of the 12-month period immediately following the
Plan Year to which the contributions relate. The
determination and treatment of the actual deferral
percentage amounts for any Participant shall satisfy such
other requirements as may be prescribed by the Secretary of
the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of
the greater of the average contribution percentage for
eligible participants other than Highly Compensated
Employees or the average actual deferral percentage for
Eligible Employees other than Highly Compensated Employees
and (ii) the lesser of 200 percent or two plus the lesser
of such average contribution percentage or average actual
deferral percentage, or, if it would result in a larger
aggregate limit, the sum of (iii) 125 percent of the lesser
of the average contribution percentage for eligible
participants other than Highly Compensated Employees or the
average actual deferral percentage for Eligible Employees
other than Highly Compensated Employees and (iv) the lesser
of 200 percent or two plus the greater of such average
contribution percentage or average actual deferral
percentage.
(c) The "annual addition" with respect to a Participant for a
limitation year means the sum of the Tax-Deferred
Contributions, Employer Contributions, and After-Tax
Contributions allocated to his Participant Account for the
limitation year (including any excess contributions that
are distributed pursuant to this Article), the employer
contributions, employee contributions, and forfeitures
allocated to his accounts for the limitation year under any
other qualified defined contribution plan (whether or not
terminated) maintained by an Employer or a Related Company
concurrently with the Plan, and amounts described in
Sections 415(l)(2) and 419A(d)(2) of the Code allocated to
his account for the limitation year.
(d) The "Code Section 402(g) limit" means the dollar limit
imposed by Section 402(g)(1) of the Code or established by
the Secretary of the Treasury pursuant to Section 402(g)(5)
of the Code in effect on January 1 of the calendar year in
which an Eligible Employee's taxable year begins.
(e) The "contribution percentage" with respect to an eligible
participant for a particular Plan Year means the ratio of
the sum of the matching contributions made to the Plan on
his behalf and the After-Tax Contributions made by him for
the Plan Year to his test compensation for such Plan Year,
except that, to the extent permitted by regulations issued
under Section 401(m) of the Code, the Sponsor may elect to
take into account in computing the numerator of each
eligible participant's contribution percentage the
Tax-Deferred Contributions made to the Plan on his behalf
for the Plan Year; provided, however, that any Tax-Deferred
Contributions that were taken into account in computing the
numerator of an eligible participant's actual deferral
percentage may not be taken into account in computing the
numerator of his contribution percentage; and provided,
further, that contributions made by or on a Participant's
behalf for a Plan Year shall be included in determining his
contribution percentage for such Plan Year only if the
contributions are made to the Plan prior to the end of the
12-month period immediately following the Plan Year to
which the contributions relate. The determination and
treatment of the contribution percentage amounts for any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(f) An "elective contribution" means any employer contribution
made to a plan maintained by an Employer or any Related
Company on behalf of a Participant in lieu of cash
compensation pursuant to his written election to defer
under any qualified CODA as defined in Section 401(k) of
the Code, any simplified employee pension cash or deferred
arrangement as described in Section 402(h)(1)(B) of the
Code, any eligible deferred compensation plan under Section
457 of the Code, or any plan as described in Section
501(c)(18) of the Code, and any contribution made on behalf
of the Participant by an Employer or a Related Company for
the purchase of an annuity contract under Section 403(b) of
the Code pursuant to a salary reduction agreement.
(g) An "eligible participant" means any Employee who is
eligible to make After-Tax Contributions or to have Tax-
Deferred Contributions made on his behalf (if Tax-Deferred
Contributions are taken into account in computing
contribution percentages) or to participate in the
allocation of matching contributions.
(h) A "family member" of an Employee means the Employee's
spouse, his lineal ascendants, his lineal descendants, and
the spouses of such lineal ascendants and descendants.
(i) A "limitation year" means the Plan Year.
(j) A "matching contribution" means any employer contribution
allocated to an Eligible Employee's account under the Plan
or any other plan of an Employer or a Related Company
solely on account of elective contributions made on his
behalf or employee contributions made by him.
(k) The "test compensation" of an Eligible Employee for a Plan
Year means compensation as defined in Section 414(s) of the
Code and regulations issued thereunder, limited, however,
to (1) $200,000 for Plan Years beginning prior to January
1, 1994, or (2) $150,000 for Plan Years beginning on or
after January 1, 1994 (subject to adjustment annually as
provided in Section 401(a)(17)(B) and Section 415(d) of the
Code; provided, however, that the dollar increase in effect
on January 1 of any calendar year, if any, is effective for
Plan Years beginning in such calendar year). If the test
compensation of a Participant is determined over a period
of time that contains fewer than 12 calendar months, then
the annual compensation limitation described above shall be
adjusted with respect to that Participant by multiplying
the annual compensation limitation in effect for the Plan
Year by a fraction the numerator of which is the number of
full months in the period and the denominator of which is
12; provided, however, that no proration is required for a
Participant who is covered under the Plan for less than one
full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In
determining the test compensation, for purposes of applying
the annual compensation limitation described above, of a
Participant who is a five-percent owner or among the ten
Highly Compensated Employees receiving the greatest test
compensation for the limitation year, the test compensation
of the Participant's spouse and of his lineal descendants
who have not attained age 19 as of the close of the
limitation year shall be included as test compensation of
the Participant for the limitation year. If as a result of
applying the family aggregation rule described in the
preceding sentence the annual compensation limitation would
be exceeded, the limitation shall be prorated among the
affected family members in proportion to each member's test
compensation as determined prior to application of the
family aggregation rules.
7.2 Code Section 402(g) Limit
-------------------------
In no event shall the amount of the Tax-Deferred Contributions
made on behalf of an Eligible Employee for his taxable year, when
aggregated with any elective contributions made on behalf of the
Eligible Employee under any other plan of an Employer or a
Related Company for his taxable year, exceed the Code Section
402(g) limit. In the event that the Administrator determines
that the reduction percentage elected by an Eligible Employee
will result in his exceeding the Code Section 402(g) limit, the
Administrator may adjust the reduction authorization of such
Eligible Employee by reducing the percentage of his Tax-Deferred
Contributions to such smaller percentage that will result in the
Code Section 402(g) limit not being exceeded. If the
Administrator determines that the Tax-Deferred Contributions made
on behalf of an Eligible Employee would exceed the Code Section
402(g) limit for his taxable year, the Tax-Deferred Contributions
for such Participant shall be automatically suspended for the
remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code Section
402(g) limit has nevertheless been exceeded by an Eligible
Employee for his taxable year, the Tax-Deferred Contributions
that, when aggregated with elective contributions made on behalf
of the Eligible Employee under any other plan of an Employer or a
Related Company, would exceed the Code Section 402(g) limit, plus
any income and minus any losses attributable thereto, shall be
distributed to the Eligible Employee no later than the April 15
immediately following such taxable year. Any Tax-Deferred
Contributions that are distributed to an Eligible Employee in
accordance with this Section shall not be taken into account in
---
computing the Eligible Employee's actual deferral percentage for
the Plan Year in which the Tax-Deferred Contributions were made,
unless the Eligible Employee is a Highly Compensated Employee.
If an amount of Tax-Deferred Contributions is distributed to a
Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed
Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any
such forfeited amounts shall be treated as a forfeiture under the
Plan in accordance with the provisions of Article XIV as of the
last day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.3 Limitation on Tax-Deferred Contributions of Highly
--------------------------------------------------
Compensated Employees
---------------------
Notwithstanding any other provision of the Plan to the contrary,
the Tax-Deferred Contributions made with respect to a Plan Year
on behalf of Eligible Employees who are Highly Compensated
Employees may not result in an average actual deferral percentage
for such Eligible Employees that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
actual deferral percentage for all other Eligible
Employees; or
(b) a percentage that is not more than 200 percent of the
average actual deferral percentage for all other Eligible
Employees and that is not more than two percentage points
higher than the average actual deferral percentage for all
other Eligible Employees.
In order to assure that the limitation contained herein is not
exceeded with respect to a Plan Year, the Administrator is
authorized to suspend completely further Tax-Deferred
Contributions on behalf of Highly Compensated Employees for any
remaining portion of a Plan Year or to adjust the projected
actual deferral percentages of Highly Compensated Employees by
reducing their percentage elections with respect to Tax-Deferred
Contributions for any remaining portion of a Plan Year to such
smaller percentages that will result in the limitation set forth
above not being exceeded. In the event of any such suspension or
reduction, Highly Compensated Employees affected thereby shall be
notified of the reduction or suspension as soon as possible and
shall be given an opportunity to make a new Tax-Deferred
Contribution election to be effective the first day of the next
following Plan Year. In the absence of such an election, the
election in effect immediately prior to the suspension or
adjustment described above shall be reinstated as of the first
day of the next following Plan Year.
For purposes of applying the limitation contained in this
Section, the Tax-Deferred Contributions and test compensation of
any Eligible Employee who is a family member of another Eligible
Employee who is a five percent owner or among the ten Highly
Compensated Employees receiving the greatest test compensation
for the Plan Year shall be aggregated with the Tax-Deferred
Contributions and test compensation of such other Eligible
Employee, and such family member shall not be considered an
Eligible Employee for purposes of determining the average actual
deferral percentage for all other Eligible Employees.
In determining the actual deferral percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year,
elective contributions made to his accounts under any other plan
of an Employer or a Related Company shall be treated as if all
such contributions were made to the Plan; provided, however, that
if such a plan has a plan year different from the Plan Year, any
such contributions made to the Highly Compensated Employee's
accounts under the plan for the plan year ending with or within
the same calendar year as the Plan Year shall be treated as if
such contributions were made to the Plan. Notwithstanding the
foregoing, such contributions shall not be treated as if they
were made to the Plan if regulations issued under Section 401(k)
of the Code do not permit such plan to be aggregated with the
Plan.
If one or more plans of an Employer or Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, then
actual deferral percentages under the Plan shall be calculated as
if the Plan and such one or more other plans were a single plan.
For Plan Years beginning after December 31, 1991, plans may be
aggregated to satisfy Section 401(k) of the Code only if they
have the same plan year.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year.
7.4 Distribution of Excess Tax-Deferred Contributions
-------------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.3 is
exceeded in any Plan Year, the Tax-Deferred Contributions made
with respect to a Highly Compensated Employee that exceed the
maximum amount permitted to be contributed to the Plan on his
behalf under Section 7.3, plus any income and minus any losses
attributable thereto, shall be distributed to the Highly
Compensated Employee prior to the end of the next succeeding Plan
Year. If excess amounts are attributable to Participants
aggregated under the family aggregation rules described in
Section 7.3, the excess shall be allocated among family members
in proportion to the Tax-Deferred Contributions made with respect
to each family member. If such excess amounts are distributed
more than 2 1/2 months after the last day of the Plan Year for
which the excess occurred, an excise tax may be imposed under
Section 4979 of the Code on the Employer maintaining the Plan
with respect to such amounts.
The maximum amount permitted to be contributed to the Plan on a
Highly Compensated Employee's behalf under Section 7.3 shall be
determined by reducing Tax-Deferred Contributions made on behalf
of Highly Compensated Employees in order of their actual deferral
percentages beginning with the highest of such percentages.
If an amount of Tax-Deferred Contributions is distributed to a
Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed
Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any
such forfeited amounts shall be treated as a forfeiture under the
Plan in accordance with the provisions of Article XIV as of the
last day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.5 Limitation on Matching Contributions and After-Tax
---------------------------------------------------
Contributions of Highly Compensated Employees
---------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
the matching contributions and After-Tax Contributions made with
respect to a Plan Year by or on behalf of eligible participants
who are Highly Compensated Employees may not result in an average
contribution percentage for such eligible participants that
exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
contribution percentage for all other eligible
participants; or
(b) a percentage that is not more than 200 percent of the
average contribution percentage for all other eligible
participants and that is not more than two percentage
points higher than the average contribution percentage for
all other eligible participants.
For purposes of applying the limitation contained in this
Section, the matching contributions, After-Tax Contributions,
Tax-Deferred Contributions (to the extent that such Tax-Deferred
Contributions are taken into account in computing contribution
percentages), and test compensation of any eligible participant
who is a family member of another eligible participant who is a
five percent owner or among the ten Highly Compensated Employees
receiving the greatest test compensation for the Plan Year shall
be aggregated with the matching contributions, After-Tax
Contributions, Tax-Deferred Contributions, and test compensation
of such other eligible participant, and such family member shall
not be considered an eligible participant for purposes of
determining the average contribution percentage for all other
eligible participants.
In determining the contribution percentage for any eligible
participant who is a Highly Compensated Employee for the Plan
Year, matching contributions, employee contributions, and
elective contributions (to the extent that elective contributions
are taken into account in computing contribution percentages)
made to his accounts under any other plan of an Employer or a
Related Company shall be treated as if all such contributions
were made to the Plan; provided, however, that if such a plan has
a plan year different from the Plan Year, any such contributions
made to the Highly Compensated Employee's accounts under the plan
for the plan year ending with or within the same calendar year as
the Plan Year shall be treated as if such contributions were made
to the Plan. Notwithstanding the foregoing, such contributions
shall not be treated as if they were made to the Plan if
regulations issued under Section 401(m) of the Code do not permit
such plan to be aggregated with the Plan.
If one or more plans of an Employer or a Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, the
contribution percentages under the Plan shall be calculated as if
the Plan and such one or more other plans were a single plan.
Plans may be aggregated to satisfy Section 401(m) of the Code
only if they have the same plan year.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year and the amount of the elective
contributions taken into account in computing contribution
percentages for any Plan Year.
7.6 Forfeiture or Distribution of Excess Contributions
---------------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.5 is
exceeded in any Plan Year, the matching contributions and
After-Tax Contributions made by or on behalf of a Highly
Compensated Employee that exceed the maximum amount permitted to
be contributed to the Plan by or on behalf of such Highly
Compensated Employee under Section 7.5, plus any income and minus
any losses attributable thereto, shall be forfeited, to the
extent forfeitable, or distributed to the Participant prior to
the end of the next succeeding Plan Year as hereinafter provided.
If excess amounts are attributable to Participants aggregated
under the family aggregation rules described in Section 7.5, the
excess shall be allocated among family members in proportion to
the matching contributions and After-Tax Contributions made with
respect to each family member. If such excess amounts are
distributed more than 2 1/2 months after the last day of the Plan
Year for which the excess occurred, an excise tax may be imposed
under Section 4979 of the Code on the Employer maintaining the
Plan with respect to such amounts.
The maximum amount permitted to be contributed to the Plan by or
on behalf of a Highly Compensated Employee under Section 7.5
shall be determined by reducing matching contributions and
After-Tax Contributions made by or on behalf of Highly
Compensated Employees in order of their contribution percentages
beginning with the highest of such percentages. The distribution
or forfeiture requirement of this Section shall be satisfied by
reducing contributions made by or on behalf of the Highly
Compensated Employee to the extent necessary in the following
order:
After-Tax Contributions made by the Highly Compensated
Employee, if any, shall be distributed.
Matching contributions attributable to Tax-Deferred
Contributions shall be distributed or forfeited, as
appropriate.
Any amounts forfeited with respect to a Participant pursuant to
this Section shall be treated as a forfeiture under the Plan in
accordance with the provisions of Article XIV as of the last day
of the month in which the distribution of contributions pursuant
to this Section occurs. The amount of excess After-Tax
Contributions of a Participant shall in all cases be
distributable; the excess matching contributions shall be
distributable to the extent the Participant has a vested interest
in his Employer Contributions Sub-Account that is attributable to
matching contributions. The determination of the amount of
excess matching contributions and After-Tax Contributions shall
be made after application of Section 7.4, if applicable.
7.7 Multiple Use Limitation
-----------------------
Notwithstanding any other provision of the Plan to the contrary,
the following multiple use limitation as required under Section
401(m) of the Code shall apply: the sum of the average actual
deferral percentage for Eligible Employees who are Highly
Compensated Employees and the average contribution percentage for
eligible participants who are Highly Compensated Employees may
not exceed the aggregate limit. In the event that, after
satisfaction of Section 7.4 and Section 7.6, it is determined
that contributions under the Plan fail to satisfy the multiple
use limitation contained herein, the multiple use limitation
shall be satisfied by further reducing the actual deferral
percentages of Eligible Employees who are Highly Compensated
Employees (beginning with the highest such percentage) to the
extent necessary to eliminate the excess, with such further
reductions to be treated as excess Tax-Deferred Contributions and
disposed of as provided in Section 7.4, or in an alternative
manner, consistently applied, that may be permitted by
regulations issued under Section 401(m) of the Code.
7.8 Determination of Income or Loss
-------------------------------
The income or loss attributable to excess contributions that are
distributed pursuant to this Article shall be determined for the
preceding Plan Year under the method otherwise used for
allocating income or loss to Participant's Participant Accounts.
7.9 Code Section 415 Limitations on Crediting of Contributions
----------------------------------------------------------
and Forfeitures
---------------
Notwithstanding any other provision of the Plan to the contrary,
the annual addition with respect to a Participant for a
limitation year shall in no event exceed the lesser of (i) the
greater of $30,000 or 25 percent of the defined benefit dollar
limitation set forth in Section 415(b)(1) of the Code in effect
for the limitation year or (ii) 25 percent of the Participant's
compensation, as defined in Section 415(c)(3) of the Code and
regulations issued thereunder, for the limitation year. If the
annual addition to the Participant Account of a Participant in
any limitation year would otherwise exceed the amount that may be
applied for his benefit under the limitation contained in this
Section, the limitation shall be satisfied by reducing
contributions made by or on behalf of the Participant to the
extent necessary in the following order:
After-Tax Contributions made by the Participant for the
limitation year, if any, shall be reduced.
Tax-Deferred Contributions made on the Participant's behalf
for the limitation year that have not been matched, if any,
shall be reduced.
Tax-Deferred Contributions made on the Participant's behalf
for the limitation year that have been matched and the
matching contributions attributable thereto, if any, shall
be reduced pro rata.
Employer Contributions (other than matching contributions)
otherwise allocable to the Participant's Participant
Account for the limitation year shall be reduced.
The amount of any reduction of Tax-Deferred Contributions or
After-Tax Contributions (plus any income attributable thereto)
shall be returned to the Participant. The amount of any
reduction of Employer Contributions shall be deemed a forfeiture
for the limitation year. Amounts deemed to be forfeitures under
this Section shall be held unallocated in a suspense account
established for the limitation year and shall be applied against
the Employer's contribution obligation for the next following
limitation year (and succeeding limitation years, as necessary).
If a suspense account is in existence at any time during a
limitation year, all amounts in the suspense account must be
allocated to Participants' Participant Accounts (subject to the
limitations contained herein) before any further Tax-Deferred
Contributions, Employer Contributions, or After-Tax Contributions
may be made to the Plan by or on behalf of Participants. No
suspense account established hereunder shall share in any
increase or decrease in the net worth of the Trust. For purposes
of this Article, excesses shall result only from the allocation
of forfeitures, a reasonable error in estimating a Participant's
annual compensation (as defined in Section 415(c)(3) of the Code
and regulations issued thereunder), a reasonable error in
determining the amount of Tax-Deferred Contributions that may be
made with respect to any Participant under the limits of Section
415 of the Code, or other limited facts and circumstances that
justify the availability of the provisions set forth above.
7.10 Coverage Under Other Qualified Defined Contribution Plan
--------------------------------------------------------
If a Participant is covered by any other qualified defined
contribution plan (whether or not terminated) maintained by an
Employer or a Related Company concurrently with the Plan, and if
the annual addition for the limitation year would otherwise
exceed the amount that may be applied for the Participant's
benefit under the limitation contained in Section 7.9, such
excess shall be reduced first by applying the procedures set
forth in Section 7.9. If the limitation contained in Section 7.9
is still not satisfied, such excess shall be reduced by returning
the employee contributions made by the Participant for the
limitation year under all such other plans and the income
attributable thereto to the extent necessary. If the limitation
contained in Section 7.9 is still not satisfied after returning
all of such employee contributions, then the portion of the
employer contributions and forfeitures for the limitation year
under all such other plans that has been allocated to the
Participant thereunder, but which exceeds the limitation set
forth in Section 7.9 shall be reduced and disposed of as provided
in such other plans; provided, however, that if the Participant
is covered by a money purchase pension plan, the forfeiture shall
be effected first under any other defined contribution plan that
is not a money purchase pension plan and, if the limitation is
still not satisfied, then under such money purchase pension plan.
7.11 Coverage Under Qualified Defined Benefit Plan
---------------------------------------------
If a Participant in the Plan is also covered by a qualified
defined benefit plan (whether or not terminated) maintained by an
Employer or a Related Company, in no event shall the sum of the
defined benefit plan fraction (as defined in Section 415(e)(2) of
the Code) and the defined contribution plan fraction (as defined
in Section 415(e)(3) of the Code) exceed 1.0 in any limitation
year. If, before October 3, 1973, the Participant was an active
participant in a qualified defined benefit plan maintained by an
Employer or a Related Company and otherwise satisfies the
requirements of Section 2004(d)(2) of ERISA, then for purposes of
applying this Section, the defined benefit plan fraction shall
not exceed 1.0. In the event the special limitation contained in
this Section is exceeded, contributions and forfeitures allocated
to the Participant under the Plan and any other defined
contribution plan maintained by an Employer or a Related Company
shall be disposed of in the order and manner specified in Section
7.10 to the extent necessary to meet such limitation.
7.12 Scope of Limitations
---------------------
The limitations contained in Sections 7.9, 7.10, and 7.11 shall
be applicable only with respect to benefits provided pursuant to
defined contribution plans and defined benefit plans described in
Section 415(k) of the Code.
<PAGE>
ARTICLE VIII
TRUST FUNDS AND PARTICIPANT ACCOUNTS
8.1 General Fund
------------
The Trustee shall establish a General Fund as required to hold
and administer any assets of the Trust that are not allocated
among the separate Investment Funds as provided in the Plan or
the Trust Agreement. The General Fund shall be held and
administered as a separate common trust fund. The interest of
each Participant or Beneficiary under the Plan in the General
Fund shall be an undivided interest.
8.2 Investment Funds
----------------
The Sponsor shall determine the number and type of Investment
Funds and select the investments for such Investment Funds. The
Sponsor shall communicate the same and any changes therein in
writing to the Administrator and the Trustee. Each Investment
Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the
Plan in any Investment Fund shall be an undivided interest.
8.3 Loan Investment Fund
---------------------
If a loan from the Plan to a Participant is approved in
accordance with the provisions of Article XII, the Sponsor shall
direct the establishment and maintenance of a loan Investment
Fund in the Participant's name. The assets of the loan
Investment Fund shall be held as a separate trust fund. A
Participant's loan Investment Fund shall be invested in the note
reflecting the loan that is executed by the Participant in
accordance with the provisions of Article XII. Notwithstanding
any other provision of the Plan to the contrary, income received
with respect to a Participant's loan Investment Fund shall be
allocated and the loan Investment Fund shall be administered as
provided in Article XII.
8.4 Appointment of Investment Managers
----------------------------------
As provided in the Trust Agreement, the Sponsor may appoint one
or more investment managers (as defined in Section 3(38) of
ERISA) with respect to any portion of any Trust Fund.
8.5 Income on Trust
---------------
Any dividends, interest, distributions, or other income received
by the Trustee with respect to any Trust Fund established
hereunder shall be allocated by the Trustee to the Trust Fund for
which the income was received.
8.6 Participant Accounts
--------------------
As of the first date a contribution is made by or on behalf of an
Employee, there shall be established a Participant Account in his
name reflecting his interest in the Trust. Each Participant
Account shall be maintained and administered for each Participant
and Beneficiary in accordance with the provisions of the Plan.
The balance of each Participant Account shall be the balance of
the account after all credits and charges thereto, for and as of
such date, have been made as provided herein.
8.7 Sub-Accounts
-------------
A Participant's Participant Account shall be divided into
individual Sub-Accounts reflecting the portion of the
Participant's Participant Account that is derived from
Tax-Deferred Contributions, After-Tax Contributions, Rollover
Contributions, or Employer Contributions. Each Sub-Account shall
reflect separately contributions allocated to each Trust Fund
established hereunder and the earnings and losses attributable
thereto. Such other Sub-Accounts may be established as are
necessary or appropriate to reflect a Participant's interest in
the Trust.
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 No Life Insurance Contracts
---------------------------
There shall be no life insurance contracts purchased under the
Plan.
<PAGE>
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 Future Contribution Investment Elections
----------------------------------------
Each Eligible Employee shall make an investment election in the
manner and form prescribed by the Administrator directing the
manner in which his Tax-Deferred Contributions, After-Tax
Contributions, Rollover Contributions, and Employer Contributions
shall be invested. An Eligible Employee's investment election
shall specify the percentage, in ten percent increments, of such
contributions that shall be allocated to one or more of the
Investment Funds with the sum of such percentages equaling 100
percent. The investment election by a Participant shall remain
in effect until his entire interest under the Plan is distributed
or forfeited in accordance with the provisions of the Plan or
until he files a change of investment election with the
Administrator, in such form as the Administrator shall prescribe.
A Participant's change of investment election may be made
effective as soon as reasonably practicable following the
Administrator's receipt of the Participant's instructions.
10.2 Deposit of Contributions
------------------------
All Tax-Deferred Contributions, After-Tax Contributions, Rollover
Contributions, and Employer Contributions shall be deposited in
the Trust and allocated among the Investment Funds in accordance
with the Participant's currently effective investment election.
If no investment election is on file with the Administrator at
the time contributions are to be deposited to a Participant's
Participant Account, the Participant shall be notified and an
investment election form shall be provided to him. Until such
Participant shall make an effective election under this Section,
his contributions shall be allocated among the Investment Funds
as directed by the Administrator.
10.3 Election to Transfer Between Funds
----------------------------------
A Participant may elect to transfer investments from any
Investment Fund to any other Investment Fund. The Participant's
transfer election shall specify a percentage, in ten percent
increments, of the amount eligible for transfer that is to be
transferred, which percentage may not exceed 100 percent.
Subject to any restrictions pertaining to a particular Investment
Fund, a Participant's transfer election may be made effective as
soon as reasonably practicable following the Administrator's
receipt of the Participant's instructions.
10.4 404(c) Plan
-----------
The Plan is intended to constitute a plan described in Section
404(c) of ERISA and regulations issued thereunder. The
fiduciaries of the Plan may be relieved of liability for any
losses that are the direct and necessary result of investment
instructions given by a Participant, his Beneficiary, or an
alternate payee under a qualified domestic relations order.
<PAGE>
ARTICLE XI
CREDITING AND VALUING PARTICIPANT ACCOUNTS
11.1 Crediting Participant Accounts
------------------------------
All contributions made under the provisions of the Plan shall be
credited to Participant Accounts in the Trust Funds by the
Trustee, in accordance with procedures established in writing by
the Administrator, either when received or on the succeeding
Valuation Date after valuation of the Trust Fund has been
completed for such Valuation Date as provided in Section 11.2, as
shall be determined by the Administrator.
11.2 Valuing Participant Accounts
-----------------------------
Participant Accounts in the Trust Funds shall be valued by the
Trustee on the Valuation Date, in accordance with procedures
established in writing by the Administrator, either in the manner
adopted by the Trustee and approved by the Administrator or in
the manner set forth in Section 11.3 as Plan valuation
procedures, as determined by the Administrator.
11.3 Plan Valuation Procedures
-------------------------
With respect to the Trust Funds, the Administrator may determine
that the following valuation procedures shall be applied. As of
each Valuation Date hereunder, the portion of any Participant
Accounts in a Trust Fund shall be adjusted to reflect any
increase or decrease in the value of the Trust Fund for the
period of time occurring since the immediately preceding
Valuation Date for the Trust Fund (the "valuation period") in the
following manner:
(a) First, the value of the Trust Fund shall be determined by
valuing all of the assets of the Trust Fund at fair market
value.
(b) Next, the net increase or decrease in the value of the
Trust Fund attributable to net income and all profits and
losses, realized and unrealized, during the valuation
period shall be determined on the basis of the valuation
under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and transfers
to and distributions, withdrawals, loans, and transfers
from such Trust Fund during the valuation period.
(c) Finally, the net increase or decrease in the value of the
Trust Fund shall be allocated among Participant Accounts in
the Trust Fund in the ratio of the balance of the portion
of such Participant Account in the Trust Fund as of the
preceding Valuation Date less any distributions,
withdrawals, loans, and transfers from such Participant
Account balance in the Trust Fund since the Valuation Date
to the aggregate balances of the portions of all
Participant Accounts in the Trust Fund similarly adjusted,
and each Participant Account in the Trust Fund shall be
credited or charged with the amount of its allocated share.
Notwithstanding the foregoing, the Administrator may adopt
such accounting procedures as it considers appropriate and
equitable to establish a proportionate crediting of net
increase or decrease in the value of the Trust Fund for
contributions, loan payments, and transfers to and
distributions, withdrawals, loans, and transfers from such
Trust Fund made by or on behalf of a Participant during the
valuation period.
11.4 Finality of Determinations
--------------------------
The Trustee shall have exclusive responsibility for determining
the balance of each Participant Account maintained hereunder.
The Trustee's determinations thereof shall be conclusive upon all
interested parties.
11.5 Notification
------------
Within a reasonable period of time after the end of each Plan
Year, the Administrator shall notify each Participant and
Beneficiary of the balances of his Participant Account and
Sub-Accounts as of the last day of such Plan Year.
<PAGE>
ARTICLE XII
LOANS
12.1 Application for Loan
---------------------
A Participant who is a party in interest may make written
application to the Administrator for a loan from his Separate
Account. Loans shall be made to Participants in accordance with
written rules prescribed by the Administrator which are hereby
incorporated into and made a part of the Plan.
As collateral for any loan granted hereunder, the Participant
shall grant to the Plan a security interest in his vested
interest under the Plan equal to the amount of the loan;
provided, however, that in no event may the security interest
exceed 50 percent of the Participant's vested interest under the
Plan determined as of the date as of which the loan is originated
in accordance with Plan provisions. In the case of a
Participant who is an active employee, the Participant also shall
enter into an agreement to repay the loan by payroll withholding.
No loan in excess of 50 percent of the Participant's vested
interest under the Plan shall be made from the Plan. Loans shall
not be made available to Highly Compensated Employees in an
amount greater than the amount made available to other employees.
A loan shall not be granted unless the Participant consents in
writing to the charging of his Separate Account in accordance
with the provisions of Section 12.4 for unpaid principal and
interest amounts in the event the loan is declared to be in
default.
12.2 Reduction of Account Upon Distribution
--------------------------------------
Notwithstanding any other provision of the Plan, the amount of a
Participant's Separate Account that is distributable to the
Participant or his Beneficiary under Article XIII or XV shall be
reduced by the portion of his vested interest that is held by the
Plan as security for any loan outstanding to the Participant,
provided that the reduction is used to repay the loan. If
distribution is made because of the Participant's death prior to
the commencement of distribution of his Separate Account and less
than 100 percent of the Participant's vested interest in his
Separate Account (determined without regard to the preceding
sentence) is payable to his surviving spouse, then the balance of
the Participant's vested interest in his Separate Account shall
be adjusted by reducing the vested account balance by the amount
of the security used to repay the loan, as provided in the
preceding sentence, prior to determining the amount of the
benefit payable to the surviving spouse.
12.3 Requirements to Prevent a Taxable Distribution
-----------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
the following terms and conditions shall apply to any loan made
to a Participant under this Article:
(a) The interest rate on any loan to a Participant shall be a
reasonable interest rate commensurate with current interest
rates charged for loans made under similar circumstances by
persons in the business of lending money.
(b) The amount of any loan to a Participant (when added to the
outstanding balance of all other loans to the Participant
from the Plan or any other plan maintained by an Employer
or a Related Company) shall not exceed the lesser of:
(i) $50,000, reduced by the excess, if any, of the
highest outstanding balance of any other loan to the
Participant from the Plan or any other plan
maintained by an Employer or a Related Company during
the preceding 12-month period over the balance of
such loans on the date a loan is made hereunder; or
(ii) 50 percent of the vested portions of the
Participant's Separate Account and his vested
interest under all other plans maintained by an
Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater
than five years, except in the case of a loan used to
acquire any dwelling unit which within a reasonable period
of time is to be used (determined at the time the loan is
made) as a principal residence of the Participant.
(d) Except as otherwise permitted under Treasury regulations,
substantially level amortization shall be required over the
term of the loan with payments made not less frequently
than quarterly.
12.4 Administration of Loan Investment Fund
--------------------------------------
Upon approval of a loan to a Participant, the Administrator shall
direct the Trustee to transfer an amount equal to the loan amount
from the Investment Funds in which it is invested, as directed by
the Administrator, to the loan Investment Fund established by the
Trustee in the Participant's name. Any loan approved by the
Administrator shall be made to the Participant out of the
Participant's loan Investment Fund. All principal and interest
paid by the Participant on a loan made under this Article shall
be deposited to his Separate Account and shall be allocated upon
receipt among the Investment Funds in accordance with the
Participant's currently effective investment election. The
balance of the Participant's loan Investment Fund shall be
decreased by the amount of principal payments and the loan
Investment Fund shall be terminated when the loan has been repaid
in full.
12.5 Default
-------
If a Participant fails to make or cause to be made, any payment
required under the terms of the loan within 30 days following the
date on which such payment shall become due, the Administrator
may direct the Trustee to declare the loan to be in default, and
the entire unpaid balance of such loan, together with accrued
interest, shall be immediately due and payable. In any such
event, if such balance and interest thereon is not then paid, the
Trustee shall charge the Separate Account of the borrower with
the amount of such balance and interest as of the earliest date a
distribution may be made from the Plan to the borrower without
adversely affecting the tax qualification of the Plan or of the
cash or deferred arrangement.
<PAGE>
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 Withdrawals of After-Tax Contributions and/or Rollover
------------------------------------------------------
Contributions
-------------
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in Section 13.3, to make a cash withdrawal from his
After-Tax Contributions Sub-Account. A Participant who is
employed by an Employer or a Related Company and has attained age
59 1/2 or who is determined by the Administrator to have incurred
a hardship as defined in Section 13.5 may elect in writing,
subject to the limitations and conditions prescribed in Section
13.5, to make a cash withdrawal from his Rollover Contributions
Sub-Account.
13.2 Withdrawals of Tax-Deferred Contributions
-----------------------------------------
A Participant who is employed by an Employer or a Related Company
and who has attained age 59 1/2 or is determined by the
Administrator to have incurred a hardship as defined in Section
13.5 may elect in writing, subject to the limitations and
conditions prescribed in Section 13.5, to make a cash withdrawal
from his Tax-Deferred Contributions Sub-Account. The maximum
amount that a Participant may withdraw pursuant to this Section
because of a hardship is the balance of his Tax-Deferred
Contributions Sub-Account, exclusive of any earnings credited to
such Sub-Account.
13.3 Limitations on Withdrawals Other than Hardship Withdrawals
----------------------------------------------------------
Withdrawals made pursuant to this Article, other than hardship
withdrawals, shall be subject to the following conditions and
limitations:
A Participant must file a written withdrawal application
with the Administrator such number of days prior to the
date as of which it is to be effective as the Administrator
shall prescribe.
Withdrawals may be made effective only as of an Enrollment
Date.
The minimum total withdrawal that a Participant may make
shall be an amount equal to the lesser of $250 or the
balance of his After-Tax Contributions Sub-Account.
13.4 Order of Withdrawal from a Participant's Sub-Accounts
-----------------------------------------------------
Distribution of a withdrawal amount shall be made from a
Participant's Sub-Accounts, to the extent necessary, in the
following order:
The balance of the Participant's After-Tax Contributions
Sub-Account, if any, shall be distributed.
The balance of the Participant's Rollover Contributions
Sub-Account, if any, shall be distributed.
The balance of the Participant's Tax-Deferred Contributions
Sub-Account shall be distributed, but only to the extent
permitted under Section 13.2.
If the Sub-Account from which a Participant is receiving a
withdrawal is invested in more than one Investment Fund,
the withdrawal shall be charged against the Investment
Funds as directed by the Administrator.
13.5 Conditions and Limitations on Hardship Withdrawals
--------------------------------------------------
A Participant must file a written application for a hardship
withdrawal with the Administrator such number of days prior to
the date as of which it is to be effective as the Administrator
may prescribe. Hardship withdrawals may be made effective as
soon as reasonably practicable following the Administrator's
receipt of the Participant's instructions. The Administrator
shall grant a hardship withdrawal only if it determines that the
withdrawal is necessary to meet an immediate and heavy financial
need of the Participant. An immediate and heavy financial need
of the Participant means a financial need on account of:
(a) expenses previously incurred by or necessary to obtain for
the Participant, the Participant's spouse, or any dependent
of the Participant (as defined in Section 152 of the Code)
medical care described in Section 213(d) of the Code;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) payment of tuition and related educational fees for the
next 12 months of post-secondary education for the
Participant, the Participant's spouse, or any dependent of
the Participant;
(d) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence; or
A withdrawal shall be deemed to be necessary to satisfy an
immediate and heavy financial need of a Participant only if all
of the following requirements are satisfied:
The withdrawal is not in excess of the amount of the
immediate and heavy financial need of the Participant.
The Participant has obtained all distributions, other than
hardship distributions, and all non-taxable loans currently
available under all plans maintained by an Employer or any
Related Company.
The Participant's Tax-Deferred Contributions and After-Tax
Contributions and the Participant's elective tax-deferred
contributions and employee after-tax contributions under
all other tax-qualified plans maintained by an Employer or
any Related Company shall be suspended for at least twelve
months after his receipt of the withdrawal.
The Participant shall not make Tax-Deferred Contributions
or elective tax-deferred contributions under any other
tax-qualified plan maintained by an Employer or any Related
Company for the Participant's taxable year immediately
following the taxable year of the withdrawal in excess of
the applicable limit under Section 402(g) of the Code for
such next taxable year less the amount of the Participant's
Tax-Deferred Contributions and elective tax-deferred
contributions under any other plan maintained by an
Employer or any Related Company for the taxable year of the
withdrawal.
The amount of a hardship withdrawal shall include any amounts
necessary to pay any Federal, state, or local income taxes or
penalties reasonably anticipated to result from the distribution.
A Participant shall not fail to be treated as an Eligible
Employee for purposes of applying the limitations contained in
Article VII of the Plan merely because his Tax-Deferred
Contributions are suspended in accordance with this Section.
<PAGE>
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 Termination of Employment and Settlement Date
---------------------------------------------
A Participant's Settlement Date shall occur on the date he
terminates employment with an Employer and all Related Companies
because of death, disability, retirement, or other termination of
employment. Written notice of a Participant's Settlement Date
shall be given by the Administrator to the Trustee.
14.2 Separate Accounting for Non-Vested Amounts
------------------------------------------
If as of a Participant's Settlement Date the Participant's vested
interest in his Employer Contributions Sub-Account is less than
100 percent, that portion of his Employer Contributions
Sub-Account that is not vested shall be accounted for separately
from the vested portion and shall be disposed of as provided in
Section 14.3.
14.3 Disposition of Non-Vested Amounts
---------------------------------
That portion of a Participant's Employer Contributions
Sub-Account that is not vested upon the occurrence of his
Settlement Date shall be disposed of as follows:
(a) If the Participant has no vested interest in his
Participant Account upon the occurrence of his Settlement
Date or the aggregate value as of the date of distribution
does not exceed $3,500 resulting in the Participant's
receipt of a single sum payment of his vested interest in
his Participant Account, the non-vested balance remaining
in the Participant's Employer Contributions Sub-Account
will be forfeited and his Participant Account closed as of
(i) the date the Participant incurs a break in service
following his Settlement Date, if the Participant has no
vested interest in his Participant Account, or (ii) the
later of the date the Participant incurs a break in service
following his Settlement Date or the date on which the
Participant receives a single sum payment of his vested
interest in his Participant Account.
(b) If the Participant is eligible for and consents in writing
to a single sum payment of his vested interest in his
Participant Account, the non-vested balance remaining in
the Participant's Employer Contributions Sub-Account will
be forfeited and his Participant Account closed as of the
last day of the Plan Year in which the single sum payment
occurs (provided that such distribution occurs prior to the
end of the second Plan Year beginning on or after the
Participant's Settlement Date) or the date the Participant
incurs a break in service following his Settlement Date, if
later.
(c) If neither paragraph (a) nor paragraph (b) is applicable,
the non-vested portion of the Participant's Employer
Contributions Sub-Account will continue to be held in such
Sub-Account and will not be forfeited until the date the
Participant incurs five consecutive breaks in service.
Whenever the non-vested portion of a Participant's Employer
Contributions Sub-Account is forfeited under the provisions of
the Plan with respect to a Plan Year, the amount of such
forfeiture, as of the last day of the Plan Year, shall be applied
against the Employer Contribution obligations for the Plan Year
of the Employer for which the Participant last performed services
as an Employee. Notwithstanding the foregoing, however, should
the amount of all such forfeitures for any Plan Year with respect
to any Employer exceed the amount of such Employer's Employer
Contribution obligation for the Plan Year, the excess amount of
such forfeitures shall be held unallocated in a suspense account
established with respect to the Employer and shall for all Plan
purposes be applied against the Employer's Employer Contribution
obligations for the following Plan Year.
14.4 Recrediting of Forfeited Amounts
--------------------------------
A former Participant who forfeited the non-vested balance of his
Employer Contributions Sub-Account in accordance with the
provisions of Section 14.3 and who is reemployed by an Employer
or a Related Company shall have such forfeited amounts recredited
to a new Participant Account in his name, without adjustment for
interim gains or losses experienced by the Trust, if:
(a) he returns to employment with an Employer or a Related
Company before he incurs five consecutive breaks in service
commencing after the later of his Settlement Date
(termination date) or the date he received distribution of
his vested interest in his Participant Account; and
(b) he resumes employment covered under the Plan before he
incurs five consecutive breaks in service commencing after
the later of his Settlement Date or the date he received
distribution of his vested interest in his Participant
Account.
Funds needed in any Plan Year to recredit the Participant Account
of a Participant with the amounts of prior forfeitures in
accordance with the preceding sentence shall come first from
forfeitures that arise during such Plan Year, and then from Trust
income earned in such Plan Year, with each Trust Fund being
charged with the amount of such income proportionately, unless
his Employer chooses to make an additional Employer Contribution,
and shall finally be provided by his Employer by way of a
separate Employer Contribution.
A Participant who is reemployed and who received distribution of
his vested interest in his Participant Account because of his
prior Settlement Date, may elect to repay to the Plan the full
amount of such distribution before the end of the five-year
period beginning on the date he is reemployed.
<PAGE>
ARTICLE XV
DISTRIBUTIONS
15.1 Distributions to Participants
-----------------------------
A Participant whose Settlement Date occurs shall receive
distribution of the value of his vested interest in his
Participant Account in the form provided under Article XVI
beginning as soon as reasonably practicable following his
Settlement Date or the date his application for distribution is
filed with the Administrator, if later.
15.2 Distributions to Beneficiaries
------------------------------
If a Participant dies prior to the date distribution of his
vested interest in his Participant Account begins under this
Article, his Beneficiary shall receive distribution of the value
of the Participant's vested interest in his Participant Account
in the form provided under Article XVI beginning as soon as
reasonably practicable following the date the Beneficiary's
application for distribution is filed with the Administrator.
Unless distribution is to be made over the life or over a period
certain not greater than the life expectancy of the Beneficiary,
distribution of the Participant's entire vested interest shall be
made to the Beneficiary no later than the end of the fifth
calendar year beginning after the Participant's death. If
distribution is to be made over the life or over a period certain
no greater than the life of the Beneficiary, distribution shall
commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the end
of the first calendar year beginning after the
Participant's death; or
(b) If the Beneficiary is the Participant's spouse, the later
of (i) the end of the first calendar year beginning after
the Participant's death or (ii) the end of the calendar
year in which the Participant would have attained age
70 1/2.
If distribution is to be made to a Participant's spouse, it shall
be made available within a reasonable period of time after the
Participant's death that is no less favorable than the period of
time applicable to other distributions. If a Participant dies
after the date distribution of his vested interest in his
Participant Account begins under this Article, but before his
entire vested interest in his Participant Account is distributed,
his Beneficiary shall receive distribution of the remainder of
the Participant's vested interest in his Participant Account
beginning as soon as reasonably practicable following the
Participant's date of death in a form that provides for
distribution at least as rapidly as under the form in which the
Participant was receiving distribution.
15.3 Cash Outs and Participant Consent
---------------------------------
Notwithstanding any other provision of the Plan to the contrary,
if the value of a Participant's vested interest in his
Participant Account does not exceed $3,500, distribution of such
value shall be made to the Participant in a single sum payment as
soon as reasonably practicable following his Settlement Date. If
the value of a Participant's vested interest in his Participant
Account exceeds $3,500, distribution shall not commence to such
Participant prior to his Normal Retirement Date without the
Participant's written consent. If a Participant made a
withdrawal in accordance with the provisions of Article XIII or
was in default on a loan for which a portion of his Separate
Account was pledged as security as provided in Article XII and
the value of his vested interest in his Separate Account on the
date immediately preceding the withdrawal or default exceeded
$3,500, then for purposes of this Section, the value of his
vested interest in his Separate Account shall be deemed to exceed
$3,500.
15.4 Required Commencement of Distribution
-------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
distribution of a Participant's vested interest in his
Participant Account shall commence to the Participant no later
than the earlier of:
(a) unless the Participant elects a later date, 60 days after
the close of the Plan Year in which (i) the Participant's
Normal Retirement Date occurs, (ii) the 10th anniversary of
the year in which he commenced participation in the Plan
occurs, or (iii) his Settlement Date occurs, whichever is
latest; or
(b) the April 1 following the close of the calendar year in
which he attains age 70 1/2, whether or not his Settlement
Date has occurred, except that if a Participant attained
age 70 1/2 prior to January 1, 1988, and was not a
five-percent owner (as defined in Section 416 of the Code)
at any time during the five-Plan-Year period ending within
the calendar year in which he attained age 70 1/2,
distribution of such Participant's vested interest in his
Participant Account shall commence no later than the April
1 following the close of the calendar year in which he
attains age 70 1/2 or retires, whichever is later.
Distributions required to commence under this Section shall be
made in the form provided under Article XVI and in accordance
with Section 401(a)(9) of the Code and regulations issued
thereunder, including the minimum distribution incidental benefit
requirements.
15.5 Reemployment of a Participant
-----------------------------
If a Participant whose Settlement Date has occurred is reemployed
by an Employer or a Related Company, he shall lose his right to
any distribution or further distributions from the Trust arising
from his prior Settlement Date and his interest in the Trust
shall thereafter be treated in the same manner as that of any
other Participant whose Settlement Date has not occurred.
15.6 Restrictions on Alienation
--------------------------
Except as provided in Section 401(a)(13) of the Code relating to
qualified domestic relations orders and Section 1.401(a)-13(b)(2)
of Treasury regulations relating to Federal tax levies and
judgments, no benefit under the Plan at any time shall be subject
in any manner to anticipation, alienation, assignment (either at
law or in equity), encumbrance, garnishment, levy, execution, or
other legal or equitable process; and no person shall have power
in any manner to anticipate, transfer, assign (either at law or
in equity), alienate or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void.
15.7 Facility of Payment
-------------------
If the Administrator finds that any individual to whom an amount
is payable hereunder is incapable of attending to his financial
affairs because of any mental or physical condition, including
the infirmities of advanced age, such amount (unless prior claim
therefor shall have been made by a duly qualified guardian or
other legal representative) may, in the discretion of the
Administrator, be paid to another person for the use or benefit
of the individual found incapable of attending to his financial
affairs or in satisfaction of legal obligations incurred by or on
behalf of such individual. The Trustee shall make such payment
only upon receipt of written instructions to such effect from the
Administrator. Any such payment shall be charged to the
Participant Account from which any such payment would otherwise
have been paid to the individual found incapable of attending to
his financial affairs and shall be a complete discharge of any
liability therefor under the Plan.
15.8 Inability to Locate Payee
-------------------------
If any benefit becomes payable to any person, or to the executor
or administrator of any deceased person, and if that person or
his executor or administrator does not present himself to the
Administrator within five years after the Administrator mails
written notice of his eligibility to receive a distribution
hereunder to his last known address, that benefit will be
forfeited. However, if the payee later files a claim for that
benefit, the benefit will be restored.
15.9 Distribution Pursuant to Qualified Domestic Relations
-----------------------------------------------------
Orders
------
Notwithstanding any other provision of the Plan to the contrary,
if a qualified domestic relations order so provides, distribution
may be made to an alternate payee pursuant to a qualified
domestic relations order, as defined in Section 414(p) of the
Code, regardless of whether the Participant's Settlement Date has
occurred or whether the Participant is otherwise entitled to
receive a distribution under the Plan, provided that the order so
requires.
<PAGE>
ARTICLE XVI
FORM OF PAYMENT
16.1 Form of Payment
---------------
Distribution shall be made to a Participant, or his Beneficiary,
if the Participant has died, in a single sum payment.
16.2 Direct Rollover
---------------
Notwithstanding any other provision of the Plan to the contrary,
in lieu of receiving distribution in the form of payment provided
under this Article, a "qualified distributee" may elect in
writing, in accordance with rules prescribed by the
Administrator, to have any portion, equal to $500 or more, of a
distribution made on or after January 1, 1993, that is an
"eligible rollover distribution" paid directly by the Plan to the
"eligible retirement plan" designated by the "qualified
distributee". Any such payment by the Plan to another "eligible
retirement plan" shall be a direct rollover. For purposes of
this Section, the following terms have the following meanings:
(a) An "eligible retirement plan" means an individual
retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section
408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code that accepts rollovers;
provided, however, that, in the case of a direct rollover
by a surviving spouse, an eligible retirement plan does not
include a qualified trust described in Section 401(a) of
the Code.
(b) An "eligible rollover distribution" means any distribution
of all or any portion of the balance of a Participant's
Participant Account; provided, however, that an eligible
rollover distribution does not include: any distribution
to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution
that consists of the Participant's After-Tax Contributions.
(c) A "qualified distributee" means a Participant, his
surviving spouse, or his spouse or former spouse who is an
alternate payee under a qualified domestic relations order,
as defined in Section 414(p) of the Code.
16.3 Notice Regarding Form of Payment
--------------------------------
Within the 60 day period ending 30 days before the date as of
which distribution of a Participant's Participant Account
commences, the Administrator shall provide the Participant with a
written explanation of his right to defer distribution until his
Normal Retirement Date, his right to make a direct rollover, and
the form of payment provided under the Plan. Distribution of the
Participant's Participant Account may commence less than 30 days
after such notice is provided to the Participant if (i) the
Administrator clearly informs the Participant of his right to
consider his election of whether or not to make a direct rollover
or to receive a distribution prior to his Normal Retirement Date
for a period of at least 30 days following his receipt of the
notice and (ii) the Participant, after receiving the notice,
affirmatively elects an early distribution.
<PAGE>
ARTICLE XVII
BENEFICIARIES
17.1 Designation of Beneficiary
--------------------------
A married Participant's Beneficiary shall be his spouse, unless
the Participant designates a person or persons other than his
spouse as Beneficiary with his spouse's written consent. A
Participant may designate a Beneficiary on the form prescribed by
the Administrator. If no Beneficiary has been designated
pursuant to the provisions of this Section, or if no Beneficiary
survives the Participant and he has no surviving spouse, then the
Beneficiary under the Plan shall be the Participant's
descendants, per stirpes or, if none, the Participant's estate.
If a Beneficiary dies after becoming entitled to receive a
distribution under the Plan but before distribution is made to
him in full, and if no other Beneficiary has been designated to
receive the balance of the distribution in that event, the estate
of the deceased Beneficiary shall be the Beneficiary as to the
balance of the distribution.
17.2 Spousal Consent Requirements
----------------------------
Any written spousal consent given pursuant to this Article must
acknowledge the effect of the action taken, must specify any
non-spouse Beneficiary designated by the Participant and that
such Beneficiary may not be changed without written spousal
consent, and must be witnessed by a Plan representative or a
notary public. A Participant's spouse will be deemed to have
given written consent to the Participant's designation of
Beneficiary if the Participant establishes to the satisfaction of
a Plan representative that such consent cannot be obtained
because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
regulations issued thereunder. Any written consent given or
deemed to have been given by a Participant's spouse hereunder
shall be valid only with respect to the spouse who signs the
consent.
<PAGE>
ARTICLE XVIII
ADMINISTRATION
18.1 Authority of the Sponsor
------------------------
The Sponsor, which shall be the administrator for purposes of
ERISA and the plan administrator for purposes of the Code, shall
be responsible for the administration of the Plan and, in
addition to the powers and authorities expressly conferred upon
it in the Plan, shall have all such powers and authorities as may
be necessary to carry out the provisions of the Plan, including
the power and authority to interpret and construe the provisions
of the Plan, to make benefit determinations, and to resolve any
disputes which arise under the Plan. The Sponsor may employ such
attorneys, agents, and accountants as it may deem necessary or
advisable to assist in carrying out its duties hereunder. The
Sponsor and the Trustee shall be "named fiduciaries" as that term
is defined in Section 402(a)(2) of ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities
for the operation and administration of the Plan, which
are retained by it or granted to it by this Article, to
the Trustee; and
(b) designate a person or persons other than the Sponsor to
carry out any of such powers, authority, or
responsibilities;
except that no power, authority, or responsibility of the Trustee
shall be subject to the provisions of paragraph (b) of this
Section, and except that no allocation or delegation by the
Sponsor of any of its powers, authority, or responsibilities to
the Trustee shall become effective unless such allocation or
delegation shall first be accepted by the Trustee in a writing
signed by it and delivered to the Sponsor.
18.2 Action of the Sponsor
---------------------
Any act authorized, permitted, or required to be taken under the
Plan by the Sponsor and which has not been delegated in
accordance with Section 18.1, may be taken by a majority of the
members of the board of directors of the Sponsor, either by vote
at a meeting, or in writing without a meeting, or by the employee
or employees of the Sponsor designated by the board of directors
to carry out such acts on behalf of the Sponsor. All notices,
advice, directions, certifications, approvals, and instructions
required or authorized to be given by the Sponsor as under the
Plan shall be in writing and signed by either (i) a majority of
the members of the board of directors of the Sponsor or by such
member or members as may be designated by an instrument in
writing, signed by all the members thereof, as having authority
to execute such documents on its behalf, or (ii) the employee or
employees authorized to act for the Sponsor in accordance with
the provisions of this Section.
18.3 Claims Review Procedure
-----------------------
Whenever a claim for benefits under the Plan filed by any person
(herein referred to as the "Claimant") is denied, whether in
whole or in part, the Sponsor shall transmit a written notice of
such decision to the Claimant within 90 days of the date the
claim was filed or, if special circumstances require an
extension, within 180 days of such date, which notice shall be
written in a manner calculated to be understood by the Claimant
and shall contain a statement of (i) the specific reasons for the
denial of the claim, (ii) specific reference to pertinent Plan
provisions on which the denial is based, and (iii) a description
of any additional material or information necessary for the
Claimant to perfect the claim and an explanation of why such
information is necessary. The notice shall also include a
statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of such
decision in accordance with the procedures hereinafter set forth.
Within such 60-day period, the Claimant or his authorized
representative may request that the claim denial be reviewed by
filing with the Sponsor a written request therefor, which request
shall contain the following information:
(a) the date on which the Claimant's request was filed with the
Sponsor; provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Sponsor shall control in the event that the date of the
actual filing is later than the date stated by the Claimant
pursuant to this paragraph;
(b) the specific portions of the denial of his claim which the
Claimant requests the Sponsor to review;
(c) a statement by the Claimant setting forth the basis upon
which he believes the Sponsor should reverse the previous
denial of his claim for benefits and accept his claim as
made; and
(d) any written material (offered as exhibits) which the
Claimant desires the Sponsor to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a)
of this Section or, if special circumstances require an
extension, within 120 days of such date, the Sponsor shall
conduct a full and fair review of the decision denying the
Claimant's claim for benefits and shall render its written
decision on review to the Claimant. The Sponsor's decision on
review shall be written in a manner calculated to be understood
by the Claimant and shall specify the reasons and Plan provisions
upon which the Sponsor's decision was based.
18.4 Qualified Domestic Relations Orders
-----------------------------------
The Sponsor shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
18.5 Indemnification
---------------
In addition to whatever rights of indemnification the members of
the board of directors of the Sponsor or any employee or
employees of the Sponsor to whom any power, authority, or
responsibility is delegated pursuant to Section 18.2, may be
entitled under the articles of incorporation or regulations of
the Sponsor, under any provision of law, or under any other
agreement, the Sponsor shall satisfy any liability actually and
reasonably incurred by any such person or persons, including
expenses, attorneys' fees, judgments, fines, and amounts paid in
settlement (other than amounts paid in settlement not approved by
the Sponsor), in connection with any threatened, pending or
completed action, suit, or proceeding which is related to the
exercising or failure to exercise by such person or persons of
any of the powers, authority, responsibilities, or discretion as
provided under the Plan, or reasonably believed by such person or
persons to be provided hereunder, and any action taken by such
person or persons in connection therewith, unless the same is
judicially determined to be the result of such person's or
persons' gross negligence or willful misconduct.
18.6 Actions Binding
---------------
Subject to the provisions of Section 18.3, any action taken by
the Sponsor which is authorized, permitted, or required under the
Plan shall be final and binding upon the Employers, the Trustee,
all persons who have or who claim an interest under the Plan, and
all third parties dealing with the Employers or the Trustee.
<PAGE>
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 Amendment
---------
Subject to the provisions of Section 19.2, the Sponsor may at any
time and from time to time, by action of its board of directors,
amend the Plan, either prospectively or retroactively. Any such
amendment shall be by written instrument executed by the Sponsor.
19.2 Limitation on Amendment
-----------------------
The Sponsor shall make no amendment to the Plan which shall
decrease the accrued benefit of any Participant or Beneficiary,
except that nothing contained herein shall restrict the right to
amend the provisions of the Plan relating to the administration
of the Plan and Trust. Moreover, no such amendment shall be made
hereunder which shall permit any part of the Trust to revert to
an Employer or any Related Company or be used or be diverted to
purposes other than the exclusive benefit of Participants and
Beneficiaries.
19.3 Termination
-----------
The Sponsor reserves the right, by action of its board of
directors, to terminate the Plan as to all Employers at any time
(the effective date of such termination being hereinafter
referred to as the "termination date"). Upon any such
termination of the Plan, the following actions shall be taken for
the benefit of Participants and Beneficiaries:
(a) As of the termination date, each Investment Fund shall be
valued and all Participant Accounts and Sub-Accounts shall
be adjusted in the manner provided in Article XI, with any
unallocated contributions or forfeitures being allocated as
of the termination date in the manner otherwise provided in
the Plan. The termination date shall become a Valuation
Date for purposes of Article XI. In determining the net
worth of the Trust, there shall be included as a liability
such amounts as shall be necessary to pay all expenses in
connection with the termination of the Trust and the
liquidation and distribution of the property of the Trust,
as well as other expenses, whether or not accrued, and
shall include as an asset all accrued income.
(b) All Participant Accounts shall then be disposed of to or
for the benefit of each Participant or Beneficiary in
accordance with the provisions of Article XV as if the
termination date were his Settlement Date; provided,
however, that notwithstanding the provisions of Article XV,
if the Plan does not offer an annuity option and if neither
his Employer nor a Related Company establishes or maintains
another defined contribution plan (other than an employee
stock ownership plan as defined in Section 4975(e)(7) of
the Code), the Participant's written consent to the
commencement of distribution shall not be required
regardless of the value of the vested portions of his
Participant Account.
(c) Notwithstanding the provisions of paragraph (b) of this
Section, no distribution shall be made to a Participant of
any portion of the balance of his Tax-Deferred
Contributions Sub-Account prior to his separation from
service (other than a distribution made in accordance with
Article XIII or required in accordance with Section
401(a)(9) of the Code) unless (i) neither his Employer nor
a Related Company establishes or maintains another defined
contribution plan (other than an employee stock ownership
plan as defined in Section 4975(e)(7) of the Code, a tax
credit employee stock ownership plan as defined in Section
409 of the Code, or a simplified employee pension as
defined in Section 408(k) of the Code) either at the time
the plan is terminated or at any time during the period
ending 12 months after distribution of all assets from the
Plan; provided, however, that this provision shall not
apply if fewer than two percent of the Eligible Employees
under the Plan were eligible to participate at any time in
such other defined contribution plan during the 24-month
period beginning 12 months before the Plan termination, and
(ii) the distribution the Participant receives is a "lump
sum distribution" as defined in Section 402(e)(4) of the
Code, without regard to clauses (i), (ii), (iii), and (iv)
of sub-paragraph (A), sub-paragraph (B), or sub-paragraph
(H) thereof.
Notwithstanding anything to the contrary contained in the Plan,
upon any such Plan termination, the vested interest of each
Participant and Beneficiary in his Employer Contributions
Sub-Account shall be 100 percent; and, if there is a partial
termination of the Plan, the vested interest of each Participant
and Beneficiary who is affected by the partial termination in his
Employer Contributions Sub-Account shall be 100 percent. For
purposes of the preceding sentence only, the Plan shall be deemed
to terminate automatically if there shall be a complete
discontinuance of contributions hereunder by all Employers.
19.4 Reorganization
---------------
The merger, consolidation, or liquidation of any Employer with or
into any other Employer or a Related Company shall not constitute
a termination of the Plan as to such Employer. If an Employer
disposes of substantially all of the assets used by the Employer
in a trade or business or disposes of a subsidiary and in
connection therewith one or more Participants terminates
employment but continues in employment with the purchaser of the
assets or with such subsidiary, no distribution from the Plan
shall be made to any such Participant prior to his separation
from service (other than a distribution made in accordance with
Article XIII or required in accordance with Section 401(a)(9) of
the Code), except that a distribution shall be permitted to be
made in such a case, subject to the Participant's consent (to the
extent required by law), if (i) the distribution would constitute
a "lump sum distribution" as defined in section 402(e)(4) of the
Code, without regard to clauses (i), (ii), (iii), or (iv) of
sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H)
thereof, (ii) the Employer continues to maintain the Plan after
the disposition, (iii) the purchaser does not maintain the Plan
after the disposition, and (iv) the distribution is made by the
end of the second calendar year after the calendar year in which
the disposition occurred.
19.5 Withdrawal of an Employer
-------------------------
An Employer other than the Sponsor may withdraw from the Plan at
any time upon notice in writing to the Administrator (the
effective date of such withdrawal being hereinafter referred to
as the "withdrawal date"), and shall thereupon cease to be an
Employer for all purposes of the Plan. An Employer shall be
deemed automatically to withdraw from the Plan in the event of
its complete discontinuance of contributions, or, subject to
Section 19.4 and unless the Sponsor otherwise directs, it ceases
to be a Related Company of the Sponsor or any other Employer.
The withdrawal of an Employer shall be treated as a termination
of the Plan with respect to Participants who at the time are
employed by such Employer. In the event of any such withdrawal
of an Employer, the action specified in Section 19.3 shall be
taken as of the withdrawal date, as on a termination of the Plan,
but with respect only to Participants who are employed solely by
the withdrawing Employer, and who, upon such withdrawal, are
neither transferred to nor continued in employment with any other
Employer or a Related Company. The interest of any Participant
employed by the withdrawing Employer who is transferred to or
continues in employment with any other Employer or a Related
Company, and the interest of any Participant employed solely by
an Employer or a Related Company other than the withdrawing
Employer, shall remain unaffected by such withdrawal; no
adjustment to his Participant Accounts shall be made by reason of
the withdrawal; and he shall continue as a Participant hereunder
subject to the remaining provisions of the Plan.
<PAGE>
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 Adoption by Related Companies
-----------------------------
A Related Company that is not an Employer may, with the consent
of the Sponsor, adopt the Plan and become an Employer hereunder
by causing an appropriate written instrument evidencing such
adoption to be executed in accordance with the requirements of
its organizational authority. Any such instrument shall specify
the effective date of the adoption.
20.2 Effective Plan Provisions
-------------------------
An Employer who adopts the Plan shall be bound by the provisions
of the Plan in effect at the time of the adoption and as
subsequently in effect because of any amendment to the Plan.
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 No Commitment as to Employment
------------------------------
Nothing contained herein shall be construed as a commitment or
agreement upon the part of any person to continue his employment
with an Employer or Related Company, or as a commitment on the
part of any Employer or Related Company to continue the
employment, compensation, or benefits of any person for any
period.
21.2 Benefits
--------
Nothing in the Plan nor the Trust Agreement shall be construed to
confer any right or claim upon any person, firm, or corporation
other than the Employers, the Trustee, Participants, and
Beneficiaries.
21.3 No Guarantees
-------------
The Employers, the Administrator, and the Trustee do not
guarantee the Trust from loss or depreciation, nor do they
guarantee the payment of any amount which may become due to any
person hereunder.
21.4 Expenses
--------
The expenses of administration of the Plan, including the
expenses of the Administrator and fees of the Trustee, shall be
paid from the Trust or by the Sponsor or another Employer as the
Sponsor shall direct.
21.5 Precedent
---------
Except as otherwise specifically provided, no action taken in
accordance with the Plan shall be construed or relied upon as a
precedent for similar action under similar circumstances.
21.6 Duty to Furnish Information
---------------------------
The Employers, the Administrator, and the Trustee shall furnish
to any of the others any documents, reports, returns, statements,
or other information that the other reasonably deems necessary to
perform its duties hereunder or otherwise imposed by law.
21.7 Withholding
-----------
The Trustee shall withhold any tax which by any present or future
law is required to be withheld, and which the Administrator
notifies the Trustee in writing is to be so withheld, from any
payment to any Participant or Beneficiary hereunder.
21.8 Merger, Consolidation, or Transfer of Plan Assets
-------------------------------------------------
The Plan shall not be merged or consolidated with any other plan,
nor shall any of its assets or liabilities be transferred to
another plan, unless, immediately after such merger,
consolidation, or transfer of assets or liabilities, each
Participant in the Plan would receive a benefit under the Plan
which is at least equal to the benefit he would have received
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (assuming in each instance that the Plan
had then terminated).
21.9 Back Pay Awards
---------------
The provisions of this Section shall apply only to an Employee or
former Employee who becomes entitled to back pay by an award or
agreement of an Employer without regard to mitigation of damages.
If a person to whom this Section applies was or would have become
an Eligible Employee after such back pay award or agreement has
been effected, and if any such person who had not previously
elected to make Tax-Deferred Contributions pursuant to Section
4.1 shall within 30 days of the date he receives notice of the
provisions of this Section make an election to make Tax-Deferred
Contributions in accordance with such Section 4.1 (retroactive to
any Enrollment Date as of which he was or has become eligible to
do so), then such Participant may elect that any Tax-Deferred
Contributions not previously made on his behalf but which, after
application of the foregoing provisions of this Section, would
have been made under the provisions of Article IV and any
After-Tax Contributions which he had not previously made but
which, after application of the foregoing provisions of this
Section, he would have made under the provisions of Article V,
shall be made out of the proceeds of such back pay award or
agreement. In addition, if any such Employee or former Employee
would have been eligible to participate in the allocation of
Employer Contributions under the provisions of Article VI for any
prior Plan Year after such back pay award or agreement has been
effected, his Employer shall make an Employer Contribution equal
to the amount of the Employer Contribution which would have been
allocated to such Participant under the provisions of Article VI
as in effect during each such Plan Year. The amounts of such
additional contributions shall be credited to the Participant
Account of such Participant. Any additional contributions made
by such Participant and by an Employer pursuant to this Section
shall be made in accordance with, and subject to the limitations
of the applicable provisions of Articles IV, V, VI, and VII.
21.10 Condition on Employer Contributions
-----------------------------------
Notwithstanding anything to the contrary contained in the Plan or
the Trust Agreement, any contribution of an Employer hereunder is
conditioned upon the continued qualification of the Plan under
Section 401(a) of the Code, the exempt status of the Trust under
Section 501(a) of the Code, and the deductibility of the
contribution under Section 404 of the Code. Except as otherwise
provided in this Section and Section 21.11, however, in no event
shall any portion of the property of the Trust ever revert to or
otherwise inure to the benefit of an Employer or any Related
Company.
21.11 Return of Contributions to an Employer
---------------------------------------
Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, in the event any contribution of an
Employer made hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the Code,
such contribution may be returned to the Employer within one year
after the payment of the contribution or the disallowance of the
deduction to the extent disallowed, whichever is applicable. In
the event the Plan does not initially qualify under Section
401(a) of the Code, any contribution of an Employer made
hereunder may be returned to the Employer within one year of the
date of denial of the initial qualification of the Plan, but only
if an application for determination was made within the period of
time prescribed under Section 403(c)(2)(B) of ERISA.
21.12 Validity of Plan
----------------
The validity of the Plan shall be determined and the Plan shall
be construed and interpreted in accordance with the laws of the
state in which the Trustee has its principal place of business
or, if the Trustee is an individual or group of individuals, the
state in which the Sponsor has its principal place of business,
except as preempted by applicable Federal law. The invalidity or
illegality of any provision of the Plan shall not affect the
legality or validity of any other part thereof.
21.13 Trust Agreement
---------------
The Trust Agreement and the Trust maintained thereunder shall be
deemed to be a part of the Plan as if fully set forth herein and
the provisions of the Trust Agreement are hereby incorporated by
reference into the Plan.
21.14 Parties Bound
-------------
The Plan shall be binding upon the Employers, all Participants
and Beneficiaries hereunder, and, as the case may be, the heirs,
executors, administrators, successors, and assigns of each of
them.
21.15 Application of Certain Plan Provisions
--------------------------------------
A Participant's Beneficiary, if the Participant has died, or
alternate payee under a qualified domestic relations order shall
be treated as a Participant for purposes of directing investments
as provided in Article X. For purposes of the general
administrative provisions and limitations of the Plan, a
Participant's Beneficiary or alternate payee under a qualified
domestic relations order shall be treated as any other person
entitled to receive benefits under the Plan. Upon any
termination of the Plan, any such Beneficiary or alternate payee
under a qualified domestic relations order who has an interest
under the Plan at the time of such termination, which does not
cease by reason thereof, shall be deemed to be a Participant for
all purposes of the Plan.
21.16 Leased Employees
----------------
Any leased employee, other than an excludable leased employee,
shall be treated as an employee of the Employer for which he
performs services for all purposes of the Plan with respect to
the provisions of Sections 401(a)(3), (4), (7), and (16), and
408(k), 410, 411, 415, and 416 of the Code; provided, however,
that no leased employee shall accrue a benefit hereunder based on
service as a leased employee except as otherwise specifically
provided in the Plan. A "leased employee" means any person who
performs services for an Employer or a Related Company (the
"recipient") (other than an employee of the recipient) pursuant
to an agreement between the recipient and any other person (the
"leasing organization") on a substantially full-time basis for a
period of at least one year, provided that such services are of a
type historically performed, in the business field of the
recipient, by employees. An "excludable leased employee" means
any leased employee of the recipient who is covered by a money
purchase pension plan maintained by the leasing organization
which provides for (i) a nonintegrated employer contribution on
behalf of each participant in the plan equal to at least ten
percent of compensation, (ii) full and immediate vesting, and
(iii) immediate participation by employees of the leasing
organization (other than employees who perform substantially all
of their services for the leasing organization or whose
compensation from the leasing organization in each plan year
during the four-year period ending with the plan year is less
than $1,000); provided, however, that leased employees do not
constitute more than 20 percent of the recipient's nonhighly
compensated work force. For purposes of this Section,
contributions or benefits provided to a leased employee by the
leasing organization that are attributable to services performed
for the recipient shall be treated as provided by the recipient.
21.17 Transferred Funds
-----------------
If funds from another qualified plan are transferred or merged
into the Plan, such funds shall be held and administered in
accordance with any restrictions applicable to them under such
other plan to the extent required by law and shall be accounted
for separately to the extent necessary to accomplish the
foregoing.
<PAGE>
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 Definitions
------------
For purposes of this Article, the following terms have the
following meanings:
(a) The "compensation" of an employee means compensation as
defined in Section 415 of the Code and regulations issued
thereunder. In no event, however, shall the compensation
of a Participant taken into account under the Plan for any
Plan Year exceed (1) $200,000 for Plan Years beginning
prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to
adjustment annually as provided in Section 401(a)(17)(B)
and Section 415(d) of the Code; provided, however, that the
dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in such
calendar year). If the compensation of a Participant is
determined over a period of time that contains fewer than
12 calendar months, then the annual compensation limitation
described above shall be adjusted with respect to that
Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the
period and the denominator of which is 12; provided,
however, that no proration is required for a Participant
who is covered under the Plan for less than one full Plan
Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In
determining the compensation, for purposes of applying the
annual compensation limitation described above, of a
Participant who is a five-percent owner or one of the ten
Highly Compensated Employees receiving the greatest
compensation for the Plan Year, the compensation of the
Participant's spouse and of his lineal descendants who have
not attained age 19 as of the close of the Plan Year shall
be included as compensation of the Participant for the Plan
Year. If as a result of applying the family aggregation
rule described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation
shall be prorated among the affected family members in
proportion to each member's compensation as determined
prior to application of the family aggregation rules.
(b) The "determination date" with respect to any Plan Year
means the last day of the preceding Plan Year, except that
the determination date with respect to the first Plan Year
of the Plan, shall mean the last day of such Plan Year.
(c) A "key employee" means any Employee or former Employee who
is a key employee pursuant to the provisions of
Section 416(i)(1) of the Code and any Beneficiary of such
Employee or former Employee.
(d) A "non-key employee" means any Employee who is not a key
employee.
(e) A "permissive aggregation group" means those plans included
in each Employer's required aggregation group together with
any other plan or plans of the Employer, so long as the
entire group of plans would continue to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
(f) A "required aggregation group" means the group of tax-
qualified plans maintained by an Employer or a Related
Company consisting of each plan in which a key employee
participates and each other plan that enables a plan in
which a key employee participates to meet the requirements
of Section 401(a)(4) or Section 410 of the Code, including
any plan that terminated within the five-year period ending
on the relevant determination date.
(g) A "super top-heavy group" with respect to a particular Plan
Year means a required or permissive aggregation group that,
as of the determination date, would qualify as a top-heavy
group under the definition in paragraph (i) of this Section
with "90 percent" substituted for "60 percent" each place
where "60 percent" appears in the definition.
(h) A "super top-heavy plan" with respect to a particular Plan
Year means a plan that, as of the determination date, would
qualify as a top-heavy plan under the definition in
paragraph (j) of this Section with "90 percent" substituted
for "60 percent" each place where "60 percent" appears in
the definition. A plan is also a "super top-heavy plan" if
it is part of a super top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year
means a required or permissive aggregation group if the
sum, as of the determination date, of the present value of
the cumulative accrued benefits for key employees under all
defined benefit plans included in such group and the
aggregate of the account balances of key employees under
all defined contribution plans included in such group
exceeds 60 percent of a similar sum determined for all
employees covered by the plans included in such group.
(j) A "top-heavy plan" with respect to a particular Plan Year
means (i), in the case of a defined contribution plan
(including any simplified employee pension plan), a plan
for which, as of the determination date, the aggregate of
the accounts (within the meaning of Section 416(g) of the
Code and the regulations and rulings thereunder) of key
employees exceeds 60 percent of the aggregate of the
accounts of all participants under the plan, with the
accounts valued as of the relevant valuation date and
increased for any distribution of an account balance made
in the five-year period ending on the determination date,
(ii), in the case of a defined benefit plan, a plan for
which, as of the determination date, the present value of
the cumulative accrued benefits payable under the plan
(within the meaning of Section 416(g) of the Code and the
regulations and rulings thereunder) to key employees
exceeds 60 percent of the present value of the cumulative
accrued benefits under the plan for all employees, with the
present value of accrued benefits to be determined under
the accrual method uniformly used under all plans
maintained by an Employer or, if no such method exists,
under the slowest accrual method permitted under the
fractional accrual rate of Section 411(b)(1)(C) of the Code
and including the present value of any part of any accrued
benefits distributed in the five-year period ending on the
determination date, and (iii) any plan (including any
simplified employee pension plan) included in a required
aggregation group that is a top-heavy group. For purposes
of this paragraph, the accounts and accrued benefits of any
employee who has not performed services for an Employer or
a Related Company during the five-year period ending on the
determination date shall be disregarded. For purposes of
this paragraph, the present value of cumulative accrued
benefits under a defined benefit plan for purposes of top-
heavy determinations shall be calculated using the
actuarial assumptions otherwise employed under such plan,
except that the same actuarial assumptions shall be used
for all plans within a required or permissive aggregation
group. A Participant's interest in the Plan attributable
to any Rollover Contributions, except Rollover
Contributions made from a plan maintained by an Employer or
a Related Company, shall not be considered in determining
whether the Plan is top-heavy. Notwithstanding the
foregoing, if a plan is included in a required or
permissive aggregation group that is not a top-heavy group,
such plan shall not be a top-heavy plan.
(k) The "valuation date" with respect to any determination date
means the most recent Valuation Date occurring within the
12-month period ending on the determination date.
22.2 Applicability
-------------
Notwithstanding any other provision of the Plan to the contrary,
the provisions of this Article shall be applicable during any
Plan Year in which the Plan is determined to be a top-heavy plan
as hereinafter defined. If the Plan is determined to be a top-
heavy plan and upon a subsequent determination date is determined
no longer to be a top-heavy plan, the vesting provisions of
Article VI shall again become applicable as of such subsequent
determination date; provided, however, that if the prior vesting
provisions do again become applicable, any Employee with three or
more years of Vesting Service may elect in accordance with the
provisions of Article VI, to continue to have his vested interest
in his Employer Contributions Sub-Account determined in
accordance with the vesting schedule specified in Section 22.5.
22.3 Minimum Employer Contribution
-----------------------------
If the Plan is determined to be a top-heavy plan, the Employer
Contributions allocated to the Participant Account of each
non-key employee who is an Eligible Employee and who is employed
by an Employer or a Related Company on the last day of such
top-heavy Plan Year shall be no less than the lesser of (i) three
percent of his compensation or (ii) the largest percentage of
compensation that is allocated as an Employer Contribution and/or
Tax-Deferred Contribution for such Plan Year to the Participant
Account of any key employee; except that, in the event the Plan
is part of a required aggregation group, and the Plan enables a
defined benefit plan included in such group to meet the
requirements of Section 401(a)(4) or 410 of the Code, the minimum
allocation of Employer Contributions to each such non-key
employee shall be three percent of the compensation of such
non-key employee. In lieu of the minimum allocation described in
the preceding sentence, the Employer Contributions allocated to
the Participant Account of each non-key employee who is employed
by an Employer or a Related Company on the last day of a top-
heavy Plan Year and who is also covered under a top-heavy defined
benefit plan maintained by an Employer or a Related Company will
be no less than five percent of his compensation. Any minimum
allocation to a non-key employee required by this Section shall
be made without regard to any social security contribution made
on behalf of the non-key employee, his number of hours of
service, his level of compensation, or whether he declined to
make elective or mandatory contributions.
22.4 Adjustments to Section 415 Limitations
--------------------------------------
If the Plan is determined to be a top-heavy plan and an Employer
maintains a defined benefit plan covering some or all of the
Employees that are covered by the Plan, the defined benefit plan
fraction and the defined contribution plan fraction, described in
Article VII, shall be determined as provided in Section 415 of
the Code by substituting "1.0" for "1.25" each place where "1.25"
appears, except that such substitutions shall not be applied to
the Plan if (i) the Plan is not a super top-heavy plan, (ii) the
Employer Contribution for such top-heavy Plan Year for each
non-key employee who is to receive a minimum top-heavy benefit
hereunder is not less than four percent of such non-key
employee's compensation, and (iii) the minimum annual retirement
benefit accrued by a non-key employee who participates under one
or more defined benefit plans of an Employer or a Related Company
for such top-heavy Plan Year is not less than the lesser of three
percent times years of service with an Employer or a Related
Company or thirty percent.
22.5 Accelerated Vesting
-------------------
If the Plan is determined to be a top-heavy plan, a Participant's
vested interest in his Employer Contributions Sub-Account shall
be determined no less rapidly than in accordance with the
following vesting schedule:
Years of Vesting Service Vested Interest
------------------------ ---------------
less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
ARTICLE XXIII
EFFECTIVE DATE
23.1 Effective Date of Amendment and Restatement
-------------------------------------------
This amendment and restatement is effective as of January 1,
1995.
* * *
EXECUTED AT
______________________________________, ________________________,
this _________ day of ________________, 19__.
ENVIRODYNE INDUSTRIES, INC.
By: ____________________________
Title:
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in the registration
statement on Form S-8 (File No. ) of our report
dated March 26, 1996, on our audits of the consolidated financial
statements and the financial statement schedules of Envirodyne
Industries, Inc. and Subsidiaries as of December 28, 1995 and
December 29, 1994, and for the period December 30, 1994 to
December 28, 1995 and January 1 to December 29, 1994 (post-
consummation) and January 1 to December 31, 1993 (Pre-
consummation).
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
September 27, 1996
