<PAGE>
The Registrant requests that the
Registration Statement become
effective immediately upon filing
pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on August 16, 1995
REGISTRATION NO. 33-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
PROTECTIVE LIFE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 6311 95-2492236
(State or other jurisdiction (Primary standard (I.R.S. employer
of incorporation or industrial identification number
organization) classification code number)
number)
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35202
(205) 879-9230
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
PROTECTIVE LIFE CORPORATION
401(k) AND STOCK OWNERSHIP PLAN
(full title of the Plan)
_________________
JOHN K. WRIGHT
VICE PRESIDENT, SENIOR
ASSOCIATE COUNSEL AND SECRETARY
PROTECTIVE LIFE CORPORATION
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35202
(205) 879-9230
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
COPIES TO:
J. MICHAEL SAVAGE
MAYNARD, COOPER & GALE, P.C.
1901 SIXTH AVENUE NORTH
SUITE 2400
BIRMINGHAM, ALABAMA 35203
_________________
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER UNIT(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock, $0.50
par value 500,000 shares $28.75 per share $14,375,000 $4,957
<FN>
(1) Estimated only for the purpose of calculating the registration fee. Such estimates have been calculated in accordance with
Rule 457(h) under the Securities Act of 1933 and are based upon the average of the high and low prices per share of the
Registrant's Common Stock on the New York Stock Exchange on August 7, 1995, as reported by the Wall Street Journal.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an undetermined
amount of interests to be offered or sold pursuant to the Protective Life Corporation 401(k) and Stock Ownership Plan described
herein.
</TABLE>
<PAGE> PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Protective Life Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934 are incorporated into this
Registration Statement by reference:
1. The Registrant's Annual Report on Form 10-K, for the year ended
December 31, 1994.
2. All other reports of the Registrant filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December 31, 1994.
3. Protective Life Corporation 401(k) and Stock Ownership Plan Annual
Report on Form 11-K, for the year ended December 31, 1994.
4. The description of the Registrant's shares of Common Stock, par
value $0.50 per share (the "Common Stock"), contained in the Registration
Statement filed by the Registrant to register such securities under the
Securities Exchange Act of 1934, including all amendments and reports filed
for the purpose of updating such description prior to the termination of the
offering of the Common Stock offered hereby.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes hereof to the extent that
a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified and superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors, officers, employees and agents of the Registrant and its
subsidiaries or those serving at its request as directors, officers,
employees or agents of another corporation or enterprise are entitled to
indemnification as expressly permitted by the provisions of the General
Corporation Law of the State of Delaware, the Registrant's Certificate of
Incorporation, as amended, and the Registrant's liability insurance. In
addition, the executive officers and directors of the Registrant are entitled
to indemnification under the forms of written contracts with the Registrant
which supplement the Registrant's directors' and officers' liability
insurance. Insofar as indemnification of liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and
<PAGE>
Exchange Commission such indemnification is against public policy as
expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
4.1 Protective Life Corporation Amended and Restated 401(k) and
Stock Ownership Plan
* 4.2 Protective Life Corporation 401(k) and Stock Ownership Plan
Trust filed as Exhibit 4.2 to Registrant's Registration
Statement on Form S-8 (33-38952)
* 4.3 Restated Certificate of Incorporation of Registrant filed as
Exhibit B to Registrant's Form 10 Registration Statement
* 4.4 Certificate of Amendment to Restated Certificate of
Incorporation of Registrant filed as Exhibit A to Registrant's
Form 8-K Report filed May 18, 1983
* 4.5 Certificate of Amendment to Restated Certificate of
Incorporation of Registrant filed with the Secretary of State
of Delaware on January 3, 1985 - Filed as Exhibit 3(a)(2) to
Registrant's Form 10-K Annual Report for the year ended
December 31, 1984
* 4.6 By-laws of Registrant filed as Exhibit C to Registrant's Form
10 Registration Statement
* 4.7 Amended By-laws of Registrant filed as Exhibit B to
Registrant's Form 8-K Report filed May 18, 1983
5.1 Opinion of Maynard, Cooper & Gale, P.C.
5.2 Internal Revenue Service determination letter dated April 25,
1995
15 Letter re unaudited interim financial information
23.1 Consent of Coopers & Lybrand
23.2 Consent of Maynard, Cooper & Gale, P.C. (included in Exhibit
5)
24 Powers of Attorney
____________________________
* Incorporated by Reference
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents 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 (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. The
Registrant hereby undertakes that in the event that a claim for
indemnification against such liabilities (other than the controlling person
of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Birmingham, State of
Alabama, as of the 7th day of August, 1995.
PROTECTIVE LIFE CORPORATION
By: /s/ Drayton Nabers, Jr.
Drayton Nabers, Jr.
Chairman of the Board and President,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of August 7, 1995.
SIGNATURE TITLE
(i) Principal Executive Officer:
/s/ Drayton Nabers, Jr. Chairman of the Board and
Drayton Nabers, Jr. President, and Chief Executive
Officer
(ii) Principal Financial Officer:
/s/ John D. Johns Executive Vice President and
John D. Johns Chief Financial Officer
(iii) Principal Accounting Officer:
/s/ Jerry W. DeFoor Vice President and Controller,
Jerry W. DeFoor and Chief Accounting Officer
(iv) Board of Directors:
* Chairman Emeritus and Director
William J. Rushton III
/s/ Drayton Nabers, Jr. Director
Drayton Nabers, Jr.
* Director
John W. Woods
<PAGE>
SIGNATURES TITLE
* Director
William J. Cabaniss, Jr.
* Director
H. G. Pattillo
* Director
Edward L. Addison
* Director
John J. McMahon, Jr.
* Director
A. W. Dahlberg
* Director
John W. Rouse, Jr.
* Director
Robert T. David
* Director
Ronald L. Kuehn, Jr.
* Director
Herbert A. Sklenar
*By: /s/ Jerry W. DeFoor
Attorney-in-Fact
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Birmingham, Alabama, on August 7, 1995.
By: /s/ J. William Hamer, Jr.
J. William Hamer, Jr.
Plan Administrator
<PAGE>
EXHIBIT INDEX
Exhibit
No. Exhibit
4.1 Protective Life Corporation 401(k) and Stock Ownership Plan,
with First Amendment and Second Amendment thereto
5.1 Opinion of Maynard, Cooper & Gale, P.C.
5.2 Internal Revenue Service determination letter dated April 25,
1995
15 Letter re unaudited interim financial information
23.1 Consent of Coopers & Lybrand
24 Power of Attorney
<PAGE>
EXHIBIT 4.1
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
(As Amended and Restated
Effective as of January 1, 1993)
TABLE OF CONTENTS
ARTICLE I. ESTABLISHMENT OF PLAN
ARTICLE II. DEFINITIONS
2.1 Accounts
2.2 Accrued Benefit
2.3 Acquisition Loan
2.4 Active Participant
2.5 After-tax Contributions
2.6 After-tax Contribution Account
2.7 Anniversary Date
2.8 Authorized Leave of Absence
2.9 Beneficiary
2.10 Break-in-Service
2.11 Change of Control
2.12 Code
2.13 Common Stock
2.14 Company
2.15 Company Contributions
2.16 Company Matching Contributions
2.17 Company Matching Contribution Account
2.18 Company Supplemental Contributions
2.19 Compensation
2.20 Corporation
2.21 Covered Employee
2.22 Disability
2.23 Disability Retirement Date
2.24 Effective Date
2.25 Employee Contributions
2.26 Employee
2.27 Employment Commencement Date
2.28 ERISA
2.29 Family Member
2.30 Fiduciaries
2.31 Financial Hardship
2.32 Fiscal Year
2.33 Highly Compensated Employee
2.34 Hour of Service
2.35 Leased Employee
2.36 Non-Restricted Employee
2.37 Normal Retirement Date
2.38 One Year Break-in-Service
2.39 Participant
2.40 Pension Plan
2.41 Plan
2.42 Plan Administrator
2.43 Plan Year
2.44 Predecessor Plan
2.45 Pre-tax Contribution Account
2.46 Pre-tax Contribution Amount
<PAGE>
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
(As Amended and Restated
Effective as of January 1, 1993)
TABLE OF CONTENTS
(Continued)
2.47 Pre-tax Contributions
2.48 Restatement Date
2.49 Retirement
2.50 Rollover Account
2.51 Service
2.52 Stock Suspense Trust Account
2.53 Termination of Employment
2.54 Trust
2.55 Trust Agreement
2.56 Trust Fund
2.57 Trustee
2.58 Valuation Date
2.59 Vesting Service
2.60 Year of Service
ARTICLE III. PARTICIPATION AND SERVICE
3.1 Participation
3.2 Service
3.3 Inactive Status
3.4 Participation Upon Reemployment
ARTICLE IV. EMPLOYEE CONTRIBUTIONS
4.1 Pre-tax Contributions Generally
4.2 Amount of Pre-tax Contributions
4.3 Elections of Pre-tax Contributions
4.4 Pre-tax Contribution Account
4.5 Character of Pre-tax Contributions
4.6 Limitation on Pre-tax Contributions
4.7 Maximum Amount of Pre-tax Contributions
4.8 Distributions of Pre-tax Contributions
4.9 Loans
4.10 After-tax Contributions Generally
4.11 Credit and Investment of After-tax Contributions
4.12 Distributions of After-tax Contributions
4.13 Withdrawal of After-tax Contributions
ARTICLE V. COMPANY CONTRIBUTIONS
5.1 Company Matching Contributions on Pre-tax Contributions
5.2 Amount of Company Matching Contributions
5.3 Allocation Upon Retirement or Death
5.4 Limitation on Company Matching Contributions and
After-tax Contributions
5.5 Deposit of Company Contributions
5.6 Acquisition Loans
5.7 Stock Suspense Trust Account
5.8 Allocations from Stock Suspense Trust Account
5.9 Dividends on Allocated Common Stock
5.10 Time of Contributions
5.11 For Exclusive Benefit of Employees
5.12 Vesting of Company Matching and Profit Sharing
Contribution Accounts
5.13 Forfeitures
5.14 Change of Control
5.15 Company Profit Sharing Contributions
<PAGE>
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
(As Amended and Restated
Effective as of January 1, 1993)
TABLE OF CONTENTS
(Continued)
ARTICLE VI. MISCELLANEOUS CONTRIBUTION RULES
6.1 Company Supplemental Contributions
6.2 Maximum Contributions
6.3 Rollover Provision
6.4 Account Adjustments for Income or Loss
ARTICLE VII. BENEFITS - AMOUNT OF DISTRIBUTION
7.1 Amount of Distribution upon Retirement
7.2 Amount of Distribution upon Death
7.3 Amount of Distribution upon Termination of
Employment Prior to Retirement or Death
7.4 In-Service Withdrawal
ARTICLE VIII. BENEFITS - COMMENCEMENT OF DISTRIBUTION
8.1 Commencement of Benefits upon Retirement
8.2 Commencement of Benefits upon Death
8.3 Commencement of a Benefit upon Termination of
Employment Prior to Retirement or Death
8.4 Special Rule
8.5 Eligible Rollover Distributions
ARTICLE IX. MANNER, FORM AND TIMING OF PENSION
PAYMENTS UPON RETIREMENT, DEATH AND DISABILITY
9.1 Manner of Making Payments
9.2 Commencement and Distribution of Payments
9.3 Eligible Rollover Distributions
9.4 Nature of Distributions
ARTICLE X. TRUST FUND AND INVESTMENT OF CONTRIBUTIONS
10.1 In General
10.2 Exclusive Benefit
10.3 Voting and Tendering of Common Stock
10.4 Investment of Company Contributions
10.5 Investment of Employee Contributions
ARTICLE XI. ADMINISTRATION
11.1 Allocation of Responsibility among Fiduciaries for
Plan and Trust Administration
11.2 Appointment of Administrator
11.3 Claims Procedure
11.4 Records and Reports
11.5 Other Administrative Powers and Duties
11.6 Rules and Decisions
11.7 Authorization of Payments
11.8 Establishment of Funding Procedures
11.9 Facility of Payment
11.10 Prudent Man Rule
<PAGE>
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
(As Amended and Restated
Effective as of January 1, 1993)
TABLE OF CONTENTS
(Continued)
ARTICLE XII. SUCCESSOR EMPLOYER - MERGER OR
CONSOLIDATION OF PLAN
12.1 Successor Company
12.2 Plan Assets
ARTICLE XIII. PLAN AMENDMENTS - ACTION BY CORPORATION
13.1 Plan Amendments
13.2 Amendments to the Vesting Schedule
13.3 No Reduction in Accrued Benefits
13.4 Amendments in Adoption Agreement
ARTICLE XIV. PLAN TERMINATION
14.1 Right to Terminate
14.2 Partial Termination
14.3 Distribution upon Complete or Partial Termination
or upon Complete Discontinuance of Contributions
ARTICLE XV. TOP-HEAVY PLANS DEFINITIONS AND
DETERMINATIONS
15.1 Top-Heavy Definitions
15.2 Minimum Contribution
15.3 Minimum Vesting
ARTICLE XVI. MISCELLANEOUS
16.1 No Guarantee of Employment
16.2 Rights to Trust Assets
16.3 Nonalienation of Benefits
16.4 Participants' Rights
16.5 Construction of Agreement
16.6 Service of Process
16.7 Administrative Expenses
16.8 Loans to Participants
<PAGE>
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
(As Amended and Restated
Effective as of January 1, 1993)
ARTICLE I. ESTABLISHMENT OF PLAN
Previously, Protective Life Corporation (the "Corporation") established and
maintained Protective Life Corporation's 401(k) Plan (the "Predecessor
Plan"). Effective as of January 1, 1990, the Corporation restated the
Predecessor Plan, as the Protective Life Corporation 401(k) and Stock
Ownership Plan (the "Plan"). Under the restated Plan, employees could make
contributions which would be matched by Company Contributions that would be
automatically invested in Common Stock and would permit Common Stock to be
acquired on a leveraged basis. Additionally, the restatement incorporated
changes mandated by the Tax Reform Act of 1986.
The Plan is again being restated to incorporate subsequent legislative and
regulatory changes and to reflect current administrative practices.
<PAGE>
ARTICLE II. DEFINITIONS
The following provisions of this Article provide basic definitions that are
used throughout this Plan.
2.1 "Accounts" mean a Participant's After-tax Contribution
Account, Pre-tax Contribution Account, Company Matching Contribution Account,
Company Profit Sharing Contribution Account, and if applicable, Rollover
Account.
2.2 "Accrued Benefit" means a Participant's entire interest in the
Trust Fund determined as of any Valuation Date and reflected by the records
maintained by the Plan Administrator. The value of an Accrued Benefit at any
time shall be its value as adjusted on the coinciding or immediately
preceding Valuation Date, provided that for purposes of distribution, the
Accrued Benefit shall be determined in accordance with Article VII.
2.3 "Acquisition Loan" means any loan to the Trust which satisfies
the requirements of Treasury Regulation Section 54.4975-7(b) or any successor
provision, including a loan by the Company to the Trust, to the extent that
the proceeds of such loan are used to acquire Common Stock for the Plan.
2.4 "Active Participant" means, for any Plan Year, a Participant
who is not inactive under Section 3.3 or, with respect to the first Plan Year
in which an Employee becomes a Participant, any Participant who enters the
Plan on July 1 of such Plan Year, provided he has at least 500 Hours of
Service in such Plan Year.
2.5 "After-tax Contributions" means a Participant's contributions
made on an after-tax basis under the terms of Article IV.
2.6 "After-tax Contribution Account" means a subaccount composed
of a Participant's After-tax Contributions to this Plan and any Company
Supplemental Contributions treated as though After-tax Contributions, plus
income and gains credited thereto and minus all losses, expenses and
distributions chargeable thereto.
2.7 "Anniversary Date" means January 1.
2.8 "Authorized Leave of Absence" means an absence, with or
without compensation, authorized by the Company. An Authorized Leave of
Absence may be granted by a Company under such Company's standard personnel
practices for sickness, disability, accident, jury, military duty, or for
other reasons and shall be granted for military service to the extent the
Plan is required to do so under applicable federal law.
2.9 "Beneficiary" means any person designated under Section 7.2(a)
to receive the Accrued Benefit of a Participant that is payable under this
Plan upon the Participant's death.
<PAGE>
2.10 "Break-in-Service" means, with respect to each Employee, a
period of severance of at least 12 consecutive months. A period of severance
shall commence on the date the Employee retires, quits or is discharged, or
if earlier, the 12-month anniversary of the date on which the Employee
completed not more than 500 Hours of Service; provided, however, that
(effective August 5, 1993) the date an Employee incurs a severance of service
shall be no earlier than the last day of an approved leave of absence taken
by the Employee under the Family and Medical Leave Act of 1993. In the case
of an individual who is absent from work because of an Authorized Leave of
Absence or for maternity or paternity reasons, the 12-consecutive-month
period beginning on the first anniversary of the first date of such absence
shall not constitute a Break-in-Service. For purposes of this Section, an
absence from work for maternity or paternity reasons means an absence (a) by
reason of the pregnancy of the individual, (b) by reason of the birth of a
child of the individual, (c) by reason of the placement of a child with the
individual in connection with the adoption of such child by such individual,
or (d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
2.11 "Change of Control" means the first to occur of the following
events:
(a) Without the approval of the Board, the stockholders of
the Corporation approve a definitive agreement to merge
or consolidate the Corporation with or into another
corporation other than a majority-owned subsidiary of
the Corporation, or to sell or otherwise dispose of all
or substantially all of its assets, or
(b) Without the approval of the Board, stock representing
more than 20 percent of the voting power of the
Corporation is acquired by any person or group other
than the Corporation, any majority-owned subsidiary of
the Corporation or any employee benefit plan maintained
by the Corporation or any of its subsidiaries, or
(c) When within any 24-month period persons who were members
of the Board immediately prior to such 24-month period, together
with any persons who were first elected as directors during such
24-month period by or upon the recommendation of members of the
Board who were such members immediately prior to such 24-month
period and who constituted a majority of the Board at the time of
such election, cease to constitute a majority of the Board.
2.12 "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and successor tax laws. References to any section of the
Code shall be deemed to include similar sections of the Code as renumbered or
amended, and any regulations and regulatory guidance under such section.
2.13 "Common Stock" means common stock issued by the Corporation.
If at any time more than one class of common stock is outstanding, "Common
Stock" shall mean that class of common stock which is publicly traded.
2.14 "Company" means the Corporation and any subsidiaries of the
Corporation which have adopted the Plan.
2.15 "Company Contributions" mean the payments made from time to
time by or on behalf of the Company to the Trustee, including Company
Matching Contributions, Company Profit Sharing Contributions, and Company
Supplemental Contributions.
<PAGE>
2.16 "Company Matching Contributions" means the contributions made
from time to time by or on behalf of a Company to the Trustee pursuant to
Section 5.1 and based on the level of Pre-tax Contributions; provided that,
for purposes of Section 5.1, Company Matching Contributions shall be deemed
also to include the fair market value of the Common Stock allocated to a
Participant's Account under Section 5.2(a) and 6.1 which has been released
from the Stock Suspense Trust Account through the application of dividends to
repay an Acquisition Loan.
2.17 "Company Matching Contribution Account" means a subaccount
composed of Company Matching Contributions and any other allocations treated
as though Company Matching contributions, plus income and gains credited
thereto and minus all losses, expenses, and distributions chargeable thereto.
2.17a "Company Profit Sharing Contributions" mean the contributions
made from time to time by or on behalf of a Company to the Trustee pursuant
to Section 5.15, including the fair market value of the Common Stock
allocated to a Participant's Account under Section 5.15 which has been
released from the Stock Suspense Trust Account through the application of
dividends to repay an Acquisition Loan.
2.17b "Company Profit Sharing Contribution Account" means a
subaccount composed of Company Profit Sharing Contributions plus income and
gains credited thereto and minus all losses, expenses, and distributions
chargeable thereto.
2.18 "Company Supplemental Contributions" means the payments made
from time to time by or on behalf of the Company pursuant to Section 6.1 to
permit the Plan to meet the test set forth in Section 4.6 or Section 5.4 or
to ensure compliance with the nondiscrimination provisions of Section
401(a)(4) or Section 410 of the Code.
2.19 "Compensation" means the total cash compensation paid to an
Employee by the Company during the entire Plan Year including overtime pay
and bonuses, but excluding:
(a) Commissions paid under an agent's contract,
(b) Performance share awards, and
(c) Any other extraordinary compensation designated by the Plan
Administrator.
Compensation shall not include any contribution made by the Company to any
defined benefit plan maintained by the Corporation or the Company or to any
other employee benefit plan or insurance plan maintained by the Corporation
or the Company for the benefit of such Employee, but shall include Pre-tax
Contributions under this Plan and any other contributions made on behalf of
an Employee on a salary reduction basis to a plan described in Section 401(k)
or 125 of the Code.
The Compensation of each Employee that may be taken into account under the
Plan shall not exceed:
(1) $200,000 (or such higher amount determined by the Secretary of the
Treasury under Code Section 401(a)(17)) for any Plan Year beginning
prior to January 1, 1994; or
(2) $150,000 (or such higher amount determined by the Secretary of the
Treasury under Code Section 401(a)(17)) for any Plan Year beginning
on or after January 1, 1994.
<PAGE>
In determining Compensation for purposes of the limitation in paragraph (1)
or (2), the rules of Section 414(q)(6) of the Code shall apply, except that
in applying these rules, the term "family" shall include only the Employees
spouse and lineal descendants who have not attained age 19 before the end of
the Plan Year. If as a result of applying these rules the limit in Section
401(a)(17) of the Code is exceeded, the limitation shall be prorated among
the affected individuals in proportion to each such individuals Compensation
as determined prior to the application of this limitation.
2.20 "Corporation" means Protective Life Corporation.
2.21 "Covered Employee" means an Employee who is credited with an
allocation for the Plan Year.
2.22 "Disability" means the inability, as determined by the Plan
Administrator in his sole and absolute discretion, to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months. The permanence and degree of such impairment shall be supported by
medical evidence.
2.23 "Disability Retirement Date" means the date a Participant
retires after incurring a Disability.
2.24 "Effective Date" means January 1, 1993 which, except as
otherwise expressly stated, is the effective date of this restated Plan.
Notwithstanding the foregoing, special effective dates for certain provisions
of this Plan shall be stated in the Appendix which is attached to the Plan
document.
2.25 "Employee Contributions" means amounts which an Employee
elects to contribute as Pre-tax Contributions or as After-tax Contributions.
2.26 "Employee" means any individual employed by the Company who
(a) on or after the Effective Date, is receiving remuneration for personal
services rendered to the Company as an employee (or would have received
remuneration except for an Authorized Leave of Absence); and (b) is not
employed on a temporary basis (employment expected to last less than one
year).
2.27 "Employment Commencement Date" means the first day on which an
Employee is credited with, or is entitled to be credited with, an Hour of
Service.
2.28 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. References to any section of ERISA shall
be deemed to include similar sections of ERISA as renumbered or amended, and
any regulations and regulatory guidance under such section.
2.29 "Family Member" means the spouse and lineal ascendants or
descendants (including the spouses of such lineal ascendants or descendants)
of a Highly Compensated Employee who is either a 5 percent owner within the
meaning of Section 416(i) of the Code or one of the ten Highly Compensated
Employees paid the highest compensation (as defined in Section 2.33) for the
Plan Year.
2.30 "Fiduciaries" means the Corporation, the Plan Administrator,
and the Trustee, but only with respect to the specific responsibilities of
each for Plan and Trust administration, all as described in Article XI.
2.31 "Financial Hardship" means:
(a) Medical expenses (as described in Section 213(d) of the Code)
incurred by the Employee, the Employee's spouse or dependents;
<PAGE>
(b) Purchase (excluding mortgage payments) of a principal residence for
the Employee;
(c) Payment of tuition for the next 12 months of post-secondary
education for the Employee or the Employee's spouse, children or
dependents;
(d) The need to prevent the eviction of the Employee from his principal
residence or foreclosure on the mortgage of the Employee's
principal residence; or
(e) Any other reason deemed to be a hardship as described by the
Internal Revenue Service in revenue rulings, notices or other
documents of general application. In any case where the fore-
going provisions are not in conformity with the Code, the
nonconforming
provision may be amended retroactively to assure conformity.
2.32 "Fiscal Year" means January 1 - December 31.
2.33 "Highly Compensated Employee" means an Employee who performs
service during the determination year and is described in one or more of the
following groups:
(a) An Employee who is a 5-percent owner (as defined in Section
416(i)(1)(A)(iii) of the Code) at any time during the
determination year or the look-back year (as described in Treas.
Reg. Section 1.414(q)-1T).
(b) An Employee who receives compensation in excess of $75,000 (or such
higher amount as may be established from time to time by the
Internal Revenue Service) during the look-back year.
(c) An Employee who receives compensation in excess of $50,000 (or such
higher amount as may be established from time to time by the
Internal Revenue Service) during the look-back year and is a
member of the top-paid group for the look-back year.
(d) An Employee who is an officer (within the meaning of Section 416(i)
of the Code) during the look-back year and who receives
compensation in the look-back year greater than 50 percent of the
dollar limitation in effect under Section 415(b)(1)(A) of the
Code for the calendar year in which the look-back year begins.
(e) An Employee who would be in any of subsections (b), (c), or (d) if
such subsections were modified to substitute the determination
year for the look-back year and who is one of the 100 Employees
who receive the most compensation from the Company during the
determination year.
<PAGE>
For purposes of the definition of "Highly Compensated Employee": The
"determination year" is the Plan Year for which the determination of who is
highly compensated is being made and the look-back year is the Plan Year
immediately preceding the determination year. The "top-paid group" is the
top 20 percent of Employees ranked on the basis of compensation received
during the year. For purposes of determining the number of Employees in the
top-paid group, Employees described in Section 414(q)(8) of the Code and Q&A
9(b) of Treas. Reg. Section 1.414(q)-1T are excluded. The number of
"officers" is limited to 50 (or, if lesser, the greater of three Employees or
10 percent of Employees). When no officer has compensation in excess of 50
percent of the limit described in Section 415(b)(1)(A) of the Code, the
highest paid officer is treated as a Highly Compensated Employee.
"Compensation" (within the meaning of Section 415(c)(3) of the Code) includes
elective or salary reduction contributions to a cafeteria plan, cash or
deferred arrangements or tax-sheltered annuities. Employers aggregated under
Sections 414(b), (c), (m), and (o) of the Code are treated as the Company.
The definition of "Highly Compensated Employee" includes a former Employee
who had a separation year prior to the determination year and who was an
active Highly Compensated Employee for either (1) such Employee's separation
year or (2) any determination year ending on or after such Employee's 55th
birthday. Generally, a "separation year" is the determination year in which
such Employee separates from service. With respect to an Employee who
separated from service before January 1, 1987, such Employee will be included
as a Highly Compensated Employee only if such Employee was a 5-percent owner
or received compensation in excess of $50,000 during (A) such Employee's
separation year (or the year preceding such separation year) or (B) any year
ending on or after such Employee's 55th birthday (or the last year ending
before such Employee's 55th birthday).
Notwithstanding the foregoing, the Plan Administrator, in his sole and
absolute discretion, may identify Highly Compensated Employees for any given
Plan Year under any other method permissible under Section 414(q) of the
Code, including the method described in Section 4 of Revenue Procedure 93-42.
2.34 "Hour of Service" means:
(a) Each hour for which the Employee is paid, or entitled to payment,
directly or indirectly, from the Company;
(b) Each hour for which back pay, irrespective of mitigation of
damages, is awarded to the Employee or agreed to by the Company;
(c) Each hour an Employee is paid or entitled to payment by the Company
on account of a period of time during which no duties are
performed due to vacation, holiday, illness, incapacity
(including disability), lay-off, jury duty, military duty or
leave of absence. An Hour of Service for which an Employee is
directly or indirectly paid or entitled to payment on account
of a period during which the Employee performed no duties shall
not be credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying with
any applicable worker's compensation, disability insurance, or
unemployment compensation law. Hours of Service also shall not
be credited for a payment which solely reimburses the Employee
for medical or medically related expenses incurred by the
Employee. Not more than 501 Hours of Service shall be credited
under this subsection (c) to the Employee on account of any
single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single 12-month
period). For purposes of this subsection (c), a payment shall be
deemed to be made by or due from the Company regardless of
whether such payment is made by or due from the Company directly,
or indirectly through, among others, a trust fund, or insurer, to
which Company contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular employees or are
on behalf of a group of employees in the aggregate;
<PAGE>
(d) Solely for purposes of determining whether an Employee has incurred
a One Year Break-in-Service, an Employee who is not otherwise
credited with an Hour of Service under subsection (a), (b), or (c),
above, shall be credited with an Hour of Service for each
additional hour which is part of an Employee's customary work week
with the Company during which the Employee is on an unpaid
Authorized Leave of Absence, provided the Employee resumes
employment with the Company upon the expiration of such Authorized
Leave of Absence;
(e) Solely for purposes of determining whether an Employee has incurred
a One Year Break-in-Service, an Employee who is absent from work
for maternity or paternity reasons and who is not otherwise
credited with an Hour of Service under subsection (a), (b), (c), or
(d) above, shall receive credit for the Hours of Service for which
he would have been regularly scheduled had the Employee performed
duties for the Company during such absence, or in the absence of a
regularly scheduled number of hours, 40 hours per week (or eight
hours per day). For purposes of such determination, an absence
from work for maternity or paternity reasons means an absence (1)
by reason of the pregnancy of the Employee, (2) by reason of the
birth of a child of such Employee, (3) by reason of the placement
of a child with the Employee in connection with the adoption of
such child by the Employee, or (4) for purposes of caring for such
child for a period beginning immediately following such birth or
placement. Hours of Service credited for purposes of such
determination shall be credited in the Plan Year in which such
absence begins, if necessary to prevent a One Year Break-in-Service
in that Plan Year or, in all other cases, in the next following
Plan Year. In no event will more than 501 Hours of Service be
credited for any single continuous period of time during which
the person did not or would not have performed duties. The Plan
Administrator may, in its discretion, require an Employee who is
absent from work for maternity or paternity reasons to furnish
information to the Plan Administrator to establish that the
Employee's absence from work is for maternity or paternity reasons
and the number of days for which there was such an absence. The
Company reserves the right to terminate the employment of any
Employee who is absent from work without authorization, without
regard to whether such Employee is entitled to be credited for
Hours of Service pursuant to this subsection (e);
(f) Effective August 5, 1993, solely for purposes of determining
whether an Employee has incurred a One Year Break-in-Service, an
Employee shall be credited with an Hour of Service for each hour of
the normally scheduled workweek for each week during any period the
Employee is on an approved leave of absence taken pursuant to the
Family and Medical Leave Act of 1993; and
(g) The same Hours of Service shall not be credited more than once
under subsections (a), (b), (c), (d), (e), and/or (f) above and all
calculations shall be made according to the following rules:
(1)Hours of Service during periods of payment for the performance
of duties shall be determined by counting the actual hours for
which an Employee is paid or entitled to payment; provided,
however, in the case of Employees for whom records of paid
hours are not maintained, each such Employee shall be credited
with 45 Hours of Service for each calendar week in the Plan
Year if, under the foregoing provisions, the Employee would be
credited with at least one Hour of Service during the calendar
week; and
<PAGE>
(2)Hours of Service during the periods of payment for reasons
other than the performance of duties shall be determined as
follows:
(A)In the case of a payment made or due which is calculated
on the basis of units of time, such as hours, days, weeks
or months, the number of Hours of Service to be credited
shall be the number of regularly scheduled working hours
included in the units of time on the basis of which the
payment is calculated; and
(B)In the case of a payment made or due, which is not
calculated on the basis of units of time, the number of
Hours of Service to be credited shall be equal to the
amount of payment divided by the Employee's most recent
hourly rate of compensation (determined in accordance
with applicable Federal regulations) before the period
during which no duties are performed.
(h) The determination of Hours of Service for reasons other than the
performance of duties shall be made in accordance with the
provisions of Labor Department Regulations, 29 C.F.R. Section
2530.200b-2(b), and Hours of Service shall be credited to Plan
Years in accordance with the provisions of Labor Department
Regulations, 29 C.F.R. Section 2530.200b-2(c).
(i) Hours of Service will be credited for employment with other members
of an affiliated service group (under Section 414(m) of the Code),
a controlled group of corporations (under Section 414(b) of the
Code), or a group of trades or businesses under common control
(under Section 414(c) of the Code), of which the Company is a
member. Hours of Service will also be credited for any Leased
Employee.
2.35 "Leased Employee" means any "leased employee," within the
meaning of Section 414(n) of the Code who is not described within the safe
harbor exception of Section 414(n)(5) of the Code. A person shall not be
treated as a Leased Employee until such person has performed services for the
Company on a substantially full-time basis for a consecutive 12-month period.
2.36 "Non-Restricted Employee" means an Employee of the Company who
is neither a Highly Compensated Employee nor a Family Member of a Highly
Compensated Employee.
2.37 "Normal Retirement Date" means a Participant's sixty-fifth
birthday.
2.38 "One Year Break-in-Service" means a Plan Year within which an
Employee completes less than 501 Hours of Service; provided, however, any
Participant who is an active Employee on the last day of a Plan Year shall be
deemed not to incur a Break-in-Service in that year, regardless of whether
the Participant has more than 500 Hours of Service.
2.39 "Participant" means an Employee participating in the Plan as
provided in Article III.
2.40 "Pension Plan" means any defined benefit plan maintained by
the Company or the Corporation.
2.41 "Plan" means, on or after January 1, 1990, the Protective Life
Corporation 401(k) and Stock Ownership Plan, as Amended and Restated, and
prior to January 1, 1990, Protective Life Corporation's 401(k) Plan.
<PAGE>
2.42 "Plan Administrator" means the individual serving as the Vice
President - Human Resources for the Corporation (or its equivalent position)
or such other person(s) or corporation as may be appointed by the Chief
Executive Officer of the Corporation. In default of such an appointment, the
Corporation shall serve as Plan Administrator and shall discharge all duties
and responsibilities of the "administrator" as described in ERISA.
2.43 "Plan Year" means a 12-consecutive-month period commencing on
each January 1.
2.44 "Predecessor Plan" means Protective Life Corporation's 401(k)
Plan, as in effect immediately prior to January 1, 1990.
2.45 "Pre-tax Contribution Account" means a subaccount composed of
a Participant's Pre-tax Contributions to this Plan and any other allocations
treated as though Pre-tax Contributions, plus income and gains credited
thereto and minus all losses, expenses and distributions chargeable thereto.
2.46 "Pre-tax Contribution Amount" means the dollar amount or
percentage of a Participant's Compensation that such Participant elects to
contribute as a Pre-tax Contribution for a Plan Year pursuant to Section 4.3.
2.47 "Pre-tax Contributions" means amounts which a Participant
elects to defer pursuant to a salary reduction agreement in accordance with
Article IV.
2.48 "Restatement Date" means January 1, 1993.
2.49 "Retirement" means a Participant's Termination of Employment
(for any reason other than his death) on or after the earliest date as of
which such Participant can retire and commence distribution of benefits under
the Pension Plan, including the Participant's Disability Retirement Date.
Retirement shall be considered as commencing on the day immediately following
a Participant's last day of employment or, if later, his Authorized Leave of
Absence.
2.50 "Rollover Account" means the separate account established on
behalf of an Employee to hold any rollover contribution made to the Plan
pursuant to Section 6.3.
2.51 "Service" means a Participant's period of employment with the
Employer determined in accordance with Section 3.2.
2.52 "Stock Suspense Trust Account" means the subaccount or
subaccounts established under the Trust to hold Common Stock acquired with
the proceeds of an Acquisition Loan until such Common Stock is released for
allocation to Participants' Accounts under the terms of the Plan.
2.53 "Termination of Employment" means (a) the resignation by an
Employee for any reason, (b) the dismissal of an Employee for any reason, or
(c) the death or Retirement of an Employee, including a cessation of
employment on account of Disability.
2.54 "Trust" means the legal entity resulting from the Trust
Agreement (and any amendments thereto) between the Corporation and the
Trustee, by which Company Contributions and Employee Contributions shall be
received, held, invested and distributed to or for the benefit of the
Participants and Beneficiaries.
2.55 "Trust Agreement" means the agreement between the Corporation
and the Trustee, entitled the Protective Life Corporation 401(k) and Stock
Ownership Trust, as amended from time to time.
<PAGE>
2.56 "Trust Fund" means all property, real or personal, received or
held by the Trustee, plus all income and gains and minus all losses,
expenses, and distributions chargeable thereto.
2.57 "Trustee" means any entity, individual or individuals who
shall accept the appointment as Trustee by the Corporation to execute the
duties of the Trustee as specifically set forth in the Trust Agreement.
2.58 "Valuation Date" means each June 30 and December 31 (or such
other date or dates designated by the Plan Administrator).
2.59 "Vesting Service" means the sum of:
(a) each Year of Service; plus
(b) any other service designated by the Company as Vesting Service in
its Document of Adoption; plus
(c) any other service with the Company as a Leased Employee, if such
service would have constituted a Year of Service under the
applicable provisions of this Plan, if the Leased Employee had
been a common law employee of the Company.
If the case of an Employee who has had a Break-in-Service is subsequently
reemployed by the Company, his Vesting Service completed prior to the Break-
in-Service shall be disregarded except that--
(1) if at such Break-in-Service the Employee was vested in any part of
his benefit under the Plan, the Vesting Service he had at such
Break-in-Service shall be reinstated retroactive to his date of
reemployment upon the completion of one year of Vesting Service
following his reemployment;
(2) if the Employee is reemployed before incurring a One Year Break-in-
Service, his prior Vesting Service shall be reinstated upon
reemployment; or
(3) if neither paragraph (1) nor (2) applies and the Employee is
reemployed before incurring a number of consecutive One Year
Breaks-in-Service that equals or exceeds the greater of five
or the number of years of Vesting Service he had prior to such
Break-in-Service, his prior Vesting Service shall be reinstated
retroactive to his date of reemployment upon the completion of
one year of Vesting Service following his reemployment.
2.60 "Year of Service" means a Plan Year during which an Employee
has completed 1,000 Hours of Service.
<PAGE>
ARTICLE III. PARTICIPATION AND SERVICE
3.1 PARTICIPATION. Any Employee who was eligible to be a
Participant in the Plan on the Restatement Date shall continue to be eligible
to be a Participant. Any other Employee who is regularly scheduled to work
at least 20 hours per week shall be eligible to become a Participant on the
January 1 or July 1 coinciding with or next following his Employment
Commencement Date. Any other Employee who is regularly scheduled to work
fewer than 20 hours per week shall be eligible to become a Participant on the
January 1 or July 1 coinciding with or next following the end of the 12-month
period during which the Employee completes 1,000 or more Hours of Service,
beginning on (a) his Employment Commencement Date, or (b) any January 1
thereafter. If when first hired an individual does not satisfy the
requirements for being an Employee, but later is transferred to employment
where he becomes an Employee, such Employee shall be eligible to become a
Participant in the Plan on the January 1 or July 1 coinciding with or next
following such transfer.
3.2 SERVICE. A Participant shall be credited with a Year of
Service for vesting purposes for each Plan Year in which he has at least
1,000 Hours of Service.
3.3 INACTIVE STATUS. In the event that any Participant shall
fail, in any Plan Year of his employment after the later of January 1, 1990
or his most recent entry in the Plan, to accumulate 1,000 Hours of Service,
as determined under Section 3.2, or does not remain employed on the last day
in such Plan Year, he shall be considered an inactive Participant for such
Plan Year. Notwithstanding the foregoing, any Participant shall not cease to
be an Active Participant solely as a result of taking an Authorized Leave of
Absence. Inactive Participants in a Plan Year shall not be entitled to share
in the Company Contributions for the Plan Year except as provided in Section
5.3. In the event such Participant accumulates 1,000 Hours of Service, as
determined under Section 3.2, in a subsequent Plan Year, he shall again
become an Active Participant with full rights and privileges under this Plan
restored.
3.4 PARTICIPATION UPON REEMPLOYMENT. Active participation in the
Plan shall cease upon termination of employment with the Company.
Termination of employment may result from retirement, death or voluntary or
involuntary termination of employment, unauthorized leave of absence, or
failure to return to active employment with the Company by the date on which
an Authorized Leave of Absence expires.
Upon the reemployment of any Employee after January 1, 1990, who had
previously been employed by the Company on or after such date and who
subsequently incurred a Break-in-Service, his participation in the Plan shall
be determined as follows. Upon rehire, a former Participant in the Plan
shall, for purposes of Company Contributions, retroactively be a Participant
since the latest Anniversary Date preceding his date of rehire. An Employee
who had never become a Participant shall be a Participant on the date
determined pursuant to Section 3.1.
<PAGE>
ARTICLE IV. EMPLOYEE CONTRIBUTIONS
4.1 PRE-TAX CONTRIBUTIONS GENERALLY. A Participant may contribute
amounts to his account on a pre-tax basis for a particular year or a
particular period of time that result from a Participant's electing to have
Pre-tax Contributions made by the Company through reductions in his
Compensation pursuant to a salary reduction agreement.
4.2 AMOUNT OF PRE-TAX CONTRIBUTIONS. To satisfy the requirements
of Section 4.1, a Participant may elect in the manner described in Sections
4.3, 4.4 and 4.7 to contribute to this Plan by payroll deduction as Pre-tax
Contributions an amount of his Compensation that shall not be less than $5.00
per semimonthly payroll period (or such increased amount as the Plan
Administrator, in his sole discretion, should establish from time to time)
and shall not exceed the lesser of (a) 10 percent of such Compensation (or
such greater or lesser percentage as the Plan Administrator may establish
from time to time with respect to all Participants or any reasonable class of
Participants) and (b) the amount described in Section 4.7.
4.3 ELECTIONS OF PRE-TAX CONTRIBUTIONS.
(a) MANNER OF ELECTION. All Participants may direct the Company to
make Pre-tax Contributions through salary reduction agreements,
prepared and submitted in the time, place and manner as the Plan
Administrator may establish from time to time, which will
authorize the Company to deduct from and reduce the Employee's
Compensation, expressed as a Pre-tax Contribution Amount,
through payroll deduction each pay period. The Company will pay
such amount to the Trustee as soon as practicable following the
end of each month; however, in no event shall contributions
under this Section for any Plan Year be made later than (1) the
date prescribed by law for the Company to obtain a federal
income tax deduction for the Plan Year for which the
contributions are made or (2) the date required under ERISA, if
earlier.
(b) LENGTH OF ELECTION. A Pre-tax Contribution Amount selected by the
Participant shall continue in effect, notwithstanding any change in
his Compensation, until the earlier of the date (1) his election to
change his Pre-tax Contribution Amount becomes effective and (2) he
ceases to be an active Participant in accordance with Article III.
(c) EFFECTIVE DATE OF ELECTION. A Pre-tax Contribution Amount election
or change of such election made by a Participant shall be effective
in accordance with the salary reduction agreement.
4.4 PRE-TAX CONTRIBUTION ACCOUNT. A Pre-tax Contribution Account
shall be established on behalf of each Participant to record the amount of
Pre-tax Contributions made by such Participant to the Plan. Income and gains
earned on the Participant's Pre-tax Contribution Account shall be credited
thereto and losses, expenses and distributions chargeable to the
Participant's Pre-tax Contribution Account shall be deducted therefrom. A
Participant's Pre-tax Contribution Account shall be fully vested at all
times.
4.5 CHARACTER OF PRE-TAX CONTRIBUTIONS. All Pre-tax Contributions
shall be treated as contributions to a qualified plan in accordance with
Section 401(k) of the Code and shall be excludable from the Employee's gross
income to the extent that such treatment does not contravene any federal or
state law.
<PAGE>
4.6 LIMITATION ON PRE-TAX CONTRIBUTIONS.
(a) Any other provision of the Plan to the contrary notwithstanding,
the Plan Administrator shall take such action as it deems
appropriate to limit the amount of Pre-tax Contributions made on
behalf of each Highly Compensated Employee each Plan Year to the
extent necessary to ensure that either of the following tests is
satisfied:
(1)The "Average Actual Deferral Percentage" (as hereinafter
defined) for the group of Participants who are Highly
Compensated Employees is not more than the Average Actual
Deferral Percentage for the group of Participants who are
Non-Restricted Employees multiplied by 1.25; or
(2)Both
(A)The excess of the Average Actual Deferral Percentage for
the group of Participants who are Highly Compensated
Employees over the Average Actual Deferral Percentage for
the group of Participants who are Non-Restricted
Employees is not more than two percentage points, and
(B)The Average Actual Deferral Percentage for the group of
Participants who are Highly Compensated Employees is not
more than the Average Actual Deferral Percentage for the
group of Participants who are Non-Restricted Employees
multiplied by 2.0.
(b) For purposes of this Section 4.6:
(1)The term "Actual Deferral Percentage" means the ratio
(expressed as a percentage) of the Pre-tax Contributions on
behalf of a Participant for the Plan Year to the Participant's
compensation (within the meaning of Section 414(s) of the
Code, but not exceeding the maximum amount that may be
recognized under Section 401(a)(17) of the Code) for the Plan
Year. The Actual Deferral Percentage for a Plan Year for a
Participant who does not have Pre-tax Contributions made on
his behalf for the Plan Year is zero.
(2)The term "Average Actual Deferral Percentage" means the
arithmetic average (expressed as a percentage) of the Actual
Deferral Percentages of all persons in the specified groups.
The specified groups are the group consisting of all
Participants who are Highly Compensated Employees and the
group consisting of all Participants who are Non-Restricted
Employees.
(3)The Actual Deferral Percentage for any Participant who is a
Highly Compensated Employee for the Plan Year who is eligible
to have pre-tax contributions made on his behalf under two or
more arrangements described in Section 401(k) of the Code that
are maintained by the Company shall be determined for purposes
of this Section 4.6 as if such pre-tax contributions were made
under this Plan.
<PAGE>
(4)In determining the Actual Deferral Percentage for a Plan Year
for a Participant who is a Highly Compensated Employee, the
Pre-tax Contributions and compensation (within the meaning of
Section 414(s) of the Code) of such Participant who is a
Highly Compensated Employee shall include the Pre-tax
Contributions and compensation (within the meaning of Section
414(s) of the Code) of any individual who is a Family Member,
and such Family Members shall be disregarded as separate
Employees in determining the Actual Deferral Percentage both
for Participants who are Highly Compensated Employees and
Participants who are Non-Restricted Employees.
(5)The Actual Deferral Percentage for any Participant shall be
determined by including all Pre-tax Contributions and similar
employer contributions made under any other plans that are
aggregated with the Plan for purposes of Sections 401(a)(4)
and 410(b) of the Code.
(c) If for any Plan Year the aggregate amount of the Pre-tax
Contributions actually delivered to the Trustee on behalf of
Participants who are Highly Compensated Employees exceeds the
maximum amount permitted under the limits described in this Section
4.6 for such Plan Year, then the amount of such excess (determined
by reducing the Pre-tax Contributions on behalf of Participants who
are Highly Compensated Employees in order of the Actual Deferral
Percentages beginning with the highest of such percentages)
(hereinafter referred to as "Excess Contributions"), plus any
income and minus any loss allocable thereto, shall be distributed
no later than the last day of the succeeding Plan Year to
Participants to whose Pre-tax Contribution Accounts Excess
Contributions were allocated for such Plan Year on the basis of the
respective portions of the Excess Contributions attributable to
each of such Participants. The income or loss allocable to Excess
Contributions shall be determined by the Plan Administrator in
accordance with applicable rules and regulations, but shall not
include any amounts attributable to any period after the end of the
Plan Year for which the contributions were made.
Any Company Matching Contributions made with respect to Pre-tax
Contributions refunded pursuant to this Section 4.6 or to Section
4.7 shall be treated as a forfeiture.
(d) If a Participant who has had Pre-tax Contributions made on his
behalf for a taxable year of such Participant files with the Plan
Administrator, before December 1 of such year (or by such later
date as may be permitted by the Plan Administrator), a written
statement, on the appropriate form furnished or approved by the
Plan Administrator for this purpose, that states that he has
"elective deferrals" within the meaning of Section 402(g)(3) of the
Code for the taxable year in excess of the dollar limitation on
elective deferrals in effect for such taxable year and specifies
the amount of such excess the Participant claims as allocable to
this Plan, the amount of such excess, adjusted for income or loss
attributable to such excess elective deferral for such taxable
year, at the sole and absolute discretion of the Plan
Administrator, may be distributed to the Participant by April 15 of
the year following the year of the excess elective deferral.
<PAGE>
4.7 MAXIMUM AMOUNT OF PRE-TAX CONTRIBUTIONS. Subject to Section
4.6 and Section 415 of the Code, with respect to each Plan Year, the total
Pre-tax Contributions attributable to salary reduction on behalf of any
Participant shall not exceed $8,994, or such other amount provided by the
Secretary of the Treasury in accordance with Section 402(g)(5) of the Code,
but reduced by the amount of any other Pre-tax Contributions made by the
Participant to any other plan pursuant to a qualified cash or deferred
arrangement maintained by the Company under Section 401(k) of the Code. In
the event that the Pre-tax Contributions for any Participant exceed the
amount described above, the Plan Administrator shall return the portion of
the Pre-tax Contributions in excess of the amount described above, along with
any income allocable thereto and minus any loss allocable thereto for such
Plan Year, to the affected Participant, not later than the first April 15,
following the close of the taxable year in which such portion was
contributed.
4.8 DISTRIBUTIONS OF PRE-TAX CONTRIBUTIONS.
(a) GENERALLY. Accrued Benefits derived from Pre-tax Contributions may
not be distributed before the earlier of Retirement, death,
Disability, Termination of Employment, attainment of age 59-1/2,
or upon a finding of Financial Hardship.
(b) DISTRIBUTIONS UPON FINANCIAL HARDSHIP. Upon application by an
Employee due to his Financial Hardship and a finding of Financial
Hardship by the Plan Administrator, in accordance with a non-
discriminatory policy of the Plan Administrator, the Plan
Administrator shall direct the Trustee to make distributions to an
Employee of the balance (or any portion thereof) of his Pre-tax
Contribution Account, other than Company Supplemental
Contributions, if any, contributed to such account (and any
earnings accrued thereon) after December 31, 1988 and any earnings
accrued on Pre-tax Contributions after such date, in accordance
with the terms of this Plan in order to meet such Financial
Hardship.
4.9 LOANS. Nothing in this Plan shall preclude the Trustee from
making loans to a Participant to be secured by the balance in his Pre-tax
Contribution Account and After-tax Contribution Account. Such loans shall be
made in accordance with the terms of Section 16.8.
4.10 AFTER-TAX CONTRIBUTIONS GENERALLY. Subject to Sections 5.4
and 6.2 and Section 415 of the Code, each Participant may, but is not
required to, contribute each year to the Trust Fund an amount of After-tax
Contributions which, when combined with all previous after-tax employee
contributions made by such Participant to this Plan or any other qualified
deferred compensation plan maintained by the Company, will not exceed 10
percent of his Compensation for the Plan Year. Notwithstanding the
foregoing, in no event may the sum of the Pre-tax Contributions and the
After-tax Contributions by a Participant for any Plan Year exceed 12 percent
of the Participant's Compensation for the Plan Year (or such greater or
lesser percentage as the Plan Administrator may establish from time to time).
After-tax Contributions of Participants may be made by such methods and at
such intervals established under rules promulgated by the Plan Administrator,
but shall always be transmitted to the Trustee as soon as practicable after
the date on which such After-tax Contributions were made; however, in no
event shall contributions under this Section for any Plan Year be made later
than the date required under ERISA.
<PAGE>
4.11 CREDIT AND INVESTMENT OF AFTER-TAX CONTRIBUTIONS. After-tax
Contributions shall be credited by the Trustee, as soon as practicable after
receipt, to an After-tax Contribution Account maintained in the Participant's
name in the Trust. The After-tax Contributions to such account shall be
invested by the Trustee and may be commingled with, invested and administered
in the same manner as provided with respect to funds in a Pre-tax
Contribution Account.
4.12 DISTRIBUTIONS OF AFTER-TAX CONTRIBUTIONS. Each Participant
shall at all times have a fully vested and nonforfeitable right to the
separate After-tax Contribution Account established pursuant to Section 4.11.
The balance of such account shall be payable to him upon his Retirement,
death, or other Termination of Employment in a form available to a
Participant in accordance with Articles VIII and IX. If no election is made,
the balance of such account will be paid to him, or his Beneficiary, in a
lump sum.
4.13 WITHDRAWAL OF AFTER-TAX CONTRIBUTIONS. By giving advance
notice at a time and in a manner specified by the Plan Administrator,
effective as of any Valuation Date, a Participant may withdraw any portion or
all of his separate After-tax Contribution Account. Such notice shall be in
writing and shall specify the amount to be withdrawn either in dollars,
number of shares or percentage of total account value as of the effective
date of the notice or shall be given in some other suitable manner. Such
notice shall not be revocable or amendable after delivery to the Plan
Administrator; provided, however, that it shall be revoked automatically upon
the Retirement, death, or other Termination of Employment of the Participant
prior to the effective date of such notice. The Trustee shall pay the amount
withdrawn to the Participant requesting such withdrawal and shall charge said
Participant's separate After-tax Contribution Account with the amount of the
withdrawal as of the date of the withdrawal. As a result of any withdrawal,
the Participant's right to make After-tax Contributions shall be suspended
for a period of one calendar year from the date of such withdrawal.
<PAGE>
ARTICLE V. COMPANY CONTRIBUTIONS
5.1 COMPANY MATCHING CONTRIBUTIONS ON PRE-TAX CONTRIBUTIONS. Each
Plan Year the Company shall make a contribution to the Plan, which shall be
allocated to the separate account of each Participant who (a) directs that
Pre-tax Contributions be made under Section 4.3 for the Plan Year and (b) is
an Active Participant or is described in section 5.3 for such Plan Year.
5.2 AMOUNT OF COMPANY MATCHING CONTRIBUTIONS. Subject to Sections
5.4 and 6.2, and the provisions of Articles XIII, XIV, and XV, the Company
shall contribute with respect to Pre-tax Contributions the amounts determined
under this Section 5.2 as Company Matching Contributions:
(a) If an Acquisition Loan has been made pursuant to Section 5.6 and
any amount thereof remains outstanding, the Company shall
contribute to the Trust Fund at the time determined by the Plan
Administrator a cash amount sufficient to pay the Company's
allocable share of the remaining principal and interest due during
such Plan Year under the terms of any Acquisition Loan then
outstanding (or, if greater, an amount necessary to provide the
allocations described below). Such contributions shall be net of
any dividends paid on any shares of Common Stock used to repay any
such Acquisition Loan on a timely basis. In no event shall such
payment be made later than the due date (including extensions) for
filing federal income tax returns for the Company for the taxable
year corresponding to such Plan Year.
Regardless of the times at which such contributions are made, there
shall be allocated to the Company Matching Contribution Account of
each Active Participant who (1) is an Employee on the last day of
such Plan Year or (2) is described in Section 5.3 that number of
shares of Common Stock equal to the product of such Active
Participant's Pre-tax Contributions for such Plan Year not in
excess of 4 percent of such Active Participant's Compensation for
such Plan Year (A) multiplied by .75 and (B) divided by the
arithmetic average of the closing prices of a share of Common Stock
on the first trading day on or after January 1, April 1, July 1,
October 1, and December 31 of such Plan Year as reported on the
principal securities market on which the Common Stock is then
traded.
In the event that the loan payment described above does not release
from the Stock Suspense Trust Account a sufficient number of shares
of Common Stock to provide the allocations described above, the
Company, in its sole and absolute discretion, shall either (1)
contribute to the Trust Fund at the time determined by the Plan
Administrator a cash amount sufficient to prepay a portion of the
Acquisition Loan which would release the necessary additional
shares, (2) contribute to the Company Matching Contribution Account
of each affected Participant cash or Common Stock with a fair
market value equal to the fair market value of the necessary
additional shares, or (3) effect a combination of the actions
described in paragraph (1) and (2). Such contribution shall be
made no later than the due date (including extensions) for filing
federal income tax returns for the Company for the taxable year
corresponding to such Plan Year.
In the event that the loan payment described above releases from
the Stock Suspense Trust Account shares of Common Stock that exceed
the total number of shares required to provide the allocations
described above and the allocations described in Section 5.15,
unless otherwise directed by the Plan Administrator, such excess
shares of Common Stock shall be applied as additional Company
Matching Contributions pursuant to this subsection.
<PAGE>
(b) If no Acquisition Loan is in effect, the Company shall contribute
each Plan Year to the Company Matching Contribution Account of each
Active Participant who (1) is an Employee of the Company on the
last day of such Plan Year or (2) is described in Section 5.3 for
such Plan Year a Company Matching Contribution equal to 75 percent
of such Active Participant's Pre-tax Contributions for such Plan
Year, provided that, in no event, shall the Company Matching
Contributions made on behalf of any Participant for any Plan Year
exceed 3 percent of such Active Participant's Compensation for such
Plan Year.
5.3 ALLOCATION UPON RETIREMENT OR DEATH. If during the Plan Year a
Participant's employment with the Company is terminated due to death,
Disability, or Retirement, there shall be allocated to the Participant's
Matching Contribution Account the amount of Company Matching Contributions
described in Section 5.2.
5.4 LIMITATION ON COMPANY MATCHING CONTRIBUTIONS AND AFTER-TAX
CONTRIBUTIONS.
(a) Any other provision of the Plan to the contrary notwithstanding,
the Plan Administrator shall take such action as it deems
appropriate to limit the amount of After-tax Contributions made by,
and Company Matching Contributions made on behalf of, each Highly
Compensated Employee each Plan Year to the extent necessary to
ensure that either of the following tests is satisfied:
(1) The "Average Contribution Percentage" (as hereinafter defined)
for the group of Participants who are Highly Compensated
Employees is not more than the Average Contribution Percentage
for all Participants who are Non-Restricted Employees
multiplied by 1.25; or
(2) Both
(A) The excess of the Average Contribution Percentage for the
group of Participants who are Highly Compensated
Employees over that of all Participants who are Non-
Restricted Employees is not more than two percentage
points, and
(B) The Average Contribution Percentage for the group of
Participants who are Highly Compensated Employees is not
more than the Average Contribution Percentage of all
Participants who are Non-Restricted Employees multiplied
by 2.0;
or such lesser amount as the Secretary of the Treasury shall
prescribe to prevent the multiple use of this alternative
limitation with respect to the group of Participants who are
Highly Compensated Employees.
(b) For purposes of this Section 5.4:
(1) The term "Contribution Percentage" means, with respect to a
Participant, the ratio (expressed as a percentage) of (A) the
sum of his After-tax Contributions, Company Contributions
allocated to his Company Matching Contribution Account, and,
to the extent elected by the Plan Administrator in accordance
with applicable regulations, his Pre-tax Contributions to (B)
the compensation (within the meaning of Section 414(s) of the
Code, but not exceeding the maximum amount that may be
recognized under Section 401(a)(17) of the Code) of such
Participant for such Plan Year determined without regard to
whether the Participant was an Active Participant. Without
limiting the foregoing, the fair market value of the shares of
Common Stock allocated to a Participant's Account under
<PAGE>
Section 5.2(a) in conjunction with an Acquisition Loan shall,
for purposes of determining the Contribution Percentage, be
treated as a Company Contribution allocated to the
Participant's Company Matching Contribution Account. The
Contribution Percentage for a Plan Year for an eligible
Participant who does not have After-tax Contributions or
Company Matching Contributions allocated to his Accounts is
zero.
(2) The term "Average Contribution Percentage" means the
arithmetic average (expressed as a percentage) of the
Contribution Percentages for all persons in the specified
groups. The specified groups are the group consisting of all
Participants who are Highly Compensated Employees and the
group consisting of Participants who are Non-Restricted
Employees.
(3) The Contribution Percentage for a Participant who is a Highly
Compensated Employee for the Plan Year who is eligible to make
after-tax employee contributions, or to have matching employer
contributions (within the meaning of Section 401(m)(4)(A) of
the Code) made on his behalf under two or more plans or
arrangements that are maintained by the Company and described
in Section 401(a) of the Code shall be determined for purposes
of this subsection (b) as if the total of such employee
contributions and matching contributions were made under this
Plan.
(4) In determining the Contribution Percentage of a Participant
who is a Highly Compensated Employee, the After-tax
Contributions, Company Matching Contributions and compensation
(within the meaning of Section 414(s) of the Code) of such
Participant shall include After-tax Contributions, Company
Matching Contributions, and compensation made by or on behalf
of any individual who is a Family Member, and Family Members
shall be disregarded as separate employees in determining the
Contribution Percentage both for Participants who are Highly
Compensated Employees and for Participants who are Non-
Restricted Employees.
(5) Without limiting the generality of the foregoing, Company
Matching Contributions made pursuant to Section 5.2(a) (and
any allocations of Common Stock treated as though Company
Matching Contributions) shall be tested separately from any
After-tax Contributions or any Company Matching Contributions
made under Section 5.2(b). Company Supplemental Contributions
shall be treated like any Company Matching Contributions which
they supplement.
(6) The Contribution Percentage for any Participant shall be
determined by including all matching and employee
contributions (within the meaning of Section 401(m) of the
Code) made under any other plans that are aggregated with the
Plan for purposes of Sections 401(a)(4) and 410(b) of the
Code.
(7) In the sole and absolute discretion of the Plan Administrator,
the Contribution Percentage for a Participant may be
determined by taking into account all or part of his Pre-tax
Contributions, provided that the requirements in Treasury
Regulation Section 1.401(m)-1(b)(5) are satisfied.
<PAGE>
(c) If the aggregate amount of After-tax Contributions and Company
Matching Contributions for the Plan Year made by or on behalf of
Participants who are Highly Compensated Employees exceeds the
maximum amount permitted under the limits of this Section 5.4 for
such Plan Year, then the amount of such excess (determined by
reducing contributions on behalf of Participants who are Highly
Compensated Employees in order of Contribution Percentages
beginning with the highest of such percentages) (hereinafter
referred to as "Excess Aggregate Contributions"), plus any income
or minus any loss allocable thereto, shall be forfeited to the
extent not vested or, if vested, distributed no later than the last
day of the succeeding Plan Year to the Participants on whose behalf
such excess contributions were made. The amount of Excess
Aggregate Contributions to be distributed to each such Participant
(or forfeited by the Participant to the extent the portion of
excess contributions represents Company Matching Contributions
which are not vested) shall be determined on the basis of the
portion, if any, of the Excess Aggregate Contributions attributable
to each of such Participants. Distribution (or forfeiture) of
Excess Aggregate Contributions allocable to a Participant shall be
made first through a return of After-tax Contributions and then
forfeitures or, if not forfeitable, distribution of Company
Matching Contributions on a pro rata basis. The amount of any
income or loss allocable to Excess Aggregate Contributions shall be
determined by the Plan Administrator in accordance with applicable
rules and regulations, but shall not include any amounts
attributable to any period after the end of the Plan Year for which
the contributions were made.
(d) In no event shall Pre-tax Contributions, After-tax Contributions,
and Company Matching Contributions made under Section 5.2(b) exceed
the limit on contributions described in Treasury Regulation Section
1.401(m)-2(b) where multiple use of the alternative limitation
contained in subsection (a)(2) and in Section 4.6(a)(2) occurs. If
contributions made under the Plan would otherwise exceed this
limit, the Plan Administrator shall reduce After-tax Contributions
and Matching Contributions for all affected Highly Compensated
Employees in the manner described in subsection (c).
Notwithstanding distribution or forfeiture pursuant to the
foregoing provisions, Excess Aggregate Contributions shall be
treated as annual additions (as defined in Section 415 of the Code)
for purposes of Section 6.2. Any amounts forfeited pursuant to the
foregoing provisions shall be applied as a forfeiture pursuant to
Section 5.13(a).
Determination of Excess Aggregate Contributions pursuant to this Section 5.4
shall be made only after first determining any excess elective deferrals
pursuant to Section 4.6(d) and then determining any Excess Contributions
pursuant to Section 4.6(c).
Distributions (or forfeitures) of a Participant's Excess Aggregate
Contributions pursuant to this Section 5.4 shall be made pro rata from the
funds in which such Excess Aggregate Contributions are invested.
5.5 DEPOSIT OF COMPANY CONTRIBUTIONS. All Company Contributions
made to this Plan on behalf of Participants shall be delivered to the Trustee
in the form of cash or shares of Common Stock, provided that any Company
Contributions made to repay an Acquisition Loan shall be made solely in cash.
5.6 ACQUISITION LOANS.
(a) AUTHORITY TO MAKE ACQUISITION LOANS. The Company may direct the
Trustee to enter into Acquisition Loans on behalf of the Plan to
acquire Common Stock.
<PAGE>
(b) APPLICATION OF PROCEEDS. The Trustee shall use the proceeds of any
Acquisition Loan within a reasonable time after their receipt to
purchase Common Stock. Such purchases may be made on the open
market, from the Company or in privately negotiated transactions,
as directed by the Company at the time it agrees to guarantee,
assume or make the Acquisition Loan, but the Trustee shall
determine the timing of, and the manner in which, any open market
purchases directed by the Company shall be effected.
Notwithstanding the foregoing, the proceeds of any Acquisition Loan
may also be used to repay a prior Acquisition Loan, if so directed
by the Company.
(c) SECURITY FOR ACQUISITION LOANS. In no event shall the terms of any
Acquisition Loan provide or permit recourse of the lender against
the Trust Fund or any assets of the Trust Fund other than the
shares of Common Stock acquired with the proceeds of such
Acquisition Loan (or shares of Common Stock used as collateral on a
prior Acquisition Loan repaid with the current Acquisition Loan),
Company Matching Contributions and Company Profit Sharing
Contributions made in cash to repay such Acquisition Loan and
dividends payable on shares of Common Stock acquired with the
proceeds of an Acquisition Loan. Notwithstanding the foregoing,
shares of Common Stock allocated to Participants' Accounts pursuant
to the Plan shall no longer be subject to recourse by the lender
under the terms of any Acquisition Loan, but any dividends payable
thereon may be used to repay such Acquisition Loan in accordance
with the terms of the Plan and applicable law.
(d) CHARACTER OF PLAN. Sections 5.6, 5.7, 5.8, and 5.9 (and so much of
Sections 5.1 and 5.2 (or any other Section of the Plan) as are
applicable) shall constitute an employee stock ownership plan that
shall consist primarily of shares of Common Stock, which constitute
"qualifying employer securities" as defined in Section 4975(e)(8)
of the Code.
(e) OPTION TO HAVE COMPANY PURCHASE COMMON STOCK IF COMMON STOCK IS NOT
READILY TRADED. Any Participant or Beneficiary who receives any
Common Stock pursuant to Articles VIII and IX shall have the right
to require the Company to purchase such Common Stock for its
current fair market value (the "Put Right") as described in this
subsection (e). This Put Right shall apply only to the extent that
the Common Stock is not readily tradable on an established
securities market in accordance with federal and state securities
laws and regulations. The Put Right shall be exercisable by
written notice to the Committee during the first 60 days after the
Common Stock is distributed by the Plan or, if not exercised in
that period, during the first 60 days of the next Plan Year
following the year of distribution. If the Put Right is exercised,
the Trustee may, if so directed by the Committee, assume the
Company's rights and obligations with respect to purchasing the
Common Stock, provided that the Company provides the Trustee with
such funds as and when needed to effect such purchases. The
payment terms under a put option must be reasonable. The deferral
of payment by the Company is reasonable if the underlying payment
terms provide such Participant or Beneficiary with adequate
security and a reasonable rate of interest for any credit extended,
for commencement of payment within 30 days after the date the put
option is exercised and a term of payment not exceeding five years.
Nothing contained herein shall be deemed to obligate the Company to
register any Common Stock under any federal or state securities law
or to create a public market to facilitate transferability of
Common Stock. The Put Right set forth in this subsection (e) shall
be nonterminable; the Put Right shall continue in effect to the
extent provided herein even if the Acquisition Loan has been repaid
or the applicable portion of this Plan ceases to be a qualified
<PAGE>
employee stock ownership plan within the meaning of Section
4975(e)(7) of the Code. Except as provided in this subsection (e),
no share of Common Stock acquired with the proceeds of an
Acquisition Loan may be subject to a put, call, or other option, or
buy-sell or similar arrangement while held by or distributed from
the Plan, whether or not the Plan ceases to be an employee stock
ownership plan within the meaning of Section 4975(e)(7) of the
Code.
5.7 STOCK SUSPENSE TRUST ACCOUNT. Unless otherwise directed by
the Plan Administrator in his sole and absolute discretion, all shares of
Common Stock purchased by the Trust with the proceeds of any Acquisition Loan
shall for Plan purposes be held in a separate Stock Suspense Trust Account in
respect of such Acquisition Loan. Unless otherwise directed by the Plan
Administrator in his sole and absolute discretion, all dividends on shares of
Common Stock held in a Stock Suspense Trust Account, and any earnings
thereon, shall be used to pay principal and interest on the Acquisition Loan
made to finance the purchase of such shares. Shares of Common Stock shall be
withdrawn from a Stock Suspense Trust Account as required to satisfy the
provisions of Sections 5.1, 5.2, 5.15, and 6.1. Withdrawals from a Stock
Suspense Account shall be made over the term of the applicable Acquisition
Loan and shall be made at least as rapidly as is required under Section 4975
of the Code and Section 406 of ERISA.
Upon any payment of principal and/or interest on any Acquisition Loan
(whether a regularly scheduled payment or a prepayment), the number of shares
of Common Stock released from the Stock Suspense Trust Account shall be equal
to the number of shares of Common Stock held in the Stock Suspense Trust
Account immediately prior to the payment multiplied by a fraction:
(a) the numerator of which is the amount of principal and interest paid
with respect to such payment; and
(b) the denominator of which is the sum of the numerator plus the
principal and interest becoming due and payable in the future with
respect to such Acquisition Loan, determined on the basis of the
best available annual projections of the total principal and
interest payable over the life of the Acquisition Loan.
In determining the number of shares to be released from the Stock Suspense
Trust Account:
(1) the number of future years under the Acquisition Loan must be
definitely ascertainable and must be determined without taking
into account any possible extensions or renewal periods;
(2) if the Acquisition Loan provides for a variable interest rate,
the interest to be paid for all future Plan Years must be
computed by using the interest rate applicable as of the end
of the Plan Year for which the determination is being made;
and
(3) if the Common Stock allocated to the Stock Suspense Trust
Account includes more than one class of shares, the number of
shares of each class to be withdrawn for a Plan Year from the
Stock Suspense Trust Account must be determined by applying
the applicable fraction provided above to each such class.
5.8 ALLOCATIONS FROM STOCK SUSPENSE TRUST ACCOUNT. All shares of
Common Stock withdrawn from a Stock Suspense Trust Account in accordance with
Section 5.7 by reason of any Company Contributions made under Sections 5.1,
5.2, 5.15, and 6.1 shall be allocated to Participants as provided therein.
<PAGE>
5.9 DIVIDENDS ON ALLOCATED COMMON STOCK. Notwithstanding anything
else in the Plan to the contrary, unless otherwise directed by the Plan
Administrator in his sole and absolute discretion, dividends payable on
shares of Common Stock acquired pursuant to an Acquisition Loan (or shares
received in substitution of such shares) and allocated to a Participant's
Company Matching Contribution Account or Company Profit Sharing Contribution
Account shall be used to repay any outstanding Acquisition Loan in exchange
for an appropriate amount of Common Stock determined in accordance with the
requirements of the Code and otherwise applicable law. Any earnings payable
on such dividends after exchange in accordance with the preceding
sentence shall be applied toward paying expenses of the Plan. If directed by
the Plan Administrator in his sole and absolute discretion, such dividends
may instead be paid to the Participant (or paid to the Trust and distributed
to the Participant within the time period required to deduct such dividends
under Section 404 of the Code).
5.10 TIME OF CONTRIBUTIONS. All contributions shall be paid to the
Trustee not later than the time prescribed by the law for filing of the
Company's federal income tax return for the applicable Fiscal Year (including
extensions thereof).
5.11 FOR EXCLUSIVE BENEFIT OF EMPLOYEES. Except as otherwise
provided below, all contributions by the Company to the Trust Fund shall be
irrevocable and said contributions together with any income therefrom shall
be retained for the exclusive purpose of providing benefits for Participants
and their Beneficiaries, and for defraying administrative expenses to the
extent not paid by the Company. No Company Contributions shall revert to, or
inure to the benefit of, the Company.
Notwithstanding anything herein to the contrary, upon the Company's request:
(a) If a Company Contribution is made due to a mistake of fact, such
contribution shall revert back to the Company, but only if such
reversion occurs within one calendar year after such mistake is
discovered.
(b) If a contribution is conditioned upon the deductibility of the
contribution under Section 404 of the Code, then, to the extent
the deduction is disallowed, said contribution shall revert back to
the Company within one year after the disallowance of the
deduction.
5.12 VESTING OF COMPANY MATCHING AND PROFIT SHARING CONTRIBUTION
ACCOUNTS.
(a) ON OCTOBER 1, 1990. Each Employee who, as of October 1, 1990,
either had a balance in his Account or was making Employee
Contributions shall be fully vested in his Company Matching
Contribution Account and his Company Profit Sharing Account.
(b) AFTER OCTOBER 1, 1990. Subject to Sections 7.1 and 7.2, each
Employee not described in subsection (a) shall vest in his Company
Matching Contribution Account and his Company Profit Sharing
Contribution Account in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED PERCENTAGE
Less than 3 years None
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 years or more 100%
<PAGE>
(c) AT NORMAL RETIREMENT DATE. Notwithstanding anything else contained
herein to the contrary, a Participant's Accrued Benefit shall be
fully vested as of such Participant's Normal Retirement Date.
5.13 FORFEITURES.
(a) TREATMENT OF FORFEITABLE AMOUNTS. Each Employee who suffers a
Termination of Employment prior to Retirement or death shall
forfeit the unvested portion of his Company Matching Contribution
Account and his Company Profit Sharing Contribution Account as of
the Valuation Date coincident with or next following the date of
such termination. Any amounts forfeited pursuant to this
subsection shall be--
(1) used to reduce Company Matching Contributions and Company
Profit Sharing Contributions in the Plan Year of forfeiture,
in the event that the loan payment described in Sections
5.2(a) and 5.15(b) does not release from the Stock Suspense
Trust Account a sufficient number of shares of Common Stock to
provide the allocations described in those Sections; or
(2) in all other cases, applied as additional Company Matching
Contributions or Company Profit Sharing Contributions in the
Plan Year.
(b) RESTORATION AFTER DISTRIBUTION. If a Participant receives a
distribution upon a Termination of Employment that is less than the
value of the Participant's Accounts and is later reemployed by the
Company prior to incurring five consecutive One Year Breaks-in-
Service, the portion of the Participant's Company Matching
Contribution Account and Company Profit Sharing Contribution
Account that is forfeited under subsection (a) shall be restored if
the Participant repays to the Plan the full amount of his
distribution. This repayment must be made within five years after
the date of the Participant's reemployment.
(c) RESTORATION AFTER NO DISTRIBUTION. If a Participant does not
receive a distribution of the vested portion of his Accounts upon a
Termination of Employment, the portion of the Participant's Company
Matching Contribution Account and Company Profit Sharing
Contribution Account that is forfeited under subsection (a) shall
be restored if the Participant is reemployed by the Company prior
to incurring five or more consecutive One Year Breaks-in-Service.
(d) FIVE CONSECUTIVE ONE YEAR BREAKS-IN-SERVICE. If a Participant is
not reemployed by the Company prior to incurring five consecutive
One Year Breaks-in-Service, the Participant shall permanently
forfeit the portion of the Participant's Company Matching
Contribution Account and Company Profit Sharing Contribution
Account that was not vested at the time of his Termination of
Employment.
5.14 CHANGE OF CONTROL. In the event of a Change of Control, the
Company shall pay the remaining principal and interest on any Acquisition
Loan outstanding and shall allocate, subject to Sections 5.4 and 6.2, that
number of shares of Common Stock in proportion to each Active Participant's
Pre-tax Contributions for the then current Plan Year.
5.15 COMPANY PROFIT SHARING CONTRIBUTIONS. Subject to Section 6.2,
and the provisions of Articles XIII, XIV, and XV, the Company shall
contribute the amounts determined under this Section 5.15 as Company Profit
Sharing Contributions:
<PAGE>
(a) For each Plan Year beginning on or after January 1, 1994, there
shall be allocated to the Company Profit Sharing Contribution
Account of each eligible Participant (as defined in subsection (e))
a Company Profit Sharing Contribution equal to the number of
shares of Common Stock determined by dividing:
(1) the eligible Participant's Compensation (as defined in
subsection (e)) multiplied by the applicable percentage (as
defined in subsection (e)); by
(2) the arithmetic average of the closing prices of a share of
Common Stock on the first trading day on or after January 1,
April 1, July 1, October 1, and December 31 of such Plan Year
as reported on the principal securities market on which the
Common Stock is then traded.
(b) If an Acquisition Loan has been made pursuant to Section 5.6 and
any amount thereof remains outstanding, the Company shall
contribute to the Trust Fund at the time determined by the Plan
Administrator a cash amount sufficient to pay the Company's
allocable share of the remaining principal and interest due during
such Plan Year under the terms of the Acquisition Loan in
accordance with the terms of Section 5.2(a). Shares of Common
Stock withdrawn from a Stock Suspense Trust Account upon payment of
an Acquisition Loan, as provided in Section 5.7, shall be allocated
to eligible Participants pursuant to subsection (a) to the extent
that these shares exceed the number of shares required to provide
the allocations of Company Matching Contributions described in
Section 5.2(a).
(c) In the event that the loan payment described above does not release
from the Stock Suspense Trust Account a sufficient number of shares
of Common Stock to provide the allocations described above, the
Company, in its sole and absolute discretion, shall either (1)
contribute to the Trust Fund at the time determined by the Plan
Administrator a cash amount sufficient to prepay a portion of the
Acquisition Loan which would release the necessary additional
shares, (2) contribute to the Company Profit Sharing Contribution
Account of each affected Participant cash or Common Stock with a
fair market value equal to the fair market value of the necessary
additional shares, or (3) effect a combination of the actions
described in paragraph (1) and (2).
(d) If no Acquisition Loan is in effect, the Company shall contribute
each Plan Year to the Company Profit Sharing Contribution Account
of each eligible Participant a Company Profit Sharing Contribution
in the amount determined under subsection (a).
(e) For purposes of this Section:
(1) "Applicable percentage" means a percentage up to 4 percent,
selected on the basis of the Company's financial performance
as measured against the standards determined by the
Compensation and Management Succession Committee of the Board
of Directors for the Fiscal Year. If the Company fails to
satisfy any of the performance standards established by this
Committee, the applicable percentage shall be zero, and no
Profit Sharing Contributions shall be allocated to
Participants.
(2) "Compensation" means the base pay paid by the Company to an
eligible Participant in the Plan Year, specifically excluding
any overtime pay and other special items of compensation.
<PAGE>
(3) "Eligible Participant" means, for a Plan Year, a Participant
who:
(A) Is employed from January 1 through December 31 for the
Plan Year;
(B) Completes 1,000 or more Hours of Service during the Plan
Year; and
(C) Is not currently eligible for the Annual Incentive Plan
or any other bonus program maintained by the Company.
Notwithstanding the foregoing, a Participant described in
subparagraph (C) above shall be an eligible Participant if his
employment with the Company is terminated during the Plan
Year due to death, Disability, or Retirement.
<PAGE>
ARTICLE VI. MISCELLANEOUS CONTRIBUTION RULES
6.1 COMPANY SUPPLEMENTAL CONTRIBUTIONS. To comply with the
discrimination limitations contained in Sections 4.6 and 5.4 of the Plan
without requiring a distribution (or forfeiture) of Excess Contributions
described in Section 4.6 or Excess Aggregate Contributions described in
Section 5.4, the Plan Administrator in his sole and absolute discretion may
require that the Company make Company Supplemental Contributions which meet
the requirements of the Code on behalf of Active Participants who are Non-
Restricted Employees. Without limiting the generality of the foregoing, the
Plan Administrator in his sole and absolute discretion may require that the
Company make such Company Supplemental Contributions on behalf of Non-
Restricted Employees to assure compliance with Section 401(a)(4) or Section
410 of the Code. The Plan Administrator shall designate Company Supplemental
Contributions as Pre-tax Contributions, After-tax Contributions, Company
Matching Contributions, or Company Profit Sharing Contributions for purposes
of Sections 4.6, 5.4, and 5.15 and Articles VII and VIII. Without limiting
the foregoing, if an Acquisition Loan has been made pursuant to Section 5.6,
the Plan Administrator in his sole and absolute discretion may require that
any Company Supplemental Contributions to be made on behalf of a Participant
shall be applied to repay principal and interest on such Acquisition Loan, so
long as there is allocated from the Stock Suspense Trust Account to the
appropriate Account of each such Participant a correspondingly proportionate
amount of Common Stock.
Notwithstanding the foregoing, Company Supplemental Contributions may be
designated as Pre-tax Contributions for purposes of Section 4.6 only if (a)
the contributions are nonforfeitable when made; (b) the contributions can be
distributed to the Participant only in the circumstances described in Section
4.8; and (c) the Plan satisfies the requirements of Treasury Regulation
Section 1.401(k)-1(b)(5). Any Company Supplemental Contributions made other
than as Company Matching Contributions may be designated as After-tax
Contributions or Company Matching Contributions for purposes of Section 5.4
only if (1) the contributions are nonforfeitable when made; (2) the
contributions can be distributed to the Participant only in the circumstances
described in Section 4.8, provided that these distributions are otherwise
permitted under the terms of the Plan; and (3) the Plan satisfies the
requirements in Treasury Regulation Section 1.401(m)-1(b)(5).
6.2 MAXIMUM CONTRIBUTIONS.
(a) LIMITATIONS ON PARTICIPANT'S ANNUAL ADDITIONS. Notwithstanding any
provision of the Plan to the contrary, in no event in any Plan Year
shall the annual addition (as defined in Section 415 of the Code)
on behalf of any Participant exceed the limitations described in
Section 415(c) of the Code. To the extent necessary to prevent
disqualification of the Plan under the provisions of Section 415 of
the Code, contributions made by or on behalf of a Participant under
the Plan shall be reduced in the following order, but only to the
extent necessary to meet the limitations:
(1) After-tax Contributions that are Company Supplemental
Contributions (as described in Section 6.1);
(2) Pre-tax Contributions that are Supplemental Contributions (as
described in Section 6.1);
(3) After-tax Contributions;
(4) Unmatched Pre-tax Contributions;
(5) Matched Pre-tax Contributions and the corresponding Company
Matching Contributions; and
(6) Company Profit Sharing Contributions.
<PAGE>
(b) COMBINED PLAN LIMITATION. If a Participant participates, or
previously participated, in one or more defined benefit plans (as
defined in Section 414(j) of the Code) maintained by the
Aggregation Group (as defined in Article XV) the sum of the defined
contribution plan fraction (as defined in Section 415(e) of the
Code) and the defined benefit plan fraction (as defined in Section
415(e) of the Code) shall not exceed 1.0 as of the end of any Plan
Year. The "1.25" referred to in Sections 415(e)(2) and 415(e)(3)
of the Code and applied in this Section 6.2(b) shall be reduced to
1.0 for any Plan Year in which the Plan is Top-Heavy (as defined in
Article XV). To the extent required to satisfy this limitation the
Participant's projected annual benefit under such defined benefit
plan(s) shall be reduced.
(c) REDUCTION IN ANNUAL ADDITIONS. If in any Plan Year a Participant's
annual addition (as defined in Section 415 of the Code) exceeds the
limitation determined above, the excess shall not be allocated to
the Member's accounts in any defined contribution plan. If the
excess is vested, the excess shall be returned to the Participant
to the extent permitted under Section 415 of the Code. If some or
all of the excess is not vested, or if some or all of the excess
cannot be returned to the Participant under controlling
regulations, the portion that cannot be returned shall be placed in
a suspense account.
The amount held in the suspense account shall be used to reduce
contributions for the next Plan Year. The suspense account shall
share in the gains and losses of the Trust Fund on the same basis
as other Accounts. The above reductions shall be applied first to
any other defined contribution plan maintained by the Company, and
then to this Plan.
6.3 ROLLOVER PROVISION. An Employee, who is now or who becomes a
Participant in this Plan, may deposit in the Trust all the assets (other than
those attributable to his After-tax Contributions, if any) distributed to him
as an "eligible rollover distribution" described in Section 402(c) of the
Code, provided that the contribution of such amounts to the Plan satisfies
the applicable requirements of Code Section 402(c). Each Participant shall
always be 100 percent vested in the amount of such assets, deposited by or
for the benefit of the Employee, which the Trustee accepts on his behalf.
The amount of these assets and any increments thereon shall be credited to a
separate account for the benefit of the Participant and shall be adjusted
annually in accordance with generally accepted accounting principles. Such
amounts shall in no way be considered as amounts credited to a Participant's
account for calculating the limitations set forth in this Article VI or
Section 415(c) of the Code.
Notwithstanding anything herein to the contrary, this Plan shall not accept
any direct or indirect transfers from a defined benefit plan, money purchase
plan (including a target benefit plan), stock bonus or profit sharing plan
which would have otherwise provided for a life annuity form of payment to the
Participant.
6.4 ACCOUNT ADJUSTMENTS FOR INCOME OR LOSS. The income or loss of
the Trust Fund as of each Valuation Date shall be allocated to the Accounts
of Participants, former Participants, and Beneficiaries who had unpaid
balances in their Accounts on each Valuation Date in proportion to the
weighted averages of the balances in their Accounts during the six-month
period immediately preceding each Valuation Date but taking into account the
specific investments made under the Plan with respect to the assets in such
Accounts, with any expenses allocated to particular investments borne solely
by the Accounts participating in such investments. Each valuation shall be
based on the fair market value of the assets in the Trust Fund on each
Valuation Date.
<PAGE>
For the purposes of this Section 6.4, any dividends which are payable on
shares of Common Stock which have been allocated to any Participant's Pre-tax
Contribution Account, After-tax Contribution Account, Rollover Account, or
the Company Matching Contribution Account prior to January 1, 1990, shall be
allocated in accordance with the provisions of the preceding paragraph.
Any dividends which are payable on shares of Common Stock which have been
allocated or contributed for Plan Years commencing on and after January 1,
1990, as Company Matching Contributions or as Company Profit Sharing
Contributions shall be allocated as of the end of the Plan Year. These
dividends shall be allocated to the accounts of Participants or former
Participants who have such balances in their Company Matching Contribution
Account and Company Profit Sharing Contribution Account as of the end of the
Plan Year; such allocation shall be on the basis of shares of Common Stock in
the account as of the beginning of the Plan Year, less any distributions and
forfeitures thereof during the Plan Year. Any dividends on shares of Common
Stock attributable to Company Supplemental Contributions treated as Company
Matching Contributions or as Company Profit Sharing Contributions shall be
included in this allocation.
<PAGE>
ARTICLE VII. BENEFITS - AMOUNT OF DISTRIBUTION
7.1 AMOUNT OF DISTRIBUTION UPON RETIREMENT. The Participant's
Accrued Benefit shall be determined as of the Valuation Date coincident with
or next following the date of such Participant's Retirement. Such
Participant's vested Accrued Benefit will be distributable in accordance with
Section 8.1.
7.2 AMOUNT OF DISTRIBUTION UPON DEATH. Upon the death of a
Participant before Retirement or other Termination of Employment, the balance
of such Participant's Accrued Benefit determined as of the Valuation Date
coincident with or next following the Participant's death will become fully
vested and distributable in accordance with Section 8.2 to or for the benefit
of the Participant's Beneficiary.
(a) DESIGNATION OF BENEFICIARY. If a Participant is married at death,
the Participant's Beneficiary must be the Participant's spouse,
unless such spouse, on a form provided by the Plan Administrator,
consents to the Participant naming another Beneficiary or
Beneficiaries, and such spouse's consent acknowledges the effect of
such consent and is witnessed by a notary public. In the event
that the Participant's spouse has consented on a form as herein
provided, such spouse's consent shall be irrevocable, except that
the Participant may change his designation of Beneficiary from time
to time only after again obtaining a new spousal consent and filing
a new Beneficiary designation form with the Plan Administrator. If
the Participant is not married, the Participant may change his
designation of Beneficiary from time to time by filing a new
Beneficiary designation form with the Plan Administrator. If a
Participant becomes divorced from a spouse who is named as the
Participant's Beneficiary, the Beneficiary designation will become
invalid automatically unless and until the Participant affirms the
designation in writing. In all events, no designation of
Beneficiary or change of Beneficiary shall be effective until filed
with the Plan Administrator. If a Participant shall fail to file a
valid Beneficiary designation form, or if all designated
Beneficiaries shall have predeceased the Participant, the Plan
Administrator shall direct the Trustee to distribute such
Participant's Accrued Benefit to relatives living on the
Participant's date of death in the following order of priority:
(1) spouse, (2) children, including adopted children and step-
children, in equal shares, (3) parents, in equal shares, (4)
brothers and sisters, in equal shares, or (5) Participant's estate.
The Plan Administrator is expressly authorized to require, in his
sole and absolute discretion, a judicial determination of the
proper Beneficiaries where a Participant has failed to file a valid
Beneficiary designation form. Whenever the rights of a Participant
are stated or limited in the Plan, his Beneficiaries shall be bound
thereby.
(b) FORMER PARTICIPANTS. Upon the death of a former Participant who
has terminated his employment but has not received a distribution
of his account, his Beneficiary shall be entitled to such former
Participant's Accrued Benefit determined in accordance with Section
7.3 which had not been distributed to or on behalf of the former
Participant at the time of his death. Such amount shall be
distributed to or for the benefit of any surviving Beneficiary in
accordance with Section 8.2.
(c) PROOF OF DEATH. The Plan Administrator may require such proper
proof of death and such evidence of right of any person to receive
payment of the distributable amounts as a result of the death of a
Participant or former Participant as the Trustee may deem
desirable. The Plan Administrator's determination of death and/or
the right of any person to receive payment under this subsection
<PAGE>
shall be conclusive.
7.3 AMOUNT OF DISTRIBUTION UPON TERMINATION OF EMPLOYMENT PRIOR TO
RETIREMENT OR DEATH. Upon a Participant's Termination of Employment with the
Company prior to such Participant's Retirement or death, he shall be entitled
to receive that portion of his Accrued Benefit determined as of the Valuation
Date coincident with or next following the date of such Participant's
Termination of Employment that has become vested in accordance with Sections
4.4, 4.12 and 5.12. Such amount will become distributable in accordance with
Section 8.3.
7.4 IN-SERVICE WITHDRAWAL.
(a) GENERAL RULE. A Participant may, while still employed, withdraw
any amount from his Pre-tax Contribution Account maintained for his
benefit under the Plan if he is over the age of 59-1/2 at the time
of such withdrawal; he shall, however, be required to make
withdrawals first from his After-tax Contribution Account and shall
be subject to the provisions of Section 4.13.
(b) SPECIAL WITHDRAWAL RIGHT FOR DIVERSIFICATION. Notwithstanding
anything else contained herein, a Participant who has attained age
55 and has completed 10 years of Vesting Service following January
1, 1990 (taking into account only Vesting Service completed on
or after that date) shall have the right to withdraw once in each
Plan Year an amount equal to up to 50 percent of his Accrued
Benefit under his Company Matching Contribution Account and his
Company Profit Sharing Contribution Account which is attributable
to Company Matching Contributions made pursuant to Section 5.2(a)
and Company Profit Sharing Contributions (or any allocation treated
as though Company Matching Contributions made pursuant to Section
5.2(a) or as Company Profit Sharing Contributions). The Plan
Administrator shall establish rules for the smooth and efficient
administration of this provision, which may include a minimum
withdrawal amount.
<PAGE>
ARTICLE VIII. BENEFITS - COMMENCEMENT OF DISTRIBUTION
8.1 COMMENCEMENT OF BENEFITS UPON RETIREMENT. Unless as
Participant otherwise elects, payment by the Trustee of any benefits payable
to a Participant on account of Retirement in accordance with Article VII will
commence as soon as practicable after the applicable Valuation Date and not
later than 60 days after the close of the Plan Year during which the
Participant's Retirement occurs. Notwithstanding the foregoing, a
Participant may elect to commence receiving such benefits at any time after
his Retirement but not later than the date described in Section 9.2(a).
Notwithstanding any other provision in this Plan, a Participant's
distribution shall not extend over a period beyond the life expectancy of
such Participant or the life expectancy of such Participant and his
Beneficiary.
8.2 COMMENCEMENT OF BENEFITS UPON DEATH. Unless a Beneficiary
otherwise elects, payment by the Trustee of any benefits payable on account
of a Participant's death in accordance with Article VII will commence as soon
as practicable after the next Valuation Date and not later than 60 days after
the close of the Plan Year during which such Participant's or former
Participant's death occurred. If such former Participant was presently
receiving a distribution, his Beneficiary will be entitled to a distribution
within a reasonable time after such former Participant's death. Such payment
will be to or for the benefit of any surviving Beneficiary in accordance with
Section 7.2(a).
8.3 COMMENCEMENT OF A BENEFIT UPON TERMINATION OF EMPLOYMENT PRIOR
TO RETIREMENT OR DEATH.
(a) CASH-OUT. If on the Valuation Date immediately following a
Participant's Termination of Employment with the Company prior to
death or Retirement, the vested Accrued Benefit of such Participant
is $3,500 or less (or, if such Accrued Benefit is a greater amount
and the Participant consents within the time period set forth in
Section 8.3(b) below, to an immediate distribution of such Accrued
Benefit), the Plan Administrator shall direct the Trustee to
distribute in a lump sum to the Participant an amount equal to the
vested portion of his Accrued Benefit. The amount distributed
shall be determined as of the Valuation Date immediately preceding
the effective date of such distribution. Such distribution shall
be made as soon as practicable after the first Valuation Date
following the date of such Termination of Employment or, where
applicable, the date of receipt of the Participant's timely consent
to such distribution.
(b) DEFERRED DISTRIBUTION. If on the Valuation Date immediately
following such Termination of Employment, the vested Accrued
Benefit of such Participant that is distributable in accordance
with Section 7.3 is more than $3,500, the distribution of such
vested Accrued Benefit of such Participant shall be deferred until
the Participant attains age 70-1/2 or dies, at which time it shall
be paid in a lump sum payment on the date described in Section
9.2(a) unless prior to such time the Participant consents to an
immediate lump sum distribution of the vested portion of his
Accrued Benefit on a form provided by the Plan Administrator for
such purpose.
(c) NATURE OF DISTRIBUTIONS. If a lump sum distribution will be made,
the procedures to be followed shall be as follows:
(1) if Common Stock or mutual fund shares constitute a portion of
the vested interest of the Participant, such stock or shares
shall be distributed in cash unless the Participant requests
a distribution in kind, and
<PAGE>
(2) no other assets of the Trust Fund shall be distributed in kind
but the Trustee shall establish procedures consistent with
the terms hereof to value and distribute the vested interests
of the Participant relating to all other assets in the
Participant's Accounts.
8.4 SPECIAL RULE. Notwithstanding any other provision in this
Plan, any Accrued Benefit arising after the Valuation Date as of which the
Participant's previously credited Accrued Benefit has been distributed in
accordance with this Article VIII that is vested in accordance with Sections
4.4, 4.12 and 5.12 shall be distributed to such Participant (or his
Beneficiary) as soon as practicable after the Valuation Date coincident with
or next following the date of such addition.
8.5 ELIGIBLE ROLLOVER DISTRIBUTIONS. This Section applies to
distributions made on or after January 1, 1993.
(a) GENERAL RULE. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under
this subsection, a distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of
an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
(b) DEFINITIONS.
(1) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(2) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan is an
individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or an individual retirement annuity.
(3) DISTRIBUTEE. A distributee includes an employee or former
employee. In addition, the employee's surviving spouse and
the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or
former spouse.
(4) DIRECT ROLLOVER. A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
<PAGE>
ARTICLE IX. MANNER, FORM AND TIMING OF PENSION PAYMENTS
UPON RETIREMENT, DEATH AND DISABILITY
9.1 MANNER OF MAKING PAYMENTS. Subject to Article VIII and
Section 9.2(b), payment by the Trustee of any pension, as provided for under
this Plan, to or for the benefit of any Participant in the event of his
Retirement, or, in the event of a Participant's death, the Trustee's payment
of a death benefit to or for the benefit of his Beneficiary or estate will be
made by one or more of the following methods as the Participant or, in the
event of the Participant's death, his Beneficiary may determine, after
consultation with the Plan Administrator:
(a) By payment in one lump sum; or
(b) By payment in semiannual or annual installments over any period not
to exceed the lesser of--
(1)ten years, and
(2)the period described in the last sentence of Section 8.1.
9.2 COMMENCEMENT AND DISTRIBUTION OF PAYMENTS.
(a) Payments by the Trustee to or for the benefit of a Participant
shall commence in accordance with the terms of this Plan, but the
balance in the Accounts of an individual who attains age 70-1/2
must be distributed, or commence to be distributed, no later than
the first day of April following the calendar year in which such
individual attains age 70-1/2, except as otherwise permitted under
Section 401(a)(9) of the Code. Any distribution required under the
incidental death benefit requirements of Section 401(a) of the Code
shall be treated as a distribution required under this Section
9.2(a). Distributions shall be made in accordance with the
regulations under Section 401(a)(9) of the Code, including Proposed
Treasury Regulation Section 1.401(a)(9)-2. The provisions
reflecting Section 401(a)(9) of the Code shall override any
distribution options in the Plan inconsistent with Section
401(a)(9) of the Code.
(b) Upon the death of the Participant, the following distribution
provisions shall take effect:
(1) If the Participant dies after distribution of his interest has
commenced, 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.
(2) If the Participant dies before distribution of his interest
commences, the Participant's entire interest will be
distributed no later than five years after the Participant's
death except to the extent that an election is made to receive
distributions in accordance with subparagraph (A) or (B)
below:
(A) If any portion of the Participant's interest is payable
to a designated Beneficiary, distributions may be made in
substantially equal installments over the life or life
expectancy of the designated Beneficiary commencing no
later than one year after the Participant's death; and
<PAGE>
(B) If the designated Beneficiary is the Participant's
surviving spouse, the date distributions are required to
begin in accordance with subparagraph (A) shall not be
earlier than the date on which the Participant would have
attained age 70-1/2, and, if the spouse dies before
payments begin, subsequent distributions shall be made as
if the spouse had been the Participant.
(3) For purposes of Section 9.2(b)(2), payments will be calculated
by use of the return multiples specified in Treasury
Regulation Section 1.72-9. Life expectancy of a surviving
spouse may be recalculated annually; however, in the case of
any other designated Beneficiary, such life expectancy will be
calculated at the time payment first commences without further
recalculation.
(4) For purposes of this subsection (b), any amount paid to a
child of the Participant will be treated as if it had been
paid to the surviving spouse if he amount becomes payable to
the surviving spouse when the child reaches the age of
majority.
9.3 ELIGIBLE ROLLOVER DISTRIBUTIONS. This Section applies to
distributions made on or after January 1, 1993.
(a) GENERAL RULE. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of
an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
(b) DEFINITIONS.
(1) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(2) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan is an
individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or an individual retirement annuity.
<PAGE>
(3) DISTRIBUTEE. A distributee includes an employee or former
employee. In addition, the employee's surviving spouse and
the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or
former spouse.
(4) DIRECT ROLLOVER. A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
9.4 NATURE OF DISTRIBUTIONS. If otherwise provided herein that a
lump sum distribution will be made, the procedure to be followed shall be as
follows:
(a) if Common Stock or mutual fund shares constitutes a portion of the
fully vested interest of the Participant, such stock or shares
shall be distributed in cash unless the Participant or Beneficiary
requests a distribution in kind, and
(b) no other assets of the Trust Fund shall be distributed in kind but
the Trustee shall establish procedures consistent with the terms
hereof to value and distribute the vested interests of the
Participant relating to all other assets in the Participant's
Accounts.
<PAGE>
ARTICLE X. TRUST FUND AND INVESTMENT OF CONTRIBUTIONS
10.1 IN GENERAL. The Corporation shall enter into one or more
Trust Agreements with one or more Trustees, providing for the administration
of the Trust Fund in such form and containing such provisions as the
Corporation deems appropriate, including, but not by way of limitation,
provisions with respect to the powers and authority of each Trustee, and the
authority of the Corporation to amend or terminate each Trust Agreement and
to settle the accounts of each Trustee on behalf of all persons having an
interest in the Trust Fund.
10.2 EXCLUSIVE BENEFIT. Neither the principal nor the income of
the Trust Fund shall be used for any purpose whatsoever other than for the
exclusive benefit of Participants or their Beneficiaries or to meet the
necessary expenses of the Plan, provided that, to the extent permitted by
law, upon the request of the Company, a contribution which was made by it by
a mistake of fact or upon the deductibility of any contribution under
Section 404 of the Code, shall be returned to the Company within one year
after the payment of such mistaken contribution or the disallowance of such
deduction (to the extent disallowed), whichever is applicable.
10.3 VOTING AND TENDERING OF COMMON STOCK. A Participant shall be
entitled to direct the Trustee regarding the manner in which to vote and the
action to be taken in response to any tender or exchange offer for the full
shares of Common Stock held in his Accounts. Each Participant shall be
furnished a form for the purpose of communicating his direction to the
Trustee and such other information as may be required under the Trust
Agreement. If no Participant direction is timely received by the Trustee,
the Trustee shall not vote, tender, or exchange Participant's Common Stock.
Shares of Common Stock held under the Stock Suspense Trust Account shall be
voted, tendered, or exchanged by the Trustee in accordance with the
applicable provisions of the Trust Agreement based on the directions of the
Participants with respect to the full shares of Common Stock allocated to
their Accounts.
10.4 INVESTMENT OF COMPANY CONTRIBUTIONS. Unless otherwise directed
by the Plan Administrator in his sole and absolute discretion, any Company
Matching Contributions, Company Profit Sharing Contributions, forfeitures
arising under Section 5.13, and any Company Supplemental Contributions
designated as Company Matching Contributions or as Company Profit Sharing
Contributions under Section 6.1 made or arising after October 1, 1990 shall
be automatically invested by the Trustee in Common Stock.
10.5 INVESTMENT OF EMPLOYEE CONTRIBUTIONS. Notwithstanding
anything herein to the contrary, each Participant, and any former Participant
who upon Termination of Employment defers his distribution pursuant to
Sections 8.1 and 8.3(b), shall exercise control over the assets in his
Accounts attributable to his own Employee Contributions and any Company
Matching Contribution made as of a date before October 1, 1990 by advising
the Plan Administrator to direct the Trustee to invest such Accounts in such
manner as he may choose from the options provided to him under the Plan and
Trust. Any direction by such a Participant or former Participant must be in
accordance with the provisions set forth herein and, as applicable, in the
salary reduction or other payroll deduction agreements in effect with respect
to the Plan. Such Participants and former Participants shall exercise this
control by executing written instructions to the Plan Administrator in such
manner as is acceptable to the Plan Administrator. Each such election shall
be binding for the period in which the election is made and for any future
Employee Contributions, if applicable, until such time as such election is
revoked in writing and a new election is made. Participants and former
Participants may choose to divide the investment of his Accounts and future
contributions, if applicable, thereto in whatever manner the Participant or
former Participant feels is appropriate to his particular circumstances
within the limitations provided by the Plan Administrator.
<PAGE>
A Participant or former Participant may change or revoke a decision to direct
investments by submitting appropriate new written instructions to the Plan
Administrator; however, any such change or revocation can only be made at
such times and with such frequency as the Plan Administrator may establish.
If a Participant or former Participant fails to direct the investment of the
assets subject to this Section 10.5, such assets shall automatically be
invested in the option provided under the Plan and Trust which the Plan
Administrator determines is most likely to preserve the principal amount of
the assets.
<PAGE>
ARTICLE XI. ADMINISTRATION
11.1 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND
TRUST ADMINISTRATION. The Fiduciaries shall have only those specific powers,
duties, responsibilities, and obligations as are specifically given them
under this Plan and Trust.
(a) The Corporation shall be the "Named Fiduciary" within the meaning
of Section 402 of ERISA, and shall be in charge of the operation of
the Plan. In general, the Company shall have the sole
responsibility for making the contributions provided for under
Section 4.1. The Corporation shall have the authority to appoint
and remove the Trustee and Plan Administrator, to amend and
terminate this Plan, in whole or in part, and to direct the Trustee
to establish or eliminate one or more separate investment accounts
within the Trust Fund for the investment of the assets of the Plan.
The Corporation shall have the sole authority to hire on behalf of
the Plan any persons or entities providing third party
administrative services with respect to Participant accounts,
purchases of investments, handling of Plan assets and other duties.
A letter agreement by the Chief Executive Officer of the
Corporation shall be sufficient to evidence the due appointment and
delegation of such agents.
(b) Except as described above, the Plan Administrator shall have the
sole responsibility for the administration of this Plan, which
responsibility is described herein. Any exercise of these powers
by the Plan Administrator shall be conclusive and binding upon all
persons having or claiming to have any interest or right under the
Plan and shall be given the maximum deference allowed by law.
(c) Except as otherwise provided in the Plan or Trust, the Trustee
shall have the responsibility for the administration of the Trust
and the investment and management of the assets held under the
Trust.
(d) Each Fiduciary shall accept directions given or information
furnished or shall take action in accordance with the provisions of
this Plan. Furthermore, each Fiduciary may rely upon any such
direction, information or action of another Fiduciary as being
proper under this Plan, and is not required to inquire into the
propriety of any such direction, information or action. It is
intended under the provisions of this Plan that each Fiduciary
shall be responsible for the proper exercise of its own powers,
duties, responsibilities, and obligations under the provisions of
this Plan and shall not be responsible for any act or failure to
act of another Fiduciary. No Fiduciary guarantees the Trust Fund
in any manner against investment loss or depreciation in asset
value.
11.2 APPOINTMENT OF ADMINISTRATOR. The Plan shall be administered
by the person initially designated hereinabove as Plan Administrator or as
from time to time thereafter appointed by the Chief Executive Officer of the
Corporation.
11.3 CLAIMS PROCEDURE. The Plan Administrator shall make all
determinations to the right of any person to a benefit. Whenever a
Participant or Beneficiary may be entitled to benefits under the Plan, he
shall have the right to file a written request (a "Claim") with the Plan
Administrator for payment of such benefits. A Claim may be filed either
before or after the commencement of benefit payments, and may be a request
for a Plan benefit or for a greater benefit than the benefit currently being
received.
<PAGE>
Claims must be in writing and must be delivered to the Plan Administrator or
to someone designated by the Plan Administrator to receive such claims. Upon
receipt of a Claim, the Plan Administrator or a person designated by it shall
determine whether it is to be denied, wither in whole or in part. If a Claim
is denied in whole or in part, notice of denial and the opportunity for a
review procedure, as provided in subsections (a) through (d) of this Section
11.3, shall be afforded the Participant or Beneficiary whose Claim has been
denied.
(a) NOTICE OF DENIAL. If a Claim is wholly or partially denied,
written notice of the Plan Administrator's decision shall be
furnished (either delivered or mailed) to the Claimant within 45
days after the receipt of the Claim by the Plan Administrator.
(b) CONTENT OF NOTICE. The notice referred to in the preceding
subsection shall be written to the best of the Plan Administrator's
ability in a manner calculated to be understood by claimant without
legal or actuarial counsel and shall include:
(1) The specific reason or reasons for the denial;
(2) Specific reference to the pertinent Plan Provisions on which
the denial is based;
(3) A description of any additional material or information
necessary for the claimant to perfect the Claim and an
explanation of why such material or information is necessary;
and
(4) An explanation of the Plan's claim review procedure.
(c) REVIEW PROCEDURE. After receiving notice of the denial of his
Claim, a claimant shall have an opportunity to appeal the denial to
the Plan Administrator. In order to avail himself of this review
procedure, the denied Claimant or his duly authorized
representative must, within 60 days after receipt by the claimant
of written notification of the denial of the Claim, make written
application to the Plan Administrator requesting a review of the
denial. The claimant, or his duly authorized representative, shall
be permitted at all reasonable hours to review pertinent documents,
and he may, if he wishes, submit issues and comments in writing.
(d) DECISION OF REVIEW. The Plan Administrator's decision on the
denied Claim shall be made and communicated to the Claimant or his
duly authorized representative not later than 60 days after the
Plan Administrator's receipt of a request for review. If special
circumstances require an extension of time for processing of the
Claim, a decision shall be rendered as soon as possible, but not
later than 120 days after receipt for review. In the sole and
absolute discretion of the Plan Administrator, a hearing may be
held if the Plan Administrator deems it necessary in connection
with any denied Claim. The Plan Administrator's decision on review
must be in writing, written in a manner calculated to be understood
by the claimant, and shall include specific reasons for the
decision and specific references to the pertinent provisions on
which the decision is based.
(e) The Plan Administrator shall have no power to add to or subtract
from or modify any of the terms of the Plan, or to change or add to
any requirements of eligibility for participation or benefits under
the Plan.
<PAGE>
11.4 RECORDS AND REPORTS. The Plan Administrator shall exercise
such authority and responsibility as it deems appropriate in order to comply
with ERISA relating to records of Participant's service, Account balances and
the percentage of such Account balances which are nonforfeitable under the
Plan; notifications to Participants; annual returns with the Internal Revenue
Service; and annual reports to the Department of Labor.
11.5 OTHER ADMINISTRATIVE POWERS AND DUTIES. The Plan
Administrator shall have such duties and powers as may be necessary to
discharge its duties hereunder, including, but not limited to, the following:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment of
any benefits hereunder;
(b) To prescribe procedures to be followed by Participants or
Beneficiaries filing applications for benefits;
(c) To prepare and distribute, in such manner as the Plan Administrator
determines to be appropriate, information explaining the Plan;
(d) To receive from the Company and from Participants such information
as shall be necessary for the proper administration of the Plan;
(e) To direct the Trustee in all matters concerning the investment of
the Trust Fund and develop a policy for the funding of the Plan
that is consistent with the needs of the Plan and the requirements
of ERISA;
(f) To furnish the Company upon request, such annual reports with
respect to the administration of the Plan as are reasonable and
appropriate;
(g) To receive, review and keep on file, as he deems convenient and
proper, reports of the financial ondition, and of the receipts and
disbursements, of the Trust Fund from the Trustee; and
(h) To appoint or employ individuals to assist in the administration of
the Plan and any other agents he deems advisable, including legal
and actuarial counsel. The Plan Administrator shall have no power
to add to, subtract from or modify any of the terms of the Plan, or
to change or add to any requirements of eligibility for
participation or benefits under the Plan, but shall otherwise have
the authority to administer the Plan in his sole and absolute
discretion. Any determination made by the Plan Administrator shall
be given the maximum deference allowed by law in the event it is
subject to judicial review.
11.6 RULES AND DECISIONS. The Plan Administrator may adopt such
rules as he deems necessary, desirable, or appropriate. All rules and
decisions of the Plan Administrator shall be uniformly and consistently
applied to all Participants in similar circumstances. When making a
determination or calculation, the Plan Administrator shall be entitled to
rely on information furnished by a Participant or Beneficiary, the Company,
the legal counsel of the Company, or the Trustee.
11.7 AUTHORIZATION OF PAYMENTS. The Plan Administrator shall issue
directions to the Trustee concerning all benefits which are to be paid from
the Trust Fund pursuant to the provisions of the Plan, and shall issue such
directions in accordance with this Plan.
<PAGE>
11.8 ESTABLISHMENT OF FUNDING PROCEDURES. The Trustee shall be
authorized to secure and consult with accountants, actuaries and other
professionals in the discharge of its responsibilities. The Trustee shall be
charged with the management of the assets of the Plan, including the power to
direct the acquisition and disposition of any assets of the Plan.
11.9 FACILITY OF PAYMENT. Whenever, in the Plan Administrator's
opinion, a person entitled to receive payment of any benefit or installment
thereof hereunder is under a legal disability or is incapacitated in any ways
so as to be unable to manage his financial affairs, the Plan Administrator
may direct the Trustee to make payments to such person or to his legal
representative or a relative or friend of such a person for his benefit or
the Plan Administrator may direct the Trustee to apply the payment for the
benefit of such person in such a manner as the Plan Administrator considers
advisable. Any payment of a benefit or installment thereof in accordance
with the provisions of this Section 11.9 shall be a complete discharge of any
liability for the making of such payment under the provisions of this Plan.
11.10 PRUDENT MAN RULE. All Fiduciaries shall discharge their
duties with respect to the Plan with the care, 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 with like aims.
<PAGE>
ARTICLE XII. SUCCESSOR EMPLOYER - MERGER OR
CONSOLIDATION OF PLAN
12.1 SUCCESSOR COMPANY. In the event of the dissolution, merger,
consolidation, or reorganization of the Company, provisions may be made by
which the Plan and Trust will be continued by the successor; and in that
event, such successor shall be substituted for the Company under this Plan.
The substitution of the successor shall constitute an assumption of Plan
liabilities by the successor, and the successor shall have all the powers,
duties and responsibilities of the Company under the Plan.
12.2 PLAN ASSETS. In the event of any merger or consolidation of
the Plan with, or transfer in whole or in part of the assets and liabilities
of the Trust Fund to another trust fund held under, any other plan of
deferred compensation maintained or to be established for the benefit of all
or some of the Participants of this Plan, the assets of the Trust Fund
applicable to such Participants shall be transferred to the other fund only
if each Participant would receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation, or transfer (if this Plan had then terminated).
<PAGE>
ARTICLE XIII. PLAN AMENDMENTS - ACTION BY CORPORATION
13.1 PLAN AMENDMENTS. The Corporation reserves the right to make
from time to time any amendments to this Plan which do not cause any part of
the Trust Fund to be used for, or diverted to, any purpose other than the
exclusive benefit of Participants or their Beneficiaries; provided, however,
that the Corporation may make any amendment it determines necessary or
desirable, with or without retroactive effect, to comply with ERISA or other
applicable laws. No amendment, however, shall deprive any Participant or
Beneficiary of any vested interest hereunder accrued prior to the effective
date of such amendment. Amendments shall be adopted by written resolution of
the Corporation's Board of Directors or any of its committees or, to the
extent permissible, by written instrument signed by appropriate officers of
the Corporation.
13.2 AMENDMENTS TO THE VESTING SCHEDULE. If the Plan's vesting
schedule is amended, or the Plan is amended in any way that directly or
indirectly affects the computation of the Participant's nonforfeitable
percentage, or if the Plan is deemed amended by an automatic change to or
from a Top-Heavy vesting schedule, each Participant with at least three Years
of Service with the Company may elect, within a reasonable period after the
adoption of the amendment or change, to have the nonforfeitable percentage
computed under the Plan without regard to such amendment or change. The
period during which the election may be made shall commence with the date the
amendment is adopted or deemed to be made and shall end on the latest of:
(a) Sixty days after the amendment is adopted;
(b) Sixty days after the amendment becomes effective; or
(c) Sixty days after the Participant is issued written notice of the
amendment by the Company or Plan Administrator.
13.3 NO REDUCTION IN ACCRUED BENEFITS. No amendment to the Plan
shall decrease a Participant's Accrued Benefit or eliminate an optional form
of distribution. Notwithstanding the preceding sentence, a Participant's
Accrued Benefit may be reduced to the extent permitted under Section
412(c)(8) of the Code. Furthermore, no amendment to the Plan shall have the
effect of decreasing a Participant's vested interest determined without
regard to such amendment as of the later of the date such amendment is
adopted or the date it becomes effective.
13.4 AMENDMENTS IN ADOPTION AGREEMENT. An adopting Company may
amend the Plan by adding overriding Plan language to its resolution in which
it adopts the Plan where such language is necessary to satisfy Code Sections
415 and 416 because of the required aggregation of multiple plans under these
sections.
<PAGE>
ARTICLE XIV. PLAN TERMINATION
14.1 RIGHT TO TERMINATE. In accordance with the procedure set
forth in this Article, the Corporation may terminate the Plan at any time.
In the event of the dissolution, merger, consolidation, or reorganization of
the Corporation, the Plan shall terminate and the Trust Fund shall be
liquidated unless the Plan is continued by a successor to the Corporation in
accordance with Section 12.1. The Plan may be terminated by written
resolution of the Corporation's Board of Directors or any of its committees
or, to the extent permissible, by written instrument signed by appropriate
officers of the Corporation.
14.2 PARTIAL TERMINATION. Upon termination of the Plan with
respect to a group of Participants which constitutes a partial termination of
the Plan, the Trustee shall, in accordance with the directions of the Plan
Administrator, allocate and segregate for the benefit of the Employees then
or theretofore employed by the Company with respect to which the Plan is
being terminated the proportionate interest of such Participants in the Trust
Fund, and such amounts shall fully vest. The funds so allocated and
segregated shall be used by the Trustee to pay benefits to or on behalf of
Participants in accordance with Section 14.3.
14.3 DISTRIBUTION UPON COMPLETE OR PARTIAL TERMINATION OR UPON
COMPLETE DISCONTINUANCE OF CONTRIBUTIONS. Upon complete or partial
termination of the Plan or upon complete discontinuance of contributions, the
Plan Administrator shall direct the Trustee to distribute the assets
remaining in the Trust Fund, after payment of any expenses properly
chargeable thereto, to Participants, former Participants and Beneficiaries in
proportion to their respective Accrued Benefits. This distribution shall be
in cash, in securities or other assets in kind, and in such manner as the
Corporation shall determine; provided, however, that due regard is taken with
respect to restrictions on distributions to Participants who have been owner-
employees and all other similar provisions of the Plan and the Code.
<PAGE>
ARTICLE XV. TOP-HEAVY PLANS
DEFINITIONS AND DETERMINATIONS
15.1 TOP-HEAVY DEFINITIONS.
(a) For purposes of this Article XV, the following definitions shall
apply in addition to those set forth in Article II.
"Aggregate Plans" shall mean (1) all plans of the Company or an
Aggregation Group which are required to be aggregated with the
Plan, and (2) all plans of the Company or an Aggregation Group
which are permitted to be aggregated with the Plan and which the
Company elects to aggregate with the Plan, for purposes of
determining whether the Plan is Top-Heavy. A plan shall be
required to be aggregated with the Plan if such plan includes as a
participant a Key Employee or if such plan enables any plan of the
Company or of a member of the Aggregation Group in which a Key
Employee participates to qualify under Section 401(a)(4) or Section
410 of the Code. A plan of the Company or the Aggregation Group
shall be permitted to be aggregated with the Plan if such plan
satisfies the requirements of Sections 401(a)(4) and 410 of the
Code, when considered together with the Plan and all plans which
are required to be aggregated with the Plan. No plan shall be
aggregated with the Plan unless it is a qualified plan under
Section 401 of the Code.
"Aggregation Group" shall mean the Company and each other employer
which must be aggregated with the Company for purposes of Section
414(b), 414(c), or 414(m) of the Code.
"Determination Date" shall mean (1) with respect to any Plan Year
other than the first Plan Year of the Plan, the last day of the
preceding Plan Year, and (2) with respect to the first Plan Year of
the Plan, the last day of such Plan Year.
"Key Employee" shall mean the "key employee" as defined in Section
416(i) of the Code.
"Top-Heavy" shall mean that as of the Determination Date, the Value
of Accumulated Benefits for Key Employees under all aggregated
Plans exceeds 60 percent of the Value of Accumulated Benefits for
all individuals under all Aggregate Plans as set forth in Section
416(g) of the Code.
"Value of Accumulated Benefits" shall mean the sum of:
(1) in the case of a defined benefit plan, the present value of
the accrued benefit determined as of the most recent Valuation
Date which is within a 12-month period ending on the
Determination Date and using the same actuarial assumptions as
to interest and mortality as specified in such defined benefit
plan, plus the sum of any amounts distributed to the
individual during the Plan Year which includes the
Determination Date and during the four immediately preceding
Plan Years;
(2) in the case of a defined contribution plan, the sum of the
accounts of the individual as of the most recent Valuation
Date which is within a 12-month period ending on the
Determination Date, plus the sum of any amounts distributed to
the individual during the Plan Year which includes the
Determination Date and during the four immediately preceding
Plan Years.
<PAGE>
"Year of Top-Heavy Service" shall mean a year of service of a
Participant which commenced in a Plan Year during which the Plan
was Top-Heavy.
(b) If the Plan is determined to be Top-Heavy as of any Determination
Date, then it shall be subject to the rules set forth in the
remainder of this Article for the first Plan Year commencing after
such Determination Date. If, as of a subsequent Determination
Date, the Plan is determined to no longer be Top-Heavy, then the
rules set forth in the remainder of this Article shall no longer
apply, except where expressly indicated otherwise.
15.2 MINIMUM CONTRIBUTION. For purposes of this paragraph, the
term "largest Key Employee contribution percentage" means the largest
percentage obtained for any Key Employee when each Key Employee's
compensation for the Plan Year is divided into the sum of the Company
Matching Contributions, Company Profit Sharing Contributions, and Pre-tax
Contributions for such Key Employee for such Plan Year. Any additional
contribution required by the preceding sentence shall be made by the Company.
For purposes of determining which non-Key Employees are entitled to any
additional Company contribution required by the preceding sentence, each
Eligible Employee who is eligible to participate in the Plan under Article
III, shall be considered to be a Participant in the Plan during the period he
is eligible to participate, whether or not such Employee actually is a
Participant. For purposes of this paragraph, the term "largest Key Employee
contribution percentage" means the largest percentage obtained for any Key
Employee when each Key Employee's compensation for the Plan Year is divided
into the sum of the Company Matching Contributions, Company Profit Sharing
Contributions, and Pre-tax Contributions for such Key Employee for such Plan
Year.
15.3 MINIMUM VESTING. If the Plan is determined to be Top-Heavy for
any Plan Year, then a Participant's vested interest in Company Matching
Contributions and Company Profit Sharing Contributions determined as of the
first day of such Plan Year and determined as of any future date while the
Plan continues to be Top-Heavy shall be no less than as determined under the
following table:
YEARS OF VESTING SERVICE VESTED PERCENTAGE
Less than 2 years None
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 years or more 100%
If the Plan subsequently is determined to no longer be Top-Heavy, then the
above minimum vesting schedule shall not apply to any portion of a
Participant's Accounts attributable to Company Matching Contributions and
Company Profit Sharing Contributions made on or after the first day of the
first Plan Year in which the Plan is no longer Top-Heavy, provided that the
Accounts of any Participant with three or more Years of Vesting Service as of
the first date as of which the Plan is no longer Top-Heavy shall continue to
be vested in accordance with the minimum vesting schedule applicable during
the period that the Plan was Top-Heavy.
<PAGE>
ARTICLE XVI. MISCELLANEOUS
16.1 NO GUARANTEE OF EMPLOYMENT. Nothing contained herein shall be
construed as a contract of employment between the Company and the Employee,
or as a limitation of the right of the Company to discharge any of its
employees, with or without cause, or as a right of any employee to be
continued in the employment of the Company.
16.2 RIGHTS TO TRUST ASSETS. No Employee shall have any right to,
or interest in, any assets of the Trust Fund upon termination of his
employment or otherwise, except as provided from time to time under this
Plan, and then only to the extent of the benefits payable under the Plan to
such Employee from the assets of the Trust Fund. Except as otherwise may be
provided under Title IV of ERISA, all payments of benefits as provided for in
this Plan shall be made solely from the assets of the Trust Fund and none of
the Fiduciaries shall be liable therefore in any manner.
16.3 NONALIENATION OF BENEFITS. Benefits payable under this Plan
shall not be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or
levy of any kind, either voluntary or involuntary, prior to actually being
received by the person entitled to the benefit under the terms of the Plan.
The preceding sentence shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to be
a qualified domestic relations order, as defined in Section 414(p) of the
Code, or any domestic relations order entered before January 1, 1985.
16.4 PARTICIPANTS' RIGHTS. Neither the establishment of the Trust
hereby created, nor any modification thereof, nor the creation of any fund or
account, nor the payment of any benefits, shall be construed as giving to any
Participant or other person any legal or equitable right against the Company,
or any officer or employee thereof, or the Trustee, or the Plan
Administrator, except as otherwise provided herein or by law. Under no
circumstances shall the terms of employment of any Participant be modified in
any way.
16.5 CONSTRUCTION OF AGREEMENT. The Plan shall be construed,
whenever possible, to be in conformity with the requirements of the Code and
ERISA. To the extent not in conflict with the preceding sentence, the
construction and administration of the Plan shall be governed by, and its
validity determined under the laws of the State of Alabama. The masculine
gender where appearing in the Plan shall be deemed to include the feminine
gender, and the singular shall include the plural, unless the context clearly
indicates other wise. Person, where appearing in the Plan, shall mean an
individual, partnership, joint venture, corporation, mutual company, joint
stock company trust, estate, unincorporated organization, association or
employee organization.
16.6 SERVICE OF PROCESS. The Plan Administrator is hereby
authorized to receive any legal papers or summonses on behalf of the Plan.
In the absence of a proper designation, as provided by law, service may be
made upon the Company, Plan Administrator, or Trustee.
16.7 ADMINISTRATIVE EXPENSES. Except as provided in Section 14.3,
the Company shall pay all expenses relating to the Trustee, Plan
Administrator or any counsel, accountant or agent for the Plan.
<PAGE>
16.8 LOANS TO PARTICIPANTS. Upon application by a Participant or
Beneficiary and approval of the loan by the Plan Administrator, the Trustee
shall lend to such Participant or Beneficiary an amount which is (a) not less
than $1,000 and (b) not in excess of the lesser of (1) $50,000, reduced by
the excess (if any) of the highest outstanding balance of loans during the
one year period ending on the day before the loan is made, over the
outstanding balance of loans from the Plan to the Participant on the date the
loan is made, and (2) 50 percent of the vested portion of such Participant's
Accounts as of the date on which the loan is approved. For the purpose of
the above limitation, all loans from all plans of the Company and other
members of a group of employers described in Code sections 414(b), 414(c),
414(m) or 414(o) are aggregated. All loans shall be subject to the approval
of the Plan Administrator who shall thoroughly investigate each application
for a loan.
All loans shall comply with the following terms and conditions:
(A) An application for a loan by such a Participant shall be in writing
to the Plan Administrator, whose action thereon shall be final.
(B) Loans shall only be made if the Participant, with regard to the
Account from which the loan is to be made, has been in the Plan at
least two Plan Years.
(C) Loans shall be made available to all Participants and former
Participants and Beneficiaries who are parties in interest to the
Plan (within the meaning of Section 3(14) of ERISA) on a reasonably
equivalent basis, taking into consideration the size of the loan
requested, the size of the borrower's vested Account balances, and
the borrower's ability to repay the loan. Loans to former
Participants with a vested Account balance and Beneficiaries may be
made on different terms and conditions than for active Participants
where such terms and conditions are based solely on factors that
are legally considered by commercial entities in the business of
making similar loans.
(D) The period of repayment for any loan shall be arrived at by mutual
agreement between the Administrator and the borrower, but such
period in no event shall exceed five years except where the loans
proceeds are to be applied to the acquisition, construction,
reconstruction or substantial rehabilitation of the Participant's
principal residence or the principal residence of one of his
immediate family members. In such case the repayment period may
exceed five years, but shall in no event exceed 15 years. Any loan
shall, by its terms, require repayment (principal and interest) be
made in level payments, no less frequently than quarterly. Subject
to the foregoing limitations, the period of repayment of any loan
may be renegotiated from time to time by mutual agreement between
the Administrator and the borrower.
(E) The Plan Administrator shall determine the adequacy and amount of
security required for each loan. In making these determinations,
the Plan Administrator shall consider the type and amount of
security which would be required in the case of an otherwise
identical transaction in a normal commercial setting between
unrelated parties on arm's-length terms. A portion of a borrower's
vested Account balance may be used as security for a loan.
However, no more than 50 percent of the borrower's vested Account
balance may be used as usecurity for the outstanding balance of all
loans under this Plan made to such borrower. The total outstanding
balances of all loans under the Plan to the borrower is not
permitted to exceed 50 percent of the borrower's vested Account
balance.
<PAGE>
(F) Loans shall bear a reasonable interest rate which shall be equal to
the interest rate charged by a lending institution for a loan which
would be made under similar circumstances. Such an interest rate
shall not violate any applicable usury laws. The Plan
Administrator shall not discriminate among Participants in the
matter of interest rates, but loans granted at different times may
bear different interest rates if, in the opinion of the Plan
Administrator, the difference in rates is justified by a change in
general economic conditions.
(G) A Participant who is granted a loan from the Plan shall be required
to make payments on such loan through mandatory payroll deduction.
In the event a borrower makes any payment required hereunder more
than 15 days after the date on which it is due, such payment shall
be increased by the amount of interest accruing on the unpaid
principal balance from the due date until the date of payment. The
borrower shall be in default if any payment required here under is
not made by the date 90 days after it is due, or if the borrower is
adjudicated as bankrupt, makes an assignment for the benefit of
creditors, or files a petition for relief under the Bankruptcy Act.
In the event of a default, all remaining installment payments on
the loan shall be immediately due and payable. In the event that
the Participant or his Beneficiary becomes entitled to a benefit
under the Plan, then the Administrator may cause the Trustee to
deduct the total unpaid balance of such loan, plus interest owed
thereon, or any portion thereof, from any distribution from the
Trust Fund of the portion of the vested Accrued Benefit which
secures the loan to which the Participant or his Beneficiary shall
become entitled. In the event that the amount of such distribution
is not sufficient to repay the remaining balance of such loan, the
borrower shall be liable for and shall continue to make payments on
any such balance still due from him. In no event shall any
distribution be made to a borrower which would reduce the balance
of his Accounts below the outstanding balance of the loan. In the
event of default, foreclosure on a note which evidences the debt
created by a loan and which is secured by Account balances, and
attachment of such security, shall not occur until a distributable
event occurs in the Plan.
(H) Loans shall be made solely from the Participant's After-tax
Contribution Account, Pre-tax Contribution Account and Rollover
Account, if any, and shall be charged pro rata against the
investments in which such Accounts are invested pursuant to Section
10.5. For purposes of the Plan, a loan shall be treated as an
investment direction pursuant to Section 10.5, and the amount of
any loan shall be considered to be an asset of the borrower's
Accounts only, and not of the Accounts of any other person.
IN WITNESS WHEREOF, the Corporation has executed this Amended and
Restated Plan by its proper officers thereunto duly authorized this 17th day
of June, 1994 effective as of January 1, 1993.
PROTECTIVE LIFE CORPORATION
By /s/ Drayton Nabers, Jr.
Its: President and Chief Executive Officer
ATTEST:
/s/ John K. Wright
Its: Secretary
<PAGE>
APPENDIX
TO THE
PROTECTIVE LIFE CORPORATION 401(k)
AND STOCK OWNERSHIP PLAN
Pursuant to Section 2.24 of the Plan, the following provisions of the Plan
shall be effective as of the special effective date indicated herein:
PLAN PROVISION SPECIAL EFFECTIVE DATE
Section 2.19 (the January 1, 1989
compensation limitation
under section 401(a)(17) of
the Code)
Section 2.33 January 1, 1987
Section 4.6 January 1, 1987
Section 4.7 January 1, 1987
Section 5.4 January 1, 1987
Section 6.2 January 1, 1987
Section 9.2 January 1, 1989 (subject to
special transition rules
described in Section
401(a)(9) of the Code)
Section 13.2 January 1, 1989
<PAGE>
EXHIBIT 5.1
WRITER'S DIRECT DIAL NO.: (205) 254-1055
August 16, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 Relating to the
Protective Life Corporation 401(k) and Stock Ownership
Plan (the "Plan")
Ladies and Gentlemen:
As counsel for Protective Life Corporation ("Protective"), we are
familiar with the Restated Certificate of Incorporation and the By-Laws of
Protective, the Plan and the above-referenced Registration Statement on Form
S-8 (the "Registration Statement") relating to 500,000 shares of the common
stock, $0.50 par value per share, of Protective Life Corporation (the
"Shares"), and an indeterminate number of interests in the Plan (the
"Interests"). We have examined such public records and corporate proceedings
and other documents as we have deemed necessary or appropriate as a basis for
the opinion expressed below.
Based upon the foregoing, we are in the opinion that:
(1) The Interests, when contributions and earnings thereon are credited
to the accounts of eligible employees in accordance with the
provisions of the Plan, will be legally issued, fully paid and
nonassessable.
(2) The Shares will, when issued under the Plan, be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
Maynard, Cooper & Gale, P.C.
/s/ J. Michael Savage
J. Michael Savage
<PAGE>
EXHIBIT 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 941
ATLANTA, GA 30370
Employer Identification Number:
95-2492236
File Folder Number:
630000788
PROTECTIVE LIFE CORPORATION Person to Contact:
2801 HIGHWAY 280 SOUTH GARY W. FOOTE
BIRMINGHAM, AL 35223-2448 Contact Telephone Number:
(404) 331-0912
Plan Name:
PROTECTIVE LIFE CORPORATION 401(K)
AND STOCK OWNERSHIP PLAN
Plan Number: 003
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated April 17, 1995. These proposed amendments should
also be adopted on or before the date prescribed by the regulations under Code
Section 401(b).
This determination is also subject to your adoption of the proposed
amendments submitted in your letter(s) dated April 21, 1995. These proposed
amendments should also be adopted on or before the date prescribed by the
regulations under Code Section 401(b).
This determination letter is applicable for the amendment(s) adopted on
June 17, 1994.
This plan satisfies the requirements of Code Section 4975(e)(7).
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights, and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefiting for purposes of demonstrating that the
plan satisfies the minimum coverage requirements of section 410(b) of the Code.
This plan qualifies for Extended Reliance described in the last paragraph
of Publication 794 under the caption "Limitations of a Favorable Determination
Letter".
<PAGE>
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Nelson A. Brooke
Nelson A. Brooke
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
<PAGE>
EXHIBIT 15
LETTER RE: UNAUDITED INTERIM FINANCIAL STATEMENTS
Securities and Exchange Commission
Washington, D.C. 20549
Re: Protective Life Corporation
Registration on Form S-8
We are aware that our report dated April 26, 1995, except for Note G, as
to which the date is May 1, 1995, on our review of interim financial
information of Protective Life Corporation and Subsidiaries for the three-
month periods ended March 31, 1995 and 1994, and our report dated July 25,
1995, except for Note H, as to which the date is August 7, 1995, on our
review of the interim financial information of Protective Life Corporation
and Subsidiaries for the three-month and six-month periods ended June 30,
1995 and 1994, are incorporated by reference in this Registration Statement.
Pursuant to Rule 436(c) under the Securities Act of 1933, this report should
not be considered a part of the Registration Statement prepared or certified
by us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
<PAGE>
EXHIBIT 23.1
CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report, which includes an explanatory paragraph
with respect to changes in Protective Life Corporation's methods of
accounting for certain investments in debt and equity securities in 1993 and
postretirement benefits other than pension in 1992, dated February 13, 1995,
on our audits of the consolidated financial statements and financial
statement schedules of Protective Life Corporation and subsidiaries as of
December 31, 1994 and 1993, and for the years ended December 31, 1994, 1993
and 1992. We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 5, 1995, on our audits of the
Protective Life Corporation's 401(k) and Stock Ownership Plan as of December
31, 1994 and 1993, and for the years ended December 31, 1994, 1993 and 1992,
which report is included in the Annual Report on Form 11-K. We also consent
to the reference to our firm under the caption "Experts" in the Registration
Statement.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
August 16, 1995
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35223
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and
Directors of Protective Life Corporation, a Delaware corporation (the
"Corporation"), hereby constitute and appoint Drayton Nabers, Jr., John D.
Johns, Deborah J. Long, and Jerry W. DeFoor, and each of them, the true and
lawful agents and attorneys-in-fact of the undersigned with full power and
authority in said agents and attorneys-in-fact, and any one or more of them,
to sign for the undersigned and in their respective names as Officers and as
Directors of the Corporation a Registration Statement on Form S-8 of the
Corporation to be filed with the Securities and Exchange Commission,
Washington, D.C., under the Securities Act of 1933, as amended, and any
amendment or amendments to such Registration Statement, relating to the
shares of the Corporation's common stock to be issued in connection with the
Protective Life Corporation 401(k) and Stock Ownership Plan and to the
interests in said Plan, and the undersigned hereby ratify and confirm all
acts taken by such agents and attorneys-in-fact, or any one or more of them,
as herein authorized.
Dated: August 7, 1995
NAME TITLE
/s/ Drayton Nabers, Jr. Chairman of the Board, and
Drayton Nabers, Jr. President, Chief Executive Officer
/s/ John D. Johns Executive Vice President
John D. Johns and Chief Financial Officer
/s/ Jerry W. DeFoor Vice President and Controller,
Jerry W. DeFoor and Chief Accounting Officer
/s/ William J. Rushton III Chairman Emeritus and Director
William J. Rushton III
<PAGE>
NAME TITLE
/s/ John W. Woods Director
John W. Woods
/s/ William J. Cabaniss, Jr. Director
William J. Cabaniss, Jr.
/s/ H. G. Pattillo Director
H. G. Pattillo
/s/ Edward L. Addison Director
Edward L. Addison
/s/ John J. McMahon, Jr. Director
John J. McMahon, Jr.
/s/ A. W. Dahlberg Director
A. W. Dahlberg
/s/ John W. Rouse, Jr. Director
John W. Rouse, Jr.
/s/ Robert T. David Director
Robert T. David
/s/ Ronald L. Kuehn, Jr. Director
Ronald L. Kuehn, Jr.
/s/ Herbert A. Sklenar Director
Herbert A. Sklenar
