<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1996
REGISTRATION NO. 333-[ ]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PRIMARK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MICHIGAN 38-2383282
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
</TABLE>
------------------------
1000 WINTER STREET, SUITE 4300
WALTHAM, MASSACHUSETTS 02154
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
PRIMARK CORPORATION SAVINGS
AND STOCK OWNERSHIP PLAN
(FULL TITLE OF THE PLAN)
MICHAEL R. KARGULA, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
PRIMARK CORPORATION
1000 WINTER STREET, SUITE 4300
WALTHAM, MASSACHUSETTS 02154
(617) 466-6611
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(1)
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, without par value.... 250,000 $24.875 $6,218,750.00 $1,884.47
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(h) based upon the average of the high
and low prices for shares of the Registrant's Common Stock as reported on
the New York Stock Exchange on December 6, 1996.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Primark Corporation Savings and Stock Ownership
Plan, As Amended.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the Plan.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Primark Corporation (the "Corporation" or
the "Registrant") with the Securities and Exchange Commission (the "Commission")
are hereby incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1995;
(ii) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996, and September 30, 1996;
(iii) Current Reports on Form 8-K filed August 15, 1996 and November
14, 1996;
(iv) The description of the Corporation's Common Stock contained in
the Corporation's Form 10 dated November 17, 1981, the
Corporation's Form 8-A dated October 18, 1985, the Corporation's
Form 8-A dated January 13, 1988, and the Corporation's Form 8-A
dated June 16, 1992.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
of the Corporation's Common Stock offered hereby has been sold or which
withdraws from registration such Common Stock then remaining unsold, shall be
deemed to be incorporated in this Registration Statement by reference and to be
a part hereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference in this
Registration Statement shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities of the Corporation being registered hereby
has been passed upon by Michael R. Kargula, Esq., General Counsel to the
Corporation. As of December 9, 1996, Mr. Kargula beneficially owned 400,230
shares of Corporation Common Stock. This number of shares beneficially owned by
Mr. Kargula as of December 9, 1996, does not include a currently indeterminable
number of shares that will be allocated to Mr. Kargula's account under the
Primark Corporation Employee Stock Ownership Plan on or about December 31, 1996.
The audited financial statements and schedules incorporated by reference in
this Registration Statement have been examined by Deloitte & Touche LLP,
independent certified public accountants, as set forth in their report
incorporated by reference herein, and are included in reliance upon the
authority of such firm as experts in auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 561 and 571 of the Michigan Business Corporation Act (the "MBCA")
contain detailed provisions concerning the indemnification of directors,
officers, employees, and agents against judgments, penalties, fines and amounts
paid in settlement of litigation that they may incur in their capacity as such.
Article VIII of the Articles of Incorporation of the Registrant provides
that the Registrant shall indemnify any person who is or was a director or
officer of the Registrant or is or was serving at the request of the Registrant
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust
II-1
<PAGE> 4
or other enterprise against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed action, suit, or
proceeding to the full extent provided by the MBCA from time to time in effect.
Section 6.1 of the By-laws of the Registrant provides that the Registrant
shall indemnify its officers, directors, employees, agents and other persons to
the fullest extent to which corporations are empowered to indemnify such persons
at law.
Article IX of the Articles of Incorporation of the Registrant provides that
a director of the Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(iii) for a violation of Section 551(1) of the MBCA or (iv) for any transaction
from which the director derived any improper personal benefit.
The Corporation maintains a director's and officer's liability insurance
policy that covers its directors and officers for certain claims and actions
incurred in the course of their duties, including, under certain circumstances,
alleged violations of the Securities Act of 1933, as amended.
Pursuant to Section 11.3 of the Plan, the Corporation has agreed to
indemnify the employees of the Corporation and its subsidiaries who administer
the Plan to the fullest extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the Index of Exhibits of this Registration Statement
are filed herewith or are incorporated herein by reference to other filings.
Pursuant to subsection (b) of this Item, the Registrant undertakes to
submit the Plan to the Internal Revenue Service ("IRS") in a timely manner and
will make all changes required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
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, as amended (the "Securities Act").
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
II-2
<PAGE> 5
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act, each such posteffective 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;
4. That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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; and
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waltham, Commonwealth of Massachusetts on December
10, 1996.
PRIMARK CORPORATION
By: /s/ STEPHEN H. CURRAN
-----------------------------
Stephen H. Curran
Senior Vice President and
Chief Financial 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 on the dates indicated, and each undersigned director
and/or officer hereby constitutes and appoints J.E. Kasputys, M. R. Kargula, and
S. H. Curran and each of them (with full power to each of them to act alone),
his or her true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, in any and all capacities, to sign, execute
and file with the Commission (or any other governmental or regulatory authority)
this Registration Statement on Form S-8 (or any other appropriate form), and any
and all amendments (including post-effective amendments) thereto, with all
exhibits and any and all documents required to be filed with respect thereto,
relating to the registration under the Securities Act of 1933 of shares of the
Corporation's common stock authorized to be issued or sold pursuant to the
Corporation's Savings and Stock Ownership Plan, and of plan interests in such
Plan, granting unto said attorneys, and each of them, full power and authority
to do and to perform each and every act and thing requisite and necessary to be
done in order to effectuate the same as fully to all intents and purposes as he
himself or she herself might or could do if personally present, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURES TITLES DATE
- --------------------------------------------- ---------------------------- ------------------
<C> <S> <C>
/s/ JOSEPH E. KASPUTYS Chairman, President and December 9, 1996
- --------------------------------------------- Chief Executive Officer
Joseph E. Kasputys (Principal Executive
Officer)
/s/ STEPHEN H. CURRAN Senior Vice President and December 9, 1996
- --------------------------------------------- Chief Financial Officer
Stephen H. Curran (Principal Financial and
Accounting Officer)
/s/ KEVIN J. BRADLEY Director December 9, 1996
- ---------------------------------------------
Kevin J. Bradley
/s/ JOHN C. HOLT Executive Vice President December 9, 1996
- --------------------------------------------- and Director
John C. Holt
/s/ STEVEN LAZARUS Director December 9, 1996
- ---------------------------------------------
Steven Lazarus
/s/ PATRICIA G. McGINNIS Director December 9, 1996
- ---------------------------------------------
Patricia G. McGinnis
/s/ JONATHAN NEWCOMB Director December 9, 1996
- ---------------------------------------------
Jonathan Newcomb
/s/ CONSTANCE K. WEAVER Director December 9, 1996
- ---------------------------------------------
Constance K. Weaver
</TABLE>
II-4
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, the
Administrator of the Primark Corporation Savings and Stock Ownership Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Waltham, Commonwealth of
Massachusetts on December 10, 1996.
By: /s/ MICHAEL R. KARGULA
------------------------------
Michael R. Kargula
Administrator
II-5
<PAGE> 8
INDEX OF EXHIBITS
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Exhibit 4.1 Articles of Incorporation of the Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement No. 2-74688); Amendment
to the Articles of Incorporation (incorporated by reference to Exhibit 3.1 to
the Registrant's 1985 Form 10-K, SEC File No. 00108260) ; Amendment dated
August 8, 1991 (incorporated by reference to Exhibit 3(a) to the Registrant's
Form 8-K dated August 9, 1991, SEC File No. 00108260); Amendment dated May 27,
1992 (incorporated by reference to Exhibit 3.1 to the Registrant's June 30,
1992 Form 10-Q, SEC File No. 00108260).
Exhibit 4.2 By-laws of the Registrant, as amended (incorporated by reference to the
Registrant's September 30, 1990 Form 10-Q, SEC File No. 00108260).
Exhibit 4.3 Rights Agreement, dated January 12, 1988, between the Registrant and Bankers
Trust Company, which includes, as Exhibit A thereto, the Rights Certificate
and, as Exhibit B thereto, the Summary of Rights to Purchase Common Stock
(incorporated by reference to Exhibit 28.1 to the Registrant's Form 8-K dated
January 14, 1988, SEC File No. 00108260); Certified copy of resolution amending
the Registrant's Rights Agreement (incorporated by reference to Exhibit 28.4 to
the Registrant's Form 8-K dated July 13, 1988, SEC File No. 00108260);
Amendment to Rights Agreement, dated April 9, 1990 (incorporated by reference
to Exhibit 28.1 to the Registrant's Form 8-K dated April 12, 1990, SEC File No.
00108260); Letter, dated May 10, 1990, regarding appointment of Bank of America
as new Rights Agent under the Rights Agreement, as amended (incorporated by
reference to Exhibit 28.1 to the Registrant's 1990 Form 10-K, SEC File No.
00108260); Amendment to Rights Agreement, dated May 31, 1992, between the
Registrant and Bank of America National Trust and Savings Association, as
Rights Agent (incorporated by reference to Exhibit 28.1 to the Registrant's
June 30, 1992 Form 10-Q, SEC File No. 00108260); Letter dated July 31, 1992
regarding appointment of The First National Bank of Boston as new Rights Agent
(incorporated by reference to Exhibit 28.2 to the Registrant's June 30, 1992
Form 10-Q, SEC File No. 00108260).
Exhibit 4.4 Primark Corporation Savings and Stock Ownership Plan, filed herewith.
Exhibit 5 Opinion of Michael R. Kargula, General Counsel of the Corporation, with respect
to the validity of the Common Stock being registered hereby, filed herewith.
Exhibit 23.1 Consent of Deloitte & Touche LLP, independent accountants to the Corporation,
filed herewith.
Exhibit 23.2 Consent of Leslie Sufrin and Company, P.C., filed herewith.
Exhibit 23.3 Consent of Michael R. Kargula, General Counsel of the Corporation, contained in
his opinion filed as Exhibit 5 hereto.
Exhibit 24.1 Power of Attorney (set forth in the signature page).
</TABLE>
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<PAGE> 1
PRIMARK CORPORATION
SAVINGS AND STOCK OWNERSHIP PLAN
(As amended and restated effective January 1, 1997)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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ARTICLE 1 Definitions.................................................. 1
1.1 "Accounts"................................................ 1
1.2 "Account Balance"......................................... 2
1.3 "Actual Deferral Percentage".............................. 2
1.4 "Adjustment Factor"....................................... 3
1.5 "After Tax Contributions Account"......................... 3
1.6 "Approved Absence"........................................ 3
1.7 "Average Contribution Percentage"......................... 4
1.8 "Before Tax Contributions"................................ 4
1.9 "Before Tax Contributions Account"........................ 4
1.10 "Borrower"................................................ 4
1.11 "Code".................................................... 6
1.12 "Committee"............................................... 6
1.13 "Company"................................................. 6
1.14 "Compensation"............................................ 6
1.15 "Distribution Event"...................................... 7
1.16 "Effective Date".......................................... 8
1.17 "Eligible Borrower"....................................... 8
1.18 "Employee"................................................ 8
1.19 "Employer"................................................ 8
1.20 "Employer Matching Contributions"......................... 9
1.21 "Employer Matching Contributions
Account"................................................ 9
1.22 "Enrollment Date"......................................... 9
1.23 "ERISA"................................................... 9
1.24 "ESOP Account"............................................ 9
1.25 "ESOP Accounts"........................................... 10
1.26 "ESOP Diversification Account"............................ 10
1.27 "Funds"................................................... 10
1.28 "Group"................................................... 10
1.29 "Highly Compensated Employee"............................. 11
1.30 "Hour of Service"......................................... 11
1.31 "Loan".................................................... 12
1.32 "Loan Subaccount"......................................... 12
1.33 "Merged Plan"............................................. 12
1.34 "Merger Date"............................................. 13
1.35 "Non-Highly Compensated
Employee"............................................... 13
1.36 "Non-Residential Loan".................................... 13
1.37 "Notice".................................................. 13
1.38 "One Year Break in Service"............................... 13
1.39 "Participant"............................................. 13
1.40 "Period of Separation".................................... 13
1.41 "Period of Service"....................................... 14
1.42 "Period of Severance"..................................... 16
1.43 "Plan".................................................... 16
1.44 "Plan Year"............................................... 16
</TABLE>
(i)
<PAGE> 3
<TABLE>
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1.45 "Primark Common Stock".................................... 16
1.46 "Qualified Nonelective
Contributions"......................................... 17
1.47 "Qualified Nonelective
Contributions Account"................................. 17
1.48 "Residential Loan"........................................ 17
1.49 "Rollover Contributions".................................. 17
1.50 "Rollover Contributions Account".......................... 18
1.51 "Section 414 Compensation"................................ 18
1.52 "Severance from Service Date"............................. 18
1.53 "Subaccounts"............................................. 19
1.54 "Supplemental Contributions".............................. 19
1.55 "Supplemental Contributions
Account"............................................... 19
1.56 "Trust Agreement"......................................... 19
1.57 "Trust Fund".............................................. 19
1.58 "Trustee"................................................. 20
1.59 "Valuation Date".......................................... 20
ARTICLE 2 Eligibility and Participation................................ 20
2.1 Participation............................................. 20
2.2 Enrollment as a Participant............................... 21
2.3 No Participation by Non-Covered
Employees............................................... 23
ARTICLE 3 Participant Contributions.................................... 24
3.1 Before Tax Contributions.................................. 24
3.2 Suspension of Contributions............................... 24
3.3 Changes in Contribution Elections......................... 25
3.4 Payment of Contributions.................................. 26
3.5 No Make-Up of Contributions............................... 26
3.6 Limitations on Before Tax
Contributions........................................... 26
3.7 Rollovers................................................. 29
ARTICLE 4 Employer Contributions....................................... 30
4.1 Matching Contributions.................................... 30
4.2 Contributions to Reinstate
Forfeited Account Balances;
Payment of Administrative
Expenses................................................ 30
4.3 Supplemental Contributions................................ 31
4.4 Qualified Nonelective Contributions....................... 33
4.5 Limitations on Contributions.............................. 33
4.6 Limitations on Matching
Contributions........................................... 33
4.7 ESOP Allocations.......................................... 38
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE 5 Accounts..................................................... 39
5.1 Maintenance of Accounts................................... 39
5.2 Adjustments to Accounts;
Statements Provided to
Participants............................................ 39
ARTICLE 6 Vesting and Forfeitures...................................... 40
6.1 Before Tax Contributions; Qualified
Nonelective Contributions;
Certain Transferred Amounts............................. 40
6.2 Employer Matching Contributions,
ESOP Accounts and
Supplemental Contributions
Account................................................. 40
6.3 Forfeitures............................................... 41
6.4 Determination of Period of
Service.................................................. 43
ARTICLE 7 Investment of Contributions.................................. 44
7.1 Funds..................................................... 44
7.2 Loan Fund................................................. 44
7.3 Investment of ESOP Accounts............................... 44
7.4 Investment of Employer and
Participant Contributions............................... 45
7.5 Change in Investment Elections............................ 45
7.6 Change in Existing Investments............................ 46
7.7 Voting of Shares Held in the
Primark Stock Fund....................................... 49
7.8 Tender or Exchange Offers................................. 50
7.9 Confidentiality........................................... 51
ARTICLE 8 Withdrawals During Employment................................ 52
8.1 Withdrawals After Age 59-1/2.............................. 52
8.2 Hardship Withdrawals of Before
Tax Contributions....................................... 53
8.3 Withdrawals for Life Events............................... 56
8.4 Withdrawals of Rollover
Contributions and After Tax
Contributions........................................... 58
8.5 Application for Withdrawals;
Processing.............................................. 58
8.6 Restrictions on Contributions
After a Withdrawal...................................... 59
8.7 Effect of Withdrawals on
Investments............................................. 60
8.8 Timing and Form of Payment of
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<S> <C> <C>
Withdrawals............................................. 61
8.9 Withdrawals Only Available to
Employees............................................... 61
ARTICLE 9 Payment of Benefits.......................................... 61
9.1 Distribution of Benefits Upon
Occurrence of a Distribution
Event................................................... 61
9.2 Payment of Benefits by Trustee;
Form of Payment ........................................ 63
9.3 Certain Rules Applicable to
Payment of Benefits..................................... 64
9.4 Payment to Participant's Estate........................... 64
9.5 Incapacity of Payee....................................... 64
9.6 Committee Determines
Payee................................................... 65
9.7 Rollover Distributions.................................... 65
9.8 Distributions Pursuant to Qualified
Domestic Relations Orders............................... 67
ARTICLE 10 Loans....................................................... 68
10.1 Availability of Loans;
Application for Loans.................................. 68
10.2 Terms of Loans........................................... 70
10.3 Events of Default........................................ 72
10.4 Accounting for Loans..................................... 74
ARTICLE 11 Administration of the Plan.................................. 76
11.1 Authority of Committee................................... 76
11.2 Claims Procedure......................................... 77
11.3 Liability of Committee................................... 79
ARTICLE 12 Management of the Trust Fund................................ 80
12.1 Designation of Trustee................................... 80
12.2 Plan Assets Held in Trust................................ 80
ARTICLE 13 Amendment of the Plan...................................... 82
13.1 Amendment................................................ 82
ARTICLE 14 Discontinuance of the Plan.................................. 84
14.1 Right To Terminate Plan.................................. 84
14.2 Plan Mergers and Transfers of
</TABLE>
(iv)
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Assets and Liabilities................................. 84
ARTICLE 15 Statement of Intent......................................... 85
15.1 Qualification............................................ 85
15.2 Section 404(c) of ERISA.................................. 86
15.3 Responsibility of Named
Fiduciaries............................................ 86
15.4 Legal Rights and Liabilities............................. 87
ARTICLE 16 Top-Heavy Rules............................................. 88
16.1 Applicability of Rules................................... 88
16.2 Determination of Top-Heavy
Status................................................. 88
16.3 Determination of Accrued
Benefits............................................... 91
16.4 Contributions for Top-Heavy
Years.................................................. 92
16.5 Adjustments Affecting
Limitation on Contributions............................ 93
ARTICLE 17 General Provisions.......................................... 94
17.1 Nonalienation of Benefits................................ 94
17.2 Rules of Construction.................................... 95
ARTICLE 18 Lapsed Benefits............................................. 96
18.1 Notification to Participants
and Beneficiaries...................................... 96
18.2 Reinstatement of Lapsed
Benefits............................................... 96
</TABLE>
(v)
<PAGE> 7
PRIMARK CORPORATION
SAVINGS AND STOCK OWNERSHIP PLAN
This Plan was originally adopted effective as of January 1, 1989
and was named the "Primark Corporation Employee Stock Ownership Plan." Effective
January 1, 1997, the Plan is being amended and restated to (a) add a cash or
deferred arrangement under Section 401(k) of the Code, (b) re-name the Plan the
"Primark Corporation Savings and Stock Ownership Plan," (c) reflect the merger
of the Disclosure, Incorporated 401(k) Plan, the I/B/E/S International, Inc.
Retirement Savings Plan, the WSI Corporation Employee Savings Plan, and the
Yankee Group Research, Inc. 401(k) Retirement Plan into the Plan, and (d) make
certain other changes.
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following
respective meanings, unless a different meaning is required by the context:
1.1. "Accounts" means a Participant's Before Tax Contributions
Account, After Tax Contributions Account, Employer Matching Contributions
Account, ESOP Account, ESOP Diversification Account, Qualified Nonelective
Contributions Account, Supplemental Contributions Account, Rollover
Contributions Account, and the Subaccounts maintained under such Accounts. The
Committee may
<PAGE> 8
establish such additional Accounts and Subaccounts as it may determine in its
discretion.
1.2. "Account Balance" means the aggregate balance of a
Participant's Accounts.
1.3. "Actual Deferral Percentage" means for each Plan Year the
average of the ratios (calculated separately for each Employee) of:
(a) the amount of Before Tax Contributions and
Qualified Nonelective Contributions to be paid to the Plan on behalf of an
Employee for that Plan Year (or, in the case of a Non-Highly Compensated
Employee, the preceding Plan Year), pursuant to Sections 3.1 and 4.4 hereof to
(b) that Employee's Section 414 Compensation for that
Plan Year (or, in the case of a Non-Highly Compensated Employee, the preceding
Plan Year).
Notwithstanding the foregoing: (i) the Actual Deferral Percentage
for Non-Highly Compensated Employees may be determined by using the Non-Highly
Compensated Employees' Compensation and the Before Tax Contributions and
Qualified Nonelective Contributions made on behalf of such Employees for the
current Plan Year rather than the preceding Plan Year if the Company so elects
in accordance with rules specified by the Secretary of the Treasury; and (ii)
for purposes of the 1997 Plan Year, the Actual Deferral Percentage of Non-Highly
Compensated Employees shall be determined in accordance with the applicable
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<PAGE> 9
requirements of Section 401(k)(3)(E) of the Code and any election made
thereunder by the Company.
1.4. "Adjustment Factor" means the cost of living adjustment factor
prescribed by the Secretary of the Treasury under Section 415(d) of the Code as
applied to such items and in such manner as the Secretary of the Treasury shall
provide.
1.5. "After Tax Contributions Account" means the separate account
maintained for each Participant who has made after tax contributions to a Merged
Plan that accounts for the Participant's share of the Trust Fund attributable to
such after tax contributions that are transferred on behalf of the Participant
to this Plan from the Merged Plan.
1.6. "Approved Absence" means an Employee's period of absence
occurring by reason of the following events:
(a) service in the Armed Forces of the United States;
provided, however, that the Employee has re-employment rights under applicable
laws and complies with the requirements of such laws and is re-employed by the
Group;
(b) an approved leave of absence for medical or
disability reasons granted to an Employee pursuant to his or her Employer's
established personnel rules and policies; or
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(c) any other leave of absence approved by an
Employee's Employer; provided, however, that no such leave of absence shall be
approved for more than six (6) months in the aggregate.
1.7. "Average Contribution Percentage" means for each Plan Year,
the average of the ratios (calculated separately for each Employee) of:
(a) the amount of Employer Matching Contributions made
pursuant to Section 4.1 hereof on behalf of an Employee for the relevant Plan
Year (or in the case of a Non-Highly Compensated Employee, the preceding Plan
Year), to
(b) that Employee's Section 414 Compensation for that
Plan Year (or in the case of a Non-Highly Compensated Employee, the preceding
Plan Year).
Notwithstanding the foregoing: (i) the Average Contribution
Percentage for Non-Highly Compensated Employees may be determined by using the
Non-Highly Compensated Employees' Compensation and Employer Matching
Contributions made on their behalf for the current Plan Year rather than the
preceding Plan Year if the Company so elects in accordance with rules specified
by the Secretary of the Treasury; and (ii) for purposes of the Plan Year ending
December 31, 1997, the Average Contribution Percentage of Non-Highly Compensated
Employees shall be determined in accordance with the applicable requirements
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<PAGE> 11
of Section 401(m)(3) of the Code and any election made thereunder by the
Company.
To the extent permitted by regulations promulgated under Section
401(m) of the Code, the Committee may elect to take into account "elective
deferrals" (within the meaning of Section 401(m) of the Code) and Qualified
Nonelective Contributions in calculating the Average Contribution Percentage of
Employees.
1.8. "Before Tax Contributions" means the amount of Compensation
deferred by a Participant pursuant to Section 3.1 hereof on a before-tax basis
plus the amount of elective deferrals (within the meaning of Section 402(g) of
the Code) that are transferred on behalf of a Participant to this Plan from a
Merged Plan.
1.9. "Before Tax Contributions Account" means the separate account
maintained for each Participant who has made Before Tax Contributions that
accounts for the Participant's share of the Trust Fund attributable to the
Participant's Before Tax Contributions.
1.10. "Borrower" means any person who has an outstanding loan under
Article 10 of this Plan.
1.11. "Code" means the Internal Revenue Code of 1986, as amended,
and shall also include all regulations promulgated thereunder.
1.12. "Committee" means the persons appointed by the Chief
Executive Officer of the Company to manage and administer the Plan as provided
in Article 11. The
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Committee shall be a "named fiduciary" for the purposes of Section 402(a)(l) of
ERISA, responsible for the administration, operation and interpretation of the
Plan. The Chief Executive Officer shall be a named fiduciary with respect to the
appointment of Committee members and the Chief Executive Officer's
responsibilities under Section 12.1 hereof.
1.13. "Company" means Primark Corporation and any successor to such
corporation by merger, purchase, or otherwise.
1.14. "Compensation" means, subject to the terms of this Section
1.14, the salary, hourly wages, commissions, bonuses, and overtime pay paid by
an Employer to an Employee plus an Employee's elective deferrals (within the
meaning of Section 402(g)(3) of the Code) under any plan sponsored by the Group,
salary reduction contributions made on a before tax basis under any cafeteria
plan (within the meaning of Section 125 of the Code) sponsored by the Group, and
such other payments as may be designated by the Company.
If for any Plan Year a Participant's Compensation exceeds the
dollar limitation imposed by Section 401(a)(17) of the Code, as in effect from
time-to-time and as adjusted as provided therein, such excess amount shall not
be taken into account for such Plan Year for purposes of this Section or any
other provision of the Plan.
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1.15. "Distribution Event" means, with respect to a Participant:
(a) the Participant's retirement, death, disability, or separation from service;
(b) the sale or other disposition by any member of the Group to an unrelated
corporation of all or substantially all of the assets used in a trade or
business, but only with respect to a Participant who continues employment with
the acquiring corporation and the acquiring corporation does not maintain the
Plan after the disposition; (c) the sale or other disposition by any member of
the Group of its interest in a subsidiary to an unrelated entity but only with
respect to a Participant who continues employment with the subsidiary and the
acquiring entity does not maintain the Plan after the disposition; and (d) the
termination of the Plan without establishment or maintenance of another defined
contribution plan (other than an employee stock ownership plan or a simplified
employee pension plan).
1.16. "Effective Date" means January 1, 1989, the original
effective date of this Plan.
1.17. "Eligible Borrower" means any Participant who has a vested
Account under this Plan or any alternate payee who has a right to a vested
Account under this Plan, provided that such Participant or alternate payee is a
"party in interest" (within the meaning of Section 3(14) of ERISA).
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<PAGE> 14
1.18. "Employee" means a person who is classified by an Employer as
an employee of the Employer (and not as a consultant, leased employee,
contractor or otherwise and not taking into account any retroactive
classification of any such person) and is compensated on a salaried, hourly, or
commission basis and who is not covered by a collective bargaining agreement
entered into with an Employer, unless such agreement, by specific reference to
the Plan provides for coverage under the Plan.
1.19. "Employer" means each of the corporations and other entities
listed on Appendix I hereto and each other corporation or entity that is or
becomes a member of the Group and adopts this Plan with the consent of the Chief
Executive Officer of the Company, subject to such limitations or restrictions as
to participation by employees of such corporation as may be reflected on such
Appendix I or as may be specified by the adopting corporation or entity and
consented to by the Chief Executive Officer of the Company.
1.20. "Employer Matching Contributions" means the matching
contributions made by an Employer pursuant to Section 4.1 of this Plan plus the
amount of any employer matching contributions (within the meaning of Section
401(m)(4) of the Code) transferred on behalf of a Participant to this Plan from
a Merged Plan.
1.21. "Employer Matching Contributions Account" means the separate
account for each Participant which
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shall account for the Participant's share of the Trust Fund attributable to any
Employer Matching Contributions made or transferred to this Plan on the
Participant's behalf.
1.22. "Enrollment Date" means the first day of each calendar
quarter and such other dates as may be designated by the Committee.
1.23. "ERISA" means the Employee Retirement Income Security Act of
1974, as now in effect or hereafter amended and shall also include all
regulations promulgated thereunder.
1.24. "ESOP Account" means the separate account maintained for each
Participant who was an active participant in the Plan prior to January 1, 1997,
which shall account for the Participant's share of the Trust Fund attributable
to allocations made under the Plan for Plan Years beginning before January 1,
1997. Such Account shall be adjusted to reflect transfers to a Participant's
ESOP Diversification Account pursuant to Sections 7.6(c) hereof.
1.25. "ESOP Accounts" means a Participant's ESOP Account and ESOP
Diversification Account.
1.26. "ESOP Diversification Account" means the ESOP Diversification
Account established for a Participant pursuant to Section 7.6(c) hereof, which
shall account for the Participant's share of the Trust Fund attributable to
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<PAGE> 16
amounts transferred to such Account from the Participant's ESOP Account.
1.27. "Funds" means the Primark Stock Fund and the other investment
funds specified by the Committee pursuant to Section 7.1 hereof.
1.28. "Group" means the Company, Primark Decision Economics, Inc.
("Decision Economics") and any entity that is treated as a single employer
together with the Company or Decision Economics pursuant to Sections 414(b),
414(c) or 414(m) of the Code or is required to be aggregated with the Company or
Decision Economics pursuant to regulations under Section 414(o) of the Code.
Solely for the purpose under the Plan of determining the Period of Service of a
Participant, an entity shall be included in the Group for periods prior to which
it is treated as a single employer together with the Company or Decision
Economics pursuant to Sections 414(b), 414(c) or 414(m) of the Code or is
required to be aggregated with the Company or Decision Economics pursuant to
regulations under Section 414(o) of the Code.
1.29. "Highly Compensated Employee" means any Employee who, with
respect to the Group, is a "highly compensated employee" within the meaning of
Section 414(q) of the Code.
1.30. "Hour of Service" means:
(a) An hour for which an Employee is paid, or entitled to payment,
for the performance of duties for any
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member of the Group. Such hours will be credited to the employee for the
computation period in which the duties are performed; and
(b) An hour for which an employee is paid, or entitled to payment,
by any member of the Group on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. Hours under
this paragraph will be calculated and credited pursuant to section 2530.200b-2
of the Department of Labor Regulations which is incorporated herein by
reference; and
(c) An hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by any member of the Group. An hour of
service will not be credited both under (a) or (b), as the case may be, and
under this subsection (c). Such hours will be credited to employees for the
computation period or periods to which the award or agreement pertains rather
than the computation period in which the award, agreement or payment is made.
Hours of service shall be credited for any individual considered an
employee for purposes of this Plan under section 414(n) or section 414(o).
1.31. "Loan" means a loan made pursuant to Article 10 hereof.
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1.32. "Loan Subaccount" means the separate Subaccount maintained
for each Participant who has an outstanding Loan and to which the promissory
note evidencing any such Loan shall be allocated.
1.33. "Merged Plan" means each of the Disclosure, Incorporated
401(k) Plan, the I/B/E/S International, Inc. Retirement Savings Plan, the WSI
Corporation Employee Savings Plan, the Yankee Group Research, Inc. 401(k)
Retirement Plan and such other tax-qualified defined contribution plans as may
be merged into this Plan on or after December 31, 1996 with the consent of the
Chief Executive Officer of the Company.
1.34. "Merger Date" means the date as of which a Merged Plan is
merged into this Plan.
1.35. "Non-Highly Compensated Employee" means an Employee who is
eligible to participate in the Plan pursuant to Article 2 and who is not a
Highly Compensated Employee.
1.36. "Non-Residential Loan" means any Loan that is not a
Residential Loan.
1.37. "Notice" means a notice, application or request provided by a
Participant to a designated party in such form (which may be written, telephonic
or another means of communication) as may be specified by the party designated
to receive such Notice.
1.38. "One Year Break in Service" means a consecutive twelve (12)
month Period of Severance during
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which an Employee does not perform an Hour of Service and is not on an Approved
Absence.
1.39. "Participant" means (a) an Employee who is eligible to
participate in the Plan under Article 2, and (b) except for purposes of Articles
2, 3, 4, 8, 9, and 16, any person on whose behalf an Account is maintained under
the Plan.
1.40. "Period of Separation" means a period of time commencing with
the date a person separates from service with the Group and ending with the date
that person resumes employment with the Group.
1.41. "Period of Service" means the period commencing on the date a
person is credited with an Hour of Service and ending on the date a Period of
Severance begins, including any Period of Separation of less than twelve (12)
consecutive months. The determination of a Participant's Period of Service shall
be subject to the rules set forth in Section 6.4 hereof. For purposes of
determining a Participant's Period of Service, the Severance from Service Date
of a Participant who is absent from service beyond the first anniversary of the
first day of absence for maternity or paternity reasons is the second
anniversary of the first day of such absence, unless such Participant returns to
work with the Group prior to such second anniversary. The period during which a
Participant is absent from work between the first and second anniversaries of
the first day of absence from work
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shall be neither a Period of Service nor a Period of Severance. For purposes of
this paragraph, an absence from work for maternity or paternity reasons means an
absence (i) by reason of the pregnancy of the individual, (ii) by reason of a
birth of a child of the individual, (iii) by reason of the placement of a child
with the individual in connection with the adoption of such child by such
individual, or (iv) for purposes of caring for such child for a period beginning
immediately following such birth or placement. Notwithstanding the foregoing,
the Period of Service of a Participant whose service with the Group for vesting
purposes under the Plan or a Merged Plan was determined based on hours of
service shall be equal to the sum of the Participant's credited service for
vesting purposes under the applicable plan as of the Participant's Conversion
Date (as hereinafter defined) plus the Participant's Period of Service, as
determined pursuant to the foregoing provisions of this Section 1.41 assuming
that the Participant is first credited with an Hour of Service as of the
Participant's Restart Date (as hereinafter defined). A Participant's credited
service as of the Participant's Conversion Date shall be equal to the sum of (a)
the years of service credited to the Participant under the applicable plan as of
the end of computation period (as used for calculating vesting service under the
applicable plan) preceding the Conversion Date, and (b) the greater of (i) the
period of
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time from the last day of such computation period and the Conversion Date, and
(ii) the service taken into account under the applicable plan during the
computation period that includes the Conversion Date. For purposes of this
Section 1.41: (x) the term "Conversion Date" shall mean January 1, 1997 (in the
case of a Participant covered by the Plan as of December 31, 1996) and the
Merger Date (in the case of a Participant formerly covered by a Merged Plan);
and (y) the term "Restart Date" means the Conversion Date in the case of a
Participant whose credited service is calculated pursuant to the preceding
clauses (a) and (b)(i), and the end of the computation period that includes the
Conversion Date in the case of a Participant whose credited service is
calculated pursuant to the preceding clauses (a) and (b)(ii).
1.42. "Period of Severance" means a period of time commencing on a
person's Severance from Service Date and ending with the date that person
resumes his or her employment with the Group.
1.43. "Plan" means the Primark Corporation Savings and Stock
Ownership Plan. Prior to January 1, 1997 the Plan was named the "Primark
Corporation Employee Stock Ownership Plan."
1.44. "Plan Year" means the calendar year commencing on January 1
and ending on the following December 31.
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1.45. "Primark Common Stock" means common stock, no par value, of
the Company.
1.46. "Qualified Nonelective Contributions" means contributions
made by an Employer pursuant to Section 4.4 hereof, plus the amount of any
qualified nonelective contributions (within the meaning of Section 401(m)(4)(c)
of the Code) transferred on behalf of a Participant to this Plan from a Merged
Plan.
1.47. "Qualified Nonelective Contributions Account" means the
separate account maintained for each Participant who has been allocated
Qualified Nonelective Contributions that accounts for the Participant's share of
the Trust Fund attributable to Qualified Nonelective Contributions.
1.48. "Residential Loan" means any Loan made pursuant to Article 10
hereof that is used to acquire any dwelling unit that within a reasonable period
of time is to be used (determined at the time the loan is made) as the principal
residence of the Eligible Borrower.
1.49. "Rollover Contributions" means rollover contributions made to
the Plan pursuant to Section 3.7 hereof plus the amount of any rollover
contributions transferred on behalf of a Participant to this Plan from a Merged
Plan.
1.50. "Rollover Contributions Account" means the separate account
maintained for each Participant who has made Rollover Contributions that
accounts for the
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Participant's share of the Trust Fund attributable to the Participant's Rollover
Contributions.
1.51. "Section 414 Compensation" means W-2 wages paid by an
Employer to an Employee during a Plan Year; provided, however, that the
Committee may elect to (a) use any definition of compensation permitted under
Section 414(s) of the Code and the regulations thereunder in lieu of W-2 wages
for any Plan Year and/or (b) limit the compensation taken into account with
respect to an Employee to that portion of the Plan Year during which the
Employee was eligible to participate in the Plan. In no event may a
Participant's Section 414 Compensation exceed the dollar limitation imposed by
Section 401(a)(17) of the Code, as in effect from time-to-time and as adjusted
as provided therein.
1.52. "Severance from Service Date" means the earlier of:
(a) the date a person terminates his or her employment
with the Group by reason of quitting, retirement, death or discharge, or
(b) the date twelve (12) consecutive months after the
date a person remains absent from service with the Group (with or without pay)
for any reason other than quitting, retirement, death or discharge.
1.53. "Subaccounts" means the subaccounts established for each
Participant that account for the investment of each Participant's Accounts in
the funds
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described in Sections 7.1 and 7.2, and for such other amounts as the Committee
deems it necessary or appropriate to establish a subaccount.
1.54. "Supplemental Contributions" means contributions made by an
Employer pursuant to Section 4.3 hereof plus the amount of any supplemental or
discretionary contributions transferred on behalf of a Participant to this Plan
from a Merged Plan.
1.55. "Supplemental Contributions Account" means the separate
account maintained for each Participant for whom Supplemental Contributions have
been made or transferred to this Plan, which shall account for the Participant's
share of the Trust Fund attributable to Supplemental Contributions made or
transferred on the Participant's behalf.
1.56. "Trust Agreement" means the agreement between the Company and
the Trustee, as provided for in Article 12, as the same may hereafter be amended
from time to time.
1.57. "Trust Fund" means all the assets at any time held under the
Plan by the Trustee as provided for in Article 12.
1.58. "Trustee" means the Trustee or Trustees selected by the Chief
Executive Officer of the Company which may at any time be acting as a Trustee
under a Trust Agreement.
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1.59. "Valuation Date" means each day (or portion thereof) that the
New York Stock Exchange is open for business, except as otherwise determined by
either the Committee or the Trustee in their sole discretion and either with or
without prior notice to Participants.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1. Participation. (a) Each Employee who was a Participant in this
Plan as of December 31, 1996 shall be eligible to continue to be a Participant
as of the Enrollment Date occurring on January 1, 1997. Each other person who is
an Employee on December 31, 1996 shall be eligible to become a Participant in
this Plan as of the Enrollment Date occurring on January 1, 1997.
(b) Each other person who becomes an Employee after December 31,
1996 shall be eligible to become a Participant on the first Enrollment Date
occurring on or after the first day of his or her Period of Service, provided
that he or she is still an Employee on such date.
(c) Notwithstanding the foregoing provisions of this Section 2.1,
an Employee who is who is regularly scheduled to work less than twenty (20)
hours a week or who is a temporary employee (who, for example, is hired to work
six (6) months or less or who is a summer or seasonal worker) shall only be
eligible to become a Participant on the first Enrollment Date that occurs after
completing at
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least one thousand (1,000) Hours of Service during the twelve consecutive month
period following the Employee's date of hire or during any Plan Year.
2.2. Enrollment as a Participant. (a) An Employee who is eligible
to participate in the Plan may become a Participant by providing Notice to the
Trustee (or, during any such period as may be designated by the Committee, to
the Committee) by such date as prescribed by the Trustee (or during any period
that Notice is to be provided to the Committee, by the Committee); provided,
however, that at such time he or she is still an Employee. A Participant who
provides proper Notice to become a Participant shall become a Participant as of
the Enrollment Date coinciding with or immediately following the date Notice is
provided or as soon as practicable thereafter.
(b) An Employee, in providing Notice as specified in
Section 2.2(a) shall:
(i) authorize the deduction by his Employer of
Before Tax Contributions from his Compensation,
(ii) specify in which of the Funds he or she elects
to have Before Tax Contributions, Employer Matching Contributions,
any Qualified Nonelective Contributions, any Supplemental
Contributions, and any other amounts allocated to his or her
Accounts invested pursuant to Article 7,
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(iii) agree to the terms of the Plan, and
(iv) designate a beneficiary to receive any benefits
that may be payable under the Plan subsequent to his or her death.
(c) A Participant may designate one or more persons as
beneficiary pursuant to Section 2.2(b)(iv); provided, however, that if more than
one (1) person is named, the Employee shall indicate the shares and precedence
of each person. A married Participant's spouse shall be deemed to be the
Participant's beneficiary regardless of any contrary designation on file or
later filed with the Committee, unless the spouse consents (acknowledging the
effect of such consent) to the designation of a beneficiary other than the
spouse and such consent is witnessed by a notary public or the Committee. A
Participant may change his or her beneficiary from time to time by Notice to the
Committee but only with the written consent of his or her spouse (witnessed by
the Committee or a notary public), if he or she has a spouse at such time and
the new beneficiary is a person other than such spouse. The consent of a
previously designated non-spouse beneficiary shall not be required in any case.
In the event the Participant fails to effectively designate a beneficiary as to
any distribution, such distribution shall be made to such deceased Participant's
spouse (as set forth above) if
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living, if not, then to such deceased Participant's estate.
(d) The authorizations, designations and elections
made pursuant to this Section 2.2 shall be deemed to be continuing as to current
and succeeding Plan Years until changed by prior Notice to the Committee or the
Trustee (as applicable).
2.3. No Participation by Non-Covered Employees. (a) Notwithstanding
any provision of this Plan to the contrary, a Participant who is employed by the
Group but who is not an Employee (an "Inactive Participant") shall not be
eligible to make Before Tax Contributions under Article 3 hereof or be entitled
to any Employer Matching Contributions, Qualified Nonelective Contributions or
Supplemental Contributions under Article 4 hereof (except to the extent provided
therein) until the resumption of his or her status as an Employee.
(b) If an Inactive Participant again becomes an
Employee, he or she may resume making Before Tax Contributions as of any
subsequent Enrollment Date by giving prior Notice to the Trustee by such date as
prescribed by the Trustee.
(c) Notwithstanding any provision of this Plan to the
contrary, an Employee who has rights under chapter 43 of title 38, United States
Code, resulting from qualified military service, shall be credited with service
and entitled to make Before Tax Contributions to this Plan
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and be allocated Employer Matching Contributions and Supplemental Contributions
to the extent required by applicable law and Section 414(u) of the Code.
ARTICLE 3
PARTICIPANT CONTRIBUTIONS
3.1. Before Tax Contributions. Each Participant may elect to make
Before Tax Contributions to the Plan of any whole percentage of the
Participant's Compensation for each payroll period. The minimum amount of Before
Tax Contributions with respect to each payroll period shall be one percent (1%),
and the maximum amount shall be fifteen percent (15%).
3.2. Suspension of Contributions. A Participant may voluntarily
suspend his or her Before Tax Contributions effective as of the beginning of any
payroll period by giving prior Notice to the Trustee (or, during any period
designated by the Committee, to the Committee) within the time limit prescribed
by the Trustee (or, during any period that suspension Notices are to be filed
with the Committee, by the Committee). Subject to the requirements of Section
8.6 hereof, a Participant may resume his or her Before Tax Contributions as of
any Enrollment Date occurring after the date such suspension commenced by giving
prior Notice to the Trustee (or, during any period designated by the Committee,
to the Committee) by such date as prescribed by the Trustee (or,
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during any period that enrollment Notices are to be filed with the Committee, by
the Committee).
3.3. Changes in Contribution Elections. A Participant may increase
or decrease, subject to Section 3.1, the amount of his or her Before Tax
Contributions as of the beginning of any payroll period by giving prior Notice
to the Trustee (or, during any period designated by the Committee, to the
Committee) within the time limit prescribed by the Trustee (or, during any
period that such Notices are to be filed with the Committee, by the Committee).
Such changes in Before Tax Contributions shall become effective as soon as
practicable after receipt of Notice by the Trustee (or, during any period that
such Notices are to be filed with the Committee, by the Committee).
3.4. Payment of Contributions. Participants' Before Tax
Contributions shall be transferred to the Trustee under the Plan no later than
the fifteenth (15th) day of the calendar month next following the month in which
the Before Tax Contributions would otherwise have been paid to the Participant.
Participants' Before Tax Contributions shall be treated under the Plan, ERISA
and the Code as nonforfeitable Employer contributions. Before Tax Contributions
shall not be required to be made from the current or accumulated profits of an
Employer.
3.5. No Make-Up of Contributions. No Participant who fails to make
the maximum amount of Before Tax
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Contributions permitted under Section 3.1, or who voluntarily suspends his or
her Before Tax Contributions in accordance with Section 3.2, shall be permitted
to make up such contributions in any subsequent payroll period, except to the
extent provided by Section 2.3(c) hereof.
3.6. Limitations on Before Tax Contributions. (a) No Participant
shall be permitted to have Before Tax Contributions made to the Plan during any
Plan Year to the extent such contributions, plus any elective deferrals under
any other tax-qualified plan, exceed seven thousand dollars ($7,000) multiplied
by the Adjustment Factor. A Participant shall promptly notify the Committee if
such limitation is exceeded and the amount of such excess, plus gain or loss
allocable thereto (as determined in accordance with applicable regulations) for
the Plan Year shall be distributed to such Participant within three and one-half
(3-1/2) months after the close of the Plan Year during which such excess
contributions were made or as of such later date that is permissible under
applicable regulations as may be determined by the Committee.
(b) If for any Plan Year the Actual Deferral Percentage for
Highly Compensated Employees would exceed the greater of:
(i) the Actual Deferral Percentage of the Non-Highly
Compensated Employees multiplied by one and one-fourth (1.25), or
(ii) the lesser of:
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(A) two percent (2%) plus the Actual Deferral Percentage of
the Non-Highly Compensated Employees, or
(B) the Actual Deferral Percentage of the Non-Highly
Compensated Employees multiplied by two (2),
the Before Tax Contributions of the Highly Compensated Employees who are
Participants shall be reduced to the extent necessary so that the Actual
Deferral Percentage for the Highly Compensated Employees is not more than the
greater of clause (i) or clause (ii) of this Section 3.6(b).
(c) The reduction prescribed by Section 3.6(b) shall be
accomplished by reducing in descending order the Before Tax Contributions of the
Highly Compensated Employees who made the largest amount of Before Tax
Contributions for the Plan Year until the limitations of this Section 3.6 are
not exceeded. Any Before Tax Contributions in excess of the amount permitted
under this Section 3.6, along with any gain or loss for the Plan Year allocable
thereto (as determined in accordance with applicable regulations) with respect
to the Highly Compensated Employee shall be refunded to the Highly Compensated
Employees who are Participants within two and one-half (2-1/2) months after the
close of the Plan Year or as of such later date as may be determined by the
Committee. Employer Matching Contributions that are
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attributable to Before Tax Contributions distributed pursuant to Section 3.6(a)
or this Section 3.6(c) shall be forfeited and used to reduce future Employer
contributions.
(d) The Actual Deferral Percentage of any Participant who is a Highly
Compensated Employee for a Plan Year and who is eligible to have before tax
contributions allocated to his or her accounts under two (2) or more plans or
arrangements described in Section 401(k) of the Code that are maintained by the
Group shall be determined as if all such before tax contributions were made
under a single plan or arrangement.
(e) If the Plan satisfies the requirements of Section 401(a)(4) or
Section 410(b) of the Code only if aggregated with one (1) or more other plans
or if one (1) or more other plans satisfy the requirements of Section 401(a)(4)
or Section 410(b) of the Code only if aggregated with the Plan, the Actual
Deferral Percentages of Employees shall be determined as if all such plans were
a single plan.
(f) The Committee may at any time, in its sole discretion, and upon
notice to the affected Participants, unilaterally reduce, on a prospective
basis, the maximum percentage of Compensation that Highly Compensated Employees
may make as Before Tax Contributions to the Plan.
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3.7. Rollovers. Employees who are eligible to participate in the Plan
may, subject to such rules as may be prescribed by the Committee, rollover to
the Plan all or a portion of an eligible rollover distribution (within the
meaning of Section 402(c)(4) of the Code), a rollover amount (within the meaning
of Section 403(a)(4) of the Code), or a rollover contribution (within the
meaning of Section 408(d)(3)(A)(ii) of the Code) to the Plan.
ARTICLE 4
EMPLOYER CONTRIBUTIONS
4.1. Matching Contributions. Each Employer shall make contributions
to the Plan on behalf of each Participant who is an Employee of that Employer in
an amount equal to fifty percent (50%) of the first six percent (6%) of each
such Participant's Compensation contributed to the Plan as Before Tax
Contributions. Employer Matching Contributions shall be transferred to the
Trustee under the Plan either concurrently with the transfer of Participants'
related Before Tax Contributions or as soon as practicable thereafter and shall
immediately be allocated to the Accounts of the Participants on whose behalf
they were made. Contributions made pursuant to this Section 4.1 shall be subject
to the restrictions imposed by Sections 4.5 and 4.6 hereof.
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4.2. Contributions to Reinstate Forfeited Account Balances; Payment
of Administrative Expenses. (a) Each Employer shall contribute to the Plan any
amount necessary to reinstate amounts previously forfeited pursuant to Section
6.3.
(b) To the extent not paid by the Trustee from the Trust Fund, each
Employer shall pay its pro rata share of all administrative expenses of the Plan
and of all fees and retainers of the Plan's Trustee, consultants, auditors and
counsel (who may, but need not, be counsel to the Company and to the Trustee).
Such pro rata share shall be based on the number of Employees of each Employer
who were Participants in the Plan as of the first day of the Plan Year with
respect to which the expense, fee or retainer was incurred. All expenses
directly relating to the investments of the Trust Fund such as taxes,
commissions, registration charges, etc. shall be paid by the Trustee from the
Trust Fund.
4.3. Supplemental Contributions. Subject to the restrictions imposed
by Sections 4.5 and 4.6, in addition to the contributions required by Sections
4.1 and 4.2, each Employer may elect to make a Supplemental Contribution to the
Plan in cash or Primark Common Stock in an amount determined by the Employer,
which amount shall be allocated among the accounts of Participants who are
Employees of the contributing Employer in proportion to the Compensation of such
Participants for the Plan Year
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that is not in excess of $82,600 multiplied by a fraction, the numerator of
which is the maximum benefit amount for the relevant Plan Year under Section
415(b)(1)(A) of the Code, as adjusted from time-to-time in accordance with
Section 415(d) of the Code, and the denominator of which is the maximum benefit
amount under Section 415(b)(1)(A) for the year beginning January 1, 1996;
provided, however, that (a) no supplemental contribution shall be made on behalf
of any Participant who (i) is not an Employee as of December 31 of such Plan
Year (unless the Participant terminated employment with the Employer during the
Plan Year due to death, total disability (as certified by either the Social
Security Administration or the applicable Employer's long-term disability
carrier), transfer to another member of the Group or occurs after attaining age
sixty-five (65)), or (ii) has not completed a Period of Service of at least one
(1) year; (b) if a Participant has not completed a period of service of at least
2 years, his Compensation for purposes of making the allocation provided for
under this Section 4.3 shall be equal to his Compensation for the Plan Year
multiplied by a fraction, the numerator of which is the number of months of the
Participant's Period of Service minus 12 and the denominator of which is 12; and
(c) to the extent that the group of Employees with respect to which a
Supplemental Contribution is made does not satisfy the test set forth in Section
410(b)(1)(A) of the Code no allocation shall be
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made to a number of Highly Compensated Employees (identified in descending order
based on the W-2 compensation of such Employees for the relevant Plan Year) that
is sufficient to cause such test to be satisfied. Supplemental Contributions may
be transferred to the Trustee under the Plan at any time prior to the required
filing date (including extensions) for the Company's federal income tax return
for that Plan Year and shall be immediately allocated to the Supplemental
Contributions Account of the Participant on whose behalf it was made.
4.4. Qualified Nonelective Contributions. In the discretion of the
Company, the Employers may make contributions to the Plan that are "qualified
nonelective contributions" (within the meaning of Section 401(m)(4)(C) of the
Code). Such contributions shall be made at such times and as of such dates as
shall be determined by the Company and shall be allocated among Participants who
are Highly Compensated Employees and Participants who are Non-Highly Compensated
Employees in such manner as the Company shall determine in its sole discretion.
4.5. Limitations on Contributions. The limitations imposed by Section
415 of the Code are hereby incorporated by reference. If due to a reasonable
error in estimating a Participant's compensation for purposes of Section 415 of
the Code, or any other reason provided for under applicable regulations, a
Participant's annual additions (as defined in Section 415 of the Code) for any
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Plan Year would otherwise exceed the limitations imposed by Section 415, the
amount of the Participant's Before Tax Contributions, Employer Matching
Contributions, Supplemental Contributions, and Qualified Nonelective
Contributions which would otherwise be allocable to that Participant shall be
reduced to the extent necessary to comply with such limitations. Such reductions
shall be made in the following order of priority: (a) Before Tax Contributions
with respect to which no Employer Matching Contributions were made, (b) Before
Tax Contributions with respect to which Employer Matching Contributions were
made (and such related matching contributions), (c) Supplemental Contributions,
and (d) Qualified Nonelective Contributions. Any Employer Matching
Contributions, Supplemental Contributions, or Qualified Nonelective
Contributions that may not be allocated because of the limitations imposed by
this Section 4.5 shall be credited to and held in a suspense account and shall
be applied to reduce the amount of Employer Matching Contributions, Supplemental
Contributions, or Qualified Nonelective Contributions otherwise required of the
applicable Employer for the next following Plan Year(s) until exhausted. Any
Before Tax Contributions (and any gain or loss attributable thereto) which may
not be allocated to the Before Tax Contributions Account of a Participant
because of the limitations imposed by this Section 4.5 shall be refunded to that
Participant and
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shall not be considered a contribution under the Plan. If the Plan terminates
because an employer ceases to exist at a time when Employer Matching
Contributions, Supplemental Contributions, or Qualified Nonelective
Contributions are still held in the suspense account established pursuant to
this Section 4.5, such contributions shall be allocated to the extent possible
under this Section 4.5 for the Plan Year in which the termination occurs. In
addition to, and notwithstanding the foregoing, the Committee may, in its
discretion, take such other actions permissible under the Code and ERISA as the
Committee may deem advisable to comply with the requirements of Section 415 of
the Code.
If in any Plan Year the limitations imposed by Section 415 of the
Code would be exceeded in any case in which an Employee is participating in one
(1) or more qualified defined contribution plans and in one (1) or more
qualified defined benefit plans (as those terms are defined in Section 415(k) of
the Code) maintained by the Group, contributions and accrued benefits with
respect to each type of qualified retirement plan shall be reduced in the
following order of priority:
(a) defined benefit plans, and
(b) profit sharing plans with a salary deferral feature
under Section 401(k) of the Code.
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4.6. Limitations on Matching Contributions. (a) If the Average
Contribution Percentage of Highly Compensated Employees for any Plan Year would
exceed the greater of:
(i) the Average Contribution Percentage of Non-Highly
Compensated Employees multiplied by one and one-fourth (1.25), or
(ii) the lesser of:
(A) two percent (2%) plus the Average Contribution
Percentage of Non-Highly Compensated Employees, or
(B) the Average Contribution Percentage of Non-Highly
Compensated Employees multiplied by two (2),
the Employer Matching Contributions of the Highly Compensated Employees who are
Participants shall be reduced to the extent necessary so that the Average
Contribution Percentage for Highly Compensated Employees does not exceed the
greater of clause (i) or clause (ii) of this Section.
(b) If for any Plan Year the Actual Deferral Percentage of the
Highly Compensated Employees plus the Average Contribution Percentage of such
Highly Compensated Employees exceeds the limitation imposed by Treasury
Regulations Section 1.401(m)-2, which is hereby incorporated by reference, the
Employer Matching Contributions of the Highly Compensated Employees who are
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Participants shall be reduced to the extent necessary so that the Average
Contribution Percentage for the Highly Compensated Employees, when added to the
Actual Deferral Percentage for such Highly Compensated Employees, does not
exceed such limitation.
(c) The reductions prescribed by Sections 4.6(a) and 4.6(b)
shall be accomplished by reducing in descending order the Employer Matching
Contributions made on behalf of those Highly Compensated Employees who were
allocated the largest amount of such contributions for such Plan Year until the
limitations of this Section 4.6 are not exceeded. Any Employer Matching
Contributions in excess of the amount permitted under this Section 4.6, along
with any gain or loss for the Plan Year allocable thereto (as determined in
accordance with applicable regulations) with respect to the Highly Compensated
Employee shall, to the extent permitted by applicable regulations, be
distributed to the Highly Compensated Employee within two and one-half (2-1/2)
months after the close of the relevant Plan Year (or as of such later date as
may be determined by the Committee).
(d) The Average Contribution Percentage of any Employee who is
a Highly Compensated Employee for the Plan Year and who is eligible to make
employee contributions or to have matching contributions, qualified nonelective
contributions or elective deferrals (as defined in Section 401(m)(4) of the
Code) allocated to his
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or her account under two (2) or more plans described in Section 401(a) of the
Code or arrangements described in Section 401(k) of the Code that are maintained
by the Group shall be determined as if all such contributions and deferrals were
made under a single plan.
(e) If the Plan satisfies the requirements of Section
401(a)(4) or Section 410(b) of the Code only if aggregated with one (1) or more
other plans or if one (1) or more other plans satisfy the requirements of
Section 401(a)(4) or Section 410(b) of the Code only if aggregated with the
Plan, the Average Contribution Percentages of Employees shall be determined as
if all such plans were a single plan.
4.7. ESOP Allocations. Allocations under this Plan for the Plan
Year ending December 31, 1996 to Employees who were Participants in this Plan as
of December 31, 1996 shall be made in accordance with the terms of this Plan as
in effect on December 31, 1996.
ARTICLE 5
ACCOUNTS
5.1. Maintenance of Accounts. The Committee shall maintain, as
applicable, for each Participant a Before Tax Contributions Account, an Employer
Matching Contributions Account, an ESOP Account, an ESOP Diversification
Account, a Supplemental Contributions Account, a Qualified Nonelective
Contributions Account, a
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Rollover Contributions Account and an After Tax Contributions Account.
5.2. Adjustments to Accounts; Statements Provided to Participants.
As of each Valuation Date, the Accounts of each Participant shall be adjusted to
reflect contributions, withdrawals, distributions, income earned or accrued, and
increase or decrease in the value of Trust Fund assets since the preceding
Valuation Date. Trust Fund earnings or losses shall be allocated proportionately
on the basis of Account balances among the respective Accounts and in a fair and
equitable manner as determined by the Trustee and/or the Committee. The Trustee
shall provide each Participant with a statement of the Participant's Account
balances under the Plan on a quarterly basis.
ARTICLE 6
VESTING AND FORFEITURES
6.1. Before Tax Contributions; Qualified Nonelective Contributions;
Certain Transferred Amounts. The Before Tax Contributions Account, Qualified
Nonelective Contributions Account, Rollover Contributions Account and After Tax
Contributions Account of a Participant shall be fully vested and nonforfeitable
at all times.
6.2. Employer Matching Contributions Account, ESOP Accounts and
Supplemental Contributions Account.
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(a) A Participant's Employer Matching Contributions Account, ESOP Accounts, and
Supplemental Contributions Account shall be fully vested and nonforfeitable upon
the first to occur of the following: (i) the Participant's completion of a
Period of Service of three (3) years, (ii) the Participant's attainment of age
sixty-five (65) (which shall be the Plan's normal retirement age) while an
employee of the Group, (iii) the Participant's death while employed by the
Group, or (d) the Participant's total disability while an employee of the Group,
as certified by either the Social Security Administration or the applicable
Group member's long-term disability carrier.
(b) Notwithstanding the provisions of Section 6.2(a) hereof:
(i) in the case of a Participant who was employed as of December 31, 1996 by any
Employer that sponsored a Merged Plan that was merged into this Plan as of
December 31, 1996, the vested interest of such Participant in the Participant's
Employer Matching Contributions Account and any Supplemental Contributions
Account shall not be less than what the Participant's vested interest in such
accounts would be if the vesting schedule, provisions relating to the vesting of
benefits at "normal retirement age" and/or provisions for crediting years of
service for vesting purposes under the applicable Merged Plan as of December 31,
1996 applied to such Participant under this Plan; and (ii) in the case of any
other Participant for whom an account balance under a
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Merged Plan is transferred to this Plan, the vested interest of such Participant
in such transferred account balance and his Employer Matching Contributions
Account and Supplemental Contributions Account (if any) shall not be less than
what the Participant's vested interest would be if the vesting schedule and
provisions relating to the vesting of benefits at "normal retirement age" under
the Merged Plan as of the applicable Merger Date applied to the Participant
under this Plan.
6.3. Forfeitures. (a) The nonvested portion (if any) of a
Participant's Employer Matching Contributions Account, ESOP Account, ESOP
Diversification Account, and Supplemental Contributions Account (if any) shall
be forfeited as of the earlier of (i) the date on which the Participant receives
a distribution of the Participant's entire vested Account Balance (provided such
distribution is made not later than the end of the second Plan Year following
the Plan Year in which the Participant terminates employment with the Group),
and (ii) the date that the Participant incurs five (5) consecutive One-Year
Breaks in Service. Notwithstanding the foregoing, the forfeiture of an ESOP
Account balance of a Participant who terminated employment with the Group prior
to January 1, 1997 shall be governed by the terms of the Plan as in effect on
December 31, 1996. If a former employee of the Group who has forfeited the
nonvested portion of his or her Employer Matching Contributions Account, ESOP
Account,
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ESOP Diversification Account, or Supplemental Contributions Account later
resumes employment by the Group before he or she has five (5) consecutive One
Year Breaks in Service, that portion of any such Account which was previously
forfeited shall be reinstated as his or her beginning Account balance and he or
she shall receive full credit for his or her previous Period of Service. The
source of the reinstated funds shall first be from the then applicable
forfeitures with respect to Participants formerly employed by the same Employer
that previously employed the Participant, and to the extent necessary then from
contributions by such Employer as provided in Section 4.2(a).
(b) Except to the extent provided in Sections 3.6, 4.5 and
4.6, forfeitures under the Plan shall result only from a Participant's
termination of employment with the Group before satisfying the vesting
requirements of Section 6.2 hereof. All forfeitures under the Plan shall be used
as soon as practicable to reduce any subsequent contributions required of the
applicable Employer under Article 4 hereof; provided, however, that if the
employer of the Participant whose nonvested Accounts are forfeited is not an
Employer at the time of the forfeiture, the forfeiture shall be used to reduce
the contributions required of the Company, except to the extent otherwise
determined by the Chief Executive Officer of the Company.
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6.4. Determination of Period of Service. In determining the Period
of Service of a Participant, a Participant who has five (5) or more consecutive
One Year Breaks in Service shall receive credit for his or her Period of Service
prior to such One Year Breaks in Service only if either (i) he had any
nonforfeitable interest in his or her Employer Matching Contributions Account,
ESOP Account, ESOP Diversification Account, or Supplemental Contributions
Account at the time of his or her separation from service with the Group, or
(ii) his or her Period of Service in years exceeds his or her number of
consecutive One Year Breaks in Service. Notwithstanding the foregoing, in the
case of any Participant who has incurred five (5) consecutive One Year Breaks in
Service, his or her Period of Service after such One Year Breaks in Service
shall not be taken into account for determining the vested percentage of his or
her Accounts attributable to periods prior to such five (5) consecutive One Year
Breaks in Service.
ARTICLE 7
INVESTMENT OF CONTRIBUTIONS
7.1. Funds. Contributions made to this Plan, and amounts held under
this Plan, on or after January 1, 1997 shall be invested in accordance with the
provisions of this Article 7 (except as provided in Section 10.4) in a
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Primark Stock Fund and such other investment funds as shall be specified by the
Committee from time-to-time.
7.2. Loan Fund. The Plan shall maintain a Loan Fund which shall
consist of promissory notes evidencing Loans made pursuant to Article 10 hereof.
time-to-time.
7.3. Investment of ESOP Accounts. A Participant's ESOP Account and
ESOP Diversification Account shall at all times be invested in the Primark Stock
Fund, except that a Participant's ESOP Diversification Account may be invested
in any of the Funds after a Participant becomes fully vested in such Account.
7.4. Investment of Employer and Participant Contributions.
(a) Before Tax Contributions, Employer Matching Contributions,
Qualified Nonelective Contributions, and Supplemental Contributions shall be
invested in accordance with the investment election made by a Participant as of
his or her Enrollment Date, or as subsequently changed in accordance with
Sections 7.5 and 7.6.
(b) Subaccounts shall be established for each Participant
under each Fund to which contributions on his or her behalf have been allocated.
7.5. Change in Investment Elections. A Participant may change his
or her investment election as
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to the investment of future contributions made to the Plan on his or her behalf
by giving prior notice to the Trustee (or, during any period designated by the
Committee, to the Committee) in accordance with rules prescribed by the Trustee
(or, during any period that enrollment Notices are to be filed with the
Committee, by the Committee).
7.6. Change in Existing Investments. (a) In accordance with rules
prescribed by the Committee, a Participant may transfer as of any Valuation Date
all or any portion of his or her Before Tax Contributions Account, Employer
Matching Contributions Account, Supplemental Contributions Account, Qualified
Nonelective Contributions Account, After Tax Contributions Account, Rollover
Contributions Account, and vested ESOP Diversification Account invested in any
of the Funds to any of the other Funds; provided, however, that transfers to or
from the Primark Stock Fund shall be made and occur in accordance with the
provisions of Section 7.6(b) hereof. A Participant who is subject to liability
under Section 16(b) of the Securities Exchange Act of 1934, as amended, with
respect to Primark Common Stock may make a transfer involving his or her ESOP
Account or Primark Stock Subaccount only after consultation with the Company's
General Counsel (or such other person as may be designated by the Company's
Chief Executive Officer).
(b) If a Participant elects to transfer all or a portion of any of
the Participant's Accounts that are
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invested in any of the Funds (other than the Primark Stock Fund) (the
"Transferror Fund(s)") to the Primark Stock Fund, no portion of the
Participant's Accounts invested in the Transferror Fund(s) shall be liquidated
for the purpose of effecting the transfer until the close of business on the
first business day of the calendar week following the calendar week during which
the Participant provided Notice of the transfer, and the proceeds from such
liquidation shall be reinvested in the Primark Stock Fund at such time. If a
Participant elects to transfer all or a portion of any of the Participant's
Accounts that are invested in the Primark Stock Fund to any other Fund(s) (the
"Transferee Fund(s)"), no portion of the Primark Stock Fund Subaccount under the
relevant Accounts shall be liquidated until the first business day of the
calendar week following the calendar week during which Notice of the transfer
was given. The net proceeds from such liquidation of all or a portion of the
Participant's Primark Stock Fund Subaccount under the relevant Accounts shall be
reinvested by the Trustee in the Transferee Fund(s) as soon a practicable after
receipt of such proceeds by the Trustee. An election Notice that is received
after the Cut-Off Time (as defined in Section 7.6(d) hereof) on the last
business day of a week shall be treated as received on the first business day of
the following week.
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(c) Commencing on January 1, 1997, and on the first day of each
Plan Year thereafter until January 1, 2001, an amount (rounded to the nearest
whole number) equal to twenty percent (20%) of the number of shares of Common
Stock allocated to a Participant's ESOP Account as of January 1, 1997 shall be
transferred to an ESOP Diversification Account established for the Participant
who has an ESOP Account under the Plan as of such date; provided, however, that:
(a) the number of shares to be transferred as of January 1 each such year shall
be reduced (but not below zero) by the sum of (i) the number of shares
liquidated during the immediately preceding Plan Year in order to fund a Loan
made to the Participant pursuant to Article X hereof on account of a "life
event" and (ii) the number of shares liquidated to fund any such loan made to
the Participant during any other preceding Plan Year to the extent such
liquidation did not reduce (pursuant to this proviso) the number of shares
transferred from the Participant's ESOP Account to the Participant's ESOP
Diversification Account; and (b) as of January 1, 2001, the entire balance of a
Participant's ESOP Account shall be transferred to the Participant's ESOP
Diversification Account. Shares of Primark Common Stock transferred from a
Participant's ESOP Account to the Participant's ESOP Diversification Account
shall be transferred in the order they were first allocated to the Participant's
ESOP Account.
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(d) Transfers made pursuant to Section 7.6(a) hereof will be
effected as of the close of business on the Valuation Date that the transfer
instruction is received by the Trustee if the instruction is received on or
before the Cut-Off Time, or if the instruction is received after the Cut-Off
Time or on a day that is not a Valuation Date, as of the close of business on
the next Valuation Date. Notwithstanding the foregoing, the Committee or the
Trustee may, in their sole discretion and either with or without prior notice to
Participants, suspend, delay, limit or restrict the execution of Participant
transfer elections for such periods as the Committee or the Trustee may in their
sole discretion determine. For purposes of this Section 7.6, "Cut-Off Time"
means 4:00 p.m. Eastern Time or such other time as may be prescribed by the
Committee or the Trustee.
7.7. Voting of Shares Held in the Primark Stock Fund. Before each
annual or special meeting of the shareholders of Primark, each Participant with
a Primark Stock Fund Subaccount shall be furnished a copy of the applicable
proxy solicitation material for such meeting, together with a request for his or
her confidential instructions to the Trustee as to how the shares of Primark
Common Stock held in the Primark Stock Fund then credited to his or her Primark
Stock Fund Subaccount (excluding therefrom any fractional shares) as of the most
recent practicable Valuation Date prior to such record
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date for which information is available should be voted. On each matter, the
Trustee shall vote:
(a) shares of Primark Common Stock for which it has received
timely voting instructions in accordance with such instructions; and
(b) shares of Primark Common Stock for which it has not
received timely voting instructions from Participants, or which are pending
allocation to Participants' Accounts, in the same proportion as it votes those
shares of Primark Common Stock for which it has received timely voting
instructions from Participants on such matter.
7.8. Tender or Exchange Offers. Each Participant shall have the
right, to the extent of shares of Primark Common Stock allocated to his or her
Primark Stock Fund Subaccount as of the most recent practicable Valuation Date
prior to such record date for which information is available, to direct the
Trustee in writing as to the manner in which to respond to a tender or exchange
offer with respect to such shares. The Trustee shall utilize its best efforts to
timely distribute or to cause to be distributed to each Participant such
information as will be distributed to shareholders of Primark in connection with
any such tender or exchange offer. Upon timely receipt of such written
directions from a Participant, the Trustee shall respond as directed with
respect to the shares of Primark Common Stock representing all, but not
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less than all, of the shares over which that Participant has the right of
direction. If the Trustee shall not have received timely written directions from
any Participant as to the manner in which to respond to such a tender or
exchange offer, the Trustee shall not tender or exchange any such shares with
respect to which that Participant has the right of direction. Shares of Primark
Common Stock held by the Trustee pending allocation to Participants' Accounts
shall be tendered or exchanged by the Trustee in the same proportion as are
tendered or exchanged those shares with respect to which Participants have the
right of direction.
7.9. Confidentiality. Information relating to the purchase,
holding, and sale of Primark Common Stock, and the directions received by the
Trustee from Participants pursuant to Sections 7.7 and 7.8 shall be held by the
Trustee in accordance with procedures developed by the Committee and/or Trustee
that are designed to safeguard the confidentiality of such information (except
to the extent necessary to permit the Company and the Participant to ensure
compliance with Federal and state laws not preempted by ERISA). The Committee
shall be responsible for ensuring that the procedures provided for by Sections
7.7, 7.8 and this Section 7.9 are sufficient to safeguard the confidentiality of
such Participant information, that such procedures are being followed, and that
an independent
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fiduciary is appointed to carry out any activities which the Committee
determines involve a potential for undue employer influence upon Participants
and beneficiaries with respect to the direct or indirect exercise of shareholder
rights.
ARTICLE 8
WITHDRAWALS DURING EMPLOYMENT
8.1. Withdrawals After Age 59-1/2. (a) Subject to the provisions of
this Article 8, a Participant who has attained age 59-1/2 may elect to withdraw
all or a portion of the Participant's Before Tax Contributions Account and
Qualified Nonelective Contributions Account or all or any amount of the vested
portion of the Participant's Employer Matching Contributions Account, ESOP
Diversification Account, and Supplemental Contributions Account; provided,
however, that (a) in the case of a Participant who has not been an active
participant in the Plan (including participation in a Merged Plan) for at least
sixty (60) months (which need not be consecutive) before the date of such
withdrawal, the Employer Matching Contributions, Supplemental Contributions, and
ESOP Diversification Account allocations actually made or allocated during the
most recent preceding twenty-four (24) months may not be withdrawn, and (b) the
date as of which an amount was allocated to a Participant's ESOP Diversification
Account shall be determined by reference to the date such amount
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was allocated to the Participant's ESOP Account. Amounts withdrawn pursuant to
this Section 8.1 shall be charged to a Participant's Accounts in the following
order: Before Tax Contributions Account; Qualified Nonelective Contributions
Account; vested Employer Matching Contributions Account; vested Supplemental
Contributions Account; and vested ESOP Diversification Account. A Participant
may make only one withdrawal pursuant to this Section 8.1 in any consecutive
twelve (12) month period (except as otherwise permitted under rules adopted and
consistently applied in a uniform and nondiscriminatory manner by the Committee.
8.2. Hardship Withdrawals of Before Tax Contributions. (a) Subject
to the provisions of this Article 8, a Participant may withdraw any amount of
his or her Before Tax Contributions (not including any earnings thereon and
reduced by the amount of any prior withdrawal of such contributions) from his or
her Before Tax Contributions Account on account of hardship. For purposes of
this Plan a withdrawal is on account of hardship only if:
(i) the withdrawal is made because of an immediate
and heavy financial need of the Participant (as determined in
accordance with Subsection (b)), and
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(ii) the withdrawal is necessary to satisfy such
financial need (as determined in accordance with Subsection (c)).
(b) For purposes of this Section 8.2, a distribution is
on account of an immediate and heavy financial need of a Participant only if the
distribution is on account of:
(i) medical expenses described in Section 213(d) of
the Code previously incurred by the Participant, the Participant's
spouse, or any dependent (as defined in Section 152 of the Code) or
necessary for such persons to obtain medical care described in
Section 213(d) of the Code; or
(ii) costs directly related to the purchase of a
principal residence of the Participant (excluding mortgage
payments); or
(iii) the payment of tuition and related educational
fees (to the extent permitted under applicable regulations and/or
Internal Revenue Service pronouncements) for the next twelve (12)
months of post secondary education for the Participant, the
Participant's spouse, children, or dependents; or
(iv) the need to prevent the eviction of the
Participant from the Participant's principal residence or
foreclosure of the mortgage on the Participant's principal
residence; or
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(v) any other event or occurrence that the
Commissioner of the Internal Revenue Service (the "Commissioner")
may designate through the publication of revenue rulings, notices,
and other documents of general applicability as constituting
immediate and heavy financial need.
(c) For purposes of this Section 8.2, a distribution is
necessary to satisfy an immediate and heavy financial need of a Participant only
if all of the following requirements are satisfied:
(i) the distribution is not in excess of the amount
of the immediate and heavy financial need of the Participant;
(ii) the Participant has obtained all distributions,
other than hardship distributions, and all nontaxable (at the time
of the loan) loans currently available under this Plan and all
plans maintained by the Group;
(iii) the Participant is prohibited under the terms of
the Plan or a legally enforceable agreement from making elective
contributions and employee contributions to the Plan and all other
plans maintained by the Group, to the extent required by applicable
regulations, for at least twelve (12) months after receipt of the
hardship distribution; and
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(iv) the Plan, and all other plans maintained by the
Group, limit the Participant's elective contributions for the next
taxable year to the applicable limit under Section 402(g) of the
Code for such next taxable year less the amount of such
Participant's elective contributions for the taxable year of the
hardship withdrawal.
A distribution shall also be deemed to be necessary to satisfy an
immediate and heavy financial need to the extent prescribed by the Commissioner
of the Internal Revenue Service through the publication of revenue rulings,
notices, and other documents of general applicability.
8.3. Withdrawals on Account of Life Events. Subject to the
provisions of this Article 8, a Participant may elect to withdraw all or a
portion of the Participant's vested ESOP Diversification Account on account of a
life event; provided, however, that (a) the amount withdrawn may not exceed the
cost or liability associated with the life event, (b) in the case of a
Participant who has not been an active Participant in the Plan for at least
sixty (60) months before the date of such withdrawal, the allocations actually
made to the Participant's ESOP Diversification Account during the most recent
preceding twenty-four (24) months may not be withdrawn, and (c) the date as of
which an amount was allocated to a Participant's ESOP Diversification Account
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shall be determined by reference to the date such amount was allocated to the
Participant's ESOP Account. For purposes of this Section 8.3, a withdrawal is on
account of a "life event," if it is on account of medical expenses incurred by
the Participant, his or her spouse or any of their dependents, the purchase of a
residence (whether or not primary) by the Participant, tuition and related
education expenses (whether pre-school, primary, secondary or post-secondary)
incurred by the Participant, his or her spouse or any of their dependents, costs
related to a the adoption of a child by the Participant or property settlement
or support agreement entered into in connection with a divorce proceeding to
which the Participant is a party, or a legal proceeding in which the Participant
is a defendant.
8.4. Withdrawals of Rollover Contributions and After Tax
Contributions. Subject to the provisions of this Article 8, a Participant may
elect to withdraw as of any Valuation Date all or a portion of his or her
Rollover Contributions Account and/or After Tax Contributions Account; provided,
however, that a Participant may make only one withdrawal pursuant to this
Section 8.4 in any consecutive six (6) month period (except as otherwise
permitted under rules adopted and consistently applied in a uniform and
nondiscriminatory manner by the Committee, or to the extent necessary to comply
with the requirements of Section 411(d)(6) of the Code).
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8.5. Application for Withdrawals; Processing. A request for a
withdrawal shall be made by a Participant by providing Notice to the Trustee (in
the case of a withdrawal pursuant to Sections 8.1 or 8.4 hereof), the Committee
(in the case of a withdrawal pursuant to Section 8.2 hereof) or the Company's
Personnel Manager (or such other person who may be designated by the Company's
General Counsel) (in the case of a withdrawal pursuant to Section 8.3 hereof)
within such period of time as the Committee may prescribe. The Committee or the
Company's Personnel Manager (or such other person as may be designated by the
Company's General Counsel), as applicable, shall evaluate the written
application of a Participant for a hardship withdrawal or life event withdrawal
in accordance with a uniform and nondiscriminatory policy applicable to all
Participants similarly situated and shall direct the Trustee to make a hardship
distribution or life event distribution to such Participant upon a finding of
such hardship or the occurrence of a life event in accordance with the
provisions of Section 8.2 or 8.3. A Participant making application hereunder for
a hardship withdrawal or life event withdrawal shall provide such information
and representations as the Committee or the Company's Personnel Manager (or such
other person as may be designated by the Company's General Counsel), as
applicable, deems necessary or appropriate. Withdrawal
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Notices pursuant to this Article 8 that are properly made shall be processed as
soon as practicable after receipt, subject to complying with the requirements of
Section 402(f) of the Code.
8.6. Restrictions on Contributions After a Withdrawal. A
Participant who makes a withdrawal pursuant to Sections 8.2 or 8.3 hereof shall
be prohibited from making any Before Tax Contributions under this Plan (or any
elective contributions or employee contributions under any plan maintained by
the Group), until the next Enrollment Date following the expiration of at least
twelve (12) months (six (6) months in the case of a withdrawal made pursuant to
Section 8.3 hereof) after the receipt of such a distribution. A Participant who
makes a hardship withdrawal pursuant to Section 8.2 shall not be permitted to
make Before Tax Contributions to the Plan for the taxable year of the
Participant following the taxable year of the hardship distribution in excess of
the maximum amount permitted under Section 3.6(a) hereof minus the amount of the
Participant's Before Tax Contributions for the taxable year of the hardship
withdrawal.
8.7. Effect of Withdrawals on Investments. Withdrawals from a
Participant's Accounts pursuant to this Article 8 shall be charged to each Fund
in which the Participant has a Subaccount under the relevant Accounts,
proportionately to each such Subaccount other than the Participant's Primark
Stock Fund Subaccount (if any) and
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then, if necessary, to the Participant's Primark Stock Subaccount under the
relevant Accounts. Withdrawals made pursuant to this Article 8 shall be made as
soon as practicable after the withdrawal is processed and a Participant's
Accounts shall be adjusted accordingly. A Participant who is subject to Section
16(b) of the Securities Exchange Act of 1934, as amended, may make a withdrawal
from his or her Primark Stock Fund Subaccount only after consultation with the
Company's General Counsel (or such other person as may be designated by the
Company's Chief Executive Officer).
8.8. Timing and Form of Payment of Withdrawals. All withdrawals
pursuant to this Article 8 shall be paid in cash in a lump sum as soon as
practicable after the withdrawal has been processed and any applicable legal
requirements have been satisfied; provided, however, that a Participant may, by
giving prior Notice to the Trustee and within such time limit as the Trustee
shall prescribe, elect to have that portion of his or her withdrawal which is
charged against his or her Primark Stock Fund Subaccount paid in shares of
Primark Common Stock with the value of any fractional shares and any uninvested
funds held in such Subaccounts paid in cash.
8.9. Withdrawals Only Available to Employees. A Participant may
make a withdrawal pursuant to this Article 8 only if he or she is an employee of
the Group at the time of the withdrawal.
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ARTICLE 9
PAYMENT OF BENEFITS
9.1. Distribution of Benefits Upon Occurrence of a Distribution
Event.
(a) If a Distribution Event occurs with respect to a
Participant, such Participant may, by prior Notice to the Trustee, elect to
receive a distribution of his or her entire vested Account Balance. As soon as
practicable after receipt of a Participant's distribution election Notice, but
subject to Section 9.1(d) hereof, the Trustee shall distribute the Participant's
Account Balance in accordance with the Participant's election.
(b) As soon as practicable after the Trustee receives notice
of (i) the occurrence of a Distribution Event with respect to a Participant
whose vested Account Balance does not exceed $3,500 or who has attained age
sixty-five (65), or (ii) a Participant's attainment of age sixty-five (65) after
the occurrence of a Distribution Event, the Trustee shall distribute the vested
Account Balance of such Participant to the Participant (or in the case of a
deceased Participant, the Participant's beneficiary, as designated in accordance
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with Section 2.2(b)), subject to complying with the requirements of Section
9.1(d) hereof.
(c) If no portion of a Participant's Employer Matching
Contributions Account, ESOP Account, ESOP Diversification Account, or
Supplemental Contributions Account is vested at the time the Participant
receives a distribution of his or her entire vested Account Balance, the
Participant shall be deemed to have received a distribution of his or her entire
nonforfeitable interest in such Accounts (which, since the Participant is not
vested, is zero).
(d) In no event shall the Trustee distribute a Participant's
vested Account Balance prior to the requirements of Section 402(f) of the Code
being satisfied.
9.2. Payment of Benefits by Trustee; Form of Payment. All amounts
distributable pursuant to Section 9.1 shall be paid as soon as practicable after
the Trustee receives Notice from a Participant electing to receive a
distribution (as described in Section 9.1(a)) or notice of a Distribution Event
or death of a Participant (as described in Section 9.1(b)) and any applicable
legal requirements have been satisfied; provided, however, that in the case of
Participants who have attained age sixty-five (65), such distributions shall be
made not later than sixty (60) calendar days after the close of the Plan Year in
which the Participant attained age sixty-five
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(65). Distributions made in accordance with this Article from the Funds shall be
paid in cash; provided, however, if a Participant so elects, distributions from
a Participant's Primark Stock Fund Subaccount shall be made in whole shares of
Primark Common Stock, with fractional shares and any uninvested funds held in
the Primark Stock Fund Subaccount paid in cash. The amount distributed to a
Participant or beneficiary shall be equal to the applicable Participant's
Account Balance as of the date that the Trustee processes the distribution
instruction.
9.3. Certain Rules Applicable to Payment of Benefits.
Notwithstanding any other provision of the Plan to the contrary, the vested
portion of a Participant's Accounts shall be distributed to him not later than
April 1 of the calendar year following the calendar year in which the
Participant attains age 70-1//2, or, with respect to amounts allocated to a
Participant's account after such date, by April 1, of the calendar year
following the calendar year as of which such amounts are allocated; provided,
however, that the provisions of this Section 9.3 shall only apply to a
Participant who is a five-percent (5%) owner (within the meaning of Section 416
of the Code).
9.4. Payment to Participant's Estate. If there is no person alive
to receive and provide receipt for any payment due under the Plan, the Committee
shall direct that such payment or payments be made to the estate of the
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deceased Participant or the last deceased payee, as the case may be.
9.5. Incapacity of Payee. If any person who is entitled to receive
any benefits hereunder is, in the sole and absolute judgment of the Committee,
legally, physically or mentally incapable of personally receiving and providing
receipt for any distributions, the Committee in its sole and absolute discretion
may instruct the Trustee to make distribution to such other person, persons,
institution or institutions as in the judgment of the Committee shall then be
maintaining or have custody over such distributee. The Committee may rely upon
the report of a duly licensed physician with regard to capacity or may in its
sole and absolute discretion first require persons claiming benefits to obtain
an appropriate court order determining such person's capacity.
9.6. Committee Determines Payee. Except as otherwise provided by
ERISA, the determination of the Committee as to the identity of the proper payee
for any payment and the amount properly payable shall be conclusive, and payment
in accordance with such determination shall, to the extent thereof, constitute a
complete discharge of all obligations to such payee under the Plan.
9.7. Rollover Distributions. (a) A Participant may elect, at the
time and in the manner prescribed by the Trustee, to have any portion of an
Eligible Rollover
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Distribution paid directly to an Eligible Retirement Plan specified by the
Participant as a direct rollover. Notwithstanding the foregoing, a Participant
shall not be entitled to elect a direct rollover of an amount that is not in
excess of any minimum dollar amount that the Committee may prescribe from time
to time in accordance with applicable regulations.
(b) For purposes of this Section 9.7, an "Eligible Rollover
Distribution" is any distribution of all or any portion of a Participant's
Accounts, except that an Eligible Rollover Distribution shall not include (i)
any distribution that is one of a series of substantially equal periodic
payments (paid not less frequently than annually) made for a specified period of
ten years or more, (ii) any distribution to the extent that such distribution is
required under Section 401(a)(9) of the Code, or (iii) 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).
(c) For purposes of this Section 9.7, 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
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Section 401(a) of the Code, that accepts the Participant's Eligible Rollover
Distribution.
(d) The surviving spouse of a deceased Participant or a
Participant's spouse or surviving spouse who is an alternate payee under a
qualified domestic relations order (within the meaning of Section 414(p) of the
Code) shall be treated as a Participant for purposes of this Section 9.7;
provided, however, that in the case of a surviving spouse, the term Eligible
Retirement Plan shall include only an individual retirement account or
individual retirement annuity.
9.8. Distributions Pursuant to Qualified Domestic Relations Orders.
Notwithstanding any other provision of Article 8 or this Article 9 to the
contrary, all or a portion of a Participant's Accounts may be distributed at any
time to an "alternate payee" (within the meaning of Section 414(p) of the Code)
pursuant to a "qualified domestic relations order" (within the meaning of
Section 414(p) of the Code) to the extent permitted by applicable regulations.
An alternate payee shall have the same rights under this Plan as a Participant
to the extent required by a qualified domestic relations order and applicable
law.
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ARTICLE 10
LOANS
10.1. Availability of Loans; Application for Loans. (a) Subject to
the terms and conditions of this Article 10, the Trustee may loan to an Eligible
Borrower as of any Valuation Date an amount from the Eligible Borrower's Before
Tax Contributions Account, Qualified Nonelective Contributions Account, Rollover
Contributions Account, and/or the vested portion of the Eligible Borrower's (i)
Employer Matching Contributions Account, (ii) Supplemental Contributions
Account, (iii) ESOP Diversification Account, and (iv) in the event of a "life
event" (as defined in Section 8.3 hereof) with respect to the Eligible Borrower,
the Eligible Borrower's ESOP Account, that is not less than $500 and that, when
added to any other Loan outstanding to the Eligible Borrower does not exceed the
lesser of (i) 50% of the Eligible Borrower's vested Account Balance; or (ii)
$50,000 reduced by the highest outstanding balance of loans, during the twelve
(12) month period immediately preceding the date the Loan is made, from the Plan
and from any other tax qualified retirement plan maintained by the Group.
(b) Loans shall be made available to Eligible Borrowers on a
reasonably equivalent basis without regard to race, color, religion, sex, age or
national origin and after giving consideration only to those factors which would
be considered in a normal
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commercial setting by an entity in the business of making similar types of
loans. Notwithstanding the foregoing, the Committee may impose different terms
and conditions on Loans made at different times and to different Eligible
Borrowers. The Committee may change the terms of any outstanding loan to the
extent required by applicable law. A Participant who applies for a Loan on
account of a "life event" shall provide the Company's Personnel Manager (or such
other person as may be designated by the Company's General Counsel) with such
information and representations as the Company's Personnel Manager (or such
other person as may be designated by the Company's General Counsel) determines
is necessary or appropriate.
(c) An application for a Loan shall be made by an Eligible
Borrower by providing Notice to the Trustee (in the case of a Nonresidential
Loan) or the Committee (in the case of a Residential Loan) within such period of
time prior to the date of the Loan as the Committee may prescribe; provided,
however, that any application for a life event loan shall be made by providing
Notice to the Company's Personnel Manager (or such other person as may be
designated by the Company's General Counsel).
10.2. Terms of Loans. (a) Loans shall bear a floating interest rate
equal to the Prime Rate quoted by the Wall Street Journal as of the first
business day of the applicable calendar quarter during which the loan is
outstanding plus one percent (1%).
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(b) Loans shall be adequately secured, but in no event shall
more than 50% of an Eligible Borrower's vested Account Balance under the Plan at
the time of the loan be considered as security. The adequacy of such security
shall be determined by the Committee, in its sole discretion, in light of 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.
(c) The period of repayment for each Loan shall be arrived at
by mutual agreement between the Trustee and/or the Committee and an Eligible
Borrower but such period shall not in any case exceed five (5) years; provided,
however, that a Residential Loan may have a term of up to twenty-five (25)
years.
(d) Loan repayments by a Borrower who is an employee of the
Group shall be made through regular payroll deductions made not less frequently
than quarterly from amounts otherwise payable to the Eligible Borrower. Any
Borrower who is not receiving any compensation from a member of the Group from
which payroll deductions can be made shall be required to make required Loan
repayments by personal check, money order or a certified or cashier's check
delivered to the Committee on or before their respective due dates or otherwise
in accordance with rules prescribed by the Committee. Cash payments shall not be
accepted.
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(e) A Borrower shall be permitted to prepay, without penalty,
all of the outstanding balance of a Loan and accrued interest thereon at any
time; provided, however, that partial prepayments shall not be permitted.
(f) Each Loan shall be evidenced by such documentation as may
be required by the Committee, including but not limited to an authorization from
each Borrower who is an employee of the Group to permit his or her Employer to
effect repayment through regular payroll deductions.
(g) Notwithstanding any other provision of this Plan to the
contrary, no distribution shall be made to any Borrower from that portion of a
Borrower's Accounts that secures one or more Loans made to such Borrower unless
and until all such loans (including accrued interest thereon) have been repaid.
(h) Each Loan shall have such additional terms and conditions
as may be determined by the Committee in its sole discretion, including, but not
limited to, terms and conditions relating to application and administration
fees, events of default, prepayments, and required security.
10.3. Events of Default. (a) The entire unpaid balance of any Loan
and all interest due thereon, including all arrearages, shall, at the sole
option of the Committee, immediately become due and payable without further
notice or demand, upon the occurrence, with
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respect to a Borrower of any of the following events of default:
(i) any payment of principal or accrued interest on a Loan
remains due and unpaid for a period of ten (10) calendar days after the
same becomes due and payable under the terms of the loan;
(ii) the commencement of a proceeding in bankruptcy,
receivership or insolvency by or against the Borrower, but only to the
extent then permitted under applicable federal law;
(iii) the termination of the employment of the Borrower with
the Group for any reason;
(iv) the Borrower attempts to make an assignment for the
benefit of creditors of that portion of his or her Accounts securing
his or her Loan or in any other security for his or her Loan;
(v) a qualified domestic relations order (as such term is then
defined in Section 414(p) of the Code) with respect to the Borrower is
received by the Committee; or
(vi) any Loan proceeds are used, directly or indirectly, by
the Borrower to purchase or carry securities (as such term is then
defined for purposes of Regulation G of the Federal Reserve Board as
promulgated pursuant to Section 7 of the Securities and Exchange Act of
1934).
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(b) Any payments of principal or interest on a Loan not paid
when due shall bear interest thereafter at the rate specified by the terms of
the loan. The payment and acceptance of any sum or sums at any time on account
of a Loan after the occurrence of an event of default, or any failure to act to
enforce the rights granted hereunder upon the occurrence of an event of default,
shall not be a waiver of the right of acceleration set forth in Section 10.3(a).
(c) If an event of default and the acceleration of the unpaid
balance of any Loan (and interest due thereon) shall occur as described in
Section 10.3(a), the Committee shall have the right to direct the Trustee to
pursue any remedies available to a creditor at law or under the terms of the
Loan, including the right to execute on the security for the Loan in
satisfaction of the unpaid balance of the Loan and interest due thereon;
provided, however, that the Committee shall not have the right to direct the
Trustee to execute on any amounts credited to a Borrower's Before Tax
Contributions Account before the date on which such amounts may be distributed
without adversely affecting the tax-qualified status of the Plan.
10.4. Accounting for Loans. A Participant Loan Subaccount shall be
established as of the date a Loan is made to an Eligible Borrower and an amount
equal to the principal amount of the Loan shall be transferred to such
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Subaccount under the Eligible Borrower's Accounts in the following order: Before
Tax Contributions Account; Qualified Nonelective Contributions Account; Vested
Employer Matching Contributions Account; Vested ESOP Diversification Account;
Vested Supplemental Contributions Account; Rollover Contributions Account and/or
Vested ESOP Account. With respect to amounts borrowed from an Eligible
Borrower's Before Tax Contributions Account, the amount transferred shall come
first from earnings allocated to such Account, until exhausted, and then from
Before Tax Contributions. The Loan shall be treated as an investment of the
funds credited to the Eligible Borrower's Before Tax Contributions Account,
Qualified Nonelective Contributions Account, ESOP Diversification Account,
Supplemental Contributions Account, Rollover Contributions Account and-or ESOP
Account (as applicable). Cash equal to the amount of the Loan shall be obtained
by first liquidating investments in each of an Eligible Borrower's Subaccounts
(other than his or her Primark Stock Subaccount) under the relevant Accounts on
a pro rata basis in proportion to the vested amounts credited to such
Subaccounts and then by liquidating the Eligible Borrower's Primark Stock
Subaccount under the relevant Accounts. Payments of principal and interest on a
Loan shall be credited to the respective Accounts in proportion to the amount of
Loan proceeds attributed to each Account and invested in the various Funds in
the same proportion
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as current contributions with respect to the Eligible Borrower are invested;
provided, however, that (a) if no such current contributions are being made to
the Plan, the Borrower shall be required to file Notice of the Eligible
Borrower's investment election in accordance with rules prescribed by the
Committee [and (b) as of the date of any Loan repayments are credited to a
Participant's ESOP Account such amounts shall be transferred to the
Participant's ESOP Diversification Account].
ARTICLE 11
ADMINISTRATION OF THE PLAN
11.1. Authority of Committee. (a) The Plan shall be administered on
behalf of the participating Employers by the Committee.
(b) Except as otherwise provided herein, the Committee shall
be solely responsible for the administration, operation and interpretation of
the Plan. The Committee shall establish rules and regulations appropriate for
the administration of the Plan. The Committee shall have the exclusive right and
discretion to interpret the Plan and to decide any and all matters arising
thereunder or in connection with the administration of the Plan in its sole
discretion. Except as otherwise provided by ERISA, such decisions, actions and
records of the Committee shall be conclusive and binding upon the Company, the
Employers and all persons
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having or claiming to have any right or interest in or under the Plan.
(c) The Committee may delegate to (i) any agent or agents of
the Group, (ii) any Employer, or (iii) any employee or employees of the Group,
severally or jointly, the authority to perform any of its duties with respect to
the administration of the Plan. The Committee may also, in its discretion,
contract with one or more third parties to perform any ministerial or routine
act in connection with administration of the Plan.
(d) The Committee shall maintain such records as are required
under ERISA or under the Code and such additional records as it deems necessary
or appropriate showing the fiscal transactions of the Plan.
11.2. Claims Procedure. (a) If any Participant or other payee
claims to be entitled to a benefit under the Plan and the Committee determines
that such claim should be denied in whole or in part, the Committee shall notify
such person of its decision in writing. Such notification will be written in a
manner calculated to be understood by such person and will contain (i) specific
reasons for the denial, (ii) specific reference to pertinent Plan provisions,
(iii) a description of any additional material or information necessary for such
person to perfect such claim and an explanation of why such material or
information is necessary, and (iv) information as to the steps to be taken if
the person
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wishes to submit a request for review. Such notification will be given within 90
days after the claim is received by the Committee (or within 180 days, if
special circumstances require an extension of time for processing the claim, and
if written notice of such extension and circumstances is given to such person
within the initial 90 day period). If such notification is not given within such
period, the claim will be considered denied as of the last day of such period
and such person may request a review of his or her claim.
(b) Review Procedure. Within 60 days after the date on which a
person receives a written notice of a denied claim (or, if applicable, within 60
days after the date on which such denial is considered to have occurred) such
person (or his or her duly authorized representative) may (i) file a written
request with the Committee for a review of his or her denied claim and of
pertinent documents and (ii) submit written issues and comments to the
Committee. The Committee will notify such person of its decision in writing.
Such notification will be written in a manner calculated to be understood by
such person and will contain specific reasons for the decision as well as
specific references to pertinent Plan provisions. The decision on review will be
made within 60 days after the request for review is received by the Committee
(or within 120 days, if special circumstances require an extension of time for
processing the request,
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such as an election by the Committee to hold a hearing, and if written notice of
such extension and circumstances is given to such person within the initial 60
day period). If the decision on review is not made within such period, the claim
will be considered denied.
11.3. Liability of Committee. Neither the Committee, the Chief
Executive Officer of the Company nor any other employee of the Group shall be
liable for any act or omission on their own part, except for their own willful
misconduct or gross negligence and except as is otherwise expressly provided by
ERISA. To the fullest extent permitted by applicable laws and to the extent not
insured against by any insurance company pursuant to the provisions of any
applicable insurance policy, the Company shall indemnify and save harmless the
Committee and its members, the Chief Executive Officer of the Company and any
other employee of the Group against any and all claims, demands, suits or
proceedings in connection with the Plan and Trust Fund that may be brought by
Participants or their spouses or other designated beneficiaries (or estates),
Employees of participating Employers or by any other person, corporation,
entity, government or agency thereof; provided, however, that such
indemnification shall not apply with respect to acts or omissions of willful
misconduct or gross negligence. The Chief Executive Officer of the Company may,
at the Company's expense, settle any such claim or demand
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asserted or suit or proceeding brought against the Committee or any of its
members, the Chief Executive Officer of the Company, or any other employee of
the Group when the Chief Executive Officer determines that such settlement
appears to be in the best interests of the Company.
ARTICLE 12
MANAGEMENT OF THE TRUST FUND
12.1. Designation of Trustee. All contributions shall be made to,
and held in trust by, the Trustee of the Plan, who shall be appointed by the
Chief Executive Officer of the Company, with such powers in the Trustee as to
investment, reinvestment, control and disbursement of the Trust Fund as may be
provided in the Trust Agreement and shall be in accordance with the Plan and
permitted under ERISA and under the Code. The Chief Executive Officer of the
Company may remove any Trustee at any time, with or without cause, upon
reasonable notice, and upon such removal or upon the resignation of any Trustee,
the Chief Executive Officer of the Company shall promptly designate a successor
Trustee.
12.2. Plan Assets Held in Trust. (a) All assets held by the Trustee
under the Trust Fund shall be held in trust for the exclusive benefit of
Participants or, if deceased, their spouses or other designated beneficiaries
(or estates), and no part of the corpus or income of the
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Trust Fund shall be used for, or diverted to, purposes other than for the
exclusive benefit of such persons under the Plan or for the payment of
reasonable expenses of administering the Plan; provided, however, that if any
contribution is made by an Employer as the result of a mistake of fact made in
good faith or is conditioned on the deductibility of such contribution under
Section 404(a) of the Code, that Employer may direct the Trustee to return
within one (1) year after the date of the payment or after the date the
deduction is denied, whichever is applicable, the amount contributed by mistake
of fact or the amount that is not deductible, whichever is applicable. Earnings
Employer, but losses shall reduce the amount to be returned. All contributions
to the Plan are conditioned on their deductibility under Section 404 of the
Code.
(b) No person shall have any interest in or right to any part
of the earnings of the Trust Fund, or any rights in, to or under the Trust Fund
or any part of its assets except to the extent expressly provided in the Plan.
Notwithstanding anything herein to the contrary, the spouse, former spouses,
beneficiary or any other person claiming benefits on behalf of any Participant
shall have absolutely no rights whatsoever under the Plan prior to the death of
that Participant except as may
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otherwise be expressly provided under ERISA (e.g., spousal consent rights and
qualified domestic relations orders).
ARTICLE 13
AMENDMENT OF THE PLAN
13.1. Amendment. The Plan may be wholly or partially amended or
otherwise modified at any time by the Chief Executive Officer of the Company;
provided, however, that:
(a) except as otherwise provided herein and permitted under
the Code and under ERISA, no amendment or modification shall be made at any time
prior to the satisfaction of all liabilities under the Plan with respect to
Participants or, if deceased, their spouses or other designated beneficiaries
(or estates) which would permit any part of the corpus or income of the Trust
Fund to be used for, or diverted to, purposes other than for the exclusive
benefit of such persons under the Plan and for the payment of the expenses of
the Plan;
(b) no amendment or modification shall have any retroactive
effect so as to deprive any person of any benefits already accrued, except that
any amendment may be made retroactive which is necessary to bring the Plan into
conformity with governmental regulations in order to retain the qualification of
the Plan and Trust Fund under Sections 401(a), 401(k) and 501(a) of the Code or
to meet the requirements of ERISA and other applicable laws;
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(c) no amendment shall be made which changes the vesting
requirements in Article 6 unless each Participant whose Period of Service was at
least three (3) years as of the effective date of such amendment is permitted to
elect to remain under the pre-amendment vesting requirements with respect to all
of his or her Plan benefits accrued both before and after the effective date of
such amendment; and
(d) the benefits provided by the Plan in the case of each
Participant shall be determined by reference to the provisions of the Plan which
are or were in effect at the date upon which his or her employment with the
Group is or was terminated. Should this Plan thereafter be amended, the
amendment shall have no effect upon the benefits provided by the Plan in the
case of that Participant unless the effective date of the amendment is expressly
established as a date upon or prior to the date upon which his or her employment
with the Group was terminated or except as expressly provided by the amendment
or as required to maintain the tax-qualified status of the Plan.
ARTICLE 14
DISCONTINUANCE OF THE PLAN
14.1. Right To Terminate Plan. The Plan may be terminated, in whole
or in part, at any time by the Chief Executive Officer of the Company, but only
upon condition
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that such action is taken as shall render it impossible for any part of the
corpus or income of the Trust Fund to be used for, or diverted to, purposes
other than for the exclusive benefit of the Participants or, if deceased, their
spouses or other designated beneficiaries (or estates) under the Plan and for
the payment of reasonable costs of administering the Plan, except as otherwise
provided herein and permitted under ERISA and/or under the Code. In the event of
any termination of the Plan, in whole or in part, or the complete discontinuance
of contributions hereunder, the Employer Matching Contributions Account, ESOP
Accounts, and Supplemental Contributions Account of each Participant affected by
the partial or complete termination shall become fully vested and
nonforfeitable.
14.2. Plan Mergers and Transfers of Assets and Liabilities. No
merger or consolidation with, or transfer of assets or liabilities to, any other
pension or retirement plan shall be made unless the benefits each Participant in
the Plan would receive if the other plan were terminated immediately after such
merger, consolidation or transfer of assets and liabilities would be at least as
great as the benefits he or she would have received had the Plan been terminated
immediately before such merger, consolidation or transfer.
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ARTICLE 15
STATEMENT OF INTENT
15.1. Qualification. The Plan and the related Trust Agreement are
intended and designed to qualify under Sections 401(a), 401(k), and 501(a) of
the Code and, effective January 1, 1997, the Plan is hereby designated a profit
sharing plan for purposes of Sections 401(a), 401(k) 402, 412 and 417 of the
Code. Anything contained in the Plan to the contrary notwithstanding, if the
Internal Revenue Service determines that the Plan and the related Trust
Agreement do not meet the requirements of Sections 401(a), 401(k) and 501(a) of
the Code, then the Chief Executive Officer of the Company shall be entitled to
make such modifications, alternations and amendments of the Plan and the related
Trust Agreement as are necessary to retain a favorable determination and such
modifications, alternations and amendments may be effective retroactively to the
extent required to retain a favorable determination.
15.2. Section 404(c) of ERISA. This Plan is designed to satisfy the
requirements of Section 404(c) of ERISA and the regulations thereunder.
15.3. Responsibility of Named Fiduciaries. It is declared to be the
express purpose and intention of the Plan that each "named fiduciary" as such
term is defined in Section 402(a)(2) of ERISA shall have individual
responsibility for the prudent execution of the specific
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functions and duties assigned to such named fiduciary, and none of such
responsibilities or any other responsibility shall be shared by two (2) or more
of such named fiduciaries unless such sharing shall be provided by a specific
provision of the Plan or of the Trust Agreement. Whenever one (1) named
fiduciary is required by the Plan or by the Trust Agreement to follow the
directions of another named fiduciary, the two (2) named fiduciaries shall not
be deemed to have assigned a shared responsibility, but the responsibility of
the named fiduciary giving the directions shall be deemed his or her sole
responsibility, and the responsibility of the named fiduciary receiving those
directions shall be to follow them insofar as such instructions are on their
face proper under applicable law and not prohibited under Section 4975(c) of the
Code or under Section 406 of ERISA.
15.4. Legal Rights and Liabilities. Neither the establishment
and maintenance of the Plan nor any provision or amendment thereof nor any act
or omission under or resulting from the operation of the Plan shall be
construed:
(a) as conferring upon any Employee, Participant, spouse,
beneficiary or any other person, firm, corporation or association, any legal or
equitable right or claim against the Committee, any Employer, the Trustee, or
any shareholder, officer, employee or director of any Employer, except to the
extent that such right or
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claim shall be specifically and expressly provided in the Plan or provided by
law. Any and all such rights and claims, whether arising by common law or in
equity or created by statute, are hereby expressly waived and released to the
fullest extent permitted by law by every Employee on behalf of himself, his or
her spouse or other beneficiary and any and all other persons who might claim
through him as a condition of and as a part of the consideration for the
contributions made by the Employers under the Plan and for the receipt of
benefits hereunder;
(b) as an agreement, consideration or inducement of employment
or as affecting in any manner the rights or obligations of the Employers or of
any Employee to continue or to terminate the employment relationship at any
time; or
(c) as creating any responsibility or liability of the
Committee, its members, the Chief Executive Officer of the Company, any other
employee of the Group, the Employers or the Trustee for the validity or effect
of the Plan or of any investment at any time included in the Trust Fund.
ARTICLE 16
TOP-HEAVY RULES
16.1. Applicability of Rules. The rules set forth in this Article
16 shall be applicable with respect to any Plan Year in which the Plan is
determined to be a
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Top-Heavy Plan. The provisions of this Article 16 shall be applied only to the
extent necessary to comply with Section 416 of the Code and in a manner
consistent with all requirements imposed under Section 416 of the Code.
16.2. Determination of Top-Heavy Status. The Plan shall be
considered a Top-Heavy Plan with respect to any Plan Year if as of the last
calendar day of the immediately preceding Plan Year (the "determination date"):
(a) The present value of the Accrued Benefits of key employees
(as such term is defined below) exceeds sixty percent (60%) of the present value
of the Accrued Benefits of all Participants and former Participants other than
former key employees (as such term is defined below); provided, however, that
the Accrued Benefits of any Participant who has not performed any services for
the Group as an employee during a five (5) year period ending on the
determination date (as such term is defined above) shall be disregarded; or
(b) the Plan is part of a required aggregation group (as such
term is defined below) and the required aggregation group is top-heavy;
provided, however, that the Plan shall not be considered a Top-Heavy Plan with
respect to any Plan Year in which the Plan is part of a required or permissive
aggregation group (as such terms are defined below) which is not top-heavy. For
purposes of this Article 16, the term "key employee" shall
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have the meaning prescribed in Section 416(i) of the Code and the regulations
thereunder.
(c) For purposes of this Article 16, the term "required
aggregation group" shall include:
(i) all qualified retirement plans maintained by the Group in
which a key employee (as such term is defined above) is a participant,
and
(ii) any other qualified retirement plans maintained by the
Group which enable any qualified retirement plan described in the
preceding clause (i) above to meet the requirements of Section
401(a)(4) or of Section 410 of the Code.
(d) For purposes of this Article 16, the term "permissive
aggregation group" shall include all qualified retirement plans that are part of
a required aggregation group (as such term is defined above) and any other
qualified retirement plans maintained by the Group if such group will continue
to meet the requirements of Sections 401(a)(4) and 410 of the Code.
(e) Solely for the purpose of determining if the Plan, or any
other plan included in a required aggregation group of which the Plan is a part,
is top-heavy (within the meaning of Section 416(g) of the Code), the Accrued
Benefits of an Employee other than a key employee (within the meaning of Section
416(i)(1) of the Code) shall be determined under:
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(i) the method, if any, that uniformly applies for
accrual purposes under all plans maintained by the Group, or
(ii) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate
permitted under the fractional accrual rule of Section
411(b)(1)(C) of the Code.
16.3. Determination of Accrued Benefits. For purposes of this
Article 16, Accrued Benefits with respect to any Plan Year shall be determined
as of the determination date (as such term is defined in Section 16.2) for that
Plan Year based on Account balances as of the most recent Valuation Date within
a consecutive twelve (12) month period ending on such determination date;
provided, however, that such Account balances shall be adjusted to the extent
required by Section 416 of the Code to increase such Account balances by the
amount of any Employer or Participant contributions and of any rollovers or
plan-to-plan transfers (other than rollovers or plan-to-plan transfers which are
initiated by a Participant from any qualified retirement plan maintained by an
unrelated employer after December 31, 1983) made and allocated after the
Valuation Date but on or before such determination date and by any distributions
made to Participants prior to the Valuation Date during any of the five (5)
consecutive Years immediately preceding the Plan Year for which the
determination as to whether the Plan is
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a Top-Heavy Plan is being made (including distributions from a terminated plan
which, if not terminated, would have been part of a required aggregation group
(as such term is defined in Section 16.2)) and to reduce such Account balances
by any rollovers or plan-to-plan transfers made to the Plan on or before the
Valuation Date which are initiated by a Participant from any qualified
retirement plan maintained by an unrelated employer.
16.4. Contributions for Top-Heavy Years. With respect to any Plan
Year in which the Plan is a Top-Heavy Plan, the minimum amount of Employer
contributions to be allocated to the Accounts of any Employee who is eligible to
be a Participant (including forfeitures constructively allocated to that
Participant's Accounts and any employer contributions and forfeitures allocated
to that Participant under any other qualified defined contribution plans
maintained by the Group but, effective on and after January 1, 1989, excluding
any employee elective contributions) who had not separated from service with the
Group as of the last calendar day of that Plan Year, regardless of the number of
Hours of Service completed by that Participant during that Plan Year, or whether
the Employee declines to make mandatory contributions (if the Plan otherwise
requires same) and who is not a key employee (as such term is defined in Section
16.2) for that Plan Year, shall not be less than three percent (3%) of that
Participant's Section 416 Compensation in that
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Plan Year; provided, however, that the percentage of Section 416 Compensation
allocated to the Employer Matching Contributions Account and Qualified
Nonelective Contributions Account, and Supplemental Contributions Account of any
Participant who is not a key employee (as such term is defined in Section 16.2)
under this Article with respect to that Plan Year shall not exceed the highest
percentage of Section 416 Compensation allocated to the Employer Matching
Contributions Account, Qualified Nonelective Contributions Account, and
Supplemental Contributions Account of any Participant who is a key employee in
that Plan Year. Notwithstanding the foregoing, in the event that an Employee who
is otherwise entitled to a minimum benefit equal to three percent (3%) of his or
her Section 416 Compensation pursuant to this Section is a participant in a
defined benefit plan that is a part of this Plan's required or permissive
aggregation group, such Employee shall only be entitled to a combined benefit
(determined in accordance with the requirements of Treasury Regulation Section
1.416-1, Q&A M-12) under the plans equal to the minimum benefit required under
the defined benefit plan pursuant to Section 416 of the Code.
16.5. Adjustments Affecting Limitation on Contributions. With
respect to any Plan Year in which the Plan is a Top-Heavy Plan, paragraphs
(2)(B) and 3(B) of Section 415(e) of the Code shall be applied by substituting
"1.0" for "1.25".
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ARTICLE 17
GENERAL PROVISIONS
17.1. Nonalienation of Benefits. (a) To the fullest extent
permitted by law, no benefits under the Plan shall be subject in any manner,
voluntarily or involuntarily, to anticipation, alienation, sale, transfer,
assignment, pledge, garnishment, encumbrance or charge, and any action by way of
anticipation, alienation, selling, transferring, assigning, pledging,
garnishing, encumbering or charging the same shall be void and of no effect, and
no such benefits shall be in any manner liable for or subject to the debts,
contracts, liabilities, engagements or torts of the person entitled to such
benefits. The preceding sentence shall also apply to the creation, assignment or
recognition of a right to any benefit payable with respect to any Participant or
to any beneficiary under the Plan 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. The Committee shall establish such procedures for
evaluating and determining the status of any domestic relations order and shall
give due notice to any affected parties (Participants and alternate payees) as
required by law.
(b) Subject to any applicable provision of law to the
contrary, if any Participant or any beneficiary
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under the Plan shall become bankrupt or attempt to anticipate, alienate, sell,
transfer, assign, pledge, garnish, encumber or charge any benefits, then such
benefits shall, in the sole discretion of the Committee, cease and terminate. In
that event, the Committee shall hold or apply the benefits or any part thereof
to or for such Participant or beneficiary, his or her spouse or children or
other dependents, or any of them, in such manner and in such proportions as the
Committee shall, in its sole discretion, determine. This Section shall not be
construed in such a manner as to permit the Committee to make any assignment or
otherwise to alienate any benefits in contravention of requirements under the
Code or under ERISA.
17.2. Rules of Construction. (a) The masculine pronoun wherever used
shall include the feminine pronoun, and the singular shall include the plural
unless the context clearly indicates the distinction.
(b) The headings of Articles and Sections herein are included
solely for convenience of reference and shall not affect the meaning or
interpretation of any of the provisions of this Plan.
ARTICLE 18
LAPSED BENEFITS
18.1. Notification to Participants and Beneficiaries. (a) If the
Trustee mails by registered or
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certified mail, return receipt requested, to a Participant or beneficiary
entitled to a distribution hereunder at his or her last known address, a
notification that he or she is so entitled and said notification is returned as
being undeliverable because the addressee cannot be located at said address,
then the Plan shall continue to maintain the Participant's Accounts which are
invested in the various funds.
(b) If, by the last day of the Plan Year coinciding with or
immediately following the fifth (5th) anniversary of the date as of which such
person first could not be located, said person has not informed the Trustee of
his or her whereabouts, his or her entire interest in this Plan shall become a
forfeiture and shall be used to reduce any subsequent contributions required by
his or her Employer as provided in Section 6.4 for the Plan Year in which it
occurs. Thereafter such person shall have no further right or interest therein
except as provided in Section 18.2.
18.2. Reinstatement of Lapsed Benefits. (a) If a Participant or
beneficiary prior to the Plan Year in which the Plan and Trust terminate, duly
claims and proves entitlement to a benefit which otherwise lapsed pursuant to
Section 18.1, such benefits as shall then be due, unadjusted for Trust Fund
earnings and/or losses subsequent to the date of forfeiture, shall be paid by
the Plan as soon as is administratively feasible.
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(b) The reinstatement of lapsed benefits shall first be
derived from forfeitures which otherwise are allocable in the Plan Year of the
reinstatement to be made pursuant to this Section 18.2 and if such forfeitures
are not sufficient, such reinstatement to the extent necessary shall then next
be made from Employer contributions.
IN WITNESS WHEREOF, Primark Corporation has caused this amended and
restated Primark Savings and Stock Ownership Plan to be executed as of this ____
day of ____________, 1996, but effective as of January 1, 1997, except as
otherwise provided herein.
PRIMARK CORPORATION
By:__________________________________
ATTEST:
______________________________________
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PRIMARK CORPORATION
SAVINGS AND STOCK OWNERSHIP PLAN
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1997)
Appendix I
----------
The following Employers have adopted the Plan:
Datastream International, Inc.
Datastream International (DC) Inc.
Disclosure Incorporated
Disclosure Information Services, Inc.
I/B/E/S Inc.
I/B/E/S International, Inc.
Primark Corporation
Primark Decision Economics, Inc.
Primark Financial Technologies, Inc.
Primark Holding Corporation
Vestek Systems, Inc.
Worldscope/Disclosure, L.L.C.
WSI Corporation
Yankee Research Group, Inc.
<PAGE> 1
EXHIBIT 5
December 9, 1996
Primark Corporation
1000 Winter Street
Suite 4300N
Waltham, Massachusetts 02154
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 ("Registration
Statement") of Primark Corporation (the "Corporation") related to the
registration of 250,000 shares of the Corporation's common stock, without par
value ("Common Stock"), which are to be offered or sold pursuant to the Primark
Corporation Savings and Stock Ownership Plan (the "Plan").
I have been requested to furnish an opinion to be included as Exhibit 5 to
the Registration Statement. In conjunction with the furnishing of this opinion,
I have examined such corporate documents and have made such investigation of
matters of fact and law as I have deemed necessary to render this opinion.
Based upon such examination and investigation, and upon the assumption that
there will be no material changes in the documents examined and matters
investigated, I am of the opinion that the 250,000 shares of Common Stock
referred to above have been duly authorized by the Corporation and that, when
issued in accordance with the terms of the Plan, will be legally issued, fully
paid and nonassessable.
I consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ MICHAEL R. KARGULA
-------------------------------
Michael R. Kargula, Esq.
Senior Vice President,
General Counsel and Secretary
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Primark Corporation of Form S-8 of our report dated February 8, 1996,
incorporated by reference in the Annual Report on Form 10-K of Primark
Corporation for the year ended December 31, 1995. We also consent to the
reference to us under the heading "Item 5. Interests of Named Experts and
Counsel" in such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
December 9, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Primark Corporation on Form S-8 of our reports dated February 3, 1995 and
January 29, 1993, except for Note 12, which date is September 6, 1993, appearing
in Amendment No. 2 on Form 8-K/A to the Current Report on Form 8-K dated July 3,
1995 of Primark Corporation.
/s/ LESLIE SUFRIN AND COMPANY, P.C.
Leslie Sufrin and Company, P.C.
New York, New York
December 9, 1996
