<PAGE>
As filed with the Securities and Exchange Registration No. 333-04583
Commission on July 8, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
EQUIFAX INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-04011110
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(Address of principal executive office)
--------------------------------
EQUIFAX INC.
EMPLOYEES 401(K) RETIREMENT AND SAVINGS PLAN
CHOICEPOINT INC. 401(K) PROFIT SHARING PLAN
(Full title of the plans)
--------------------------------
BRUCE S. RICHARDS, ESQ.
Corporate Vice President and General Counsel
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
404/885-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to
James H. Landon, Esq.
Jones, Day, Reavis & Pogue
3500 Suntrust Plaza,
303 Peachtree Street
Atlanta, Georgia 30308
<PAGE>
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information
specified by Part I of Form S-8 has been omitted from this amendment to the
Registration Statement on Form S-8 for offers of shares of the Common Stock of
Equifax Inc. (the "Company") and plan interests under the Equifax Inc. Employees
401(k) Retirement and Savings Thrift Plan (the "Equifax Plan") and the
ChoicePoint Inc. 401(k) Profit Sharing Plan (the "ChoicePoint Plan" and together
with the Equifax Plan, the "Plans").
<PAGE>
EQUIFAX INC.
POST EFFECTIVE AMMENDMENT No. 1 TO REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM NO.
- --------
3. Incorporation of Documents by Reference.
---------------------------------------
The Company hereby incorporates by reference into this Registration Statement
the following documents:
(a) (i) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(iii) The Equifax Plan's Annual Report on Form 11-K for the plan year
ended December 31, 1996.
(b) All other reports filed with the Commission pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1996.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 10 dated December 31, 1964.
All documents subsequently filed by the Company or the Plans pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
4. Description of Securities.
-------------------------
Inapplicable.
5. Interests of Named Experts and Counsel.
--------------------------------------
Inapplicable.
6. Indemnification of Directors and Officers.
-----------------------------------------
The Georgia Business Corporation Code permits, and the Company's Bylaws
require, the Company to indemnify any person who was or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding
(which could include actions, suits or proceedings under the Securities Act of
1933, as amended (the "Securities Act")), whether civil, criminal,
administrative, or investigative (other than action brought by or on behalf of
the Company) by reason of the fact that such person is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust,
or other enterprise, against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. With
regard to actions or suits by or in the right of the Company, indemnification is
limited to reasonable expenses incurred in connection with the proceeding and
generally is not available in connection with such a proceeding in which such
person was adjudged liable to the Company.
1
<PAGE>
In addition, the Company carries insurance on behalf of directors and officers
that may cover liabilities under the Securities Act.
7. Exemption from Registration Claimed.
-----------------------------------
Inapplicable.
8. Exhibits.
--------
Exhibit
Number Description
- ------- -----------
4 ChoicePoint Inc. 401(k) Profit Sharing Plan.
5 Opinion of General Counsel as to the legality of the securities being
registered (previously filed).
23(a) Consent of General Counsel (previously filed).
23(b) Consent of Arthur Andersen LLP.
24 Power of Attorney (previously filed).
The Company has received a favorable determination letter from the Internal
Revenue Service (the "IRS") with respect to the qualification of the Equifax
Plan under section 401(a) of the Internal Revenue Code. In addition,
ChoicePoint Inc. intends to seek a determination from the IRS with respect to
the qualification of the ChoicePoint Plan under section 401(a) of the Internal
Revenue Code.
9. Undertakings.
------------
(a) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and each
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company 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 and will be governed by the final adjudication of such issue.
2
<PAGE>
(c) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) do not apply
-------- -------
if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
3
<PAGE>
SIGNATURES
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 amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on this 8th day of
July, 1997.
EQUIFAX INC.
By: /s/ D.W. McGlaughlin
-------------------------------------
D.W. McGlaughlin
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated below.
Signature Title Date
--------- ----- ----
* Chairman of the Board
- ----------------------------
C. B. Rogers, Jr.
/s/ D.W. McGlaughlin President, Chief Executive July 8, 1997
- ---------------------------- Officer and Director
D. W. McGlaughlin
* Executive Vice President and
- ---------------------------- Director
Thomas F. Chapman
* Senior Vice President and Chief
- ---------------------------- Financial Officer
Donald U. Hallman
* Corporate Vice President and Controller
- ---------------------------- Controller (Principal Accounting
P. J. Mazzilli Officer)
4
<PAGE>
* Executive Vice President and
- ---------------------------- Director
Derek V. Smith
Director
- ----------------------------
Robert P. Forrestal
Director
- ----------------------------
Lee A. Ault, III
Director
- ----------------------------
Ron D. Barbaro
* Director
- ----------------------------
John L. Clendenin
Director
- ----------------------------
A. W. Dahlberg
* Director
- ----------------------------
L. Phillip Humann
Director
- ----------------------------
Tinsley H. Irvin
Director
- ----------------------------
L.W. Sullivan, M.D.
* Director
- ----------------------------
Larry L. Prince
* Director
- ----------------------------
D. Raymond Riddle
Director
- ----------------------------
Betty L. Siegel, Ph.D.
/s/ D. W. McGlaughlin July 8, 1997
- ----------------------------
*D. W. McGlaughlin, Attorney-in-Fact
5
<PAGE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employment benefit plans) have
duly caused this amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on the 8th day of July, 1997.
EQUIFAX INC. EMPLOYEES 401(k) RETIREMENT AND
SAVINGS PLAN
CHOICEPOINT INC. 401(K) PROFIT SHARING PLAN
By: /s/ Donald E. McGuffey
-------------------------
Donald E. McGuffey
Plan Administrator
6
<PAGE>
EXHIBIT INDEX
Description Page
- ---------- ----
4 Choice Point Inc. 401(k) Profit Sharing Plan 8
23(b) Consent of Arthur Andersen LLP 68
7
<PAGE>
CHOICEPOINT INC.
401(K) PROFIT SHARING PLAN
Effective July 1, 1997
8
<PAGE>
CHOICEPOINT INC.
401(K) PROFIT SHARING PLAN
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS............................................................... 2
1.1 Account............................................................ 2
1.2 Allocation Participant............................................. 2
1.3 Applicable Compensation............................................ 2
1.4 Beneficiary........................................................ 3
1.5 Benefit Commencement Date.......................................... 4
1.6 Code............................................................... 4
1.7 Committee.......................................................... 4
1.8 Company............................................................ 4
1.9 Company Profit-Sharing Contributions............................... 4
1.10 Company Profit-Sharing Contributions Account....................... 4
1.11 Controlled Group................................................... 4
1.12 Disabled........................................................... 4
1.13 Effective Date..................................................... 4
1.14 Election Directive................................................. 5
1.15 Elective Contributions............................................. 5
1.16 Elective Contributions Account..................................... 5
1.17 Eligibility Computation Period..................................... 5
1.18 Eligible Employee.................................................. 5
1.19 Employee........................................................... 5
1.20 Employer........................................................... 5
1.21 Employment Commencement Date....................................... 6
1.22 ERISA.............................................................. 6
1.23 Highly Compensated Employee........................................ 6
1.24 Hours of Service................................................... 7
1.25 Leased Employee.................................................... 10
1.26 Matching Elective Contributions.................................... 10
1.27 Matching Elective Contributions Account............................ 10
1.28 Matching Voluntary Contributions................................... 10
1.29 Matching Voluntary Contributions Account........................... 11
1.30 Normal Retirement Age.............................................. 11
1.31 One-Year Break in Service (or Break in Service).................... 11
1.32 One-Year Period of Severance....................................... 11
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
1.33 Participant........................................................ 11
1.34 Period of Service.................................................. 11
1.35 Period of Severance................................................ 11
1.36 Plan............................................................... 11
1.37 Plan Administrator................................................. 11
1.38 Plan Year.......................................................... 12
1.39 Qualified Spousal Waiver........................................... 12
1.40 Reemployment Commencement Date..................................... 12
1.41 Required Beginning Date............................................ 12
1.42 Rollover Contributions............................................. 12
1.43 Rollover Contributions Account..................................... 12
1.44 Severance from Service Date........................................ 12
1.45 Spouse............................................................. 13
1.46 Surviving Spouse................................................... 13
1.47 Trust.............................................................. 13
1.48 Trust Agreement.................................................... 13
1.49 Trust Fund......................................................... 13
1.50 Trustee............................................................ 14
1.51 Voluntary Contributions............................................ 14
1.52 Voluntary Contributions Account.................................... 14
1.53 Year of Eligibility Service........................................ 14
ARTICLE II
ELIGIBILITY FOR PARTICIPATION............................................. 15
2.1 Initial Attainment of Participation Status......................... 15
2.2 Reemployment of Former Non-Participant Employees................... 16
2.3 Reemployment of Former Participants................................ 16
2.4 Transfers to/from Eligible Class................................... 16
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONS............................................. 18
3.1 Employer Contributions............................................. 18
3.2 Employee Contributions............................................. 21
3.3 Return of Contributions............................................ 23
3.4 Prior Plan Contributions........................................... 23
ARTICLE IV
VESTING IN ACCOUNTS....................................................... 25
4.1 Vesting of Accounts................................................ 25
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE V
ACCOUNTS AND INVESTMENTS.................................................. 26
5.1 Separate Accounts.................................................. 26
5.2 Investment of Trust Fund........................................... 26
5.3 Trustee's Reliance................................................. 28
ARTICLE VI
VALUATION OF PARTICIPANTS' ACCOUNTS....................................... 29
ARTICLE VII
PAYMENT OF BENEFITS....................................................... 30
7.1 Time of Payment of Benefits........................................ 30
7.2 Benefits Upon Death................................................ 31
7.3 Form of Payment of Benefits........................................ 32
7.4 Valuation of Accounts for Payments................................. 33
7.5 Code (S)401(a)(14) Requirement..................................... 33
7.6 Code (S)411(a)(11) Consent Requirements............................ 33
7.7 Code (S)401(k)(2)(B) Restrictions.................................. 35
7.8 Payments to Alternate Payees....................................... 35
7.9 Withdrawals of Elective Contributions.............................. 35
7.10 Voluntary Contribution and Rollover Contribution Withdrawals....... 37
7.11 Code (S)401(a)(31) Requirement..................................... 38
ARTICLE VIII
THE TRUST FUND AND THE TRUSTEE............................................ 41
8.1 Existence of Trust................................................. 41
8.2 Exclusive Benefit Rule............................................. 41
8.3 Removal or Resignation of Trustee.................................. 41
8.4 Powers of Trustee.................................................. 41
8.5 Integration of Trust Agreement..................................... 41
8.6 Records and Accounts............................................... 42
8.7 Annual Reports..................................................... 42
ARTICLE IX
ADMINISTRATION............................................................ 43
9.1 Allocation of Responsibility....................................... 43
9.2 Administrative Expenses............................................ 43
9.3 Committee Powers and Duties........................................ 43
9.4 Records and Reports................................................ 43
9.5 Reporting and Disclosure........................................... 43
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
9.6 Fiduciaries and Named Fiduciaries.................................. 44
9.7 Plan Administrator................................................. 44
9.8 Interpretation of the Plan and Findings of Facts................... 44
9.9 Bonding, Insurance and Indemnity................................... 45
9.10 Committee and Plan Administrator Liability......................... 46
ARTICLE X
AMENDMENT, TERMINATION, MERGER, CONSOLIDATION AND ADOPTION................ 47
10.1 Continuation of Plan.............................................. 47
10.2 Right to Amend Plan............................................... 47
10.3 Right to Terminate Plan........................................... 47
10.4 Merger, Consolidation, or Transfer of Assets...................... 48
10.5 Adoption of Plan by Aggregated Code (S)414 Employers.............. 48
ARTICLE XI
GENERAL PROVISIONS........................................................ 51
11.1 Participant's Rights to Employment, Etc........................... 51
11.2 No Guarantee of Interests......................................... 51
11.3 Standard of Conduct............................................... 51
11.4 Allocation of Duties.............................................. 51
11.5 Claims Procedure.................................................. 52
11.6 Nonalienation or Assignment; QDRO's............................... 54
11.7 Plan Continuance Voluntary........................................ 55
11.8 Payments to Minors and Others..................................... 55
11.9 Location of Payee; Unclaimed Benefits............................. 56
11.10 Governing Law..................................................... 56
11.11 Correction of Participants' Accounts.............................. 56
11.12 Action of Employer, Committee and Plan Administrator............... 56
11.13 Employer Records.................................................. 57
11.14 Gender and Number................................................. 57
11.15 Headings.......................................................... 57
11.16 Liability Limited................................................. 57
11.17 Prohibited Discrimination......................................... 57
11.18 Legal References.................................................. 57
11.19 Electronic Means of Communication................................. 57
APPENDIX I
ADDITIONAL DISCRETIONARY EMPLOYER CONTRIBUTIONS........................... A1
1.1 Employer Contributions............................................. A1
1.2 Separate Accounts.................................................. A3
1.3 Definitions........................................................ A3
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
APPENDIX II
CODE (S)402(g) LIMITATIONS AND CORRECTION OF EXCESS DEFERRALS............. A6
2.1 Code (S)402(g) Limitations......................................... A6
2.2 Identification of Excess Deferrals and Correction.................. A6
2.3 Definitions........................................................ A7
APPENDIX III
CODE (S)(S)401(k) and (m) NONDISCRIMINATION REQUIREMENTS.................. A8
3.1 Limitation of Elective Deferrals................................... A8
3.2 Limitation of Employee and Employer Matching Contributions......... A9
3.3 Corrections Required by Discrimination Tests....................... A10
3.4 Multiple Use of Alternative Limitation............................. A14
3.5 Discretionary Cutbacks to Satisfy Discrimination Tests............. A16
3.6 Definitions........................................................ A16
APPENDIX IV
REQUIRED DISTRIBUTIONS.................................................... A19
4.1 General Rules...................................................... A19
4.2 Required Distribution Rule......................................... A19
4.3 Limits on Distribution Periods..................................... A19
4.4 Death Distribution Provisions...................................... A19
4.5 Determination of Amount to be Distributed Each Year................ A21
4.6 Transitional Rule.................................................. A23
4.7 Definitions........................................................ A24
APPENDIX V
SPECIAL RULES APPLICABLE TO TOP HEAVY PLAN YEARS.......................... A27
5.1 Top-Heavy Provisions............................................... A27
5.2 Top-Heavy Special Definitions...................................... A28
APPENDIX VI
CODE (S)415 LIMITATIONS ON ALLOCATIONS.................................... A32
6.1 General Rules...................................................... A32
6.2 Adjustments for Top Heavy Plan..................................... A33
6.3 Applicable Definitions............................................. A34
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
APPENDIX VII
SPECIAL PROVISIONS FOR EMPLOYER SECURITIES................................ A39
7.1 Limitations on TRASOP Securities................................... A39
7.2 Form of Distribution............................................... A39
7.3 TRASOP Securities must Remain in Plan.............................. A39
7.4 Voting Rights...................................................... A40
7.5 Allocation of Earnings............................................. A40
7.6 Common Stock....................................................... A40
7.7 ESOP Accounts...................................................... A41
EXHIBIT A................................................................. A42
</TABLE>
vi
<PAGE>
CHOICEPOINT INC. 401(K) PROFIT SHARING PLAN
PREAMBLE
--------
The ChoicePoint Inc. 401(k) Profit Sharing Plan is intended to
constitute a defined contribution plan, qualified under Sections 401(a) and
401(k) of the Internal Revenue Code of 1986, as amended, for the exclusive
benefit of Eligible Employees and their Beneficiaries. The Plan is designed to
qualify as a profit-sharing plan for purposes of Sections 401(a), 402, 412, and
417 of the Code; provided, however, that notwithstanding any other provision
herein to the contrary, contributions to the Plan may be made without reference
to the current or accumulated net earnings or net profit of the Company. The
Company intends to maintain the tax-qualified status of the Plan and Trust Fund,
but makes no guarantee that it can or will continue to do so. No part of the
Trust Fund is to be used for or diverted to purposes other than the Plan, and no
part of the Trust Fund may revert to the Employer except as provided in the
Plan. The Plan is funded through a Trust Fund intended to be tax-exempt under
Section 501(a) of the Code.
The effective date of the Plan is July 1, 1997. The Plan was
originally created by the division of the Equifax Inc. Employees 401(k)
Retirement and Savings Plan as of the Effective Date, for the benefit of those
employees of Equifax Inc. and its related companies who were participants in
said Equifax Inc. plan and who became or remained employees of ChoicePoint Inc.
or its subsidiaries as of the Effective Date. Except as may be otherwise stated
herein, any amendment of the Plan shall apply only to a Participant who is
credited with an Hour of Service on or after the effective date of the
amendment. The rights and benefits of a Participant who is not credited with an
Hour of Service on or after the effective date of the amendment shall be
determined in accordance with the terms of the Plan in effect on the date of the
Participant's termination of employment with the Employer.
9
<PAGE>
ARTICLE I
DEFINITIONS
-----------
The following words and phrases as used in this Plan shall have the
meanings set forth in this Article unless a different meaning is clearly
required by the context:
1.1 Account shall mean a separate account which is established and
-------
maintained for a Participant (or his Beneficiary) and to which contributions
made under this Plan which are allocated to such Participant, if any, and
earnings or losses thereon, if any, shall be credited. See Section 5.1 herein.
1.2 Allocation Participant shall, for a Plan Year, mean those
----------------------
Participants:
(a) who are employed by any member of the Controlled Group as
an Eligible Employee on November 30 or a later date in such Plan
Year, or
(b) who terminated employment during such Plan Year
(i) after becoming Disabled,
(ii) after having attained their Normal Retirement Age, or
(iii) after having attained the age of 55 and having
completed 5 Years of Eligibility Service,
but who did not receive a distribution of their entire Account
balance during such Plan Year.
1.3 Applicable Compensation shall, with respect to an Employee for a
-----------------------
Plan Year, mean the amount of wages, as defined in Code (S) 3401(a), and all
other amounts of Compensation which are paid to an Employee and for which the
Employer is required to furnish the Employee a written statement under Code
(S)(S) 6041(d), 6051(a)(3) and 6052; provided, however, that Applicable
Compensation shall not include:
. deferred compensation (either in the Plan Year with respect to
which it is earned or in the Plan Year when it is paid),
. reimbursed expenses (including without limitation travel and
entertainment expenses),
. moving expenses,
10
<PAGE>
. fringe benefits (including without limitation income relating to a
company car),
. welfare benefits (including without limitation, imputed income from
life insurance and severance payments),
. educational assistance, and,
. except as provided in the next sentence, contributions to or
amounts paid to the Employee from this Plan or any other employee
benefit plan;
provided, further, that with respect to Highly Compensated Employees only,
Applicable Compensation shall not include:
. incentive payments (including without limitation any performance
share plan benefits or payments),
. bonus payments,
. overtime pay and
. commission pay.
In addition, Applicable Compensation also includes any Elective Contributions or
any other contributions made by the Employers on behalf of an Employee (but only
pursuant to a deferral election) under an employee benefit plan containing a
cash or deferred arrangement under Code (S) 401(k) and any amounts which would
have been received as cash but for an election to receive benefits under a
cafeteria plan meeting the requirements of Code (S) 125. The annual Applicable
Compensation of each Employee taken into account in determining contributions
under the Plan for any Plan Year shall not exceed the applicable annual amount
of compensation which may be taken into account under Code (S) 401(a)(17) for
the Plan Year. Such applicable annual compensation limit is $160,000, as
adjusted by the Secretary of the Treasury for increases in the cost of living,
in accordance with applicable law.
1.4 Beneficiary shall mean any person or persons, including a trust for
-----------
the benefit of individuals, last designated in writing by a Participant pursuant
to the provisions and conditions of Section 7.2(b), who is or may become
entitled to a benefit hereunder. If, at any time, no Beneficiary has been
validly designated by the Participant, or the Beneficiary validly designated by
the Participant is no longer living or no longer exists, whichever is
applicable, then the Participant's Beneficiary shall be deemed to be the person
or persons (by right of representation) in the first of the following classes of
beneficiaries with one or more members of such class surviving or in existence
as of the Participant's death, and in the absence thereof, the Participant's
estate:
11
<PAGE>
(a) the Participant's Surviving Spouse; or
(b) the Participant's lineal descendants, per stirpes.
--- -------
1.5 Benefit Commencement Date means, with respect to a payee, the
-------------------------
first day on which all events have occurred which entitle the payee to such
payee's benefit, in accordance with Treas. Reg. (S)1.401(a)-20(Q&A-10)(b)(1),
Code (S)417(f)(2) and Notice 93-26, and determined pursuant to the provisions of
Article VII of this Plan.
1.6 Code shall mean the Internal Revenue Code of 1986, as the same
----
may be amended from time to time.
1.7 Committee shall mean the ChoicePoint Inc. Group Benefit
---------
Committee.
1.8 Company shall mean ChoicePoint Inc., its successors and assigns,
-------
and any other corporation, partnership or sole proprietorship into which the
Company may be merged or consolidated or to which all or substantially all of
its assets may be transferred unless such organization indicates in writing
delivered to the Trustee that it does not approve of such automatic succession.
1.9 Company Profit-Sharing Contributions shall mean Employer
------------------------------------
contributions, if any, made to this Plan pursuant to Section 3.1(d) of this
Plan, and shall be allocated pursuant to Section 3.1(d)(ii) hereof.
1.10 Company Profit-Sharing Contributions Account shall mean the
--------------------------------------------
Account of a Participant to which are credited any Company Profit-Sharing
Contributions allocated to the Participant each Plan Year under Section 3.1(d)
of this Plan.
1.11 Controlled Group shall mean the Company and any other entity
----------------
which is required to be aggregated with the Company pursuant to Code
(S)(S)414(b), (c), (m) or (o).
1.12 Disabled shall mean, when used to describe a Participant, a
--------
Participant who (i) is determined to be disabled either under the provisions of
the Federal Social Security Act or under the provisions of the group long term
disability insurance plan of the Company or (ii) is determined by the Committee
or the Plan Administrator to have any medically determinable physical or mental
impairment that can be expected to continue for a long, indefinite period or to
result in death and which causes the Participant to be unable to engage in the
Participant's occupation or any other gainful occupation for which the
Participant is qualified by reason of education, training or experience.
1.13 Effective Date shall mean July 1, 1997.
--------------
12
<PAGE>
1.14 Election Directive shall mean the means allowed by the Plan
------------------
Administrator by which a Participant may elect to make Voluntary Contributions
or to have the Employer make Elective Contributions on behalf of such
Participant.
1.15 Elective Contributions shall mean Employer contributions that
----------------------
were subject to a cash or deferred election under which a Participant could
elect to have the Employer either contribute an amount to this Plan or provide
such amount to the Participant in cash or in the form of some other taxable
benefit.
1.16 Elective Contributions Account shall mean the Account of a
------------------------------
Participant to which are credited any Elective Contributions allocated to the
Participant each Plan Year. A Participant's Elective Contributions Account shall
be a Nonforfeitable Account.
1.17 Eligibility Computation Period shall mean, for purposes of
------------------------------
determining Years of Eligibility Service and One-Year Breaks in Service for
eligibility, the following:
(a) The initial Eligibility Computation Period is the 12-consecutive-
month period beginning on the Employee's Employment Commencement Date.
(b) Succeeding 12-consecutive-month periods commencing with each
anniversary of the Employee's Employment Commencement Date shall constitute
subsequent Eligibility Computation Periods for the Employee.
(c) In the case of a reemployed Employee, the Eligibility Computation
Periods of such Employee after the Employee's date of reemployment shall
commence on either his original date of hire or his reemployment date, as
applicable, determined in accordance with DOL Reg. (S)2530.200b-4(b).
1.18 Eligible Employee shall mean an Employee (i) who is employed by
-----------------
an Employer, and (ii) who is eligible to participate in this Plan and to become
a Participant for all or a portion of a Plan Year pursuant to Article II of this
Plan. (Employees described in subsections (d) through (f) of Section 2.1 shall
not be Eligible Employees while such description is applicable.) See also
Section 3.6(j) of Appendix III.
1.19 Employee shall mean a person who performs services for a member
--------
of the Controlled Group and who is a common law employee of such Controlled
Group member. The term Employee shall (i) also include any Leased Employee of a
Controlled Group member but shall (ii) exclude any individual who provides
services to the Controlled Group member pursuant to a contractual arrangement
with that individual or with another entity, but who is not deemed to constitute
a Leased Employee.
1.20 Employer shall mean the Company and each member of the
--------
Controlled Group which has adopted this Plan pursuant to Section 10.5 herein.
See also Section 6.3(f) of Appendix VI.
13
<PAGE>
1.21 Employment Commencement Date shall mean the date on which an
----------------------------
Employee first performs an Hour of Service (as defined in subsection (a) of
Section 1.24) for any member of the Controlled Group, and, for Employees as of
the Effective Date, for Equifax Inc. or any member of its controlled group (as
defined in Section 1.11 above but substituting "Equifax Inc." for "the
Company"), hereinafter referred to as the "Equifax Controlled Group".
1.22 ERISA shall mean the Employee Retirement Income Security Act of
-----
1974, as the same may be amended from time to time.
1.23 Highly Compensated Employee shall mean the following:
---------------------------
(a) An individual shall be a Highly Compensated Employee, with respect
to a Plan Year, if the individual is described under either or both
subsection (b) or subsection (c) below. (The italicized words and phrases
have the meanings assigned to them in this Section.)
(b) An individual is described under this subsection (b) if the
individual is performing services during the determination period for the
Controlled Group or the Equifax Controlled Group as to calendar year 1996,
and: (1) the individual received compensation from the Controlled Group or
the Equifax Controlled Group as to the calendar year 1996, during the look-
back year in excess of $80,000 and was a member of the top-paid group for
that year; or (2) the individual was a 5-percent owner at any time during
either or both the look-back year or the determination period.
(c) An individual is described under this subsection (c) if the
individual was, at one time, an Employee of the Controlled Group or the
Equifax Controlled Group as to calendar year 1996 and the individual
separated from service (or was deemed to have separated from service
pursuant to Treas. Reg. (S)1.414(q)-1T(Q&A-5)) from the Controlled Group or
the Equifax Controlled Group as to calendar year 1996 prior to the
determination period, such individual performs no service for the
Controlled Group during the determination period, and such individual is a
"highly compensated employee" (as defined in Code (S) 414(q)) for either
the determination period during which the individual separated from service
with the Controlled Group or the Equifax Controlled Group as to calendar
year 1996 or any determination period ending on or after the individual's
55th birthday.
(d) For purposes of this Section, the applicable dollar amount
specified in clause (1) of subsection (b) shall be the applicable dollar
amounts prescribed in Code (S)414(q)(1)(B) and shall be adjusted pursuant
to the last sentence of Code (S)414(q)(1).
(e) For purposes of this Section the term determination period shall
mean the respective Plan Year specified in subsection (a) above, and the
term look-back year shall mean the 12-month period immediately preceding
the determination period.
14
<PAGE>
(f) In determining who is a Highly Compensated Employee, the following
definitions shall apply:
(i) Top-paid group shall mean the top 20% of Employees of the
--------------
Controlled Group or the Equifax Controlled Group as to calendar year
1996 ranked on the basis of compensation received during the
determination period or look-back year, as applicable. For purposes
of determining the number of Employees in the top-paid group,
Employees described in Treas. Reg. (S)1.414(q)-1T(Q&A-9)(b) are
excluded.
(ii) 5-percent owner shall mean a 5-percent owner determined
---------------
pursuant to Treas. Reg. (S)1.416-1(T-17) and (T-18). If an individual
is a 5-percent owner at any time during a determination period or
look-back year, the individual shall be considered a 5-percent owner
for such period or year.
(iii) Compensation shall mean compensation as defined in Section
------------
6.3(b) of Appendix VI herein, except that compensation shall include
any amount which is contributed by any member of the Controlled Group
or the Equifax Controlled Group as to calendar year 1996 pursuant to a
salary reduction agreement and which is not includible in the gross
income of the Employee under Code (S)(S)125, 402(e)(3) or 403(b).
(g) The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of the Employees in
the top-paid group, and the compensation that is considered, will be made
in accordance with Code (S)414(q) and the regulations thereunder.
1.24 Hours of Service shall mean those hours calculated in accordance
----------------
with the following provisions:
(a) An Employee shall receive credit for an Hour of Service for each
hour for which he is paid or entitled to payment by the Employer or, prior
to the Effective Date, by any member of the Equifax Controlled Group, for
the performance of duties, according to the further provisions of this
Section.
(b) An Employee shall also receive credit for an Hour of Service for
each hour for which he is paid or entitled to payment by the Employer 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 short-term disability or
a period during which a Participant is Disabled), layoff, jury duty or
military duty; provided, however, that:
(i) No more than 501 Hours of Service shall be credited because
of this subsection (b) to an Employee on account of any single
continuous period during
15
<PAGE>
which the Employee performs no duties (whether or not said period
occurs in a single computation period);
(ii) An hour for which an Employee is directly or indirectly paid
or entitled to payment on account of a period during which no duties
are performed shall not be credited to an Employee if said payment is
made or due under a plan maintained solely for the purpose of
complying with applicable worker's compensation, unemployment
compensation, or disability insurance laws; and
(iii) Hours of Service shall not be credited for a payment which
reimburses an Employee solely for medical or medically related
expenses incurred by the Employee.
For purposes of subsection (b), a payment shall be deemed to be made by or
due from the Employer regardless of whether said payment is made by or due
from the Employer directly or indirectly through, among others, a trust
fund or insurer to which the Employer contributes or pays premiums and
regardless of whether contributions made or due to the trust fund, insurer
or other entity are for the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
(c) An Employee shall also receive credit for an Hour of Service for
each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Employer provided that no Hour of
Service shall be credited pursuant both to this subsection (c) and
subsections (a) or (b) above. Crediting of Hours of Service for back pay
awarded or agreed to with respect to periods described in subsection (b)
above shall be subject to the limitations set forth in that subsection.
(d) In addition to the Service for which an Hour of Service must be
credited pursuant to subsections (a), (b) and (c) above, an Employee shall
receive credit for an Hour of Service for:
(i) Each hour, whether or not said Employee is paid therefor,
during which he would otherwise perform an Hour of Service, except for
the fact that he is Disabled or on short-term disability pursuant to
the Company's Short-Term Disability Plan, or on an approved leave of
absence in accordance with established Company policy; provided,
however, that the number of hours credited with respect to any period
of leave of absence shall not exceed the number that would be credited
with respect to a one-year period of service. If he does not return
to work on or before the end of his leave, service will be deemed to
have terminated as of the beginning of his leave;
(ii) Each hour for which an Employee performs no duties due to
absence during any military service and without regard to the 501-hour
maximum described above, so long as such hours are required to be
taken into account under
16
<PAGE>
the Selective Service and Training Act of 1940, as amended, the
Military Selective Service Act of 1967, as amended, and/or the Vietnam
Era Veteran's Readjustment Act of 1974, as amended, or other
applicable federal law.
(e) Each Employee for whom the records of actual Hours of Service are
not maintained shall be credited with 190 Hours of Service for each month
for which said Employee would be required to be credited with at least one
Hour of Service, in accordance with this Section and applicable regulations
promulgated by the Department of Labor.
(f) In determining and crediting to computation periods the number of
Hours of Service to be credited to an Employee, the provisions of DOL Reg.
(S)(S)2530.200b-2(b) and 2(c) are incorporated herein by reference.
(g) If an Employee is absent from service with the Employer as a
result of a maternity/paternity absence, then, the Employee will be
credited with Hours of Service under either subsection (d)(i) or this
subsection (g), whichever results in the crediting of the greater number of
Hours of Service. Under this subsection (g), the Employee will be credited
with up to 501 Hours of Service with respect to the period of
maternity/paternity absence solely for the purposes of determining whether
the Employee incurs a One Year Break in Service for purposes of eligibility
to participate. Such 501 Hours of Service shall be credited at the rate at
which the Employee would have otherwise accrued Hours of Service but for
the maternity/paternity absence, provided that, if the Plan Administrator
is unable to determine the Hours of Service that would have otherwise been
credited, such Hours of Service shall be credited at the rate of eight
hours for each day of the maternity/paternity absence. Such 501 Hours of
Service shall be credited only in the Eligibility Computation Period, in
which the Employee's maternity/paternity absence commences if the Employee
would have incurred a One Year Break in Service, but for the crediting of
the additional Hours of Service. If such Hours of Service (not in excess
of 501) are not credited to the Eligibility Computation Period, in which
the maternity/paternity absence commences pursuant to the immediately
preceding sentence, such Hours of Service shall be credited to the next
Eligibility Computation Period commencing after the maternity/paternity
absence commences. For purposes of this subsection, the term
"maternity/paternity absence" means an absence from service with the
Employer by an Employee if the absence is caused:
(i) By reason of the pregnancy of the Employee;
(ii) By reason of the birth of a child of the Employee;
(iii) By reason of the placement of a child with the Employee in
connection with the adoption of such child by the Employee; or
17
<PAGE>
(iv) For purposes of caring for such child for a period beginning
immediately following such birth or placement.
(h) For purposes of this Section, employment with other members of the
Controlled Group shall be considered employment with the Employer. In
addition, in the case of a Leased Employee of any member of the Controlled
Group, service with such member shall be considered employment with the
Employer. In addition, employment with the Equifax Controlled Group prior
to the Effective Date shall be considered employment with an Employer for
purposes of Sections 1.31 and 1.53.
1.25 Leased Employee.
---------------
(a) Leased Employee shall mean any person (other than a common law
employee of a member of the Controlled Group) who pursuant to an agreement
between a member of the Controlled Group and any other person ("leasing
organization") has performed services for a member of the Controlled Group
(or for a member of the Controlled Group and related persons determined in
accordance with Code (S)414(n)(6)) on a substantially full time basis for a
period of at least one year, and such services are performed under primary
direction or control of the member of the Controlled Group. Contributions
or benefits provided to a Leased Employee by the leasing organization which
are attributable to services performed for a member of the Controlled Group
shall be treated as provided by a member of the Controlled Group.
(b) A Leased Employee shall not, however, be considered an Employee of
a member of the Controlled Group if: (i) such Employee is covered by a
money purchase pension plan of his legal employer providing: (1) a
nonintegrated employer contribution rate of at least 10% of compensation
(as defined in Section 7.3(b) of Appendix VII, but including amounts
contributed pursuant to a salary reduction agreement which are excludable
from the Employee's gross income under Code (S)(S)125, 402(e)(3), 402(h) or
403(b)), (2) immediate participation, and (3) full and immediate vesting;
and (ii) Leased Employees do not constitute more than 20% of the Controlled
Group's nonhighly compensated workforce. For purposes of this subsection
(b), the term "nonhighly compensated workforce" means the total number of
individuals (other than Highly Compensated Employees) who are either
Employees of a member of the Controlled Group or Leased Employees of a
member of the Controlled Group.
1.26 Matching Elective Contributions shall mean Employer
-------------------------------
contributions which are allocated to Allocation Participants based upon their
Elective Contribution elections.
1.27 Matching Elective Contributions Account shall mean the Account
---------------------------------------
of a Participant to which are credited any Matching Elective Contributions
allocated to the Participant.
1.28 Matching Voluntary Contributions shall mean Employer
--------------------------------
contributions which are allocated to Allocation Participants based upon their
Voluntary Contribution elections.
18
<PAGE>
1.29 Matching Voluntary Contributions Account shall mean the Account
----------------------------------------
of a Participant to which are credited any Matching Voluntary Contributions
allocated to the Participant.
1.30 Normal Retirement Age shall mean age 62.
---------------------
1.31 One-Year Break in Service (or Break in Service) shall mean an
------------------------- ----------------
Eligibility Computation Period during which the Employee does not complete more
than 500 Hours of Service with the Employer.
1.32 One-Year Period of Severance shall mean a 12-consecutive-month
----------------------------
period beginning on an Employee's Severance from Service Date or an anniversary
of that date and ending one year after the beginning date, during which the
Employee does not perform an Hour of Service for the Employer.
1.33 Participant shall mean an Eligible Employee who has met the
-----------
requirements of Article II for participation in this Plan and who is potentially
eligible to receive a benefit of any type from this Plan or whose Beneficiaries
are potentially eligible to receive a benefit of any type from this Plan, or a
former Employee who retains any Account balance in this Plan. An Employee who
has made a Rollover contribution to this Plan shall also be considered a
Participant, although such an Employee shall not be considered a Participant for
purposes of receiving any allocations under any provision of this Plan, until
otherwise eligible pursuant to Article II, and shall only be considered a
Participant to the extent of such Rollover Contribution.
1.34 Period of Service shall mean a period of service commencing on
-----------------
the Employee's Employment Commencement Date or Reemployment Commencement Date,
whichever is applicable, and ending on the Employee's Severance from Service
Date.
1.35 Period of Severance shall mean the period of time commencing on
-------------------
an Employee's Severance from Service Date and ending on the date on which the
Employee again performs an Hour of Service (as defined in subsection (a) of
Section 1.24) for any member of the Controlled Group.
1.36 Plan shall mean the ChoicePoint Inc. 401(k) Profit Sharing Plan,
----
and all amendments to such plan made from time to time. This Plan is intended to
be a profit sharing plan within the meaning of Code (S)401(a) and Treas. Reg.
(S)1.401-1 under which contributions shall be made without regard to current or
accumulated profits as permitted by Code (S)401(a)(27)(A). This Plan is intended
to contain a qualified cash or deferred arrangement within the meaning of Code
(S)401(k).
1.37 Plan Administrator shall mean the person or persons appointed by
------------------
the Committee to administer the Plan pursuant to Article IX herein, who shall
initially be the Chief Financial Officer of the Company and the Vice President
of the Company with responsibility for compensation and benefits, each of whom
may independently exercise the authority of the Plan
19
<PAGE>
Administrator. If no such appointment is effective at any time, the Committee
shall be the Plan Administrator.
1.38 Plan Year shall mean the 12-consecutive-month period for keeping
---------
the books and records of the Plan, which shall be the calendar year, commencing
on January 1 and ending on December 31. The initial Plan Year of the Plan shall
be the period beginning on the Effective Date and ending on December 31, 1997.
1.39 Qualified Spousal Waiver shall mean a Participant's written
------------------------
election, delivered to the Plan Administrator, signed by the Participant's
Spouse, and witnessed by a notary public or an authorized Plan representative,
which consents to the payment of all or a specified part of the Participant's
benefit to a named Beneficiary other than the Participant's Spouse. Such
election may not be changed without Spousal consent (unless the consent
expressly permits designations by the Participant without further consent of the
Spouse). A Participant (but not the Participant's Spouse) may, however, revoke a
Qualified Spousal Waiver at any time prior to his Benefit Commencement Date by
way of a written signed statement to the Plan Administrator and a Qualified
Spousal Waiver shall not be effective at any time following delivery of such a
revocation to the Plan Administrator provided that such revocation is received
by the Plan Administrator prior to the Participant's Benefit Commencement Date.
If a Participant revokes a Qualified Spousal Waiver, the Participant's benefits
shall be payable under the terms and provisions of this Plan as if no Qualified
Spousal Waiver had ever been in existence.
1.40 Reemployment Commencement Date shall mean the first date
------------------------------
following a Period of Severance on which an Employee performs an Hour of Service
(as defined in subsection (a) of Section 1.24) for any member of the Controlled
Group.
1.41 Required Beginning Date shall, with respect to an individual,
-----------------------
mean April 1 of the calendar year following the later of the calendar year in
which the individual attains age 70 1/2 or the calendar year in which the
employee retires; provided, however, that, in the case of a Participant who is a
5-percent owner with respect to the Plan Year ending in the calendar year in
which the individual attains age 70 1/2, the Required Beginning Date shall mean
April 1 of the calendar year following the calendar year in which the individual
attains age 70 1/2.
1.42 Rollover Contributions shall mean cash contributions, if any,
----------------------
made by an Eligible Employee to the Plan which are described in Code (S)(S)
402(c)(4), 403(a)(4) or 408(d)(3).
1.43 Rollover Contributions Account shall mean the Account of a
------------------------------
Participant to which are credited the Rollover Contributions made by the
Participant in a given Plan Year.
1.44 Severance from Service Date shall mean the earlier to occur of:
---------------------------
(a) the date on which an Employee quits, retires, is discharged or
dies, or
20
<PAGE>
(b) the first anniversary of the first day of a period of absence from
service in the case of an Employee:
(i) who remains absent from service (with or without pay) with
all members of the Controlled Group for any reason other
than quitting, retirement, discharge or death (e.g.,
vacation, holiday, sickness, disability, leave of absence or
layoff), and
(ii) who later returns to work as a full-time Employee.
The Severance from Service Date of an Employee who is absent from service beyond
the first anniversary of the first day of absence from work for maternity or
paternity reasons is the second anniversary of the first day of such absence,
and in such a case the period between the first and second anniversaries of the
first day of absence from work is neither a Period of Service nor a Period of
Severance. For purposes of this Section, an absence from work for maternity or
paternity reasons means an absence:
(i) by reason of the pregnancy of the Employee,
(ii) by reason of a birth of a child of the Employee,
(iii) by reason of the placement of a child with the Employee in
connection with the adoption of such child by the Employee, or
(iv) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
1.45 Spouse shall mean the spouse of a Participant who was married to
------
that Participant in a civil or religious ceremony recognized under the laws of
the state where the marriage was contracted and whose marriage continued until
the earlier of the Participant's Benefit Commencement Date or the Participant's
date of death.
1.46 Surviving Spouse shall mean the surviving Spouse of a deceased
----------------
Participant. To the extent required by a qualified domestic relations order, an
alternate payee under such order shall be treated as the Surviving Spouse of a
deceased Participant. See Section 11.6 herein.
1.47 Trust shall mean the trust accompanying the Plan hereby created.
-----
1.48 Trust Agreement shall mean the agreement between the Trustee and
---------------
the Company creating the Trust accompanying the Plan.
1.49 Trust Fund shall mean the assets of the Trust held by the
----------
Trustee pursuant to the provisions of the Trust Agreement and the Plan.
21
<PAGE>
1.50 Trustee shall mean the entity, person or persons who have
-------
entered into the Trust Agreement with the Company to act as trustee(s) of the
assets of the Plan.
1.51 Voluntary Contributions shall mean voluntary after-tax
-----------------------
Participant contributions made to this Plan.
1.52 Voluntary Contributions Account shall mean the Account of a
-------------------------------
Participant to which are credited the Participant's Voluntary Contributions.
1.53 Year of Eligibility Service.
---------------------------
(a) A Year of Eligibility Service shall mean an Eligibility
Computation Period during which the Employer is credited with at least
1,000 Hours of Service.
(b) For purposes of this Section, an Employee who renders service as a
common law employee of another member of the Controlled Group which is not
an Employer shall be credited with Hours of Service for those hours that
would be credited under the principles of Section 1.24 if the other
Controlled Group member was an Employer. In addition, in the case of a
Leased Employee of any employing person or entity described in the
preceding sentence, employment with such employer shall be considered
employment with the Employer.
(c) For purposes of this Section, in any case in which the Employer
maintains a plan of a predecessor employer, service for such predecessor
shall be treated as service for the Employer in accordance with Code
(S)414(a) with respect to said Plan.
(d) Prior Service. An Employee on the Effective Date shall receive
-------------
credit for that number of Years of Eligibility Service (as defined in
Section 1.53 of the Equifax Inc. Employees 401(k) Retirement and Savings
Plan ("Equifax Plan")) credited to the Employee under the Equifax Plan as
of the day prior to the Effective Date.
22
<PAGE>
ARTICLE II
ELIGIBILITY FOR PARTICIPATION
-----------------------------
2.1 Initial Attainment of Participation Status.
------------------------------------------
(a) Employees as of Effective Date. Subject to the special rules of
------------------------------
Sections 2.2 through 2.5 below, all Employees who are Eligible Employees as
of the Effective Date, and who were Participants in the Equifax Inc.
Employees 401(k) Retirement and Savings Plan immediately prior to the
Effective Date shall participate hereunder as of the Effective Date under
the terms and conditions set forth herein. Subject to the special rules of
Sections 2.2 through 2.5 below, all Employees who are Eligible Employees as
of the Effective Date, and who have satisfied the eligibility requirements
under subsection (c) below as of the Effective Date, shall become
Participants hereunder as of the Effective Date. All other Employees may
become Participants hereunder in accordance with subsection (b) below.
(b) Employees after Effective Date. Subject to the special rules of
------------------------------
Sections 2.2 through 2.5 below, all Employees who are Eligible Employees,
and who are not Participants on the Effective Date, shall become
Participants hereunder as of the beginning of the first payroll period
beginning after the date on which the Employee satisfies the eligibility
requirements set forth in subsection (c) below (or as soon as practicable
after said date but in no event later than 6 months after such date),
provided such Employee is still in the service of an Employer as an
Eligible Employee on such date.
(c) Eligibility Requirements. For purposes of this Plan, the
------------------------
eligibility requirements for participation in this Plan shall be as
follows:
(i) An Employee must complete an Eligibility Computation Period
during which the Employee receives credit for one Year of Eligibility
Service.
(ii) An Employee must attain age 21.
(d) Leased Employees Excluded. Leased Employees shall not be Eligible
-------------------------
Employees and shall not be eligible to participate in this Plan while they
remain Leased Employees notwithstanding any provision of this Plan to the
contrary.
(e) Nonresident Aliens. Employees who are nonresident aliens and who
------------------
receive no earned income (within the meaning of Code (S)911(d)(2)) from the
Employer which constitutes income from sources within the United States
(within the meaning of Code (S)861(a)(3)) shall not be Eligible Employees
and shall not be eligible to participate in this Plan while they remain
such notwithstanding any provision of this Plan to the contrary.
23
<PAGE>
(f) Non-Salaried Employees. Employees who are not classified on the
----------------------
records of the Employer as "salaried employees" and who are not in fact
paid on a salaried basis shall not be Eligible Employees and shall not be
eligible to participate in this Plan while they remain such notwithstanding
any provision of this Plan to the contrary.
2.2 Reemployment of Former Non-Participant Employees. If an Employee
------------------------------------------------
terminates employment with the Controlled Group before becoming a Participant
and is reemployed by a Controlled Group member before incurring the number of
consecutive One-Year Periods of Severance specified in the next sentence, he
shall, upon being rehired by a member of the Controlled Group as an Employee,
receive credit for purposes of Years of Eligibility Service for all service
prior to his termination of employment, and may become a Participant in
accordance with Section 2.1 above, except that if the date such Employee would
become a Participant occurs during the Employee's absence from service such
Employee shall become a Participant as soon as administratively practicable
after becoming an Eligible Employee. An Employee who terminates employment
before becoming a Participant, and who is reemployed by a Controlled Group
member after incurring 5 consecutive One-Year Periods of Severance, shall be
treated as a new Employee for purposes of the Plan and his service completed
prior to such One-Year Periods of Severance shall be disregarded for purposes of
determining when he will become a Participant after his reemployment. The
aggregate number of Eligibility Computation Periods before such One-Year Periods
of Severance shall not include any Eligibility Computation Periods with respect
to which service of the Employee is disregarded under this Section by reason of
his prior One-Year Periods of Severance.
2.3 Reemployment of Former Participants. Any former Participant who
-----------------------------------
terminated employment with the Controlled Group shall become a Participant
hereunder as soon as administratively practicable after becoming an Eligible
Employee.
2.4 Transfers to/from Eligible Class.
--------------------------------
(a) Exclusion After Participation. A Participant who ceases to be an
-----------------------------
Eligible Employee, but who has not ceased to be an Employee, shall not,
except as otherwise specifically provided in this Plan, share in any
contributions under Section 3.1 of this Plan, and shall not be entitled to
make any contributions under Section 3.2 of this Plan from the date of such
ineligibility, until such Participant again becomes an Eligible Employee.
However, such Participant's rights with respect to his existing Account
balance shall be preserved, he shall continue to earn Years of Eligibility
Service, his Period of Service shall continue to increase, and he shall be
entitled to receive distributions in accordance with Article VII.
(b) Participation After Exclusion. An Employee who has not been an
-----------------------------
Eligible Employee but who becomes an Eligible Employee may become a
Participant hereunder as of the later of (i) the date on which the Employee
becomes an Eligible Employee, or (ii) as soon as administratively possible
following the date on which the Employee satisfies the eligibility
requirements set forth in Section 2.1(c) (but in no event later than
24
<PAGE>
6 months after such date), if the Employee is an Eligible Employee as of
such date, and if not, the date the Employee would have become a
Participant hereunder under Sections 2.2 or 2.3 above, as applicable.
25
<PAGE>
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONS
-----------------------------
3.1 Employer Contributions. The Employer shall make contributions to
----------------------
the Plan (all of which are hereby expressly conditioned on their deductibility
under Code (S)404) by making cash payments (or payments of property acceptable
to the Trustee if such payments (i) are purely voluntary, (ii) do not relieve
the Employer of an obligation to make contributions to this Plan, and (iii) do
not constitute prohibited exchanges under ERISA (S)406(a)(1)(A) or if such
payments are described in ERISA (S) 408(e)) to the Trustee in one or more of the
following methods:
(a) Elective Contributions.
----------------------
(i) Amount. For each Plan Year the Employers shall make Elective
------
Contributions to this Plan in an amount equal to the aggregate
Elective Contributions specified by Participants pursuant to their
Election Directives, subject to the limitations and restrictions of
paragraph (v) below.
(ii) Allocation. Elective Contributions specified by a
----------
Participant pursuant to his Election Directive shall, subject to the
limitations and restrictions of paragraph (v) below, be allocated to
such Participant's Elective Contributions Account. The Participant's
salary or wages from the Employer shall be reduced accordingly.
(iii) Basic and Supplemental Elective Contributions.
---------------------------------------------
(A) Basic Elective Contributions. Any Participant may
----------------------------
specify an amount of Basic Elective Contributions which
shall not exceed 6% of such Participant's Applicable
Compensation received during such Plan Year; provided,
however, that in the case of a Participant who chooses to
make Voluntary Contributions under Section 3.2(a), the sum
of the Basic Elective Contributions and the Basic Voluntary
Contributions shall not exceed 6% of such Participant's
Applicable Compensation received during the Plan Year.
(B) Supplemental Elective Contributions. Any
-----------------------------------
Participant who is not a Highly Compensated Employee for any
Plan Year and who has elected the maximum amount of Basic
Elective Contributions under subparagraph (A) above, may
elect to specify an amount of Supplemental Elective
Contributions which shall not exceed 10% of such
Participant's Applicable Compensation received during such
Plan Year; provided, however,
26
<PAGE>
that in the case of a Participant who chooses to make
Voluntary Contributions under Section 3.2(a), the sum of the
Supplemental Elective Contributions and Supplemental
Voluntary Contributions shall not exceed 10% of such
Participant's Applicable Compensation received during the
Plan Year.
(iv) Procedure for Making Elections. The Plan Administrator
------------------------------
shall have complete discretion to adopt and revise procedures to be
followed in making Elective Contribution elections. Such procedures
may include, but are not limited to, the manner in which Election
Directives may be made, and the deadline for making Election
Directives and for requesting a modification or revision of an
Elective Contribution election; provided, however, that no election
may be made to defer as an Elective Contribution any amount of
Compensation that has already been paid to a Participant. Any
procedures adopted by the Plan Administrator shall be communicated to
Participants.
(v) Other Limitations Concerning Elective Contributions. In
---------------------------------------------------
addition to the other conditions and limitations set forth in this
Plan, Elective Contributions which may, for a Plan Year, be otherwise
made by a Participant and allocated to his Account shall not be
permitted, in the case of each Highly Compensated Participant, if they
would cause the Plan to fail the nondiscrimination requirements
specified in Appendix III for such Plan Year, and, in the case of each
Participant, if they would cause the Plan to fail to satisfy the
limitations of Appendices II or VI for such Plan Year. The Plan
Administrator shall have complete discretion to limit Elective
Contributions, consistent with applicable law, so that the
requirements and limitations specified in Appendices II, III and VI
will be met.
(b) Matching Elective Contributions.
-------------------------------
(i) Amount. For each Plan Year, the Employer shall make Matching
------
Elective Contributions to this Plan in an amount equal to the
aggregate of the amounts to be allocated to Participants under
paragraph (ii) below.
(ii) Allocation. Matching Elective Contributions shall be
----------
allocated as of the date contributed, so that the amount allocated
shall equal that percentage, described in the relevant exhibit hereto
for the Employer in question, of the Participant's Basic Elective
Contributions (to the extent that such contributions do not exceed 6%
of such Participant's Applicable Compensation) received during the
relevant period (excluding any Elective Contributions to the extent
such Elective Contributions are withdrawn under Section 7.9 hereof
during such Plan Year and excluding any Qualified Nonelective
Contributions or Qualified Matching Contributions treated as Elective
Contributions under Section 3.6(c) of Appendix III), subject to the
limitations of Sections 3.2, 3.3, 3.4, and 3.5 of Appendix III and
Appendix VI of this Plan. The stated percentage referred to in the
first
27
<PAGE>
sentence of this subsection and any other conditions or provisions
with respect to said contributions shall be set forth in Exhibit A of
this Plan with respect to each Employer which elects to make Matching
Elective Contributions. Exhibit A may specify different percentages
for different operating divisions of an Employer.
(iii) Other Limitations Concerning Matching Elective
----------------------------------------------
Contributions. In addition to the other conditions and limitations
-------------
set forth in this Plan, Matching Elective Contributions which are, for
a Plan Year, allocated to the Matching Elective Contributions Account
of a Participant who is a Highly Compensated Employee, and which cause
the Plan to fail the nondiscrimination requirements specified in
Appendix III for such Plan Year shall be corrected pursuant to the
provisions of Appendix III. Furthermore, in the case of each
Participant, no Matching Elective Contributions shall be allocated to
a Participant's Matching Elective Contributions Account which would
cause the Plan to fail to satisfy the limitations of Appendices II or
VI.
(c) Matching Voluntary Contributions.
--------------------------------
(i) Amount. For each Plan Year, the Employer shall make Matching
------
Voluntary Contributions to this Plan in an amount equal to the
aggregate of the amounts to be allocated to Participants under
paragraph (ii) below.
(ii) Allocation. Matching Voluntary Contributions shall be
----------
allocated as of the date contributed, so that the amount allocated
shall equal that percentage, described in the relevant exhibit hereto
for the Employer in question, of the Participant's Basic Voluntary
Contributions (to the extent that such contributions do not exceed 6%
of such Participant's Applicable Compensation) received during the
relevant period (excluding any Voluntary Contributions made in a lump
sum pursuant to Section 3.2(a)(iv) and excluding any Voluntary
Contributions that are withdrawn under Section 7.10 during the Plan
Year), subject to the limitations of Sections 3.2, 3.3, 3.4, and 3.5
of Appendix III and Appendix VI of this Plan. The stated percentage
referred to in the first sentence of this subsection and any other
conditions or provisions with respect to said contributions shall be
set forth in Exhibit A of this Plan with respect to each Employer
which elects to make Matching Voluntary Contributions. Exhibit A may
specify different percentages for different operating divisions.
(iii) Other Limitations Concerning Matching Voluntary
-----------------------------------------------
Contributions. In addition to the other conditions and limitations
-------------
set forth in this Plan, Matching Voluntary Contributions which are,
for a Plan Year, allocated to the Matching Voluntary Contributions
Account of a Participant who is a Highly Compensated Employee, and
which cause the Plan to fail the nondiscrimination requirements
specified in Appendix III for such Plan Year shall be corrected
pursuant to the provisions of Appendix III. Furthermore, in the case
of each Participant, no
28
<PAGE>
Matching Voluntary Contributions shall be allocated to a Participant's
Matching Voluntary Contributions Account which would cause the Plan to
fail to satisfy the limitations of Appendices II or VI.
(d) Company Profit-Sharing Contributions.
------------------------------------
(i) Amount. Each Employer may, in lieu of or in addition to the
------
contributions described in subsections (a) through (c) above, elect to
make contributions on another legally permissible basis to the Plan
for the benefit of those Participants who are employed by said
Employer. In said event, the President or other authorized officer of
the Employer shall execute a document describing the special
contribution formula which shall be reflected in Exhibit A to this
Plan.
(ii) Allocation. In the event that an Employer shall elect to
----------
make contributions pursuant to subparagraph (i) of this subsection
(d), said contributions shall be allocated to Participants' accounts
as described in each case in Exhibit A, which may contain any other
special provisions or definitions relevant thereto.
In no event shall the aggregate contributions made by the Employer under
this Section and Appendix I exceed the amount deductible for federal income
tax purposes under Code (S)404. All allocations to be made under this
Section shall be subject to the provisions of Appendix V, if applicable.
3.2 Employee Contributions.
----------------------
(a) Voluntary Contributions.
-----------------------
(i) Voluntary Contribution Elections. Each Participant may,
--------------------------------
subject to the limitations and restrictions of paragraph (v) below,
elect through Election Directives to make Voluntary Contributions to
the Plan equal to (i) a percentage of his or her Applicable
Compensation, or (ii) a fixed dollar amount of his or her Applicable
Compensation, whichever method is allowed by the Plan Administrator.
Such contributions, if any, shall be maintained in a separate
Voluntary Contributions Account for the Participant.
(ii) Basic and Supplemental Voluntary Contribution Percentages.
---------------------------------------------------------
(A) Basic Voluntary Contributions. Any Participant may
-----------------------------
make an amount of Basic Voluntary Contributions which shall
not exceed 6% of such Participant's Applicable Compensation
received during such Plan Year; provided, however, that in
the case of a Participant who chooses to have the Employer
make Elective Contributions on his behalf under Section 3.1,
the sum of the Basic
29
<PAGE>
Elective Contributions and the Basic Voluntary Contributions
shall not exceed 6% of such Participant's Applicable
Compensation received during the Plan Year.
(B) Supplemental Voluntary Contributions. Any
------------------------------------
Participant who is not a Highly Compensated Employee for any
Plan Year and who has elected the maximum amount of Basic
Voluntary Contributions under subparagraph (A) above, may
elect to make an amount of Supplemental Voluntary
Contributions which shall not exceed 10% of such
Participant's Applicable Compensation received during such
Plan Year; provided, however, that in the case of a
Participant who chooses to have the Employer make Elective
Contributions on his behalf under Section 3.1, the sum of
the Supplemental Elective Contributions and Supplemental
Voluntary Contributions shall not exceed 10% of such
Participant's Applicable Compensation received during the
Plan Year.
(iii) Procedure for Making Elections. The Plan Administrator
------------------------------
shall have complete discretion to adopt and revise procedures to be
followed in making Voluntary Contribution elections. Such procedures
may include, but are not limited to, the manner in which Election
Directives may be made, and the deadline for making Election
Directives and for requesting a modification or revision of a
Voluntary Contribution election. Any procedures adopted by the Plan
Administrator shall be set forth in writing and communicated to
Participants.
(iv) Other Limitations Concerning Voluntary Contributions. In
----------------------------------------------------
addition to the other conditions and limitations set forth in this
Plan, Voluntary Contributions which may, for a Plan Year, be allocated
to a Participant's Voluntary Contributions Account shall not be
permitted, in the case of each Participant who is a Highly Compensated
Employee, if they would cause the Plan to fail the nondiscrimination
requirements specified in Appendix III for such Plan Year, and, in the
case of each Participant, if they would cause the Plan to fail to
satisfy the limitations of Appendices II or VI for such Plan Year.
The Plan Administrator shall have complete discretion to limit
Voluntary Contributions, consistent with applicable law, so that the
requirements and limitations specified in Appendices II, III and VI
will be met.
(b) Rollover Contributions. Each Eligible Employee or each Employee
----------------------
who would be an Eligible Employee except for the requirements of Section
2.1(c), may, without regard to whether such Eligible Employee is a
Participant under this Plan and subject to the consent of the Plan
Administrator based on satisfying the requirements of this subsection, make
one or more Rollover Contributions which shall be allocated to the
30
<PAGE>
Eligible Employee's Rollover Contribution Account if the Rollover
Contribution consists solely of cash and is:
(i) all or any portion of a distribution which is an "eligible
rollover distribution" within the meaning of Code (S)402(c)(4);
(ii) a distribution which is described in Code (S)408(d)(3); or
(iii) all or any portion of a distribution which is a rollover
amount described in Code (S)403(a)(4).
The Plan Administrator shall have the right to reject any Rollover
Contribution which it determines in its sole judgment does not qualify
under the above-referenced provisions. Any Rollover Contributions accepted
by the Plan Administrator shall be promptly remitted to the Trustee to be
held in a Rollover Contributions Account for the Eligible Employee's sole
benefit, and shall be subject to all of the terms and provisions of this
Plan.
3.3 Return of Contributions. All contributions made to the Trustee
-----------------------
shall be irrevocable except as follows:
(a) Mistake of Fact. If an Employer contribution is made by an
---------------
Employer under a mistake of fact, the amount of such contribution described
in subsection (c) below shall be returned to the Employer within one year
after the payment of said contribution.
(b) Deductibility Condition. All contributions of the Employer made
-----------------------
to this Plan are hereby expressly conditioned on their deductibility under
Code (S)404; if an Employer contribution is disallowed as a deduction under
Code (S)404, the amount of the contribution described in subsection (c)
below may be returned to the Employer within one year after the
disallowance of the deduction.
(c) Amount Returned. For purposes of subsections (a) and (b) above,
---------------
the amount which may be returned to the Employer is the excess of (i) the
amount contributed over (ii) the amount that would have been contributed
had there not occurred a mistake of fact or a mistake in determining the
deduction. Earnings attributable to such amount will not be returned to
the Employer, but losses attributable thereto will reduce the amount so
returned.
3.4 Prior Plan Contributions. The Trustee is authorized and directed
------------------------
to accept a direct transfer of assets to the Plan from the Trustee of the
Equifax Inc. Employees 401(k) Retirement and Savings Plan on behalf of each
individual who was, on the day prior to the Effective Date, a participant in the
Equifax Inc. Employees 401(k) Retirement and Savings Plan and who is on the
Effective Date either an active or a former employee of ChoicePoint Inc. or
another participating Employer in this Plan; provided that the transfer meets
the requirements of Code
31
<PAGE>
(S)(S) 401(a)(12), 414(l) and 411(d)(6), and the regulations promulgated
thereunder and that the transfer will result in the deferral of taxation on the
amount transferred to the Plan.
32
<PAGE>
ARTICLE IV
VESTING IN ACCOUNTS
-------------------
4.1 Vesting of Accounts. All amounts allocated to a Participant's
-------------------
Account shall at all times be and remain 100% vested and nonforfeitable, except
as provided in Section 11.9.
33
<PAGE>
ARTICLE V
ACCOUNTS AND INVESTMENTS
------------------------
5.1 Separate Accounts. The Plan Administrator shall maintain
-----------------
separate Accounts for each Participant to reflect each such Participant's
interest in the Plan attributable to each of the following:
(a) Basic Elective Contributions, if any, under Sections 1.15 and
3.1(a)(iii)(A) of this Plan.
(b) Matching Elective Contributions, if any, as defined in Section
1.26 of this Plan.
(c) Basic Voluntary Contributions, if any, under Sections 1.51 and
3.2(a)(ii)(A) of this Plan.
(d) Matching Voluntary Contributions, if any, as defined in Section
1.28 of this Plan.
(e) Supplemental Voluntary Contributions, if any, under Sections 1.51
and 3.2(a)(ii)(B) of this Plan.
(f) Company Profit-Sharing Contributions, if any, under Sections 1.9
and 3.1(d).
(g) ESOP Accounts, under Section 7.7 of Appendix VII.
(h) Rollover Contributions, if any, as defined in Section 1.42 of this
Plan.
(i) Supplemental Elective Contributions, if any, under Section 1.15
and 3.1(a)(iii)(B) of this Plan.
See also Section 1.2 of Appendix I.
5.2 Investment of Trust Fund.
------------------------
(a) General Rule. The Trust Fund, and all contributions thereto made
------------
under this Plan, shall be invested by the Trustee who shall have exclusive
authority and discretion to manage and control the Trust Fund pursuant to
the terms of the Trust Agreement, subject to any investment directions
allowed under subsection (b) below, and made by the appropriate party as
indicated in such subsection.
34
<PAGE>
(b) Investment Funds.
----------------
(i) Establishment of Funds. The Trustee shall, at the written
----------------------
direction of the Plan Administrator, establish one or more funds for
the investment of the assets of the Trust Fund, each of which has
materially different risk and return characteristics, including
without limitation an Employer Stock Fund.
(ii) Investment of Contributions.
---------------------------
(A) Automatic Investment. All amounts in a Participant's
--------------------
ESOP Account, Company Profit-Sharing Contributions Account,
Matching Elective Contributions Account, and Matching Voluntary
Contributions Account shall automatically be invested initially
in the Employer Stock Fund; provided, however, that amounts
transferred to this Plan pursuant to Section 3.4 which are
invested in Equifax Stock shall remain so invested, subject to
Participant investment direction described in (B) below and any
other applicable provisions of this Plan or the Trust.
(B) Investment Direction. Each Participant, Beneficiary or
--------------------
alternate payee may direct the investment of his Elective
Contributions Account (consisting of Basic Elective Contributions
and Supplemental Elective Contributions), Voluntary Contributions
Account (consisting of Basic Voluntary Contributions,
Supplemental Voluntary Contributions, and Supplemental Voluntary
Lump Sum Contributions), and Rollover Contributions Account, if
any, among the funds provided under paragraph (i) above. After
an amount initially has been allocated to a Company Profit-
Sharing Contributions Account, a Participant may also direct the
investment of such an amount among the funds provided under
paragraph (i) above. In addition, any Participant who has
terminated service with all Employers who are members of the
Controlled Group but who retains one or more Accounts in the Plan
may direct the investment of those Accounts referred to in
paragraph (ii)(A) above, as well as his accounts identified in
the preceding sentence, among the investment choices available
under the Plan. The Plan Administrator shall establish, and may
alter at any time, rules, procedures and limitations which shall
govern such Participant direction of investments and the timing
thereof, and shall provide all necessary forms and instructions
to Participants. Such rules, procedures and limitations may
restrict the frequency and timing of such Participant directions.
Such rules and procedures shall be communicated to Employees.
(C) ERISA (S) 404(c). The provisions of this Section 5.2
----------------
shall be applied in a manner consistent with United States
Department of Labor Regulations (S) 2550.404c-1 (or any future
regulations of the United States
35
<PAGE>
Department of Labor of similar import) so that this Plan shall be
an ERISA (S) 404(c) plan.
(iii) Income or Loss. Any Account or portion thereof of a
--------------
Participant which is invested under paragraph (ii) above in a certain
fund shall only share in the gains or losses of such fund, and shall
not share in the gains or losses of any other Trust Fund investment.
(iv) Expenses. Any Account or portion thereof of a Participant
--------
which is invested pursuant to the Participant's directions under
paragraph (ii) above may be charged for the reasonable expenses of
such directed investing.
5.3 Trustee's Reliance. The Trustee may rely and act upon any
------------------
certificate, notice or direction (including notices and directions given
electronically, if the Plan's administrative procedures provide for such notices
or directions) of the Employer, Plan Administrator, Committee, investment
manager, Participant or Beneficiary, or a person authorized to act on behalf of
such person, that the Trustee reasonably believes to be genuine and to have been
given by the person or persons duly authorized to give such certificate, notice
or direction. The Trustee may continue to rely upon such certificate, notice or
direction until otherwise notified in accordance with the provisions of the Plan
and the administrative procedures under the Plan.
36
<PAGE>
ARTICLE VI
VALUATION OF PARTICIPANTS' ACCOUNTS
-----------------------------------
The value of a Participant's Accounts at any time shall be equal to
the aggregate value of the assets in such Accounts as they are invested as of
such time, and said values shall be determined daily. The Trustee, the Plan
Administrator or the Committee may adopt valuation procedures for equitably
valuing investments of a Participant's Accounts, and any such procedures shall
be communicated to Employees.
37
<PAGE>
ARTICLE VII
PAYMENT OF BENEFITS
-------------------
7.1 Time of Payment of Benefits. If a Participant's employment with
---------------------------
all members of the Controlled Group is terminated for any reason other than
death, including becoming Disabled, retiring, or otherwise, the Participant
shall receive or commence receiving the entire vested amount in his Plan
Accounts (his "Benefit Amount") determined pursuant to the provisions of Section
7.4 in accordance with the following:
(a) General Rule. Except as provided in subsections (b) through (f)
------------
below, the Participant's Benefit Amount shall be paid (or distribution
shall commence) in a form chosen by the Participant in accordance with
Section 7.3 herein as soon as administratively practicable following the
later of (1) the date the Participant attains his Normal Retirement Age or
(2) the date the Participant terminates employment with all members of the
Controlled Group; provided, however, that the Benefit Amount shall be paid
(or distribution shall commence) no later than the Required Beginning Date.
(b) Later Distribution. Notwithstanding subsection (a) above, the
------------------
Participant may elect that his Benefit Amount be paid (or distribution
shall commence) in a form chosen by the Participant in accordance with
Section 7.3 as soon as administratively practicable following any later
date selected by the Participant; provided, however, that the Benefit
Amount shall be paid (or distribution shall commence) no later than the
Required Beginning Date.
(c) Consent to Earlier Distribution. Notwithstanding subsection (a)
-------------------------------
above, the Participant may elect that his Benefit Amount be paid (or that
distribution shall commence) as soon as administratively practicable
following the date the Participant terminates employment with all members
of the Controlled Group, in a form chosen by the Participant in accordance
with Section 7.3.
(d) Automatic Cash-Outs. Notwithstanding subsections (a) through (c)
-------------------
above, if the value of the Participant's Benefit Amount does not exceed and
has never at the time of a prior distribution exceeded $3,500, the
Participant's Benefit Amount shall automatically be paid as soon as
administratively practicable following the date of the Participant's
termination of employment with all members of the Controlled Group, in the
form of a single lump sum distribution. For purposes of the preceding
sentence, if the value of the Participant's Benefit Amount is zero, the
Participant shall be deemed to receive a distribution of such benefit under
this paragraph.
(e) Benefits Accrued After Required Beginning Date. If a Participant
----------------------------------------------
has received all or a part of his Benefit Amount under the preceding
provisions of this subsection because his Required Beginning Date occurred
prior to his termination of
38
<PAGE>
employment with all members of the Controlled Group, then the Participant
shall receive the appropriate amount, determined in accordance with
Appendix IV, of any subsequent Account balances which he may accrue during
any Plan Year under this Plan in accordance with the provisions of
Appendix IV.
(f) Optional Distribution Upon Attainment of Normal Retirement Age.
--------------------------------------------------------------
Notwithstanding any other provision herein, a Participant who has attained
Normal Retirement Age (as defined in Section 1.30) and who continues in
employment with a member of the Controlled Group may elect to receive a
distribution of all or a part of his Benefit Amount. The Trustee shall
disburse the distribution as soon as administratively practicable after the
date of the Plan Administrator's receipt from the Participant of an
application for the distribution, in such form as the Plan Administrator
may require.
Notwithstanding any provision of this Plan to the contrary, distribution of a
Participant's Benefit Amount must satisfy the provisions of Appendix IV.
7.2 Benefits Upon Death.
-------------------
(a) Death Before Benefit Commencement Date. In the event of the death
--------------------------------------
of a Participant prior to his Benefit Commencement Date, the Beneficiary of
the Participant shall receive or commence receiving all or the applicable
portion of the entire amount in the Participant's Plan Accounts designated
for such Beneficiary under subsection (c) below (such Beneficiary's
"Benefit Amount") determined pursuant to the provisions of Section 7.4 in
accordance with the following:
(i) General Rule. Except as provided in paragraphs (ii) and
------------
(iii) below, the Beneficiary's Benefit Amount shall be paid as soon as
administratively practicable following the date of the Participant's
death and receipt by the Plan Administrator of proof thereof, in a
form chosen by the Beneficiary in accordance with Section 7.3 herein.
(ii) Later Distribution. Notwithstanding paragraph (i) above,
------------------
the Beneficiary may elect that his Benefit Amount be paid as soon as
administratively practicable following any later date elected by the
Beneficiary (but not later than the date 5 years after the date of
death of the Participant), in a form chosen by the Beneficiary in
accordance with Section 7.3.
(iii) Automatic Cash-Outs. Notwithstanding paragraphs (i) and
-------------------
(ii) above, if the value of such Benefit Amount does not exceed and
has never at the time of a prior distribution exceeded $3,500, the
Beneficiary's Benefit Amount shall automatically be paid as soon as
administratively practicable following the Participant's death and
receipt by the Plan Administrator of proof thereof, in the form of a
single lump sum distribution. For purposes of the preceding sentence,
39
<PAGE>
if the value of the Participant's Benefit Amount is zero, the
Beneficiary shall be deemed to receive a distribution of such benefit
under this paragraph.
(b) Designation of Beneficiary.
--------------------------
(i) General Rules. The Beneficiary of a Participant with
-------------
respect to the entire vested amount in the Participant's Accounts
remaining at the Participant's death shall be determined in accordance
with Section 1.4 of this Plan, unless the Participant has designated a
Beneficiary or Beneficiaries, which the Participant may designate
pursuant to the provisions of Section 1.4 and this Section 7.2(b).
However, no Beneficiary designated by the Participant shall be valid
unless (1) the Beneficiary designated by the Participant is the
Surviving Spouse, (2) the Participant has no Surviving Spouse (or such
Spouse cannot be located), or (3) the Surviving Spouse of the
Participant has consented to such designation pursuant to a Qualified
Spousal Waiver.
(ii) Designation of Multiple Beneficiaries. A Participant may,
-------------------------------------
consistent with paragraph (i) above, designate more than one
Beneficiary and, for each such Beneficiary, may designate a percentage
of the entire vested amount in his Accounts to which such Beneficiary
should become entitled (such Beneficiary's "Benefit Amount") upon the
Participant's death. Each such Beneficiary shall be entitled to
receive his Benefit Amount determined pursuant to Section 7.4 in
accordance with the provisions of subsection (a) above. Unless
otherwise specified by the Participant, any designation by the
Participant of multiple Beneficiaries shall be interpreted as a
designation by the Participant that each such Beneficiary (if alive as
of the Participant's date of death, and if not, then the contingent
Beneficiary under paragraph (iii) below of such Beneficiary) should be
entitled to an equal percentage of the Participant's vested Account
balances upon the Participant's death.
(iii) Contingent Beneficiaries. A Participant may designate
------------------------
contingent Beneficiaries to receive a Beneficiary's Benefit Amount in
the event such Beneficiary should predecease the Participant;
otherwise, in the event a Beneficiary predeceases the Participant,
then the person or those persons specified in Section 1.4 of the Plan
shall be deemed to be the Beneficiary with respect to such deceased
Beneficiary's Benefit Amount, and shall receive the Benefit Amount to
which such Beneficiary would have been entitled hereunder under this
Section 7.2.
(c) Required Distributions and Forms of Payment. Notwithstanding any
-------------------------------------------
provision of this Plan to the contrary, distribution of a Beneficiary's
Benefit Amount must satisfy the provisions of Appendix IV.
7.3 Form of Payment of Benefits. Except as otherwise provided
---------------------------
herein, depending upon the Participant's or Beneficiary's Benefit Commencement
Date and the timing and manner
40
<PAGE>
of the Participant's termination of employment, the Participant or Beneficiary
may elect to receive benefits available under this Plan in a single lump sum
payment in cash or in common stock of the Company, or in any combination of the
two. To the extent that a Participant fails to elect in a timely manner the
form of payment of his Benefit from this Plan and the benefit must commence, the
Participant will have been deemed to have elected a single lump sum cash
distribution. Any method or methods of distribution chosen by a Participant or
Beneficiary must satisfy the requirements of Appendix IV.
7.4 Valuation of Accounts for Payments. The amount distributed to
----------------------------------
the Participant or Beneficiary shall be determined using the Benefit Amount
valued as of the business day preceding the date of distribution. To the extent
that a distribution is made in the form of Company common stock from the
Employer Stock Fund, such distribution shall consist of the whole number of
shares of Company common stock held for the benefit of the Participant and cash
in lieu of fractional shares. To the extent that a distribution is made in the
form of Company common stock from assets invested in any other fund, such
distribution shall consist of the whole number of shares of Company common stock
which may be purchased by such assets as of the actual date such assets are
liquidated and cash in lieu of fractional shares.
7.5 Code (S)401(a)(14) Requirement. Unless a Participant consents to
------------------------------
later payment, the payment of benefits under the Plan to the Participant shall
begin not later than the 60th day after the close of the Plan Year in which the
latest of the following events occurs:
(a) The attainment by the Participant of age 65;
(b) The 10th anniversary of the date on which the Participant
commenced participation in the Plan; or
(c) The termination of the Participant's service with the Controlled
Group.
The failure of a Participant to consent to a distribution shall be deemed to be
an election to defer commencement of payment of benefits.
7.6 Code (S)411(a)(11) Consent Requirements.
---------------------------------------
(a) In General. Notwithstanding any provision of this Plan to the
----------
contrary (including Section 7.5), unless one of the exceptions in
subsection (c) below is satisfied, no distribution may be made or commence
to a Participant unless the Participant has been provided the notification
required under subsection (b) below at the time and in the manner indicated
in such subsection, and has consented in writing to the distribution after
receiving such notification, with such consent being given no less than 30
days and no more than 90 days prior to his Benefit Commencement Date,
except as provided in subsection (b) below. To the extent permitted by
applicable law, such consent may be given by telephone or other electronic
means of communication if the Plan's administrative procedures provide for
the giving of consent by such means.
41
<PAGE>
(b) Notification. The Plan Administrator shall notify the
------------
Participant of the right, if any, to defer any distribution. Such
notification shall include a general description of the material features,
and an explanation of the relative values of, the optional forms of benefit
available, if any, under the Plan and shall inform the Participant of his
right to defer receipt of the distribution, and shall be provided (by mail,
posting or personal delivery) no less than 30 days and no more than 90 days
prior to his Benefit Commencement Date; provided, however, that a
Participant may waive the right to receive the notice no less than 30 days
prior to the Benefit Commencement Date; provided, further, that a
Participant shall have the opportunity to consider the decision of whether
or not to elect a distribution for at least 30 days after the notice is
provided; provided, further, that the Plan Administrator shall provide
information to the Participant clearly indicating that the Participant has
the right to the 30-day period for making the decision.
(c) Exceptions. This Section shall not be applicable to the
----------
following distributions:
(i) Cash-Outs. If the value of a Participant's entire Account
---------
balances does not and has not at the time of a prior distribution ever
exceeded $3,500, this Section shall not be applicable to a
distribution of such entire vested Account balances as a single lump
sum.
(ii) Immediately Distributable. If a distribution is made on or
-------------------------
after the Participant's attainment of his Normal Retirement Age, this
Section shall not be applicable to such distribution.
(iii) Beneficiaries. If a distribution is made to an alternate
-------------
payee pursuant to a qualified domestic relations order or to any other
Beneficiary, this Section shall not be applicable to such
distribution.
(iv) Code (S)(S)401(a)(9) and 415. If a distribution is required
----------------------------
to satisfy the provisions of Appendix IV (Code (S)401(a)(9) required
distribution rules) or Appendix VI (Code (S)415 limitation on
allocations), this Section shall not be applicable to such
distribution.
(v) Plan Termination. If a distribution is made to the
----------------
Participant upon termination of this Plan and no member of the
Controlled Group maintains any other defined contribution plan (other
than an employee stock ownership plan as defined in Code
(S)4975(e)(7)), this Section shall not be applicable to such
distribution if this Plan does not offer an annuity option (purchased
from a commercial provider).
(d) Application to Plan Provisions. To the extent that a distribution
------------------------------
is required by the terms and provisions of this Plan, but this Section is
applicable to the distribution and the distribution therefore cannot be
made, such distribution shall, except as otherwise
42
<PAGE>
provided, be made as soon as administratively practicable following the
date that this Section is no longer applicable to the distribution.
7.7 Code (S)401(k)(2)(B) Restrictions. Notwithstanding any
---------------------------------
provisions of this Plan to the contrary, a Participant's Elective Contributions
Account shall not be distributed prior to the earliest to occur of:
(a) the Participant's "separation from service" (as defined in
applicable guidance issued by the Internal Revenue Service), retirement,
death or disability;
(b) the Participant's attainment of age 59 1/2;
(c) the Participant's incurrence of a "hardship" (within the meaning
of Treas. Reg. (S)1.401(k)-1(d)(2)(iv));
(d) the termination of the Plan without establishment or maintenance
by the Employer of a successor plan (within the meaning of Treas. Reg.
(S)1.401(k)-1(d)(3));
(e) if the Employer is a corporation, the date of the sale or other
disposition by the Employer of the Participant to an unrelated corporation
of substantially all the assets used by the Employer in a trade or business
(within the meaning of Treas. Reg. (S)1.401(k)-1(d)(4)); or
(f) if the Employer is a subsidiary of a corporation, the date of the
sale or other disposition by such corporation of its interest in the
Employer of the Participant to an unrelated entity or individual (within
the meaning of Treas. Reg. (S)1.401(k)-1(d)(4)).
For purposes of subsections (e) and (f) above, the selling corporation must
maintain this Plan after the sale or other disposition, the Participant must
continue employment with the asset purchaser or subsidiary (as applicable), and,
for purposes of subsections (d), (e) and (f) above, the distribution must be a
lump sum distribution meeting the requirements of Treas. Reg. (S)1.401(k)-
1(d)(5). The provisions of this Section shall be interpreted in accordance with
the requirements of Code (S)401(k)(2)(B) and any regulations promulgated
thereunder.
7.8 Payments to Alternate Payees. See Section 11.6(b)(iii) for
----------------------------
special provisions which are applicable to payments to an alternate payee under
a qualified domestic relations order. A qualified domestic relations order may
not provide an alternate payee with a death benefit from this Plan except to the
extent consistent with Section 7.2 and, if applicable, except to the extent such
order requires that the alternate payee be treated as the Participant's
Surviving Spouse.
7.9 Withdrawals of Elective Contributions.
-------------------------------------
(a) General Rules. A Participant may apply to the Plan Administrator
-------------
for a hardship distribution of all or a portion of such Participant's
Elective Contributions
43
<PAGE>
Account balance, including only earnings on Elective Contributions credited
to the Participant's Elective Contributions Account under the Equifax Inc.
Employees 401(k) Retirement and Savings Plan as of December 31, 1988, if
any. A hardship distribution will be made to the Participant only if the
Plan Administrator determines that the Participant (A) has an immediate and
heavy financial need under subsection (b) below and (B) the distribution is
necessary to satisfy such need under subsection (c) below. A Participant
shall be limited to one withdrawal under subsections (a), (b), and (c) of
this Section 7.9 per Plan Year, but may make multiple withdrawals under
Section 7.9(d) and Section 7.10 in any Plan Year. No partial withdrawal
shall be permitted which is less than $500 (or, if the total value of the
Elective Contributions Account balance, including only earnings on Elective
Contributions credited to the Participant's Elective Contributions Account
under the Equifax Inc. Employees 401(k) Retirement and Savings Plan as of
December 31, 1988, is less than $500, which is less than such total value).
No withdrawal may be made under this Section until all possible withdrawals
available under Section 7.10 have been made.
(b) Immediate and Heavy Financial Need. A distribution will be made
----------------------------------
on account of an immediate and heavy financial need of a Participant if the
distribution is on account of:
(i) Medical expenses described in Code (S)213(d) previously
incurred by the Participant, the Participant's spouse, or any
dependents of the Participant (as defined in Code (S)152) or amounts
necessary for such persons to obtain medical care;
(ii) Costs directly related to the purchase of a principal
residence for the Participant (including the down payment but
excluding mortgage payments);
(iii) Payment of tuition and related educational fees for the
next 12 months of post-secondary education for the Participant, his
spouse, children or dependents; or
(iv) The need to prevent the eviction of the Participant from
his or her principal residence or foreclosure on the mortgage of the
Participant's principal residence.
In determining the existence of an immediate and heavy financial need, the
provisions of Treas. Reg. (S)1.401(k)-1(d)(2)(iv)(A) shall govern.
(c) Distribution Necessary to Satisfy Need. A distribution will be
--------------------------------------
deemed to be necessary to satisfy an immediate and heavy financial need of
a Participant if all of the following requirements are satisfied:
44
<PAGE>
(i) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant;
(ii) The Participant has obtained all distributions (other than
hardship distributions) and all nontaxable loans available under this
Plan and all other plans maintained by his or her Employer;
(iii) After receiving the hardship distribution, the Participant
shall be prohibited from making Elective Contributions and Voluntary
Contributions under this Plan and elective contributions and employee
contributions under any other plan of his or her Employer or under an
otherwise legally enforceable agreement (including all qualified and
nonqualified deferred compensation, stock option and stock purchase
plans maintained by such Employer, but not including health or welfare
benefit plans or the mandatory employee contribution portion of any
defined benefit plan) for at least 12 months following receipt of the
hardship distribution; and
(iv) Notwithstanding any contrary provisions of this Plan, the
maximum Elective Contributions pursuant to Appendix II which may be
otherwise made by the Participant for the taxable year of the
Participant following the taxable year in which the Participant
receives the hardship distribution shall be reduced by the amount of
the Participant's Elective Contributions for the taxable year in which
the Participant received the hardship distribution.
In determining the extent of a distribution necessary to satisfy an
immediate and heavy financial need, the provisions of Treas. Reg.
(S)1.401(k)-1(d)(2)(iv)(B) shall govern.
(d) Distribution After Attainment of Age 59- 1/2. A Participant who
--------------------------------------------
has attained the age of 59 1/2 may withdraw all or a portion of his
Elective Contributions Account, including earnings, if any. Distribution
shall be made to the Participant as soon as administratively possible after
the request is received. No partial withdrawal shall be permitted which is
less than $500 (or, if the total value of the Elective Contributions
Account, including earnings, is less than $500, which is less than such
total value). No withdrawal may be made under this subsection (d) until
all possible withdrawals available under Section 7.10 have been made.
7.10 Voluntary Contribution and Rollover Contribution Withdrawals.
------------------------------------------------------------
(a) General Rule. A Participant may, by filing a request with the
------------
Plan Administrator, withdraw all or a portion of his Voluntary Contribution
Account balance, and then his Rollover Contributions Account balance,
including earnings, if any. Distribution shall be made to the Participant
as soon as administratively possible after the request is received. No
partial withdrawal shall be permitted which is less than $500 (or, if the
total value of the Voluntary Contributions Account balance and the Rollover
45
<PAGE>
Contributions Account balance, including earnings in each case, is less
than $500, which is less than such total value).
(b) Order of Disbursement. Disbursement of Voluntary Contribution
---------------------
withdrawals shall be made first from Voluntary Contributions made by the
Participant prior to January 1, 1987 under the Equifax Inc. Employees
401(k) Retirement and Savings Plan (but not earnings thereon) and second
from all other amounts in the Voluntary Contributions Account (including
Voluntary Contributions made by the Participant after December 31, 1986,
and earnings on all of the Voluntary Contributions, whenever made). Next,
disbursement of withdrawals under this Section shall be made from a
Participant's Rollover Contributions Account, if any, and earnings thereon.
7.11 Code (S)401(a)(31) Requirement.
------------------------------
(a) General Rule. If a Participant or Surviving Spouse of a
------------
Participant (or an alternate payee pursuant to a qualified domestic
relations order who is a Spouse or former Spouse of a Participant) who is
to receive a payment under this Article which is an eligible rollover
distribution (as defined below) elects (within the 90 day period ending on
the Benefit Commencement Date) to have such distribution or a portion of
such distribution paid directly to an eligible retirement plan (as defined
below) and specifies the eligible retirement plan to which such
distribution is to be paid, such payment to be made to the Participant or
Surviving Spouse (or alternate payee) of a Participant shall be made in the
form of a direct lump sum cash transfer from the Trustee to the trustee of
the eligible retirement plan so specified in lieu of the payment otherwise
required by this Article. The preceding sentence shall only apply to the
extent that the eligible rollover distribution would be includible in the
Participant's or Surviving Spouse's (or alternate payee's) gross income if
not so transferred (determined without regard to Code (S)402(c)).
(b) Definitions. For purposes of this Section, the following terms
-----------
shall have the meanings indicated:
(i) Eligible retirement plan shall mean:
------------------------
(A) with respect to a Participant (or alternate payee), an
individual retirement account described in Code (S)408(a), an
individual retirement annuity described in Code (S)408(b) (other
than an endowment contract), a qualified trust which is a defined
contribution plan and the terms of which permit the acceptance of
rollover distributions, or an annuity plan described in Code
(S)403(a); or
(B) with respect to a Surviving Spouse of a Participant, an
individual retirement account described in Code (S)408(a) or an
individual retirement annuity described in Code (S)408(b) (other
than an endowment contract).
46
<PAGE>
(ii) Eligible rollover distribution shall mean any distribution to
------------------------------
a Participant or Surviving Spouse (or alternate payee) of a
Participant of all or any portion of the balance to the credit of such
individual in this Plan; provided, however, such term shall not
include:
(A) any distribution which is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
Participant or his designated Beneficiary or the joint lives (or
joint life expectancies) of the Participant and his designated
Beneficiary, or for a specified period of 10 years or more;
(B) any distribution to the extent such distribution is
required by Appendix IV;
(C) the portion of any distribution that is not includible
in gross income; and
(D) any other distribution or portion of a distribution to
the extent such distribution is not considered an eligible
rollover distribution under Treasury Regulations or other
guidance issued by the Internal Revenue Service.
(c) Satisfaction of Requirements. For purposes of this Section, the
----------------------------
Participant or Surviving Spouse (or alternate payee) of the Participant
electing the transfer must present sufficient evidence in a timely manner
to the Plan Administrator (or the Plan Administrator's delegate) that the
transferee plan satisfies the definition of an eligible retirement plan set
forth above. At a minimum, the Participant or Surviving Spouse (or
alternate payee) of the Participant must state the name of the transferee
plan and the Plan Administrator of the Transferee Plan must represent that
the transferee plan is an eligible retirement plan (as defined in paragraph
(i) of subsection (b) above). The Participant or Surviving Spouse (or
alternate payee) of the Participant must also present such additional
documentation as the Plan Administrator may require which shall be used to
verify that the requirements of this Section have been met. The Trustee,
the Committee, the Plan Administrator, or any Plan fiduciary shall have no
duty to verify the authenticity of any such evidence or documentation, and
shall be entitled to rely on any such evidence submitted by a Participant
or Surviving Spouse (or alternate payee) of the Participant, without
questioning the authenticity thereof, unless it is unreasonable to so rely.
Furthermore, in the event that the Trustee, the Committee, the Plan
Administrator or any Plan fiduciary shall have actual knowledge of an issue
relating to the transferee plan's ability to satisfy the definition of an
eligible retirement plan, such issue must be expressly resolved in favor of
the satisfaction of such definition by the transferee plan by a ruling from
the Internal Revenue Service or by an opinion of legal counsel (chosen by
the Participant or Surviving Spouse (or alternate payee) of the
Participant, but acceptable to
47
<PAGE>
the Committee) directed to the Trustee, the Plan, the Committee, the Plan
Administrator and any fiduciary of the Plan, before the transfer can occur.
(d) Interpretation. The provisions of this Section shall be
--------------
interpreted in accordance with Code (S)401(a)(31), as added by the
Unemployment Compensation Amendments of 1992, and any regulations or other
guidance promulgated by the Internal Revenue Service thereunder, and shall
not be construed or interpreted in a manner other than in strict compliance
with such requirements.
(e) Application of Other Rules. For all purposes of this Plan,
--------------------------
the election by a Participant or Surviving Spouse (or alternate payee) of a
Participant of a transfer under this Section shall be considered a payment
or distribution under this Article as if the amount transferred were paid
directly to the Participant or Surviving Spouse (or alternate payee).
48
<PAGE>
ARTICLE VIII
THE TRUST FUND AND THE TRUSTEE
------------------------------
8.1 Existence of Trust. The Company has entered into the Trust
------------------
Agreement with the Trustee designated by the Committee in the Trust Agreement to
hold the funds necessary to provide the benefits set forth in this Plan.
8.2 Exclusive Benefit Rule. The Trust Fund shall be received, held
----------------------
in trust, and disbursed by the Trustee in accordance with the provisions of the
Trust Agreement and this Plan. No part of the Trust Fund shall be used for or
diverted to purposes other than for the exclusive benefit of Participants and
their Beneficiaries and the payment of reasonable expenses attributable to the
administration of the Plan in accordance with ERISA (S)404(a)(1)(A)(ii). For
purposes of the preceding sentence, the use of the Trust Fund to pay fees and
expenses incurred in connection with the provision of services is not a
reasonable expense of administering the Plan if the payments are made for the
Employer's benefit or involve services for which the Employer could reasonably
be expected to bear the cost in the normal course of such Employer's business or
operations. In this regard, services provided in conjunction with the
establishment, termination or design of plans relate to the business activities
of the Employer and generally would not be "reasonable expenses attributable to
the administration of the Plan." No person shall have any interest in, or right
to, the Trust Fund or any part thereof, except as specifically provided for in
this Plan or the Trust Agreement, except as provided in Section 3.3 (Return of
Contributions). Notwithstanding the preceding provisions of this Section, this
Section shall be construed in accordance with the requirements of Code
(S)401(a)(2) and ERISA (S)403(c) and any regulations or other guidance
promulgated thereunder, and shall not be construed in a manner more restrictive
than such requirements. Fees and expenses which may be paid from the assets of
the Trust Fund may include, where otherwise appropriate, but not by way of
limitation, the fees of counsel, actuaries, investment managers, as well as
software licensing fees and the expenses of Employer personnel, where permitted
by applicable law, for services necessary to the administration of the Plan.
8.3 Removal or Resignation of Trustee. The Committee may remove the
---------------------------------
Trustee at any time or the Trustee may resign at any time upon the notice
required by the terms of the Trust Agreement, and upon such removal or upon the
resignation of a Trustee, the Committee or the Plan Administrator shall appoint
a successor Trustee.
8.4 Powers of Trustee. The Trustee shall have the power to hold,
-----------------
invest, reinvest, or to control and disburse the Trust Funds in accordance with
the provisions of the Trust Agreement and this Plan.
8.5 Integration of Trust Agreement. The Trust Agreement shall be
------------------------------
deemed to be a part of this Plan, and all rights of Participants or others under
this Plan shall be subject to the provisions of the Trust Agreement.
49
<PAGE>
8.6 Records and Accounts. The Trustee shall maintain accurate and
--------------------
detailed records and accounts of all transactions of the Plan, which shall be
available at all reasonable times for inspection or audit by any person
designated by the Company, Committee or Plan Administrator and by any other
person or entity to the extent required by law.
8.7 Annual Reports. As soon as practicable following the close of
--------------
the Plan Year, the Trustee shall file with the Plan Administrator a written
report setting forth all transactions with respect to the Trust Fund during such
Plan Year and listing the assets of the Trust Fund and the market value thereof
at the close of the period covered by such report. The Trustee shall also
provide the Plan Administrator with such other information in its possession as
may be necessary for the Plan Administrator to conform with the requirements of
ERISA (S)103.
50
<PAGE>
ARTICLE IX
ADMINISTRATION
--------------
9.1 Allocation of Responsibility. The general administration of the
----------------------------
Plan and the responsibility for carrying out the provisions thereof will be
placed in the ChoicePoint Inc. Group Benefit Committee (the "Committee")
comprised of one or more members who shall be designated by the Compensation and
Benefits Committee of the Board of Directors of ChoicePoint Inc. ("Board
Committee"), and who shall serve at the pleasure of the Board Committee. In the
absence of such a designation, the Company shall carry out the responsibilities
of the Committee. The day to day operations and administration of the Plan shall
be carried out by a Plan Administrator appointed by the Committee, if so
appointed. The Committee may appoint more than one Plan Administrator.
9.2 Administrative Expenses. The members of the Committee or the
-----------------------
Plan Administrator may employ financial, legal, or other counsel and engage such
clerical, financial, or other services as they may deem necessary for the
effective administration of the Plan and compliance with Federal and state
regulations. Said operating expenses and any other reasonable administrative
expenses will be paid out of the Trust Fund to the extent possible consistent
with Section 8.2 herein (Exclusive Benefit Rule), unless the Company elects (in
its sole discretion) to pay such expenses.
9.3 Committee Powers and Duties. The Committee shall have the power
---------------------------
to interpret and construe the Plan, to settle all questions arising from the
operation of the Plan, and to determine all questions of eligibility and the
status and rights of Participants, Beneficiaries and others. Final
determinations or actions of the Committee with respect to any questions arising
out of or in connection with the administration of the Plan will be final and
conclusive and binding upon all persons having an interest in the Plan. The
Committee may delegate to other persons, including the Plan Administrator, all
or such portion of their duties hereunder, other than those granted to the
Trustee under the Trust Agreement, as the Committee, in its sole discretion, may
decide.
9.4 Records and Reports. The Committee and the Plan Administrator,
-------------------
respectively, will keep such accounts and records as it may deem necessary or
proper in the performance of its duties under the Plan.
9.5 Reporting and Disclosure. The Plan Administrator shall file all
------------------------
reports and returns required to be filed by the Plan (other than those which are
the responsibility of the Trustee) with any governmental agency, shall make all
disclosures to Employees, Participants and Beneficiaries, and shall make
available for examination by said persons copies of all Plan documents,
descriptions, returns and reports as may be required by applicable law or as
specified herein.
51
<PAGE>
9.6 Fiduciaries and Named Fiduciaries. The Plan Administrator shall
---------------------------------
be the "named fiduciar(ies)" under the Plan within the meaning of ERISA. The
Committee is a fiduciary under the Plan with respect to its responsibilities set
forth in this Article IX, with the division of responsibilities between them as
set forth in this Plan and the Trust Agreement. The Trustee is a fiduciary under
the Plan as to its responsibilities set forth in the Trust Agreement.
9.7 Plan Administrator. One or more individuals selected by the
------------------
Committee shall serve as the Plan Administrator, who shall constitute the
"administrator" as that term is defined in ERISA (S) 3(16)(A) and Code (S)
414(g), for the Plan. If no such appointment is made, the Committee shall be the
Plan Administrator hereunder. If more than one individual shall have been
designated as the Plan Administrator, each such individual shall have the full
power to act in said capacity on his or her own, and each reference to Plan
Administrator shall be deemed to mean any such person. The Plan Administrator
shall have all those responsibilities necessary to carry out the day-to-day
operations and administration of the Plan, including without limitation:
(a) retaining legal counsel and financial or other advisors,
(b) establishing rules for the administration of the Plan,
(c) furnishing appropriate communications to Participants, joint
annuitants, and Beneficiaries, filing reports with government
agencies, and complying with the reporting and disclosure
requirements of applicable law,
(d) appointing successor Trustees, as appropriate,
(e) maintaining the records of the Plan,
(f) amending the Plan in accordance with Section 10.2, and
(g) appointing investment managers and establishing investment funds
for the Plan.
9.8 Interpretation of the Plan and Findings of Facts. The Committee
------------------------------------------------
shall have sole and absolute discretion to interpret the provisions of the Plan
(including, without limitation, by supplying omissions from, correcting
deficiencies in, or resolving inconsistencies or ambiguities in, the language of
the Plan), to determine the rights and status under the Plan of Participants and
other persons, to decide disputes arising under the Plan and to make any
determinations and findings with respect to the benefits payable thereunder and
the persons entitled thereto as may be required for the purposes of the Plan. In
furtherance of, but without limiting, the foregoing, the Committee is hereby
granted the following specific authorities, which it shall discharge in its sole
and absolute discretion in accordance with the terms of the Plan (as
interpreted, to the extent necessary, by the Committee):
52
<PAGE>
(a) To resolve all questions arising under the provisions of the Plan
as to any individual's entitlement to become a Participant;
(b) To determine the amount of benefits, if any, payable to any person
under the Plan; and
(c) To conduct the review procedure specified in Section 11.5 (Claims
Procedure).
All decisions of the Committee as to the facts of the case, as to the
interpretation of any provision of the Plan or its application to any case, and
as to any other interpretative matter or other determination or question under
the Plan shall be final and binding on all parties affected thereby, subject to
the provisions of Section 11.5 (Claims Procedure). The Committee, or at its
request the Plan Administrator, shall direct the Trustee relative to benefits to
be paid under the Plan and shall furnish the Trustee with any information
reasonably required by it for the purpose of paying benefits under the Plan.
The Committee may delegate to other persons, including the Plan Administrator,
all or such portion of their duties hereunder, other than those granted to the
Trustee under the Trust Agreement, as the Committee, in its sole discretion, may
decide.
9.9 Bonding, Insurance and Indemnity.
--------------------------------
(a) Bonding. To the extent required under ERISA, the Company will
-------
obtain, pay for and keep current a bond or bonds with respect to each
member of the Committee and the Plan Administrator, and any other Employee
who receives, handles, disburses, or otherwise exercises custody or control
of, any of the assets of the Plan.
(b) Insurance. The Company, in its discretion, may obtain, pay for
---------
and keep current a policy or policies of insurance, insuring each member of
the Committee and the Plan Administrator, the members of the board of
directors of the Company and other Employees to whom any fiduciary
responsibility with respect to the administration of the Plan has been
delegated against any and all costs, expenses and liabilities (including
attorneys' fees) incurred by such persons as a result of any act, or
omission to act, in connection with the performance of their duties,
responsibilities and obligations under the Plan and any applicable law.
(c) Indemnity. If the Company does not obtain, pay for and keep
---------
current the type of insurance policy or policies referred to in subsection
(b) above, or if such insurance is provided but any of the parties referred
to in subsection (b) above incur any costs or expenses which are not
covered under such policies, then the Company will indemnify and hold
harmless, to the extent permitted by law, such parties against any and all
costs, expenses and liabilities (including attorneys' fees) incurred by
such parties in performing their duties and responsibilities under this
Plan, provided that such party or parties were acting in good faith in what
was reasonably believed to have been the best interests of the Plan and its
Participants. Promptly upon receipt by an indemnified party
53
<PAGE>
under this Section, of notice of the commencement of any such action, such
indemnified party will, if a claim in respect thereof is to be made against
the Company or an Employer, notify the Company and, if applicable, the
Employer of the commencement thereof, but the omission to so notify the
Company or an Employer will not relieve the Company from the liability
hereunder, nor from any other liability which it may have to such person.
The Company and, if applicable, the Employer shall be entitled to
participate at their own expense in the defense or to assume the defense of
any action brought against any party indemnified hereunder. In the event
the Company elects to assume the defense of any such suit, such defense
shall be conducted by counsel chosen by the Company, and the indemnified
party shall bear the fees and expenses of any additional counsel retained
by him.
9.10 Committee and Plan Administrator Liability. Committee members
------------------------------------------
and the Plan Administrator shall use ordinary care and diligence in performing
their duties; however, to the extent permitted by ERISA or other applicable law,
no member shall be personally liable by virtue of any contract, agreement, bond
or other instrument made or executed by or for him as a Committee member or as a
Plan Administrator, nor for any loss unless due to his own willful misconduct.
54
<PAGE>
ARTICLE X
AMENDMENT, TERMINATION, MERGER, CONSOLIDATION AND ADOPTION
----------------------------------------------------------
10.1 Continuation of Plan. It is contemplated by the Company that
--------------------
the Plan and Trust shall be maintained indefinitely, and that they shall
constitute a qualified plan under Code (S)401 and a tax-exempt trust under Code
(S)501, or any successor provisions. Nevertheless, the Company and the Employers
must necessarily reserve and do hereby reserve the rights of amendment,
termination and withdrawal as set forth in this Article. The Company shall not
be responsible to any party for the failure of the Plan or Trust to meet the
requirements for tax qualification.
10.2 Right to Amend Plan.
-------------------
(a) Amendment by the Company. The Company reserves the right, at any
------------------------
time, to modify or amend, in whole or in part, any or all of the provisions
of the Plan; in addition, the Company or the Plan Administrator upon the
advice of counsel, may specifically amend the Plan, effective
retroactively, if necessary or desirable to bring the Plan into conformity
with the Code, ERISA, and any applicable regulations promulgated so that
the Plan may continue to remain qualified and the Trust may continue to
remain tax-exempt, or for any other purpose, subject to subsection (b)
below. Any such amendment shall be made by means of a written instrument,
and shall be approved by the Board of Directors of the Company or by a
person or entity to whom the Board has delegated said authority, or as
provided above, by the Plan Administrator.
(b) Restrictions on Amendments.
--------------------------
(i) Exclusive Benefit Rule. No modification or amendment shall
----------------------
make it possible for Trust assets to be used for, or diverted to,
purposes other than the exclusive benefit of Participants and their
Beneficiaries in accordance with Section 8.2 (Exclusive Benefit Rule)
herein, except as provided in Section 3.3 (Return of Employer
Contributions).
(ii) Code (S)411(d)(6) Restrictions. No amendment to the Plan
------------------------------
shall be permitted that would have the effect of decreasing the
Account balances of any Participant. Furthermore, no amendment shall
be permitted that would have the effect of eliminating or reducing an
early retirement benefit or a retirement-type subsidy (as defined in
Treasury regulations under Code (S)411(d)(6)(B)(i)) or, except as
permitted under Treasury regulations, eliminating an "optional form of
benefit" as defined in Treas. Reg. (S)1.411(d)-4(Q&A-1).
10.3 Right to Terminate Plan. The Company reserves the right, at any
-----------------------
time, to wholly or partially terminate the Plan.
55
<PAGE>
10.4 Merger, Consolidation, or Transfer of Assets.
--------------------------------------------
(a) Code (S)401(a)(12) Restriction. The Plan shall not be merged or
------------------------------
consolidated with any other plan, and its assets and liabilities may not be
transferred to any other trust, unless each Participant, immediately after
the merger, consolidation or transfer (if the Plan then is terminated),
would receive a benefit which is equal to or greater than the benefit he
would have been entitled to receive, and would be entitled to each benefit
payment option to which he would have been entitled, immediately before the
merger, consolidation or transfer (if the Plan is then terminated).
(b) Code (S)401(a)(11) Restriction. Subject to subsection (c) below,
------------------------------
this Plan may be the recipient of a transfer of assets from, or may
transfer assets to, another plan qualified under Code (S)401(a) subject to
the approval of the Company; provided, however, in no event shall this Plan
be the recipient of a direct or indirect transfer of assets if such receipt
would make this Plan a "transferee plan" within the meaning of Treas. Reg.
(S)1.401(a)-20(Q&A-5)(a), unless such assets are separately accounted for
(within the meaning of Treas. Reg. (S)1.401(a)-20(Q&A-5)(b)) and are
subject to the requirements of Code (S)411(a).
(c) Code (S)411(d)(6) Restriction. This Plan may be the recipient of
-----------------------------
a transfer of assets from, or may transfer assets to, another plan
qualified under Code (S)401(a) in accordance with subsection (b) above only
if such transfer satisfies the provisions of Treas. Reg. (S)1.411(d)-4(Q&A-
3).
10.5 Adoption of Plan by Aggregated Code (S)414 Employers.
----------------------------------------------------
(a) Procedures for Adoption of Plan. This Plan may be adopted by any
-------------------------------
member of the Controlled Group if the following requirements are met:
(i) The member of the Controlled Group wishing to become an
Employer must adopt the Plan by the execution of a formal resolution
by such member's board of directors to adopt this Plan, and either
such resolution or a plan merger amendment or an adoption agreement,
as appropriate, shall indicate the effective date of such adoption;
and
(ii) Such document evidencing the adoption of the Plan by the
Controlled Group member must be delivered to and accepted in writing
by the Plan Administrator or approved by resolution of the board of
directors of the Company.
The plan merger agreement or adoption agreement with respect to a
participating Employer shall be considered a part of the Plan and shall be
maintained by the Plan Administrator in the permanent records relating to
the terms of the Plan. The documents referred to in paragraphs (i) and
(ii) above may, in addition to specifying the Effective
56
<PAGE>
Date of the adoption, specify other provisions including, but not limited
to, credit for service prior to the effective date for eligibility and
vesting purposes. In the absence of any such special provisions, the terms
and provisions of this Plan shall control. Any such special provisions
referred to in Sections 3.1(b)(ii), 3.1(c)(ii), and 3.1(d)(i) also shall be
reflected in Exhibit A, as appropriate.
(b) Procedures for Withdrawal from Plan. Any Employer may voluntarily
-----------------------------------
withdraw from participating in the Plan, provided that such discontinuance
of participation is approved by the Company, the Committee or the Plan
Administrator. The Company or the Committee unilaterally may terminate an
adopting Employer's participation in the Plan for:
(i) failure to provide requested information in a timely manner;
(ii) failure to make timely contributions;
(iii) failure to cooperate with the Company or the Committee in
administering the Plan; or
(iv) any other reason that the Company or the Committee deems
appropriate.
(c) Transfer of Assets. Upon the voluntary withdrawal or involuntary
------------------
termination of an Employer's participation in the Plan, the Committee shall
determine the amount of assets and liabilities of the Plan (if any) which
shall be either held by the Trustee for the benefit of the affected
Participants, or transferred to a qualified plan of the withdrawing
Employer. The determination of the amount of assets to be transferred to
another qualified plan shall be made based upon principles set forth in
Code (S)(S)401(a)(12) and 414(l) and the regulations promulgated
thereunder. Any transfer of assets and liabilities under this subsection
(c) shall comply with the provisions of Section 10.4 (Merger,
Consolidation, etc.).
(d) Apportionment of Costs. The Company and all Employers shall share
----------------------
in the costs of the Plan (other than those costs paid from the Trust Fund
in accordance with Section 9.2), including but not limited to, the
contributions to the Plan, the costs of the Committee or the Plan
Administrator, the costs of the consultants (actuaries, accountants,
attorneys, etc.) and various other direct and indirect costs of operating
the Plan which may initially be borne by the Company or any Employer but
which are determined by the Committee or the Plan Administrator to be costs
associated with the Plan. The Committee or the Plan Administrator shall
apportion these costs to the Company and each Employer as it deems to be
equitable.
(e) Cooperation. Each Employer shall cooperate fully with the
-----------
Company and the Committee or the Plan Administrator with regard to all
matters pertaining to the Plan.
57
<PAGE>
Any failure to cooperate will be grounds for the involuntary termination of
that Employer's participation in the Plan.
58
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
------------------
11.1 Participant's Rights to Employment, Etc. Nothing contained in
---------------------------------------
the Plan or the establishment of the Trust, or any modification thereof, or the
creation of any fund or account, or the payment of any benefits, shall be
construed to give any Employee, whether or not a Participant, or any
Beneficiary, any rights to continued employment, any legal or equitable right
against an Employer, or any officer or employee thereof, or the Trustee, or its
agents or employees, except as herein provided. Nothing contained in this Plan
shall be deemed to interfere with the right of the Employer to discharge any
Participant or Employee at any time regardless of the effect which such
discharge shall have upon such individual as a Participant in the Plan.
11.2 No Guarantee of Interests. The Employer, the Committee, the
-------------------------
Plan Administrator and the Trustee do not guarantee the Trust Fund from any loss
or depreciation, nor do they guarantee any payment to any person. The liability
of the Trustee, the Employer, the Committee and the Plan Administrator to make
payments hereunder is limited to the available assets of the Trust Fund.
11.3 Standard of Conduct. Any person who is a fiduciary with respect
-------------------
to this Plan shall: (i) discharge his duties solely in the interest of and for
the exclusive purpose of providing benefits to Participants and their
Beneficiaries and defraying the reasonable administrative expenses of the Plan,
and shall conduct himself with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims; (ii) act at all times in accordance with the
documents governing the Plan and Trust as they may be amended from time to time;
(iii) not engage in or allow the Plan or Trust to engage in any transaction
which is prohibited under ERISA (S)406 and which is not allowed by ERISA (S)408
or is prohibited under Code (S)4975; (iv) not knowingly participate in or
conceal an act of another fiduciary under the Plan which he knows to involve a
breach of fiduciary duty within the meaning of ERISA; and (v) make reasonable
efforts under the circumstances to remedy a breach of duty described in
subsection (iv) discovered by him.
11.4 Allocation of Duties. All responsibilities for the operation
--------------------
and administration of the Plan shall be allocated as follows:
(a) The Employer shall furnish to the Trustee information with respect
to service, eligibility, compensation, termination of employment and other
matters required or desirable for the purpose of enabling the Trustee to
carry out its duties and responsibilities under this Plan and Trust, and
the Trustee may rely upon such information as conclusive proof of any fact
or matter. The Employer shall also transmit to the Trustee
59
<PAGE>
all Employer and Employee contributions under the Plan, and the Company
shall determine the amount of all such contributions.
(b) The Committee shall have those duties and responsibilities set
forth in Article IX.
(c) The Trustee shall have responsibility for managing and
administering the Trust Fund subject to the terms and provisions of this
Plan and the Trust Agreement. The Trustee shall have responsibility for
making benefit payments.
(d) The Plan Administrator shall have all those responsibilities
necessary to carry out the day-to-day operations and administration of the
Plan, including without limitation:
(i) retaining legal counsel and financial or other advisers,
(ii) establishing rules for the administration of the Plan,
(iii) furnishing appropriate communications to Participants and
Beneficiaries, filing reports with government agencies, and
complying with the reporting and disclosure requirements of
applicable law,
(iv) appointing successor Trustees, as appropriate,
(v) maintaining the records of the Plan,
(vi) approving hardship withdrawals in accordance with Section
7.9, and rollover contributions,
(vii) directing the Trustee with respect to the establishment of
investment funds under Section 5.2(b), and
(viii) amending the Plan in accordance with Section 10.2.
11.5 Claims Procedure.
----------------
(a) Filing a Claim. All claims and requests for benefits under the
--------------
Plan shall be directed to the attention of the Plan Administrator in
writing. The writing must be reasonably calculated to bring the claim to
the attention of the Plan Administrator.
(b) Notification of Denial. If the Plan Administrator determines that
----------------------
any individual who has claimed a right to receive benefits under the Plan
(the "claimant") is not entitled to receive all or any part of the benefits
claimed, the claimant shall be
60
<PAGE>
informed in writing of the specific reason or reasons for the denial, with
specific reference to pertinent Plan provisions on which the denial is
based, a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why said
material or information is necessary and a description of the review
procedures set forth in subsection (d) below.
(c) Timing of Notification. The claimant shall be so notified of the
----------------------
Plan Administrator's decision within 90 days after the receipt of the
claim, unless special circumstances require an extension of time for
processing the claim. If such an extension of time for processing is
required, the Plan Administrator shall furnish the claimant written notice
of the extension prior to the termination of the initial 90-day period. In
no event shall said extension exceed a period of 90 days from the end of
said initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the Plan
Administrator expects to render a final decision. If for any reason, the
claimant is not notified within the period described above, the claim shall
be deemed denied and the claimant may then request review of said denial,
subject to the provisions of subsection (d) below.
(d) Review Procedures. The claimant or his duly authorized
-----------------
representative may, within 60 days after notice of the Plan Administrator's
decision, request a review of said decision, review pertinent documents and
submit in writing to the Committee issues and comments and such further
information as will, in the claimant's opinion, establish his rights to
such benefits.
(e) Timing of Final Decision. The Committee's final decision shall
------------------------
include specific references to the pertinent Plan provisions on which the
decision is based, and shall be transmitted to the claimant by certified
mail within 60 days of receipt of claimant's request for such review,
unless special circumstances require a further extension of time for
processing, in which case a decision shall be rendered as soon as possible,
but not later than 120 days after receipt of a request for review. If such
an extension of time for review is required because of special
circumstances, written notice of the extension shall be furnished to the
claimant prior to the commencement of the extension. If the Committee
holds regularly scheduled meetings at least quarterly, in lieu of the time
period described above, the Committee's decision on review shall be made by
no later than the date of the meeting of the Committee which immediately
follows its receipt of the request for review, unless said request is filed
within 30 days preceding the date of said meeting in which case a decision
shall be made no later than the date of the second meeting following its
receipt of said request for review. If special circumstances require a
further extension of time for processing, a decision shall be rendered not
later than the third meeting of the Committee following its receipt of the
request for review. If a decision on review is not furnished within the
time period described above, the claim shall be deemed denied on review.
61
<PAGE>
11.6 Nonalienation or Assignment; QDRO's.
-----------------------------------
(a) Spendthrift Clause. Except as provided in subsection (b) below,
------------------
none of the benefits under the Plan is subject to the claims of creditors
of Participants or their Beneficiaries, and will not be subject to
attachment, garnishment, or any other legal process whatsoever. Neither a
Participant nor his Beneficiaries may assign, sell, borrow on (except in
the case of a Plan loan if authorized under this Plan), or otherwise
encumber any of his beneficial interest in the Plan and Trust Fund, nor
shall any such benefits be in any manner liable for or subject to the
deeds, contracts, liabilities, engagements, or torts of any Participant or
Beneficiary.
(b) Qualified Domestic Relations Orders.
-----------------------------------
(i) General Rule. The provisions of subsection (a) above shall
------------
not apply to a "qualified domestic relations order," as defined in
Code (S)414(p) and ERISA (S)206(d)(3), or any other domestic relations
order permitted to be treated as a "qualified domestic relations
order" by the Plan Administrator under the provisions of the
Retirement Equity Act of 1984. The Plan Administrator shall establish
a written procedure to determine the qualified status of domestic
relations orders and to administer distributions under such qualified
orders. To the extent provided under a "qualified domestic relations
order," a former Spouse of a Participant shall be treated as the
Spouse or Surviving Spouse for all purposes under the Plan.
(ii) QDRO Procedures.
---------------
(A) Procedure Upon Receipt. Upon receiving a domestic
----------------------
relations order, the Plan Administrator shall notify all affected
Participants and any alternate payees (spouse, former spouse,
child or other dependent of the Participant, named in the order)
that the order has been received. The Plan Administrator shall
also notify the affected Participants and alternate payees of its
procedure for determining whether the domestic relations order is
qualified.
(B) Procedure During Determination. During the period the
------------------------------
Plan Administrator is determining the qualified status of the
order, the Plan Administrator shall separately account for the
amount (if any) that would be payable to an alternate payee under
this order (if it were a qualified domestic relations order)
during this period. If the Plan Administrator determines the
order is a qualified domestic relations order during the 18-month
period commencing on the date the first payment would be required
under the qualified domestic relations order, then the alternate
payee shall receive payment from the separate account. If the
Plan Administrator cannot make a determination of the order's
qualified status
62
<PAGE>
during this 18-month period (or determines the order is not a
qualified domestic relations order), then the Trustee shall
return the amounts in the separate account to the account of the
affected Participant as if no court order had been received.
(iii) QDRO Payouts.
------------
(A) Payment Upon Receipt of QDRO. Notwithstanding any
----------------------------
provision of this Plan to the contrary, any amounts of a
Participant's vested Account balances which, due to the receipt
of a domestic relations order determined to be a qualified
domestic relations order under paragraph (ii) above, become the
vested Account balances of an alternate payee under such order
shall be distributed in the form of a single lump-sum payment in
cash to the alternate payee as of the earliest date on which such
amounts can be accurately determined and paid, subject to any
provisions of the qualified domestic relations order to the
contrary as to a different time of payment. No written consent
of the alternate payee shall be required for this distribution
pursuant to Treas. Reg. (S)1.411(a)-11(c)(6).
(B) Subsequent Additional Amounts. The preceding
-----------------------------
subparagraph (A) shall apply to any amounts of a Participant's
vested Account balances which, due to the receipt of a domestic
relations order determined to be a qualified domestic relations
order under subsection (b) above, become the vested Account
balances of an alternate payee under such order after a payment
under subparagraph (A) above due to allocation of contributions
or earnings, or any other reason.
(C) Special Effective Date. This paragraph (iii) shall not
----------------------
be effective until the first day of the month following the month
during which a favorable determination letter has been issued by
the Internal Revenue Service upon this Plan with this provision
included.
(iv) Status of Alternate Payee. An alternate payee under a
-------------------------
qualified domestic relations order shall be entitled to all rights of
a Beneficiary hereunder except as otherwise specified herein.
11.7 Plan Continuance Voluntary. Although it is the intention of the
--------------------------
Employer that this Plan shall be continued and that contributions shall be made
regularly, this Plan is entirely voluntary on the part of the Employer, and the
continuance of the Plan and the payments hereunder are not assumed as a
contractual obligation of the Employer.
11.8 Payments to Minors and Others. In making any distribution to or
-----------------------------
for the benefit of any minor or incompetent Participant or Beneficiary, or any
other Participant or Beneficiary who, in the opinion of the Plan Administrator,
is incapable of properly using, expending,
63
<PAGE>
investing, or otherwise disposing of such distribution, the Plan Administrator,
in its sole and complete discretion may, but need not, order the Trustee to make
such distribution to a legal or natural guardian or other relative of such minor
or court appointed committee of any incompetent Participant or Beneficiary, or
to any adult with whom such person temporarily or permanently resides; and any
such guardian, committee, relative, or other person shall have full authority
and discretion to expend such distribution for the use and benefit of such
person; and the receipt of such guardian, committee, relative, or other person
shall be a complete discharge to the Trustee, the Plan Administrator, the
Committee and this Plan, without any responsibility on the part of the
Committee, the Plan Administrator or the Trustee to see to the application of
amounts so distributed.
11.9 Location of Payee; Unclaimed Benefits. In the event that all,
-------------------------------------
or any portion, of the distribution payable to a Participant or Beneficiary
hereunder shall, at the expiration of a reasonable time after it has become
payable, remain unpaid solely by reason of the inability of the Plan
Administrator or the Committee, after sending a registered letter, return
receipt requested, to the last known address of such person, and after further
diligent effort (including requests to the Internal Revenue Service under Policy
Statement P-1-187), to ascertain the whereabouts of such person, the amount so
distributable shall be paid pursuant to the terms and provisions of the Plan as
if the Participant or Beneficiary is deceased. If, for any reason, no
Beneficiary or contingent Beneficiary can be found, the amount so distributable
shall be forfeited and shall be used to reduce the contributions to the Plan. In
the event a proper payee is located subsequent to the benefit being forfeited,
the benefit shall be restored, and the Employer shall make special contributions
to this Plan for such purpose.
11.10 Governing Law. This Plan shall be administered in the United
-------------
States of America, and its validity, construction, and all rights hereunder
shall be governed by the laws of the United States under ERISA. To the extent
that ERISA shall not be held to have preempted local law, the Plan shall be
administered under the laws of the State of Georgia. If any provision of the
Plan shall be held invalid or unenforceable, the remaining provisions hereof
shall continue to be fully effective.
11.11 Correction of Participants' Accounts. If an error or omission
------------------------------------
is discovered in the Accounts of a Participant, or in the amount distributed to
a Participant, the Plan Administrator will make such equitable adjustments in
the records of the Plan as may be necessary or appropriate to correct such error
or omission as of the Plan Year in which such error or omission is discovered;
provided, however, that if the error is discovered within the last 60 days of a
Plan Year, then the corrective action may be completed in the following Plan
Year. Further, the Employer may, in its discretion, make a special contribution
to the Plan which will be allocated by the Plan Administrator only to the
Account of one or more Participants to correct such error or omission.
11.12 Action of Employer, Committee and Plan Administrator. Except
----------------------------------------------------
as may be specifically provided, any action required or permitted to be taken by
the Employer, Committee,
64
<PAGE>
or the Plan Administrator may be taken on behalf of such person by any entity or
individual who has been delegated the proper authority.
11.13 Employer Records. Records of the Employer or of Equifax Inc.
----------------
as to an Employee's or Participant's period of employment, termination of
employment and the reason therefor, leaves of absence, reemployment,
compensation, and elections or designations under this Plan will be conclusive
on all persons, unless determined by the Committee to be incorrect.
11.14 Gender and Number. Wherever applicable, the masculine pronoun
-----------------
shall include the feminine pronoun, the singular shall include the plural and
the plural shall include the singular.
11.15 Headings. The titles in this Plan are inserted for convenience
--------
of reference; they constitute no part of the Plan, and are not to be considered
in the construction hereof.
11.16 Liability Limited. To the extent permitted by ERISA and other
-----------------
applicable law, neither the Committee, nor any member thereof, nor the Plan
Administrator nor the Employer shall be liable for any acts of omission or
commission in administering the Plan, except for his or its own individual,
willful misconduct. The Employer, Plan Administrator and each member of the
Committee shall be entitled to rely conclusively on all tables, valuations,
certificates, opinions and reports which shall be furnished by an actuary,
accountant, trustee, insurance company, counsel or other expert who shall be
employed or engaged by the Committee, Plan Administrator or the Employer.
11.17 Prohibited Discrimination. This Plan shall be operated and
-------------------------
administered in a uniform and consistent manner with respect to all Participants
and in a manner which does not discriminate in favor of Highly Compensated
Employees.
11.18 Legal References. Any references in this Plan to a provision
----------------
of law which is, subsequent to the Effective Date of this Plan, revised,
modified, finalized or redesignated, shall automatically be deemed a reference
to such revised, modified, finalized or redesignated provision of law.
11.19 Electronic Means of Communication. Whenever, under this Plan,
---------------------------------
a Participant or Beneficiary is required or permitted to make an election,
provide a notice, give a consent, request a distribution, or otherwise
communicate with the Employer, the Committee, the Plan Administrator, the
Trustee or a delegate of any of them, to the extent permitted by law, the
election, notice, consent, distribution request or other communication may be
transmitted by means of telephonic or other electronic communication, if the
administrative procedures under the Plan provide for such means of
communication.
65
<PAGE>
This Plan has been executed as of the Effective Date by ChoicePoint Inc.
CHOICEPOINT INC.
By: /s/ D. E. McGuffey
-------------------------------------
Title: Vice President
----------------------------------
66
<PAGE>
APPENDICES
67
<PAGE>
APPENDIX I
ADDITIONAL DISCRETIONARY EMPLOYER CONTRIBUTIONS
-----------------------------------------------
1.1 Employer Contributions. In addition to the contributions described
----------------------
in Article III of the Plan, the Employers may, in the sole discretion of, and at
the election of, the Company, make contributions to the Plan (all of which are
hereby expressly conditioned on their deductibility under Code (S)404) by making
cash payments (or payments of property acceptable to the Trustee if such
payments (i) are purely voluntary, (ii) do not relieve the Employer of an
obligation to make contributions to this Plan, and (iii) do not constitute
prohibited exchanges under ERISA (S)406(a)(1)(A)) to the Trustee in one or more
of the following methods:
(a) Qualified Nonelective Contributions.
-----------------------------------
(i) Amount. For each Plan Year the Employers may make
------
Qualified Nonelective Contributions to this Plan in an amount which
shall be determined solely in the discretion of the Company, and
which may be used to satisfy any of the nondiscrimination tests of
Appendix III of this Plan.
(ii) Allocation. Qualified Nonelective Contributions for a
----------
Plan Year shall be allocated as of the last day of such Plan Year
to the Qualified Nonelective Contributions Account of each
Participant who has satisfied the eligibility requirements of
Section 2.1(c) and who is not a Highly Compensated Participant
("QNEC Participant") as follows: Qualified Nonelective
Contributions shall be allocated first to the Account of the QNEC
Participant whose Compensation (as defined in Section 3.6(c)) is
the lowest, in an amount equal to the lesser of (A) the amount that
will enable the Plan to satisfy the Deferral Percentage Test under
Section 3.1 or the Contribution Percentage Test under Section 3.2,
or (B) the maximum amount that may be allocated for the Plan Year
to the individual's Account under Appendix VI. If, after the
allocation of Qualified Nonelective Contributions described in the
preceding sentence, the Deferral Percentage Test or the
Contribution Test is not met, this process shall be repeated
(allocating Qualified Nonelective Contributions to QNEC
Participants with successively higher Compensation (as defined in
Section 3.6(c)) until the Plan satisfies the Deferral Percentage
Test or the Contribution Test, as the case may be, for the year.
(iii) Vesting and Distribution Restrictions. Qualified
-------------------------------------
Nonelective Contributions shall be at all times nonforfeitable and
may not be distributed from the Plan before one of the following
events:
(A) the Employee's retirement, death, disability, or
separation from service;
A1
<PAGE>
(B) the Employee's attainment of the age of 59-1/2;
(C) financial hardship of the Employee (determined in
accordance with the standards of Section 7.9 of the
Plan);
(D) the termination of the Plan;
(E) the date of the sale or other disposition by
ChoicePoint Inc. or another corporation that is a
member of the Controlled Group of substantially all
of the assets used by such corporation in a trade or
business of the corporation to an unrelated
corporation, provided that the purchaser does not
maintain this Plan and this Plan is not merged or
consolidated with, and no assets or liabilities are
transferred from the Plan to, a plan maintained by
the purchaser, and provided that the Employee
continues employment with the purchaser of assets or
with the subsidiary immediately following the sale
or other disposition;
(F) the date of the sale or other disposition by
ChoicePoint Inc. or another corporation that is a
member of the Controlled Group of its interest in a
subsidiary to an unrelated entity or individual;
provided that the purchaser does not maintain this
Plan and this Plan is not merged or consolidated
with, and no assets or liabilities are transferred
from the Plan to, a plan maintained by the
purchaser, and provided that the Employee continues
employment with the purchaser of assets or with the
subsidiary immediately following the sale or other
disposition;
(b) Qualified Matching Contributions.
--------------------------------
(i) Amount. For each Plan Year the Employers may make
------
Qualified Matching Contributions to this Plan in an amount which
shall be determined solely in the discretion of the Company, and
which may be used to satisfy the nondiscrimination tests of
Appendix III of this Plan.
(ii) Allocation. Qualified Matching Contributions for a
----------
Plan Year shall be allocated as of the last day of such Plan Year
to the Qualified Matching Contributions Account of each Allocation
Participant who is not a Highly Compensated Participant in
proportion to the ratio which the sum of
A2
<PAGE>
his or her Voluntary Contributions and Elective Contributions for
such Plan Year bears to the total of the sum of all such
contributions of all such Allocation Participants for such Plan
Year.
(iii) Vesting and Distribution Restrictions. Qualified
-------------------------------------
Matching Contributions shall be at all times nonforfeitable and may
not be distributed from the Plan before one of the events
enumerated in Section 1.1(a)(iii) of this Appendix I.
In no event shall the aggregate contributions made by the Employer under this
Section exceed the amount deductible under Code (S)404. All allocations to be
made under this Section shall be subject to the provisions of Appendix V of this
Plan, if applicable, and the provisions of Appendix VI.
1.2 Separate Accounts. The Plan Administrator shall maintain separate
-----------------
Accounts for each Participant to reflect each such Participant's interest in the
Plan attributable to each of the following, in addition to the separate Accounts
maintained under the provisions of Section 5.1 of the Plan:
(a) Qualified Nonelective Contributions, if any, as defined in this
Appendix.
(b) Qualified Matching Contributions, if any, as defined in this
Appendix.
1.3 Definitions. For purposes of this Appendix, the following words
-----------
and phrases shall have the meanings set forth in this Section unless a different
meaning is clearly required by the context:
(a) Compensation.
------------
(i) General Definition. Subject to paragraphs (ii) through
------------------
(v) below, Compensation for a Plan Year with respect to an Employee
shall mean "wages" as defined in Code (S)3401(a) for purposes of
income tax withholding at the source but determined without regard
to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed
and all other payments of compensation (in the course of an
Employer's trade or business) for which an Employer is required to
furnish the Employee a written statement under Code (S)(S)6041(d),
6051(a)(3) and 6052 which are paid by an Employer to such Employee
during such Plan Year.
(ii) Safe Harbor Exclusions. Notwithstanding the provisions
----------------------
of paragraph (i) above, none of the following items shall be
included in the
A3
<PAGE>
definition of Compensation, whether or not includible in taxable
gross income:
(A) reimbursement or other expense allowances;
(B) fringe benefits (cash and noncash);
(C) moving expenses;
(D) deferred compensation; and
(E) welfare benefits.
(iii) Salary Reduction Arrangements. Notwithstanding the
-----------------------------
preceding paragraphs of this Section, Compensation shall include
any amount which is contributed by an Employer pursuant to a salary
reduction agreement and which is not includible in the gross income
of the Employee under Code (S)(S)125, 402(e)(3), 402(h) or 403(b).
(iv) Limitation. The annual Compensation of each Employee
----------
taken into account in determining contributions or benefits under
the Plan for any Plan Year shall not exceed the dollar amount in
effect under Code (S)401(a)(17) for the calendar year in which the
Plan Year begins. Such dollar amount is $160,000, as adjusted by
the Secretary of the Treasury for increases in the cost of living,
in accordance with applicable law. If the Plan determines
Compensation for a period of time that contains fewer than 12
calendar months, the above limitation is to be proportionately
reduced; provided, however, no proration is required for Employees
who are covered under the Plan for less than 1 full year if the
contributions under the Plan are based on Compensation for a period
of at least 12 months.
(b) Qualified Matching Contributions shall mean Employer
--------------------------------
contributions made to this Plan so that the Plan will satisfy one of the
nondiscrimination tests set forth in Appendix III, and allocated to certain
Participants who are not Highly Compensated Employees based upon their
Voluntary Contribution and Elective Contribution elections.
(c) Qualified Matching Contributions Account shall mean the Account
----------------------------------------
of a Participant to which are credited any Qualified Matching Contributions
allocated to the Participant.
(d) Qualified Nonelective Contributions shall mean Employer
-----------------------------------
contributions made to this Plan so that the Plan will satisfy one of the
nondiscrimination tests set forth in Appendix III, and allocated to certain
Participants who are not Highly Compensated Employees based upon their
Compensation.
A4
<PAGE>
(e) Qualified Nonelective Contributions Account shall mean the Account of a
-------------------------------------------
Participant to which are credited any Qualified Nonelective Contributions
allocated to the Participant.
A5
<PAGE>
APPENDIX II
CODE (S)402(g) LIMITATIONS AND CORRECTION OF EXCESS DEFERRALS
-------------------------------------------------------------
2.1 Code (S)402(g) Limitations. Notwithstanding any provision of this
--------------------------
Plan to the contrary, a Participant shall not be allowed to elect to make, and
may not make, Elective Contributions which, in the aggregate during a calendar
year, exceed the maximum amount specified in Code (S)402(g)(1), as adjusted
pursuant to Code (S)(S)402(g)(4) and (5), applicable for such calendar year.
2.2 Identification of Excess Deferrals and Correction.
-------------------------------------------------
(a) Correcting Distributions. To the extent that a Participant
------------------------
elects during a calendar year to make Elective Deferrals under a
combination of this Plan and some other plan, arrangement or annuity in
excess of the maximum amount specified in Code (S)402(g)(1), as adjusted
pursuant to Code (S)402(g)(4) and (5), applicable to such calendar year,
the Plan Administrator, on his own initiative or upon written request of
the Participant received by March 1 of the following calendar year, shall
direct the Trustee to distribute, on or after January 1 of such following
calendar year, but in no event later than April 15 of such following
calendar year, to such Participant the portion of such Participant's
Elective Contributions made during the calendar year which the Plan
Administrator determines should be considered an Excess Deferral or which
the Participant has designated as an Excess Deferral in such written
request, together with income or loss allocable to such portion pursuant to
subsection (b) below. Simultaneously therewith, the Matching Elective
Contributions attributable to such portion of the Participant's Elective
Contributions made during the calendar year shall be forfeited and held in
a suspense account to be used to reduce the amount of future Matching
Elective Contributions.
(b) Allocable Income or Loss. For purposes of subsection (a)
------------------------
above, the income or loss allocable to the portion of a Participant's
Elective Contributions made during a calendar year which constitutes an
Excess Deferral or which the Participant has designated as an Excess
Deferral shall, at any relevant time, be determined by the formula:
income or loss = ( E ) x I
---
D
For purposes of applying the formula, E is the Excess Deferral; D is the
balance in the Participant's Elective Contributions Account as of the
beginning of the calendar year plus the amount of the Participant's
Elective Contributions for the calendar year; and I is the income or loss
for the calendar year allocable to the Participant's total Elective
Contributions for all years of participation.
A6
<PAGE>
(c) Coordination with other Provisions. Any Elective Contributions
----------------------------------
designated as an Excess Deferral under subsection (b) above which are
returned to the Participant pursuant to subsection (b) shall nonetheless be
included as Elective Contributions for purposes of the Deferral Percentage
Test specified in Section 3.1(a) of Appendix III of this Plan unless such
Participant is not a Highly Compensated Participant, and may be distributed
without regard to any notice or consent otherwise required by the terms of
this Plan. The portion of a Participant's Elective Contributions made
during a calendar year which has been designated as an Excess Deferral and
which is to be distributed under subsection (b) above shall be reduced by
any excess contributions (as determined under Section 3.3(c) of Appendix
III of this Plan) previously distributed under Section 3.3(a) of Appendix
III of this Plan or recharacterized under Section 3.3(b) of Appendix III of
this Plan with respect to such Participant for the Plan Year beginning with
or within such calendar year.
2.3 Definitions. For purposes of this Appendix, the following words
-----------
and phrases shall have the meanings set forth in this Section unless a different
meaning is clearly required by the context:
(a) Elective Deferrals shall mean:
------------------
(i) Any elective contribution (as defined in Treas. Reg.
(S)1.401(k)-1(g)(3)) by a given individual under any qualified cash
or deferred arrangement (as defined in Code (S)401(k)) to the
extent such contribution is not includible in the individual's
gross income for the taxable year on account of Code (S)402(e)(3).
(ii) Any employer contribution on behalf of a given
individual to a simplified employee pension (as defined in Code
(S)408(k)) to the extent such contribution is not includible in the
individual's gross income for the taxable year on account of Code
(S)402(h)(1)(B).
(iii) Any employer contribution on behalf of a given
individual to an annuity contract under Code (S)403(b) pursuant to
a salary reduction agreement (within the meaning of Code
(S)3121(a)(5)(D)) to the extent such contribution is not includible
in the individual's gross income for the taxable year on account of
Code (S)403(b).
(iv) Any elective employer contribution under Code (S)
408(p)(2)(A)(i).
(b) Excess Deferrals shall mean Elective Deferrals made by a
----------------
Participant for a calendar year in excess of the maximum amount specified
in Code (S)402(g)(1), as adjusted pursuant to Code (S)(S)402(g)(4) and (5),
applicable for such calendar year.
A7
<PAGE>
APPENDIX III
CODE (S)(S)401(k) and (m) NONDISCRIMINATION REQUIREMENTS
--------------------------------------------------------
3.1 Limitation of Elective Deferrals. Notwithstanding any provision of
--------------------------------
this Plan to the contrary, the Deferral Percentage Test in this Section must be
satisfied for each Plan Year.
(a) Deferral Percentage Test. The Deferral Percentage Test shall
------------------------
be satisfied for any Plan Year if the Average Actual Deferral Percentage
for the Eligible Highly Compensated Employees for such Plan Year does not
exceed the greater of (i) or (ii) as follows:
(i) The Average Actual Deferral Percentage for the prior
Plan Year for the Eligible Employees who are not Highly Compensated
Employees times 1.25; or
(ii) The lesser of:
(A) The Average Actual Deferral Percentage for the
prior Plan Year for the Eligible Employees who are not
Highly Compensated Employees times 2; or
(B) The Average Actual Deferral Percentage for the
prior Plan Year for the Eligible Employees who are not
Highly Compensated Employees plus two percentage points.
(b) Compensation. For purposes of this Section, Compensation shall
------------
mean Compensation as defined in this Appendix, except that Compensation of
an Employee shall not include the Compensation of such Employee during a
period that the Employee is not an Eligible Employee with respect to the
Plan.
(c) Plan Aggregation Rules. In the case of an Eligible Highly
----------------------
Compensated Employee who is eligible to participate in more than one cash
or deferred arrangement of the Controlled Group, the Actual Deferral
Percentage for such Employee shall be calculated by treating all the cash
or deferred arrangements in which the Eligible Highly Compensated Employee
is eligible to participate (including this Plan) as one arrangement;
provided, however, that plans that are not permitted to be aggregated under
Treas. Reg. (S)1.401(k)-1(b)(3)(ii)(B) shall not be aggregated for this
purpose. Furthermore, if any plan of the Controlled Group which is subject
to Code (S)401(k) is aggregated with this Plan for purposes of Code
(S)(S)401(a)(4) and 410(b), then all elective contributions (as defined in
Treas. Reg. (S)1.401(k)-1(g)(3)) under such plan and this Plan shall be
aggregated in applying the limitations of this Section.
A8
<PAGE>
(d) Failure to Satisfy Test. If this Plan does not or may not
-----------------------
satisfy the Deferral Percentage Test of subsection (a) above for a Plan
Year, the Plan Administrator shall take such action permitted under
Sections 3.3 and 3.5 of this Appendix as the Plan Administrator, in its
sole discretion, shall determine necessary in order to ensure that the Plan
satisfies such test for the Plan Year.
(e) Recordkeeping. The Plan Administrator shall, on behalf of the
-------------
Employer, maintain such records as are necessary to demonstrate compliance
with the Deferral Percentage Test of subsection (a) above for each Plan
Year, including the extent to which any Qualified Nonelective Contributions
and Qualified Matching Contributions are treated as Elective Contributions
under Section 3.6(c) of this Appendix.
3.2 Limitation of Employee and Employer Matching Contributions.
----------------------------------------------------------
Notwithstanding any provision of this Plan to the contrary, the Contributions
Percentage Test in this Section must be satisfied for each Plan Year.
(a) Contribution Percentage Test. The Contribution Percentage Test
----------------------------
shall be satisfied for any Plan Year if the Average Contribution Percentage
for the Eligible Highly Compensated Employees for such Plan Year does not
exceed the greater of (i) or (ii) as follows:
(i) The Average Contribution Percentage for the prior Plan
Year for the Eligible Employees who are not Highly Compensated
Employees times 1.25; or
(ii) The lesser of:
(A) The Average Contribution Percentage for the
prior Plan Year for the Eligible Employees who are not
Eligible Highly Compensated Employees times 2; or
(B) The Average Contribution Percentage for the
prior Plan Year for the Eligible Employees who are not
Eligible Highly Compensated Employees plus two percentage
points.
(b) Compensation. For purposes of this Section, Compensation
------------
shall mean Compensation as defined in this Appendix, except that
Compensation of an Employee shall not include the Compensation of such
Employee during a period that the Employee is not an Eligible Employee with
respect to this Plan.
(c) Plan Aggregation. In the case of an Eligible Highly
----------------
Compensated Employee who is eligible to participate in two or more plans of
the Controlled Group to which employee contributions (within the meaning of
Treas. Reg. (S)1.401(m)-1(f)(6)) or matching contributions (within the
meaning of Treas. Reg. (S)1.401(m)-1(f)(12)), or both
A9
<PAGE>
are made, all such contributions on behalf of such Eligible Highly
Compensated Employee must be aggregated for purposes of determining such
Employee's Contribution Percentage; provided, however, that plans which are
not permitted to be aggregated under Treas. Reg. (S)1.401(m)-1(b)(3)(ii)
shall not be aggregated for this purpose. Furthermore, if any plan of the
Controlled Group which is subject to Code (S)401(m) is aggregated with this
Plan for purposes of Code (S)(S)410(b) and 401(a)(4), then all employee
contributions (as defined in the preceding sentence) and all matching
contributions (as defined in the preceding sentence) under such plan and
this Plan shall be aggregated in applying the limitations of this Section.
(d) Failure to Satisfy Test. If this Plan does not or may not
-----------------------
satisfy the Contribution Percentage Test of subsection (a) above for a Plan
Year, the Plan Administrator shall take such action permitted under
Sections 3.3 and 3.5 of this Appendix as the Plan Administrator, in its
sole discretion, shall determine necessary in order to ensure that the Plan
satisfies such test for the Plan Year.
(e) Recordkeeping. The Plan Administrator shall, on behalf of the
-------------
Employer, maintain such records as are necessary to demonstrate compliance
with the Contribution Percentage Test of subsection (a) above for each Plan
Year, including the extent to which any Qualified Nonelective Contributions
and Qualified Matching Contributions are treated as "ACP Contributions"
under Section 3.6(a) of this Appendix, and the extent to which any Elective
Contributions are recharacterized under Section 3.3(b) of this Appendix.
3.3 Corrections Required by Discrimination Tests. If the Deferral
--------------------------------------------
Percentage Test of Section 3.1 of this Appendix, the Contribution Percentage
Test of Section 3.2 of this Appendix and/or the special limitation of Section
3.4 of this Appendix are not satisfied for a Plan Year, the Plan Administrator,
in its discretion, may use any combination of the methods in subsections (a) and
(b) below to satisfy any one or more of these tests or limitations, except as
otherwise provided below:
(a) Distribution.
------------
(i) Correcting Distributions. To the extent necessary to
------------------------
satisfy the Applicable Test for any Plan Year in which such test is
not satisfied, the Plan Administrator shall direct the Trustee to
distribute to Highly Compensated Participants a portion (determined
in the manner set forth in subsections (c) and/or (d) below) of
their Applicable Contributions, together with income allocable to
such portions, after the close of such Plan Year, but in no event
later than the close of the following Plan Year.
A10
<PAGE>
(ii) Allocable Income or Loss. For purposes of paragraph
------------------------
(i) above, the income or loss allocable to the portion of a
Participant's Applicable Contributions made during a Plan Year
shall, at any relevant time, be determined by the following
formula:
income or loss = ( E ) x I
---
D
For purposes of applying the formula, E is the portion of such
Participant's Applicable Contributions made during the Plan Year; D
is the balance in the Participant's Account consisting of
Applicable Contributions as of the end of the Plan Year reduced by
the gain allocated to such total amount for the Plan Year and
increased by the loss allocable to such total amount for the Plan
Year; and I is the income or loss for the Plan Year allocable to
the Participant's total Applicable Contributions.
(b) Recharacterization.
------------------
(i) Correcting Recharacterization. To the extent necessary
-----------------------------
to satisfy the Deferral Percentage Test of Section 3.1 of this
Appendix for any Plan Year in which such test is not satisfied, the
excess contributions of a Highly Compensated Participant may be
recharacterized by the Plan Administrator as deemed Voluntary
Contributions of such Participant, and shall be allocated to the
Participant's Voluntary Contributions Account. The amount of
excess contributions recharacterized under this paragraph (i) shall
be reduced by any Excess Deferrals previously distributed to the
Participant under Appendix II of this Plan for the Participant's
taxable year ending with or within such Plan Year.
Recharacterization under this paragraph (i) must occur on or before
2 1/2 months after the close of the Plan Year to which the
recharacterization relates, and is deemed to occur on the date on
which the last of those Highly Compensated Participants with excess
contributions to be recharacterized is notified in accordance with
paragraph (ii) below. Recharacterization with respect to a
Participant may not occur to the extent that recharacterized excess
contributions, in combination with Voluntary Contributions made by
the Participant, exceed the limitations on Voluntary Contributions
applicable to the Participant (determined prior to the application
of Section 3.2 of this Appendix) or to the extent that such
contributions would cause the Plan to fail the Contribution
Percentage Test of Section 3.2 of this Appendix. Simultaneously
therewith, the Matching Elective Contributions attributable to the
excess contributions during such Plan Year which are so
recharacterized shall be reallocated to the Participant's Matching
Voluntary Contributions Account.
A11
<PAGE>
(ii) Procedure for Recharacterization. The Plan
--------------------------------
Administrator shall report recharacterized excess contributions as
Voluntary Contributions by timely providing such forms as the
Internal Revenue Service may require to the Employer and affected
Employees and timely taking such other action as the Internal
Revenue Service may require. The Plan Administrator shall account
for such recharacterized excess contributions as Voluntary
Contributions for purposes of Code (S)(S)72 and 6047.
(iii) Treatment of Deemed Voluntary Contributions. Deemed
-------------------------------------------
Voluntary Contributions shall be treated as Elective Contributions
for all purposes under this Plan except for purposes of satisfying
the Deferral Percentage Test of Section 3.1 of this Appendix and
for purposes of Code (S)401(a)(4), in accordance with Treas. Reg.
(S)1.401(k)-1(f)(3)(ii) and (iv); provided, however, any Elective
Contributions which are so recharacterized under this subsection
(b) shall not be treated as Voluntary Contributions for purposes of
Section 3.1(c) of this Plan.
(c) Determination of Excess Contributions. For purposes of
-------------------------------------
paragraphs (a) and (b) above, the relevant portion of a Highly Compensated
Participant's ADP Contributions for a Plan Year shall be equal to such
Participant's excess contributions for such Plan Year. The excess
contributions of a Highly Compensated Participant for a Plan Year are
determined by reducing the Elective Contributions of the Highly Compensated
Participant with the highest dollar amount of Elective Contributions to the
extent required to (i) enable the Plan to satisfy the Deferral Percentage
Test of Section 3.1 of this Appendix or (ii) cause such Highly Compensated
Participant's dollar amount of Elective Contributions to equal the dollar
amount of Elective Contributions of the Highly Compensated Participant(s)
with the next highest dollar amount of Elective Contributions, whichever
first occurs. This process is repeated until the Plan satisfies the
Deferral Percentage Test of Section 3.1 of this Appendix. Simultaneously
therewith, the Matching Elective Contributions attributable to the excess
contributions during such Plan Year shall be forfeited and held in a
suspense account to be used to reduce the amount of future Employer
contributions.
(d) Determination of Excess Aggregate Contributions. For purposes
-----------------------------------------------
of paragraph (a) above, the relevant portion of a Highly Compensated
Participant's ACP Contributions for a Plan Year shall be equal to such
Participant's excess aggregate contributions for such Plan Year. The
excess aggregate contributions of a Participant for a Plan Year are
determined as follows:
(i) First, the unmatched Voluntary Contributions and then
the matched Voluntary Contributions along with their corresponding
Matching Voluntary Contributions, of the Highly Compensated
Participant with the highest dollar amount of ACP Contributions are
reduced, pro rata, to the extent required to (1) enable the Plan to
satisfy the Contribution Percentage
A12
<PAGE>
Test of Section 3.2 of this Appendix or (2) cause such Highly
Compensated Participant's dollar amount of ACP Contributions to
equal the dollar amount of ACP Contributions of the Highly
Compensated Participant(s) with the next highest dollar amount of
ACP Contributions, whichever first occurs. This process is
repeated until the Plan satisfies the Contribution Percentage Test
of Section 3.2 of this Appendix or until the Voluntary
Contributions and the Matching Voluntary Contributions of all
Highly Compensated Participants have been reduced to zero.
(ii) If the Plan does not satisfy the Contribution
Percentage Test after the application of paragraph (i) above, the
Matching Elective Contributions of the Highly Compensated
Participant with the highest dollar amount of ACP Contributions are
reduced, pro rata, to the extent required to (1) enable the Plan to
satisfy the Contribution Percentage Test of Section 3.2 of this
Appendix or (2) cause such Highly Compensated Participant's dollar
amount of ACP Contributions to equal the dollar amount of ACP
Contributions of the Highly Compensated Participant(s) with the
next highest dollar amount of ACP Contributions, whichever first
occurs. This process is repeated until the Plan satisfies the
Contribution Percentage Test of Section 3.2 of this Appendix or
until the Matching Elective contributions of all Highly Compensated
Participants have been reduced to zero.
(iii) If the Plan does not satisfy the Contribution
Percentage Test after application of paragraphs (i) and (ii) above,
the remaining ACP Contributions of the Highly Compensated
Participant with the highest dollar amount of ACP Contributions are
reduced pro rata to the extent required to (1) enable the Plan to
satisfy the Contribution Percentage Test of Section 3.2 of this
Appendix or (2) cause such Highly Compensated Participant's dollar
amount of ACP Contributions to equal the dollar amount of ACP
Contributions of the Highly Compensated Participant with the next
highest dollar amount of ACP Contributions, whichever first occurs.
This process is repeated until the Plan satisfies the Contribution
Percentage Test of Section 3.2 of this Appendix.
(iv) With respect to paragraphs (i) through (iii) above, any
ACP Contributions which are determined to be excess aggregate
contributions and which are to be reduced shall be distributed
pursuant to subsection (a) if such contributions are vested, and
shall be forfeited and held in a suspense account to be used to
reduce the amount of future Employer Contributions if not vested.
(e) Coordination With Other Provisions. Excess contributions to be
----------------------------------
distributed under subsection (a) or recharacterized under subsection (b)
with respect to a Participant for a Plan Year shall be reduced by any
correcting distributions under
A13
<PAGE>
Appendix II of this Plan previously made to such Participant for the
calendar year ending with or within such Plan Year. Distributions under
subsection (a) above may be made without regard to any notice or consent
otherwise required by the terms of this Plan. The determination of the
amount of excess aggregate contributions under subsection (d) with respect
to a Plan Year shall be made after determining the excess contributions, if
any, to be treated as deemed Voluntary Contributions due to
recharacterization for such Plan Year.
3.4 Multiple Use of Alternative Limitation. The provisions of this
--------------------------------------
Section shall only apply if one or more Highly Compensated Employees of the
Employer are Eligible Employees with respect to both a cash or deferred
arrangement (including this Plan) subject to Code (S)401(k) and a plan of the
Employer (including this Plan) subject to Code (S)401(m). Furthermore, for this
Section to apply, the Average Actual Deferral Percentage for the Eligible Highly
Compensated Employees during the Plan Year must be greater than 125% of the
Average Actual Deferral Percentage for the Eligible Employees who are not Highly
Compensated Employees, and the Average Contribution Percentage for the Eligible
Highly Compensated Employees during the Plan Year must be greater than 125% of
the Average Contribution Percentage for the Eligible Employees who are not
Highly Compensated Employees.
(a) Special Limitation. In addition to the other conditions and
------------------
limitations herein, for any Plan Year, the sum of the Average Actual
Deferral Percentage for the Eligible Highly Compensated Employees and the
Average Contribution Percentage for the Eligible Highly Compensated
Employees shall not exceed the greater of:
(i) the sum of (A) 1.25 multiplied by the greater of the
relevant Average Actual Deferral Percentage or the relevant Average
Contribution Percentage, and (B) 2% plus the lesser of the relevant
Average Actual Deferral Percentage or the relevant Average
Contribution Percentage; provided, however, this sum shall not
exceed twice the lesser of the relevant Average Actual Deferral
Percentage or the relevant Average Contribution Percentage; or
(ii) the sum of (A) 1.25 multiplied by the lesser of the
relevant Average Actual Deferral Percentage or the relevant Average
Contribution Percentage, and (B) 2% plus the greater of the
relevant Average Actual Deferral Percentage or the relevant Average
Contribution Percentage; provided, however, this sum shall not
exceed twice the greater of the relevant Average Actual Deferral
Percentage or the relevant Average Contribution Percentage.
For purposes of this subsection (a), the term "relevant Average Actual
Deferral Percentage" means the Average Actual Deferral Percentage for the
Eligible Employees who are not Highly Compensated Employees under the cash
or deferred arrangement subject to Code (S)401(k) for the plan year, and
the term "relevant Average Contribution
A14
<PAGE>
Percentage" means the Average Contribution Percentage for the Eligible
Employees who are not Highly Compensated Employees under the Plan subject
to Code (S)401(m) for the plan year beginning with or within the plan year
of the arrangement subject to Code (S)401(k).
(b) Coordination with Other Provisions. For purposes of this
----------------------------------
Section, the Actual Deferral Percentage and the Contribution Percentage of
the Eligible Highly Compensated Employees shall be determined after use of
any Qualified Nonelective Contributions and Qualified Matching
Contributions to meet the Deferral Percentage Test pursuant to Section
3.6(c) of this Appendix and after use of Qualified Nonelective
Contributions to meet the Contribution Percentage Test pursuant to Section
3.6(a) of this Appendix. Furthermore, the Actual Deferral Percentage and
the Contribution Percentage of the Eligible Highly compensated Employees
shall be determined after any corrective distribution of excess deferrals
pursuant to Appendix II of this Plan, or any corrective distribution of
excess contributions and excess aggregate contributions pursuant to Section
3.3(a) of this Appendix and after any recharacterization of excess
contributions pursuant to Section 3.3(b) of this Appendix.
(c) Plan Aggregation. If the Controlled Group maintains two or
----------------
more cash or deferred arrangements subject to Code (S)401(k) which are not
aggregated for purposes of Section 3.1(d) of this Appendix or if the
Controlled Group maintains two or more plans subject to Code (S)401(m)
which are not aggregated for purposes of Section 3.2(d) of this Appendix,
the provisions of subsection (a) above shall apply separately with respect
to each such plan and cash or deferred arrangement; provided, however, that
plans which are not permitted to be aggregated under Treas. Reg.
(S)1.401(k)-1(b)(3)(ii)(B) or Treas. Reg. (S)1.401(m)-1(b)(3)(ii) shall not
be aggregated for this purpose. Furthermore, if any plan of the Controlled
Group which is subject to Code (S)(S)401(k) and/or (m) is aggregated with
this Plan for purposes of Code (S)(S)410(b) and 401(a)(4), then all
elective contributions (as defined in Treas. Reg. (S)1.401(k)-1(g)(3)),
employee contributions (as defined in Treas. Reg. (S)1.401(m)-1(f)(6)) and
all matching contributions (as defined in Treas. Reg. (S)1.401(m)-1(f)(12))
under such plan and this Plan shall be aggregated in applying the
limitations of this Section.
(d) Correcting Distributions. To the extent necessary to satisfy
------------------------
the special limitation of subsection (a) above for any Plan Year in which
the special limitation is not satisfied, the Plan Administrator shall first
reduce the Contribution Percentage of the Eligible Highly Compensated
Employees by correcting distributions in accordance with Section 3.3 of
this Appendix, and then shall reduce the Actual Deferral Percentages of the
Eligible Highly Compensated Employees by correcting distributions or
recharacterization in accordance with Section 3.3 of this Appendix. If an
excess contribution arises under this subsection of this Plan and is
recharacterized as a deemed Voluntary Contribution, such amount shall be
treated as an excess aggregate contribution.
A15
<PAGE>
3.5 Discretionary Cutbacks to Satisfy Discrimination Tests. In
------------------------------------------------------
addition to those powers granted the Plan Administrator elsewhere herein, the
Plan Administrator shall have the power to reduce the Elective Contribution
election and/or Voluntary Contribution election of any Highly Compensated
Participant at any time during a Plan Year if the Plan Administrator, in his
sole discretion and based on current contribution data available, determines
that the Deferral Percentage Test of Section 3.1 of this Appendix, the
Contribution Percentage Test of Section 3.2 of this Appendix, and/or the special
limitation of Section 3.4 of this Appendix for such Plan Year may not be
satisfied. Any such reductions shall be made to the extent necessary in the
opinion of the Plan Administrator to satisfy the Deferral Percentage Test, the
Contribution Percentage Test, and/or the special limitation, whichever is
applicable, and shall be made by reducing the Elective Contribution election
and/or the Voluntary Contribution election of Highly Compensated Participants.
3.6 Definitions. For purposes of this Appendix, the following words
-----------
and phrases shall have the meanings set forth in this Section unless a different
meaning is clearly required by the context:
(a) ACP Contributions shall mean the sum of Qualified Matching
-----------------
Contributions to the extent that such contributions are not treated as
Elective Contributions under Treas. Reg. (S)1.401(k)-1(b)(5) and Section
3.6(c) of this Appendix, Matching Elective Contributions, Matching
Voluntary Contributions, Voluntary Contributions (including any excess
contributions of a Highly Compensated Employee which are recharacterized as
deemed Voluntary Contributions under the provisions of this Appendix),
Elective Contributions which are recharacterized under Section 3.3(b) of
this Appendix and, to the extent that the Plan Administrator elects
(uniformly with respect to all Eligible Employees) to treat the following
contributions as "matching contributions" under Treas. Reg. (S)1.401(m)-
1(b)(5) and this subsection and such contributions are not treated as
Elective Contributions under Treas. Reg. (S)1.401(k)-1(b)(5) and Section
3.6(c) of this Appendix, Qualified Nonelective Contributions. Any
Qualified Nonelective Contributions which the Plan Administrator elects to
treat as "matching contributions" or any Qualified Matching Contributions
treated as "ACP Contributions" under the preceding sentence must not
discriminate in favor of Highly Compensated Employees within the meaning of
Code (S)401(a)(4) and must satisfy the provisions of Treas. Reg.
(S)1.401(m)-1(b). Any Elective Contributions which are recharacterized
under Section 3.3(b) of this Appendix shall not be treated as Voluntary
Contributions for purposes of Section 3.1(c) of this Plan.
(b) Actual Deferral Percentage of an Employee shall be obtained by
--------------------------
dividing the amount of "ADP Contributions" credited to the Account of such
Eligible Employee during such Plan Year by the Eligible Employee's
Compensation for the Plan Year, calculated to the nearest one-hundredth of
one percent. The Actual Deferral Percentage of an Eligible Employee who
has no "ADP Contributions" credited to his Account during a Plan Year shall
be zero for such Plan Year.
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<PAGE>
(c) ADP Contributions shall mean the sum of Elective Contributions
-----------------
and, to the extent that the Plan Administrator elects (uniformly with
respect to all Eligible Employees) to treat the following contributions as
Elective Contributions under Treas. Reg. (S)1.401(k)-1(b)(3) and this
subsection, Qualified Nonelective Contributions and Qualified Matching
Contributions. Any Qualified Nonelective Contributions or Qualified
Matching Contributions which the Plan Administrator elects to treat as
Elective Contributions under the preceding sentence must not discriminate
in favor of Highly Compensated Employees within the meaning of Code
(S)401(a)(4), and will not be treated as an Elective Contribution for
purposes of Section 3.1(b) of this Plan.
(d) Applicable Test shall mean the Deferral Percentage Test of
---------------
Section 3.1 of this Appendix or the Contribution Percentage Test of Section
3.2 of this Appendix, whichever is applicable given the context.
(e) Applicable Contributions shall mean:
------------------------
(i) if the Applicable Test is the Deferral Percentage Test,
"ADP Contributions," or
(ii) if the Applicable Test is the Contribution Percentage
Test, "ACP Contributions."
(f) Average Actual Deferral Percentage of a group of Employees
----------------------------------
shall, for a Plan Year, mean the average of the Actual Deferral Percentages
calculated separately for each Employee in the group.
(g) Average Contribution Percentage of a group of Employees shall,
-------------------------------
for a Plan Year, mean the average of the Contribution Percentages
calculated separately for each Employee in the group.
(h) Compensation shall mean the amount of wages, as defined in Code
------------
(S) 3401(a), and all other amounts of compensation which are paid to an
Employee by the Employer and for which the Employer is required to furnish
the Employee a written statement under Code (S)(S) 6041(d), 6051(a)(3) and
6052. In addition, Compensation includes any Elective Contributions or any
other contributions made by the Employer on behalf of an Employee pursuant
to a deferral election under an employee benefit plan containing a cash or
deferred arrangement under Code (S) 401(k) or any other amounts which would
have been received as cash but for an election to receive benefits under a
cafeteria plan meeting the requirements of Code (S) 125; provided, however,
that only Compensation paid with respect to the portion of a Plan Year
during which an Employee is an Eligible Employee and has satisfied the
eligibility requirements of Section 2.1 shall be taken into account;
provided, further, that the annual Compensation of each Employee taken into
account in determining contributions or benefits under the Plan for any
Plan Year shall not exceed the dollar amount in effect under Code
(S)401(a)(17) for the calendar
A17
<PAGE>
year in which the Plan Year begins. Such applicable dollar amount is
$160,000, as adjusted by the Secretary of the Treasury for increases in the
cost of living, in accordance with applicable law.
(i) Contribution Percentage of an Eligible Employee shall be
-----------------------
obtained by dividing the amount of "ACP Contributions" credited to the
Account of such Employee during such Plan Year by the Eligible Employee's
Compensation for the Plan Year, calculated to the nearest one-hundredth of
one percent. The Contribution Percentage of an Eligible Employee who has
no "ACP Contributions" credited to his Account during a Plan Year shall be
zero for such Plan Year.
(j) Eligible Employee.
------------------
(i) Code (S)401(k) Provisions. Solely for purposes of
--------------------------
applying the discrimination tests in this Appendix associated with
ADP Contributions, the determination of whether an Employee is an
Eligible Employee shall be made on the basis of Treas. Reg.
(S)1.401(k)-1(g)(4).
(ii) Code (S)401(m) Provisions. Solely for purposes of
--------------------------
applying the discrimination tests in this Appendix associated with
ACP Contributions, the determination of whether an Employee is an
Eligible Employee shall be made on the basis of Treas. Reg.
(S)1.401(m)-1(f)(4).
(k) Eligible Highly Compensated Employee shall mean an Eligible
------------------------------------
Employee who is also a Highly Compensated Employee.
(l) Highly Compensated Participant shall mean a Participant who is
------------------------------
a Highly Compensated Employee.
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<PAGE>
APPENDIX IV
REQUIRED DISTRIBUTIONS
----------------------
4.1 General Rules. The requirements of this Article shall apply to any
-------------
distribution of a Participant's interest made on or after the Participant's
first Distribution Calendar Year and will take precedence over any provisions of
this Plan which are less restrictive; provided, however, that the forms of
distribution that are specified under the provisions of this Plan other than
this Appendix IV shall be the only forms of distribution under this Plan;
provided, further, that this Appendix IV shall serve only to accelerate, and
never to defer, the time of distribution of a Participant's interest under this
Plan. All distributions required under this Article shall be determined and
made in accordance with Code (S)401(a)(9) and the regulations promulgated
thereunder, including the minimum distribution incidental benefit requirement of
Treas. Reg. (S)1.401(a)(9)-2.
4.2 Required Distribution Rule. The entire interest of a Participant
--------------------------
must be distributed or begin to be distributed no later than the Participant's
Required Beginning Date.
4.3 Limits on Distribution Periods. As of the first Distribution
------------------------------
Calendar Year, distributions, if not made in a single-sum, may only be made over
one of the following periods (or a combination thereof), subject to the
provisions of Section 4.4(b) of this Appendix:
(a) The life of the Participant;
(b) The life of the Participant and a Designated Beneficiary;
(c) A period certain not extending beyond the life expectancy of
the Participant; or
(d) A period certain not extending beyond the joint and last
survivor expectancy of the Participant and a Designated Beneficiary.
4.4 Death Distribution Provisions.
-----------------------------
(a) Distribution Beginning Before Death. If the Participant dies
-----------------------------------
after distribution of his interest has begun, the remaining portion of such
interest will continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's death.
(b) Distribution Beginning After Death. If the Participant dies
----------------------------------
before distribution of his interest begins, distributions of the
Participant's entire interest shall be completed by December 31 of the
calendar year containing the 5th anniversary of the
A19
<PAGE>
Participant's death, except to the extent that an election is made to
receive distributions in accordance with paragraphs (i) or (ii) below:
(i) If any portion of the Participant's interest is payable
to a Designated Beneficiary, distributions may be made over the
life of, or over a period certain not greater than the life
expectancy of, the Designated Beneficiary commencing on or before
December 31 of the calendar year immediately following the calendar
year in which the Participant died;
(ii) If the Designated Beneficiary is the Participant's
Surviving Spouse, the date distributions are required to begin in
accordance with paragraph (i) above shall not be earlier than the
later of (A) December 31 of the calendar year immediately following
the calendar year in which the Participant died and (B) December 31
of the calendar year in which the Participant would have attained
age 70 1/2.
If the Participant has not made an election pursuant to this Section by the
time of his or her death, the Participant's Designated Beneficiary must
elect the method of distribution no later than the earlier of (i) December
31 of the calendar year in which distribution would be required to begin
under this Section, or (ii) December 31 of the calendar year which contains
the 5th anniversary of the date of death of the Participant. If the
Participant has no Designated Beneficiary, or if the Designated Beneficiary
does not elect a method of distribution, distribution of the Participant's
entire interest must be completed by December 31 of the calendar year
containing the 5th anniversary of the Participant's death.
(c) Special Rule for Spouse. For purposes of subsection (b) above,
-----------------------
if the Surviving Spouse dies after the Participant, but before payments to
such Spouse begin, the provisions of subsection (b), with the exception of
paragraph (ii) therein, shall be applied as if the Surviving Spouse were
the Participant.
(d) Special Rule for Certain Minor Beneficiaries. For purposes of
--------------------------------------------
this Section, any amount paid to a child of the Participant will be treated
as if it had been paid to the Surviving Spouse if the amount becomes
payable to the Surviving Spouse when the child reaches the age of majority.
(e) Date Distribution Commences. For purposes of this Section,
---------------------------
distribution of a Participant's interest is considered to begin on the
Participant's Required Beginning Date (or, if subsection (c) above is
applicable, the date distribution is required to begin to the Surviving
Spouse pursuant to subsection (b) above). If distribution in the form of
an annuity described in Section 4.5(a) of this Appendix irrevocably
commences to the Participant before the Required Beginning Date, the date
distribution is considered to begin is the date distribution actually
commences.
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<PAGE>
4.5 Determination of Amount to be Distributed Each Year.
---------------------------------------------------
(a) General Requirements for Annuities. If the Participant's
----------------------------------
interest is to be paid in the form of annuity distributions under the Plan,
payments under the annuity shall satisfy the following requirements:
(i) The annuity distributions must be paid in periodic
payments made at intervals not longer than one year;
(ii) The distribution period must be over a life (or lives)
or over a period certain not longer than a life expectancy (or
joint life and last survivor expectancy) described in Code
(S)(S)401(a)(9)(A)(ii) or 401(a)(9)(B)(iii), whichever is
applicable;
(iii) The life expectancy (or joint life and last survivor
expectancy) for purposes of determining the period certain shall be
determined without recalculation of life expectancy;
(iv) Once payments have begun over a period certain, the
period certain may not be lengthened even if the period certain is
shorter than the maximum permitted.
(v) Payments must either be nonincreasing or increase only
as follows:
(A) With any percentage increase in a specified and
generally recognized cost-of-living index;
(B) To the extent of the reduction to the amount of
the Participant's payments to provide for a survivor benefit
upon death, but only if the beneficiary whose life was being
used to determine the distribution period described in the
previous Section of this Article dies and the payments
continue otherwise in accordance with that section over the
life of the Participant;
(C) To provide cash refunds of Employee
contributions (if any) upon the Participant's death; or
(D) Because of an increase in benefits under the
Plan.
(vi) If the annuity is a life annuity (or a life annuity
with a period certain not exceeding 20 years), the amount which
must be distributed on or before the Participant's Required
Beginning Date (or, in the case of
A21
<PAGE>
distributions after the death of the Participant, the date
distributions are required to begin pursuant to Section 4.4 of this
Appendix) shall be the payment which is required for one payment
interval. The second payment need not be made until the end of the
next payment interval even if that payment interval ends in the
next calendar year. Payment intervals are the periods for which
payments are received, e.g., bimonthly, monthly, semi-annually, or
- -
annually.
(vii) If the annuity is a period certain annuity without a
life contingency (or is a life annuity with a period certain
exceeding 20 years) periodic payments for each Distribution
Calendar Year shall be combined and treated as an annual amount.
The amount which must be distributed by the Participant's Required
Beginning Date (or, in the case of distributions after the death of
the Participant, the date distributions are required to begin
pursuant to Section 4.4 of this Appendix) is the annual amount for
the first Distribution Calendar Year. The annual amount for other
Distribution Calendar Years, including the annual amount for the
calendar year in which the Participant's Required Beginning Date
(or the date distributions are required to begin pursuant to
Section 4.4 of this Appendix) occurs, must be distributed on or
before December 31 of the calendar year for which the distribution
is required.
(viii) Unless the Participant's Spouse is the Designated
Beneficiary, if the Participant's interest is being distributed in
the form of a period certain annuity without a life contingency,
the period certain as of the beginning of the first distribution
calendar year may not exceed the applicable period determined using
the table set forth in Treas. Reg. (S)1.401(a)(9)-2(Q&A-5).
(ix) If the Participant's interest is being distributed in
the form of a joint and survivor annuity for the joint lives of the
Participant and a nonspouse Beneficiary, annuity payments to be
made on or after the Participant's Required Beginning Date to the
Designated Beneficiary after the Participant's death must not at
any time exceed the applicable percentage of the annuity payment
for such period that would have been payable to the Participant
using the table set forth in Treas. Reg. (S)1.401(a)(9)-2(Q&A-6).
(b) Additional Allocations After Required Beginning Date. If the
----------------------------------------------------
form of distribution is an annuity made in accordance with this Section,
any additional benefits accruing to the Participant after his or her
Required Beginning Date shall be distributed as a separate and identifiable
component of the annuity beginning with the first payment interval ending
in the calendar year immediately following the calendar year in which such
amount accrues.
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<PAGE>
(c) General Requirements for Individual Accounts. Any part of the
--------------------------------------------
Participant's interest which is in the form of an individual account shall
be distributed in a manner satisfying the requirements of Code (S)401(a)(9)
and the regulations thereunder.
(d) General Requirements for Non-Annuity/Non-Single Sum
---------------------------------------------------
Distributions. If the Participant's interest is to be distributed in other
-------------
than a single sum or an annuity, the following minimum distribution rules
shall apply on or after the Required Beginning Date:
(i) If a Participant's Benefit is to be distributed over (A)
a period not extending beyond the life expectancy of the
Participant or the joint life and last survivor expectancy of the
Participant and the Participant's Designated Beneficiary or (B) a
period not extending beyond the life expectancy of the Designated
Beneficiary, the amount required to be distributed for each
calendar year, beginning with distributions for the first
distribution calendar year, must at least equal the quotient
obtained by dividing the Participant's Benefit by the applicable
life expectancy.
(ii) The amount to be distributed each year, beginning with
distributions for the first Distribution Calendar Year shall not be
less than the quotient obtained by dividing the Participant's
Benefit by the lesser of (A) the applicable life expectancy or (B)
if the Participant's Spouse is not the Designated Beneficiary, the
applicable divisor determined from the table set forth in Treas.
Reg. (S)1.401(a)(9)-2(Q&A-4). Distributions after the death of the
Participant shall be distributed using the applicable life
expectancy in paragraph (i) above as the relevant divisor without
regard to Treas. Reg. (S)1.401(a)(9)-2.
(iii) The minimum distribution required for the
Participant's first Distribution Calendar Year must be made on or
before the Participant's Required Beginning Date. The minimum
distribution for other calendar years, including the minimum
distribution for the Distribution Calendar Year in which the
Participant's Required Beginning Date occurs, must be made on or
before December 31 of that Distribution Calendar Year.
4.6 Transitional Rule.
-----------------
(a) Notwithstanding the other requirements of this Article,
distribution on behalf of any Participant, including a 5-percent owner, may
be made in accordance with all of the following requirements (regardless of
when such distribution commences):
(i) The distribution is one which would not have
disqualified the Plan under Code (S)401(a)(9) as in effect prior to
amendment by the Deficit Reduction Act of 1984.
A23
<PAGE>
(ii) The distribution is in accordance with a method of
distribution designated by the Participant whose interest in the
Plan is being distributed or, if the Participant is deceased, by a
Beneficiary of such Participant.
(iii) Such designation was in writing, was signed by the
Participant or the Beneficiary, and was made before January 1,
1984.
(iv) The Participant had accrued a benefit under the Plan as
of December 31, 1983.
(v) The method of distribution designated by the Participant
or the Beneficiary specifies the time at which distribution will
commence, the period over which distributions will be made, and in
the case of any distribution upon the Participant's death, the
Beneficiaries of the Participant listed in order of priority.
(b) A distribution upon death will not be covered by this
transitional rule unless the information in the designation contains the
required information described above with respect to the distributions to
be made upon the death of the Participant.
(c) If a designation is revoked, any subsequent distribution must
satisfy the requirements of Code (S)401(a)(9) and the regulations
thereunder. If a designation is revoked subsequent to the date
distributions are required to begin, the Trust must distribute by the end
of the calendar year following the calendar year in which the revocation
occurs the total amount not yet distributed which would have been required
to have been distributed to satisfy Code (S)401(a)(9) and the regulations
thereunder, but for the TEFRA (S)242(b)(2) election. For calendar years
beginning after December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements in Treas. Reg. (S)1.401(a)(9)-
2. Any changes in the designation will be considered to be a revocation of
the designation. However, the mere substitution or addition of another
Beneficiary (one not named in the designation) under the designation will
not be considered to be a revocation of the designation, so long as such
substitution or addition does not alter the period over which distributions
are to be made under the designation, directly or indirectly (for
example,by altering the relevant measuring life). In the case in which an
amount is transferred or rolled over from one plan to another plan, the
rules in Treas. Reg. (S)1.401(a)(9)-1(Q&A J-2 and Q&A J-3) shall apply.
4.7 Definitions. For purposes of this Article, the following terms and
-----------
phrases shall have the meanings indicated below:
(a) Distribution Calendar Year. A calendar year for which a
--------------------------
minimum distribution is required. For distributions beginning before the
Participant's death, the first Distribution Calendar Year is the calendar
year immediately preceding the calendar year
A24
<PAGE>
which contains the Participant's Required Beginning Date. For
distributions beginning after the Participant's death, the first
Distribution Calendar Year is the calendar year in which distributions are
required to begin pursuant to Section 4.4 of this Appendix.
(b) Designated Beneficiary. The individual(s) who is (are)
----------------------
designated as the Beneficiary under the Plan by the terms of the Plan or by
an affirmative election by the Participant (and/or the Participant's
Spouse). Designated Beneficiaries must be identifiable (within the meaning
of Treas. Reg. (S)1.401(a)(9)-1(D-2)) as of the Participant's Required
Beginning Date, or as of the Participant's death, and at all subsequent
times.
(c) Applicable Life Expectancy. The life expectancy (or joint and
--------------------------
last survivor expectancy) calculated using the attained age of the
Participant (or Designated Beneficiary) as of the Participant's (or
Designated Beneficiary's) birthday in the applicable calendar year reduced
by one for each calendar year which has elapsed since the date life
expectancy was first calculated. If life expectancy is being recalculated,
the applicable life expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the first Distribution
Calendar Year, and if life expectancy is being recalculated, such
succeeding calendar year. If annuity payments commence before the Required
Beginning Date, the applicable calendar year is the year such payments
commence. If distribution is in the form of an immediate annuity purchased
after the Participant's death with the Participant's remaining interest,
the applicable calendar year is the year of purchase.
(d) Life Expectancy. Life expectancy and joint and last survivor
---------------
expectancy are computed by use of the expected return multiples in Tables V
and VI of Treas. Reg. (S)1.72-9. Unless otherwise elected by the
Participant (or Spouse, in the case of distributions described in Section
4.4(b)(ii) of this Appendix) by the time distributions are required to
begin, life expectancies shall be recalculated annually. Such election
shall be irrevocable as to the Participant (or Spouse) and shall apply to
all subsequent years. The life expectancy of a nonspouse Beneficiary may
not be recalculated.
(e) Participant's Benefit.
---------------------
(i) General Rule. The Account balance as of the last
------------
Valuation Date in the calendar year immediately preceding the
Distribution Calendar Year (valuation calendar year) increased by
the amount of any contributions or forfeitures allocated to the
Account balance as of dates in the valuation calendar year after
the Valuation Date and decreased by distributions made in the
valuation calendar year after the Valuation Date.
(ii) Exception for Second Distribution Calendar Year. For
-----------------------------------------------
purposes of paragraph (i) above, if any portion of the minimum
distribution for the first Distribution Calendar Year is made in
the second Distribution Calendar Year on or before the Required
Beginning Date, the amount of the
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<PAGE>
minimum distribution made in the second Distribution Calendar Year
shall be treated as if it had been made in the immediately
preceding Distribution Calendar Year.
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<PAGE>
APPENDIX V
SPECIAL RULES APPLICABLE TO TOP HEAVY PLAN YEARS
------------------------------------------------
5.1 Top-Heavy Provisions. If and only if, for any Plan Year, this Plan
--------------------
is a Top-Heavy Plan, the following provisions shall apply for such Plan Year
notwithstanding any other provisions of this Plan to the contrary:
(a) Minimum Allocation.
------------------
(i) For any Plan Year in which this Plan is a Top-Heavy
Plan, except as otherwise provided in paragraph (iii) below, the
contributions and forfeitures of members of the Controlled Group
allocated on behalf of any Participant (A) who is not a Key
Employee and (B) who was employed by an Employer on the last day of
such Plan Year shall not be less than the lesser of 3% of such
Participant's Compensation or, in the case where no member of the
Controlled Group has a defined benefit plan which designates this
Plan to satisfy Code (S)416, the largest percentage of
contributions and forfeitures of members of the Controlled Group,
as a percentage of the Key Employee's Compensation, allocated on
behalf of any Key Employee for that year. The minimum allocation
is determined without regard to any Social Security contribution.
This minimum allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation
for the year because of (i) the Participant's failure to complete
1,000 Hours of Service (or any equivalent provided in the Plan), or
(ii) the Participant's failure to make Voluntary Contributions or
Elective Contributions to the Plan if applicable, or (iii) the
Participant's Compensation is less than a stated amount.
(ii) For purposes of computing the minimum allocation,
Compensation shall mean Compensation as defined in Section
1.3(a)(i) of Appendix I, limited pursuant to Section 1.3(a)(iv) of
Appendix I.
(iii) The provision in paragraph (i) above shall not apply
to any Participant to the extent the Participant is covered under
any other plan or plans of a member of the Controlled Group and the
Employer has provided that the minimum allocation or benefit
requirement applicable to Top-Heavy Plans under Code (S)416(c) will
be met in the other plan or plans.
(iv) For purposes of this subsection (a), Elective
Contributions of Key Employees shall be taken into account, but
Elective
A27
<PAGE>
Contributions of Employees who are not Key Employees shall not be
taken into account.
(v) For purposes of this subsection (a), any Qualified
Nonelective Contributions shall be taken into account; however,
Qualified Matching Contributions, Matching Voluntary Contributions
and Matching Elective Contributions shall not be taken into
account.
(b) Minimum Vesting. For any Plan Year in which this Plan is a
---------------
Top-Heavy Plan, the following minimum vesting schedule will automatically
apply in place of the vesting provisions otherwise specified in the Plan:
===============================================
YEARS OF VESTING VESTED PERCENTAGE OF
SERVICE EARNED BY THE THE PARTICIPANT IN
PARTICIPANT FORFEITABLE ACCOUNTS
-----------------------------------------------
Less than 3 Years 0% vested
-----------------------------------------------
3 or more Years 100% vested
===============================================
The minimum vesting schedule applies to all accrued benefits within the
meaning of Code (S)411(a)(7) including benefits accrued before the
effective date of Code (S)416 and benefits accrued before the Plan became
Top-Heavy, except those attributable to Voluntary Contributions or Elective
Contributions, or those forfeited before the Plan became Top-Heavy.
Further, no decrease in a Participant's nonforfeitable percentage may occur
in the event the Plan's status as Top-Heavy changes for any Plan Year.
However, this subsection (b) does not apply to the Account balances of any
Employee who does not have an Hour of Service (as defined in subsection (a)
of Section 1.24) after the Plan has initially become Top-Heavy and such
Employee's Account balance attributable to contributions and forfeitures of
members of the Controlled Group will be determined without regard to this
subsection (b).
5.2 Top-Heavy Special Definitions. For purposes of this Article, the
-----------------------------
following terms shall have the following meanings:
(a) Top-Heavy Ratio.
---------------
(i) If a member of the Controlled Group maintains one or
more defined contribution plans (including any simplified employee
pension plan) and a member of the Controlled Group has never
maintained any defined benefit plan which during the 5-year period
ending on the Determination Date(s) has or had accrued benefits,
the Top-Heavy Ratio for this Plan alone, or for the Required or
Permissive Aggregation Group as
A28
<PAGE>
appropriate, is a fraction, the numerator of which is the sum of
the account balances of all Key Employees under the aggregated
defined contribution plan or plans as of the Determination Date(s)
(including any part of any Account balance distributed in the 5-
year period ending on the Determination Date(s)), and the
denominator of which is the sum of all Account balances (including
any part of any Account balance distributed in the 5-year period
ending on the Determination Date(s)) of all Participants as of the
Determination Date(s), both computed in accordance with Code (S)416
and the regulations thereunder. Both the numerator and the
denominator of the Top-Heavy Ratio are adjusted to reflect any
contribution not actually made as of the Determination Date but
which is required to be taken into account on that date under Code
(S)416 and the regulations thereunder.
(ii) If a member of the Controlled Group maintains one or
more defined contribution plans (including any simplified employee
pension plan) and a member of the Controlled Group maintains or has
maintained one or more defined benefit plans which during the 5-
year period ending on the Determination Date(s) has or had any
accrued benefits, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of account balances under the
aggregated defined contribution plan or plans for all Key
Employees, determined in accordance with paragraph (i) above, and
the Present Value of accrued benefits under the aggregated defined
benefit plans for all Key Employees, as of the Determination
Date(s), and the denominator of which is the sum of the account
balances under the aggregated defined contribution plans for all
Participants, as determined in accordance with paragraph (i) above,
and the Present Value of accrued benefits under the aggregated
defined benefit plans for all Participants as of the Determination
Date(s), all determined in accordance with Code (S)416 and the
regulations thereunder. Both the numerator and the denominator of
the Top-Heavy Ratio are adjusted by adding back the amount of any
distribution of an account balance or an accrued benefit made in
the 5-year period ending on the Determination Date and any
contribution not actually made but required to be taken into
account under Code (S)416 as of the Determination Date.
(iii) For purposes of this subsection (a), the value of
account balances and the Present Value of accrued benefits will be
determined as of the most recent Valuation Date that falls within
or ends with the 12-month period ending on the Determination Date,
except as provided in Code (S)416 and the regulations thereunder
for the first and second plan years of a defined benefit plan. The
account balances and accrued benefits of a Participant who is not a
Key Employee but who was a Key Employee in a prior year will be
disregarded. If an individual has not performed an Hour of Service
for any Employer maintaining the Plan at any time during the 5-year
period ending
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<PAGE>
on the Determination Date, any accrued benefit for such individual
(and the account of such individual) shall not be taken into
account in determining the Top-Heavy Ratio. The calculation of the
Top-Heavy Ratio, and the extent to which distributions, rollovers,
and transfers are taken into account will be made in accordance
with Code (S)416 and the regulations thereunder. Elective
Contributions and Voluntary Contributions will be taken into
account for purposes of computing the Top-Heavy Ratio. When
aggregating plans, the value of Account balances and accrued
benefits will be calculated with reference to the Determination
Dates that fall within the same calendar year.
(iv) The accrued benefit of any Employee (other than a Key
Employee) shall be determined (A) under the method which is used
for accrual purposes for all plans of the Controlled Group, or (B)
if there is no method described in clause (A), as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under Code (S)411(b)(1)(C).
(b) Permissive Aggregation Group. The Required Aggregation Group
----------------------------
of plans plus any other plan or plans of the Controlled Group which, when
considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Code (S)(S)401(a)(4) and 410.
(c) Required Aggregation Group. (i) Each qualified plan of the
--------------------------
Controlled Group in which at least one Key Employee participates or
participated at any time during the determination period (as defined in
subsection (f) below) regardless of whether the plan has terminated, and
(ii) any other qualified plan of the Controlled Group which enables a plan
described in (i) to meet the requirements of Code (S)(S)401(a)(4) or 410.
(d) Determination Date. For any Plan Year subsequent to the first
------------------
Plan Year, the last day of the preceding Plan Year. For the first Plan
Year of the Plan, the last day of that year.
(e) Present Value. For purposes of establishing Present Value to
-------------
compute the Top-Heavy Ratio, any accrued benefit in a defined benefit plan
shall be discounted only for mortality and interest based on the interest
rate and mortality table used by the defined benefit plan for determining
the actuarial present value of actuarially equivalent benefits unless the
defined benefit plan specifically defines alternative interest and
mortality assumptions to be used in determining the Top-Heavy Ratio. If
more than one defined benefit plan must be aggregated, the assumptions used
will be the assumptions applicable to the defined benefit plan that has the
greatest value of assets as of the Valuation Date coincident with or
immediately preceding the Determination Date.
(f) Key Employee. Any Employee or former Employee (and the
------------
Beneficiaries of such Employee) who at any time during the determination
period was an
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officer of a member of the Controlled Group if such individual's annual
Compensation from members of the Controlled Group exceeds 50% of the dollar
limitation under Code (S)415(b)(1)(A), an owner (or a person considered an
owner under Code (S)318) of one of the 10 largest interests in the Employer
if such individual's Compensation from members of the Controlled Group
exceeds 100% of the dollar limitation under Code (S)415(c)(1)(A), a 5-
percent owner of the Employer, or a 1-percent owner of the Employer who has
an annual Compensation from members of the Controlled Group of more than
$150,000. Annual Compensation for this purpose means Compensation as
defined in Section 1.3(a)(i) of Appendix I, but including amounts
contributed by a member of the Controlled Group pursuant to a salary
reduction agreement which are excludable from gross income under Code
(S)(S)125, 402(e)(3), 402(h) or 403(b). The determination period is the
Plan Year containing the Determination Date and the 4 preceding Plan Years.
The determination of who is a Key Employee will be made in accordance with
Code (S)416(i)(1) and the regulations thereunder.
(g) Top-Heavy Plan. This Plan is a Top-Heavy Plan for any Plan
--------------
Year if any of the following conditions exist:
(i) If the Top-Heavy Ratio for this Plan exceeds 60% and
this Plan is not part of any Required Aggregation Group or
Permissive Aggregation Group of plans.
(ii) If this Plan is a part of a Required Aggregation Group
of plans but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60%.
(iii) If this Plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.
A31
<PAGE>
APPENDIX VI
CODE (S)415 LIMITATIONS ON ALLOCATIONS
--------------------------------------
6.1 General Rules.
-------------
(a) Limitation. The Annual Additions which may be credited to a
----------
Participant's Accounts under this Plan for any Limitation Year will not
exceed the Maximum Permissible Amount reduced by the Annual Additions
credited to a Participant's accounts under any other defined contribution
plans (as defined in Code (S)414(i)), individual medical accounts (as
defined in Code (S)415(l)(2)) and welfare benefit funds (as defined in Code
(S)419(e)) maintained by the Employer for the same Limitation Year. If the
Annual Additions with respect to the Participant under other defined
contribution plans, individual medical accounts and welfare benefit funds
maintained by the Employer, if any, are less than the Maximum Permissible
Amount and the Employer contribution that would otherwise be contributed or
allocated under this Plan to the Participant's Accounts under this Plan
would cause the Annual Additions for the Limitation Year to exceed this
limitation, the amount contributed or allocated to this Plan will be
reduced so that the Annual Additions under all such plans, accounts and
funds for the Limitation Year (including this Plan) will equal the Maximum
Permissible Amount. If the Annual Additions with respect to the
Participant under such other defined contribution plans, individual medical
accounts and welfare benefit funds in the aggregate are equal to or greater
than the Maximum Permissible Amount, no amount will be contributed or
allocated to the Participant's Accounts under this Plan for the Limitation
Year.
(b) Use of Estimated Compensation. Prior to determining the
-----------------------------
Participant's actual Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant on the basis of
a reasonable estimation of the Participant's Compensation for the
Limitation Year, uniformly determined for all Participants similarly
situated. As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation Year
will be determined on the basis of the Participant's actual Compensation
for the Limitation Year.
(c) Allocation of Excess Amounts Among Plans, Funds and Accounts.
------------------------------------------------------------
If, pursuant to subsection (b) above or as a result of the allocation of
forfeitures, a reasonable error in determining the amount of Elective
Deferrals a Participant may make, or such other facts and circumstances as
may be allowed by the Internal Revenue Service, a Participant's Annual
Additions under this Plan and such other plans, accounts and funds (if any)
would result in an Excess Amount for a Limitation Year, the Excess Amount
will be deemed to consist of the Annual Additions arising under this Plan
first, and then, to
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the extent necessary, shall be deemed to consist of Annual Additions made
under other qualified defined contribution plans of the Employer.
(d) Disposition of Excess Amounts. Any Excess Amount attributed to
-----------------------------
this Plan will be disposed of as follows:
(i) Any Voluntary Contributions and then any Elective
Contributions (and earnings thereon) will be returned to the
Participant, and any Matching Elective Contributions or Matching
Voluntary Contributions associated with such returned Elective
Contributions or Voluntary Contributions will, if the Participant
is covered by the Plan at the end of the Limitation Year, be used
to reduce contributions made pursuant to Section 3.1 of this Plan
which would be allocated to such Participant in the next Limitation
Year, and each succeeding Limitation Year if necessary, or will, if
the Participant is not covered by the Plan at the end of the
Limitation Year, be held unallocated in a suspense account, to the
extent such aggregated contributions would reduce the Excess
Amount. The suspense account will be applied to reduce future
contributions made pursuant to Section 3.1 of this Plan which would
be allocated to remaining Participants in the next Limitation Year,
and each succeeding Limitation Year if necessary.
(ii) If a suspense account is in existence at any time
during a Limitation Year pursuant to this subsection, it will not
participate in the allocation of the Trust's investment gains and
losses. If a suspense account is in existence at any time during a
particular Limitation Year, all amounts in the suspense account
must be allocated and reallocated to Participants' Accounts before
any contributions made pursuant to Section 3.1 of this Plan or any
Voluntary Contributions may be made to the Plan for that Limitation
Year. Except as provided in paragraph (i) above, Excess Amounts
may not be distributed from the Plan to Participants or former
Participants.
(e) Other Defined Benefit Plans. If the Employer maintains, or at
---------------------------
any time maintained, one or more defined benefit plans covering any
Participant in this Plan, the sum of the Participant's Defined Benefit
Fraction and Defined Contribution Fraction will not exceed 1.0 in any
Limitation Year. The foregoing limitation will be met by reducing pro rata
the Projected Annual Benefit under one or more of such qualified defined
benefit plans.
6.2 Adjustments for Top Heavy Plan. For purposes of computing the
------------------------------
Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction, the
"125%" factor in subsections (c)(i) and (e)(i) of Section 6.3 of this Appendix
shall be decreased to 100% if:
(a) The Plan is Super Top-Heavy; or
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(b) The Plan is Top-Heavy (whether or not Super Top-Heavy) and the
Plan and any other plans maintained by the Employer do not provide the
additional minimum accrued benefit described in Code (S)416(h)(2)(A).
For purposes of this Section, the Plan is "Super Top-Heavy" if it would continue
to be Top-Heavy if the 60% tests in the definition of Top-Heavy in Section
5.2(g) of Appendix V were changed to 90% tests.
6.3 Applicable Definitions. For purposes of this Article, the
----------------------
following terms shall have the following meanings:
(a) Annual Additions shall mean the sum of the following amounts
----------------
allocated to a Participant's accounts for any Limitation Year:
(i) contributions made by the Employer;
(ii) contributions made by the Participant;
(iii) forfeitures;
(iv) amounts allocated to an individual medical benefit
account, as defined in Code (S)415(l)(2), which is part of a
pension or annuity plan maintained by the Employer; and
(v) amounts derived from contributions paid or accrued which
are attributable to post-retirement medical benefits allocated to a
separate account of a Key Employee, as defined in Code
(S)419A(d)(3), under a welfare benefit fund, as defined in Code
(S)419(e), maintained by the Employer.
For this purpose, any Excess Amount applied under subsection (d) of Section
6.1 above in the Limitation Year to reduce Employer contributions will be
considered Annual Additions for such Limitation Year; however, any
nonvested amount restored to a Participant's Accounts following his
reemployment shall not be deemed an Annual Addition, and any corrective
allocation pursuant to Section 11.11 will be considered an Annual Addition
for the Limitation Year to which it relates. Annual Additions for any
Limitation Years beginning before January 1, 1987, shall not be recomputed
to treat all Employee contributions as Annual Additions. Contributions do
not fail to be Annual Additions merely because such contributions are
excess deferrals (as defined in Code (S)402(g)(2)(A)), excess contributions
(as defined in Code (S)401(k)(8)(B)) or excess aggregate contributions (as
defined in Code (S)401(m)(6)(B)), or merely because such excess deferrals
and excess contributions are corrected through distribution or
recharacterization, except that excess deferrals which are timely corrected
by distribution shall not be treated as Annual Additions. Excess aggregate
contributions attributable to
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<PAGE>
amounts other than employee contributions, including forfeited matching
contributions, shall be counted as Annual Additions even if distributed.
For purposes of this subsection (a), the provisions of Treas. Reg.
(S)1.415-6(b) shall govern.
(b) Compensation shall mean the amount of wages, as defined in Code
------------
(S) 3401(a), and all other amounts of compensation which are paid to an
Employee by the Employer and for which the Employer is required to furnish
the Employee a written statement under Code (S)(S) 6041(d), 6051(a)(3) and
6052 (determined without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or the
services performed).
(c) Defined Benefit Fraction shall mean a fraction, the numerator
------------------------
of which is the sum of the Participant's Projected Annual Benefits under
all the defined benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of (i) 125% of the
dollar limitation determined for the Limitation Year under Code
(S)(S)415(b) and (d) or (ii) 140% of the Highest Average Compensation
including any adjustments under Code (S)415(b). However, notwithstanding
the above, if the Participant was a participant as of the first day of the
first Limitation Year beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which were in existence on
May 6, 1986, the denominator of this fraction will not be less than 125% of
the sum of the annual benefits under such plans which the Participant had
accrued as of the close of the last Limitation Year beginning before
January 1, 1987, disregarding any changes in the terms and conditions of
the Plan after May 5, 1986. The preceding sentence applies only if the
defined benefit plans individually and in the aggregate satisfied the
requirements of Code (S)415 for all Limitation Years beginning before
January 1, 1987.
(d) Defined Contribution Dollar Limitation shall mean $30,000, or
--------------------------------------
if greater, 1/4 of the defined benefit dollar limitation set forth in Code
(S)415(b)(1) as in effect for the Limitation Year.
(e) Defined Contribution Fraction shall mean a fraction, the
-----------------------------
numerator of which is the sum of the Annual Additions to the Participant's
accounts under all the defined contribution plans (whether or not
terminated) maintained by the Employer for the current and all prior
Limitation Years, (including the Annual Additions to this and all other
qualified plans, whether or not terminated, maintained by the Employer and
the Annual Additions attributable to all welfare benefit funds, as defined
in Code (S)419(e), and individual medical benefit accounts, as defined in
Code (S)415(l)(2), maintained by the Employer), and the denominator of
which is the sum of the maximum aggregate amounts for the current and all
prior Limitation Years of service with the Employer (regardless of whether
a defined contribution plan was maintained by the Employer). The maximum
aggregate amount in any Limitation Year is the lesser of (i) 125% of the
dollar limitation in effect under Code (S)415(c)(1)(A) or (ii) 35% of the
Participant's Compensation for such year. However, notwithstanding the
above, if the Participant was a Participant as of the
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<PAGE>
end of the first day of the first Limitation Year beginning after December
31, 1986, in one or more defined contribution plans maintained by the
Employer which were in existence on May 6, 1986, the numerator of this
fraction will be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of (1) the excess of
the sum of the fractions over 1.0 times (2) the denominator of this
fraction, will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and conditions
of the plan made after May 6, 1986, but using the Code (S)415 limitation
applicable to the first Limitation Year beginning on or after January 1,
1987. The Annual Addition for any Limitation Year beginning before January
1, 1987, shall not be recomputed to treat all Employee contributions as
Annual Additions.
(f) Employer shall mean, solely for purposes of this Article, the
--------
Employer and all members of a controlled group of corporations (as defined
in Code (S)414(b) as modified by Code (S)415(h)), all commonly controlled
trades or businesses (as defined in Code (S)414(c) as modified by Code
(S)415(h)) or affiliated service groups (as defined in Code (S)414(m)) of
which the Employer is a part, and any other entity required to be
aggregated with the Employer pursuant to regulations under Code (S)414(o).
(g) Excess Amount shall mean the excess of the Participant's Annual
-------------
Additions for the Limitation Year over the Maximum Permissible Amount.
(h) Highest Average Compensation shall mean the average
----------------------------
compensation for the three consecutive calendar years with the Employer
that produces the highest average. In lieu of calendar years, a plan may
use any 12 month period provided such period is uniformly and consistently
applied.
(i) Limitation Year shall mean the Plan Year. If the Limitation
---------------
Year is amended to a different 12-consecutive-month period, the new
Limitation Year must begin on a date within the Limitation Year in which
the amendment is made, and the provisions of Treas. Reg. (S)1.415-
2(b)(4)(iii) shall apply for the shortened Limitation Year.
(j) Maximum Permissible Amount shall mean the maximum Annual
--------------------------
Addition that may be contributed or allocated to a Participant's Account
under the Plan for any Limitation Year. The Maximum Permissible Amount
shall be the lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25% of the Participant's Compensation for the
Limitation Year.
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The compensation limitation referred to in paragraph (ii) above shall not
apply to any contribution for medical benefits (within the meaning of Code
(S)401(h) or Code (S)419A(f)(2)) which is otherwise treated as an annual
addition under Code (S)(S)415(l)(1) or 419A(d)(2). If a short Limitation
Year is created because of an amendment changing the Limitation Year to a
different 12 consecutive-month period, the Maximum Permissible Amount will
not exceed the Defined Contribution Dollar limitation multiplied by the
following fraction:
number of months in the short Limitation Year
---------------------------------------------
12
(k) Projected Annual Benefit shall mean the annual retirement
------------------------
benefit (adjusted to an actuarially equivalent straight life annuity if
such benefit is expressed in a form other than a straight life annuity or
qualified joint and survivor annuity) to which the Participant would be
entitled under the terms of the Plan assuming:
(i) the Participant will continue employment until normal
retirement age under the Plan (or current age, if later), and
(ii) the Participant's Compensation for the current
Limitation Year and all other relevant factors used to determine
benefits under the Plan will remain constant for all future
Limitation Years.
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<PAGE>
APPENDIX VII
SPECIAL PROVISIONS FOR EMPLOYER SECURITIES
------------------------------------------
7.1 Limitations on TRASOP Securities. Notwithstanding any provisions
--------------------------------
of this Plan to the contrary, all TRASOP securities (as that term is defined in
Treas. Reg. (S)1.46-8(b)(5)) held by the Trustee, which shall include those
securities transferred to the Equifax Inc. Employees 401(k) Retirement and
Savings Plan from the Equifax Inc. Employees Stock Ownership Plan (the "ESOP")
pursuant to its termination on January 1, 1989, shall be accounted for
separately from any other contributions to this Plan, as required by Treas. Reg.
(S)1.46-8(d)(4), and shall not be used to satisfy any loan made to the Plan or
be used as collateral for any loan made to the Plan, should any such loans ever
be made, as required by Treas. Reg. (S)1.46-8(d)(5). Furthermore, TRASOP
securities held by the Trustee shall not be used as payment, directly or
indirectly, for "start-up expenses" (as that term is defined in Treas. Reg.
(S)1.46-8(e)(6)(i)) or for "administrative expenses" (as that term is defined in
Treas. Reg. (S)1.46-8(e)(7)(i)).
7.2 Form of Distribution. Notwithstanding any provisions of this Plan
--------------------
to the contrary, any Participant in this Plan who was a Member in the ESOP prior
to January 1, 1989 shall, when otherwise entitled to distribution of his Account
balances attributable to, and transferred from, the ESOP under the terms and
provisions of this Plan, be entitled to elect that his ESOP Account be
distributed in the form of Common Stock. In the event of such an election,
fractional shares allocated to such Participant's ESOP Account, if any, shall
nonetheless be paid in cash. Absent such an election, distribution of the
portion of such Participant's ESOP Account consisting of Common Stock shall be
made in cash in an amount equal to the fair market value of the Common Stock in
such Participant's ESOP Account which is to be distributed.
7.3 TRASOP Securities must Remain in Plan. Notwithstanding any
-------------------------------------
provisions of this Plan to the contrary, no Common Stock (i) which was
transferred to this Plan from the ESOP, and (ii) which was allocated under the
ESOP to the Account of a Participant who was a Member in the ESOP prior to
January 1, 1989, shall be distributed from such Participant's ESOP Account under
this Plan before the end of the 84th month beginning after the month in which
the Common Stock was allocated, except in the following situations:
(a) the termination of this Plan;
(b) the death, disability or separation from service of such
Participant;
(c) a distribution to such Participant or his Beneficiary is
required by Code (S)401(a)(9) and cannot be made except by violation of the
above-mentioned holding period rule;
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(d) a transfer of such Participant to the employment of an
acquiring employer from the employment of the selling employer in the case
of:
(i) a sale to the acquiring employer of substantially all of
the assets used by the selling employer in a trade or business
conducted by the selling employer, or
(ii) the sale of substantially all of the stock of a
subsidiary of the employer; or
(e) with respect to the stock of a selling corporation, a
disposition of such selling corporation's interest in a subsidiary when
such Participant continues employment with said subsidiary.
7.4 Voting Rights. Notwithstanding any provisions of this Plan to the
-------------
contrary, the Trustee shall deliver or cause to be delivered to each
Participant, or, in the event of such Participant's death, to his Beneficiary,
any and all notices, financial statements, proxies and proxy soliciting
material, relating to Common Stock in his ESOP Account and any other of his
Accounts under this Plan, if any, and shall notify each such Participant or
Beneficiary of each occasion for the exercising of voting rights (or of
warrants, options or other rights to purchase Common Stock) within a reasonable
time before said rights are to be exercised, which notification shall include
all the information that the issuer of such Common Stock distributes to
shareholders regarding the exercise of said rights. Said Participant or
Beneficiary shall have the right to direct the Trustee as to the exercise of all
voting rights with respect to Common Stock in his Accounts. In the absence of
any such direction, the Trustee may not vote said shares. To the extent
possible, the Trustee shall combine fractional shares of Common Stock in the
Accounts of Participants or their Beneficiaries and shall vote the resulting
whole shares of Common Stock to reflect the direction of said Participants or
Beneficiaries.
7.5 Allocation of Earnings. All dividends or other distributions or
----------------------
earnings paid with respect to Common Stock allocated to and held in
Participants' ESOP Accounts shall be reinvested in Common Stock and credited to
Participants with ESOP Accounts pro rata in proportion to the number of shares
(including fractional shares) in each such Participant's ESOP Account as of the
record date for payment of said dividends or other distributions or earnings,
notwithstanding other provisions of this Plan requiring contrary allocations or
deductions for expenses of the Plan or of the Trustee prior to allocation.
7.6 Common Stock. For purposes of this Article, "Common Stock" shall
------------
mean common stock issued by Equifax Inc., or a corporation which is a member of
a "controlled group of corporations" which includes Equifax Inc. (within the
meaning of Code (S)1563(a), determined without regard to Code (S)1563(a)(4) and
(e)(3)(C)) and with voting power and dividend rights no less favorable than the
voting power and dividend rights of other common stock issued by Equifax Inc. or
such other corporation; provided, however, that effective on the date of the
distribution of all of the shares of common stock of ChoicePoint Inc. by Equifax
Inc. to the
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<PAGE>
holders of the common stock of Equifax Inc., "Common Stock" shall mean common
stock issued by ChoicePoint Inc. or a corporation which is a member of a
controlled group of corporations which includes ChoicePoint Inc.
7.7 ESOP Accounts. For purposes of this Article, "ESOP Account"
-------------
shall mean the separate Account established under this Plan for that portion of
a Participant's benefit which has been transferred to the Equifax Inc. Employees
401(k) Retirement and Savings Plan from the ESOP pursuant to its termination on
January 1, 1989, and all earnings associated therewith.
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<PAGE>
EXHIBIT A
TO
CHOICEPOINT INC. 401(K) PROFIT SHARING PLAN
-------------------------------------------
Pursuant to Sections _______________ of the Plan, the participating
Employers listed in the schedule below have elected to have the following
special provisions apply to their Employees, as indicated in the second column
of the schedule below.
Adopting Employers Special Provisions
- -------------------- --------------------
Approved:
---------------------------------
PLAN ADMINISTRATOR
Date:
---------------------------------
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<PAGE>
EXHIBIT 23(b)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this amendment to the Registration Statement on Form S-8 (related
to the Equifax Inc. Employees 401 (k) Retirement and Savings Plan (the "Equifax
Plan") and the ChoicePoint Inc. 401(k) Profit Sharing Plan) of our report dated
February 14, 1997 incorporated by reference in Equifax Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1996 and our report dated June 10,
1997 included in the Equifax Plan's Annual Report on Form 11-K for the plan year
ended December 31, 1996.
/s/ Arthur Andersen LLP
Atlanta, Georgia
July 8, 1997
68
