<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 1995.
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________________
A.H. BELO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-0135890
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
COMMUNICATIONS CENTER
400 SOUTH RECORD STREET
DALLAS, TEXAS 75202
(Address of Principal Executive Offices) (Zip Code)
__________________
A.H. BELO CORPORATION
EMPLOYEE THRIFT
PLAN
(Full title of the plan)
________________
MICHAEL J. MCCARTHY
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
A.H. BELO CORPORATION
COMMUNICATIONS CENTER
400 SOUTH RECORD STREET
DALLAS, TEXAS 75202
(214) 977-6606
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
___________________________________________________
Copy to:
GUY KERR
LOCKE PURNELL RAIN HARRELL
(A PROFESSIONAL CORPORATION)
2200 ROSS AVENUE
SUITE 2200
DALLAS, TEXAS 75201
(214) 740-8000
___________________________________________________
<TABLE>
<CAPTION>
===============================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price per Aggregate Offering Registration Fee
Share * Price*
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A Common
Stock, $1.67 par 25,000 shares $30.0625 $751,562.50 $259.16
value
===============================================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee. This
fee was calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices for the Series
A Common Stock on the New York Stock Exchange on July 25, 1995.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information specified by Item 1 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended, and the introductory note to Part I of Form
S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information specified by Item 2 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended, and the introductory note to Part I of Form
S-8.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are hereby incorporated by reference in
this Registration Statement. All documents subsequently filed by A.H. Belo
Corporation (the "Company") and the A.H. Belo Corporation Employee Thrift Plan
(the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment that indicates that the securities offered hereby have
been sold or which deregisters the securities offered hereby then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof commencing on the respective dates on which
such documents are filed.
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (1) above.
(3) The description of the Company's Series A Common Stock
contained in the Company's Form 8-B Registration Statement dated
August 10, 1987 and filed with the Commission, as amended by the
Company's Form 8- K Current Report dated May 4, 1988 and filed with
the Commission, including any amendments or reports filed for the
purposes of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Members of the law firm of Locke Purnell Rain Harrell (A Professional
Corporation), other than attorneys involved in the preparation of this
Registration Statement, own or have an indirect interest in Common
Stock of the Company the fair market value of which exceeds $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law, the
Company's Certificate of Incorporation contains a provision
eliminating the monetary liability of a director for breach of
fiduciary duty, subject to certain exceptions. The provision does not
eliminate a director's liability for (i) breaches of the director's
duty of loyalty to the Company or its shareholders, (ii) acts or
omissions not in good faith or involving intentional misconduct or a
knowing violation of law, (iii) the payment of unlawful dividends or
unlawful stock repurchases or redemptions, or (iv) any transaction
from which the director derived an improper personal benefit.
Furthermore, the provision does not limit equitable remedies, such as
an injunction or rescission for breach of a director's fiduciary duty
of care.
The Delaware General Corporation Law permits, and in some
cases requires, corporations to indemnify directors and officers who
are or have been a party or are threatened to be made a party to
litigation against certain expenses, judgments, fines, settlements,
and other amounts under certain circumstances.
Article XI of the Company's Bylaws provides for
indemnification of and advancement of expenses to directors, officers,
employees, and agents to the fullest extent authorized or permitted by
II-1
<PAGE> 4
the Delaware General Corporation Law. The Bylaws also provide
specific authorization for the Company to purchase officers' and
directors' liability insurance.
The Company has in force an officers' and directors' liability
insurance policy insuring, up to specified amounts and with specified
exceptions, directors and officers and former directors and officers
of the Company and its subsidiaries against damages, judgments,
settlements and costs for which they are not indemnified by the
Company that any such persons may become legally obligated to pay on
account of claims made against them for any error, misstatement or
misleading statement, act or omission, or neglect or breach of duty
committed, attempted or allegedly committed or attempted by such
persons in the discharge of their duties to the Company in their
capacities as directors or officers, or any matter claimed against
them solely by reason of their serving in such capacities. The
officers' and directors' liability insurance policy also insures the
Company, up to specified amounts and with specified exceptions,
against any indemnification payments made by the Company to directors
and officers and former directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K dated March 19, 1992 (the "1991 Form 10-K")).
4.2 Certificate of Correction to Certificate of Incorporation dated May 13, 1987 (incorporated by
reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K dated March 18, 1993 (the
"1992 Form 10-K")).
4.3 Certificate of Designation of Series A Junior Participating Preferred Stock of the Company
dated April 16, 1987 (incorporated by reference to Exhibit 3.3 to the 1991 Form 10-K).
4.4 Certificate of Amendment of Certificate of Incorporation of the Company dated May 4, 1988
(incorporated by reference to Exhibit 3.4 to the 1992 Form 10-K).
4.5 Certificate of Amendment to Certificate of Incorporation of the Company dated May 10, 1995.
4.6 Amended Certificate of Designation of Series A Junior Participating Preferred Stock of the
Company dated May 4, 1988 (incorporated by reference to Exhibit 3.5 to the 1992 Form 10-K).
4.7 Certificate of Designation of Series B Common Stock of the Company dated May 4, 1988
(incorporated by reference to Exhibit 3.6 to the 1992 Form 10-K).
4.8 Bylaws of the Company, effective February 22, 1995 (incorporated by reference to Exhibit 3.7 to
the Company's Annual Report on Form 10-K dated March 8, 1995 (the "1994 Form 10-K")).
</TABLE>
II-2
<PAGE> 5
<TABLE>
<S> <C>
4.9 Specimen Form of Certificate representing shares of the Company's Series A Common Stock
(incorporated by reference to Exhibit 4.2 to the 1992 Form 10-K).
4.10 Specimen Form of Certificate representing shares of the Company's Series B Common Stock
(incorporated by reference to Exhibit 4.3 to the Company's Annual Report on Form 10-K dated
March 20, 1989).
4.11 A.H. Belo Corporation Employee Thrift Plan (Effective January 1, 1995).
4.12 First Amendment to A.H. Belo Corporation Employee Thrift Plan (Effective June 4, 1995).
4.13 Master Trust Agreement effective as of July 1, 1992, between A.H. Belo Corporation and Mellon Bank, N.A.
and Fidelity Management Trust Company (incorporated by reference to Exhibit 10.3(26) to the Company's
Annual Report on Form 10-K dated March 18, 1994).
4.14 First Amendment to Master Trust Agreement effective March 3, 1995.
4.15 Form of Rights Agreement dated March 10, 1986 between the Company and RepublicBank Dallas,
National Association as Rights Agent, which includes as Exhibit B thereto the Form of Right
Certificate (incorporated by reference to Exhibit 4.8 to the 1991 Form 10-K).
4.16 Supplement No. 1 to Rights Agreement dated April 9, 1987 (incorporated by reference to Exhibit
4.9 to the 1991 Form 10-K).
4.17 Supplement No. 2 to Rights Agreement dated May 6, 1987 (incorporated by reference to Exhibit
4.9 to the 1992 Form 10-K).
4.18 Supplement No. 3 to Rights Agreement dated May 19, 1988 (incorporated by reference to Exhibit
4.10 to the 1992 Form 10-K).
4.19 Supplement No. 4 to Rights Agreement dated December 12, 1988 substituting Manufacturers Hanover
Trust Company as Rights Agent (incorporated by reference to Exhibit 4.8 to the Company's Annual
Report on Form 10-K dated March 18, 1994).
4.20 Supplement No. 5 to Rights Agreement (incorporated by reference to Exhibit 4.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1993).
4.21 Supplement No. 6 to Rights Agreement (incorporated by reference to Exhibit 4.10 to the 1994
Form 10-K).
5.1 Opinion of Locke Purnell Rain Harrell (A Professional Corporation).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Locke Purnell Rain Harrell (A Professional Corporation) (included in opinion filed
as Exhibit 5.1)
24 Power of Attorney (included on the signature page of this Registration Statement).
</TABLE>
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendments thereto to the Internal Revenue Service (the "IRS") in
a timely manner and has made or will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
II-3
<PAGE> 6
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the
"Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Securities and Exchange
Commission by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under
the Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the
Exchange Act and each filing of the Plan's Annual
Report pursuant to Section 15(d) of the Exchange Act
that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers
and controlling persons of the Company pursuant to
the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the
Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or
controlling person of the Company in the successful
defense of any action, suit or proceeding) is
asserted by such director, officer or controlling
person in connection with the securities being
registered, the Company will, unless in the opinion
of its counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert W. Decherd, Ward L. Huey, Jr. and
Michael J. McCarthy, each of them or any one of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to execute in the name and on behalf of such person, in any and
all capacities, any or all amendments (including post-effective amendments) to
this Registration Statement now or hereafter filed by or on behalf of A.H. Belo
Corporation (the "Company") covering securities issued or issuable under or in
connection with the Company's Employee Thrift Plan (as now or hereafter
amended) and to file the same, with all exhibits thereto, and other documents
required in connection therewith, with the Securities and Exchange Commission
and any state or other securities authority, granting unto said
attorneys-in-fact and agents, and each of them or any of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them or any
one of them, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 26th day of
July, 1995.
A.H. BELO CORPORATION
By: /s/ Michael J. McCarthy
-----------------------------
Michael J. McCarthy
Senior Vice President,
General Counsel and Secretary
II-5
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Robert W. Decherd Chairman of the Board, President July 26, 1995
- -------------------------- and Chief Executive Officer
Robert W. Decherd (Principal Executive Officer)
/s/ Ward L. Huey, Jr. Vice Chairman of the Board July 26, 1995
- ---------------------------------- and President of the Company's
Ward L. Huey, Jr. Broadcast Division
/s/ Burl Osborne Director, Publisher and Editor, July 26, 1995
- ---------------------------------- The Dallas Morning News
Burl Osborne
/s/ John W. Bassett, Jr. Director July 26, 1995
- ----------------------------------
John W. Bassett, Jr.
Director July __, 1995
- ----------------------------------
Judith L. Craven, M.D., M.P.H.
/s/ Dealey D. Herndon Director July 26, 1995
- ----------------------------------
Dealey D. Herndon
/s/ Lester A. Levy Director July 26, 1995
- ----------------------------------
Lester A. Levy
/s/ James M. Moroney, Jr. Director and Former July 26, 1995
- ---------------------------------- Chairman of the Board
James M. Moroney, Jr.
/s/ Hugh G. Robinson Director July 26, 1995
- ----------------------------------
Hugh G. Robinson
/s/ William T. Solomon Director July 26, 1995
- ----------------------------------
William T. Solomon
/s/ Thomas B. Walker, Jr. Director July 26, 1995
- ----------------------------------
Thomas B. Walker, Jr.
/s/ J. McDonald Williams Director July 26, 1995
- ----------------------------------
J. McDonald Williams
/s/ Arturo Madrid, Ph.D. Director July 26, 1995
- ----------------------------------
Arturo Madrid, Ph.D.
/s/ Michael D. Perry Senior Vice President July 26, 1995
- ---------------------------------- and Chief Financial Officer
Michael D. Perry (Principal Financial
Officer and Principal
Accounting Officer)
/s/ Dunia A. Shive Vice President and Controller July 26, 1995
- ----------------------------------
Dunia A. Shive
</TABLE>
II-6
<PAGE> 9
Pursuant to the requirements of the Securities Act of 1933, the
Trustee (or other persons who administer the Plan) have duly caused this Form
S-8 Registration Statement to be signed on behalf of the Plan by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 26th day of July, 1995.
A.H. BELO CORPORATION
EMPLOYEE THRIFT PLAN
By: /s/ Michael D. Perry
--------------------------------------
Printed Name: Michael D. Perry
Title: Member, Administrative Committee
II-7
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NUMBER DESCRIPTION PAGE
-------------- ----------- ------------
<S> <C> <C>
4.1 Certificate of Incorporation of the Company (incorporated N/A
by reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K dated March 19, 1992 (the "1991 Form 10-K"))
4.2 Certificate of Correction to Certificate of Incorporation N/A
dated May 13, 1987 (incorporated by reference to Exhibit 3.2
to the Company's Annual Report on Form 10-K dated March 18,
1993 (the "1992 Form 10-K"))
4.3 Certificate of Designation of Series A Junior Participating N/A
Preferred Stock of the Company dated April 16, 1987 (incorporated
by reference to Exhibit 3.3 to the 1991 Form 10-K)
4.4 Certificate of Amendment of Certificate of Incorporation of N/A
the Company dated May 4, 1988 (incorporated by reference to
Exhibit 3.4 to the 1992 Form 10-K)
4.5 Certificate of Amendment to Certificate of Incorporation of the
Company dated May 10, 1995
4.6 Amended Certificate of Designation of Series A Junior Participating N/A
Preferred Stock of the Company dated May 4, 1988 (incorporated by
reference to Exhibit 3.5 to the 1992 Form 10-K)
4.7 Certificate of Designation of Series B Common Stock of the N/A
Company dated May 4, 1988 (incorporated by reference to
Exhibit 3.6 to the 1992 Form 10-K)
4.8 Bylaws of the Company, effective February 22, 1995 (incorporated N/A
by reference to Exhibit 3.7 to the Company's Annual Report on
Form 10-K dated March 8, 1995 (the "1994 Form 10-K")).
4.9 Specimen Form of Certificate representing shares of the Company's N/A
Series A Common Stock (incorporated by reference to Exhibit 4.2 to
the 1992 Form 10-K)
4.10 Specimen Form of Certificate representing shares of the Company's N/A
Series B Common Stock (incorporated by reference to Exhibit 4.3 to
the Company's Annual Report on Form 10-K dated March 20, 1989)
4.11 A.H. Belo Corporation Employee Thrift Plan (Effective January
1, 1995)
4.12 First Amendment to A.H. Belo Corporation Employee Thrift Plan
(Effective June 4, 1995)
</TABLE>
<PAGE> 11
<TABLE>
<S> <C> <C>
4.13 Master Trust Agreement effective as of July 1, 1992 between A.H. Belo N/A
Corporation and Mellon Bank, N.A. and Fidelity Management
Trust Company (incorporated by reference to Exhibit 10.3(26) to the
Company's Annual Report on Form 10-K dated March 18, 1994)
4.14 First Amendment to Master Trust Agreement effective March 3, 1995
4.15 Form of Rights Agreement dated March 10, 1986 between the Company N/A
and RepublicBank Dallas, National Association as Rights Agent,
which includes as Exhibit B thereto the Form of Right Certificate
(incorporated by reference to Exhibit 4.8 to the 1991 Form 10-K)
4.16 Supplement No. 1 to Rights Agreement dated April 9, 1987 N/A
(incorporated by reference to Exhibit 4.9 to the 1991
Form 10-K)
4.17 Supplement No. 2 to Rights Agreement dated May 6, 1987 (incorporated N/A
by reference to Exhibit 4.9 to the 1992 Form 10-K)
4.18 Supplement No. 3 to Rights Agreement dated May 19, 1988 (incorporated N/A
by reference to Exhibit 4.10 to the 1992 Form 10-K)
4.19 Supplement No. 4 to Rights Agreement dated December 12, 1988 N/A
substituting Manufacturers Hanover Trust Company as Rights Agent
(incorporated by reference to Exhibit 4.8 to the Company's Annual
Report on Form 10-K dated March 18, 1994)
4.20 Supplement No. 5 to Rights Agreement (incorporated by reference N/A
to Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1993)
4.21 Supplement No. 6 to Rights Agreement (incorporated by reference N/A
to Exhibit 4.10 to the 1994 Form 10-K)
5.1 Opinion of Locke Purnell Rain Harrell (A Professional Corporation)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Locke Purnell Rain Harrell (A Professional Corporation) N/A
(included in opinion filed as Exhibit 5.1)
24 Power of Attorney (included on the signature page of this Registration N/A
Statement)
</TABLE>
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
A. H. Belo Corporation, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the corporation
held on February 22, 1995, resolutions were duly adopted setting forth a
proposed amendment of the Certificate of Incorporation of the corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of the corporation for consideration thereof. The proposed
amendment, in the form adopted by the Board of Directors of the corporation, is
as set forth in Appendix A to this Certificate.
SECOND: That at the next annual meeting of the stockholders of the
corporation thereafter duly convened and held, upon notice in accordance with
Section 222 of the General Corporation Law of the State of Delaware, the
necessary number of shares as required by statute and by the corporation's
Certificate of Incorporation were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the corporation shall not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, the corporation has caused this Certificate to be
duly executed by its Chairman of the Board and attested to by its Secretary,
and caused its corporate seal to be affixed hereto as of the 3rd day of May,
1995.
A. H. BELO CORPORATION
By: /Robert W. Decherd
--------------------------
Chairman of the Board
[Corporate Seal]
ATTEST: /Michael J. McCarthy
------------------------
Secretary
<PAGE> 2
EXHIBIT 4.5
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 3rd day of May, 1995, before me personally appeared Robert W.
Decherd, the Chairman of the Board of A. H. Belo Corporation, to me known to be
the person described in and who executed the foregoing instrument, and
acknowledged that he executed the same in the capacity indicated, that it is
the act and deed of such corporation, and that the facts stated therein are
true.
/Pamela Lynne Roach
-----------------------------
Notary Public
My Commission Expires:
November 23, 1997 /Pamela Lynne Roach
-----------------------------
Print Name
<PAGE> 3
APPENDIX A
AMENDMENT TO THE CERTIFICATE OF INCORPORATION
OF A. H. BELO CORPORATION
The third paragraph of Article Four, Section 1, shall be deleted and replaced
with the following:
If the shares are issued in two or more series, the remaining
shares of Common Stock may be issued by the Board of Directors as
shares of Series A Common Stock (herein called "Series A Stock"),
and/or designated and issued as shares of Series B Common Stock
(herein called "Series B Stock"), and/or as shares of Series C Common
Stock (herein called "Series C Stock"). After completion of the
initial distribution of Series B Stock, the corporation shall not
issue any additional shares of Series B Stock if such issuance would
result in the Series A Stock being excluded from trading on the New
York Stock Exchange, the American Stock Exchange, and other national
stock exchanges and also being excluded from quotation on the NASDAQ
(as defined herein) or any other national quotation system then in
use. Subject to the foregoing, the Board of Directors shall have the
authority to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any series prior
to or after the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number
of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status of authorized but unissued
shares of Common Stock.
<PAGE> 1
EXHIBIT 4.11
A. H. BELO CORPORATION
EMPLOYEE THRIFT PLAN
Effective January 1, 1995
<PAGE> 2
A. H. BELO CORPORATION
EMPLOYEE THRIFT PLAN
A. H. Belo Corporation, a Delaware corporation, establishes
the A. H. Belo Corporation Employee Thrift Plan effective January 1, 1995. The
Plan is a profit sharing plan with a cash or deferred arrangement intended to
qualify under Code section 401(a) and to meet the requirements of Code section
401(k). The Company has entered into trust agreements with Fidelity Management
Trust Company and Mellon Bank, N.A. that provide for the investment and
reinvestment of the assets of the Plan.
Words and phrases with initial capital letters used throughout
the Plan are defined in Article 1.
(i)
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 3 CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4 ALLOCATIONS TO PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 5 VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 6 DISTRIBUTIONS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 7 DISTRIBUTIONS TO BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 8 PROVISIONS REGARDING COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 9 ADMINISTRATION OF THE PLAN AND TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 10 LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS TO PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . 32
ARTICLE 11 RESTRICTIONS ON DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES . . . . . . . . . . . . . . . . . . . 45
ARTICLE 12 TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 13 ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 14 AMENDMENT OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 15 TERMINATION, PARTIAL TERMINATION AND COMPLETE DISCONTINUANCE
OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 16 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
APPENDIX A PARTICIPATING EMPLOYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
(ii)
<PAGE> 4
ARTICLE 1
DEFINITIONS
1.1 "Account" means the records, including subaccounts,
maintained by the Committee in the manner provided in Article 4 to determine
the interest of each Participant in the assets of the Plan and may refer to any
or all of the Participant's Deferral Contribution Account, Matching
Contribution Account and Transfer Account.
1.2 "Beneficiary" means the one or more persons or entities
entitled to receive distribution of a Participant's interest in the Plan in the
event of his death as provided in Article 7.
1.3 "Board of Directors" or "Board" means the Board of
Directors of the Company.
1.4 "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
1.5 "Committee" or "Administrative Committee" means the
Committee appointed under Article 9.
1.6 "Company" means A. H. Belo Corporation, a Delaware
corporation.
1.7 "Company Stock" means the Series A Common Stock, par
value $1.67 per share, of the Company.
1.8 "Compensation" means the earnings paid to an Employee
by the Participating Employers which are subject to reporting on Internal
Revenue Service Form W-2, excluding, however, reimbursements for moving
expenses, automobile allowances and any earnings paid to the Employee in a form
other than cash. In addition, Compensation includes any contributions made by
the Participating Employers on behalf of an Employee pursuant to a deferral
election under the Plan or under any other employee benefit plan containing a
cash or deferred arrangement under Code section 401(k) and any amounts that
would have been received as cash but for an election to receive benefits under
a cafeteria plan meeting the requirements of Code section 125. The annual
Compensation of an Employee taken into account for any purpose will not exceed
$150,000 for any Plan Year, as adjusted in regulations prescribed by the
Secretary of the Treasury. For purposes of applying the $150,000 limit set
forth in the preceding sentence, if an Employee is a Highly Compensated
Employee (as defined in Section 10.2(m)) who is either (i) a 5-percent owner,
determined in accordance with Code section 414(q)
<PAGE> 5
and the Treasury Regulations promulgated thereunder or (ii) one of the 10 most
highly compensated Employees ranked on the basis of Compensation paid by the
Controlled Group during the year, such Highly Compensated Employee and the
members of his family (as hereafter defined) will be treated as a single
employee and the Compensation of each member of the family will be aggregated
with the Compensation of the Highly Compensated Employee. The limitation on
Compensation will be allocated among such Highly Compensated Employee and his
family members in proportion to each individual's Compensation. For purposes
of this Section, the term 'family' means an Employee's spouse and any lineal
descendants who are under age 19 at the end of the Plan Year in question.
1.9 "Controlled Group" means the Company and all other
corporations, trades and businesses, the employees of which, together with
employees of the Company, are required by the first sentence of subsection (b),
by subsection (c), by subsection (m) or by subsection (o) of Code section 414
to be treated as if they were employed by a single employer.
1.10 "Controlled Group Member" means each corporation or
unincorporated trade or business that is or was a member of the Controlled
Group, but only during such period as it is or was such a member.
1.11 "Deferral Contribution" means the amount of a
Participant's Compensation that he elects to have contributed to the Plan by
the Participating Employers rather than paid to him directly in cash.
1.12 "Deferral Contribution Account" means the Account
established for each Participant, the balance of which is attributable to the
Participant's Deferral Contributions and earnings and losses of the Trust Fund
with respect to such contributions.
1.13 "Effective Date" means the January 1, 1995.
1.14 "Employee" means any person who is: (i) employed by
any Controlled Group Member if their relationship is, for federal income tax
purposes, that of employer and employee, or (ii) "a leased employee" of a
Controlled Group Member within the meaning of Code section 414(n)(2) but only
for purposes of the requirements of Code section 414(n)(3).
1.15 "Entry Date" means January 1, April 1, July 1 and
October 1 of each Plan Year.
1.16 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
-2-
<PAGE> 6
1.17 "Hour of Service" means each hour credited in
accordance with the following rules:
(a) Credit for Services Performed. An Employee
will be credited with one Hour of Service for each hour for which he is paid,
or entitled to payment, by one or more Controlled Group Members for the
performance of duties.
(b) Credit for Periods in Which No Services Are
Performed. An Employee will be credited with one Hour of Service for each hour
for which he is paid, or entitled to payment, by one or more Controlled Group
Members on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated); except
that (i) no more than 501 Hours of Service will be credited under this
subsection (b) to an Employee on account of any single continuous period during
which he performs no duties (whether or not such period occurs in a single Plan
Year), (ii) an hour for which an Employee is directly or indirectly paid, or
entitled to payment, on account of a period during which no duties are
performed will not be credited to the Employee if the payment is made or due
under a plan maintained solely for the purpose of complying with applicable
workers' compensation or unemployment compensation or disability insurance
laws, and (iii) Hours of Service will not be credited for a payment which
solely reimburses an Employee for medical or medically related expenses
incurred by the Employee. For purposes of this subsection (b), an Employee
will be credited with Hours of Service on the basis of his regularly scheduled
working hours per week (or per day if he is paid on a daily basis) or, in the
case of an Employee without a regular work schedule, on the basis of 40 Hours
of Service per week (or 8 Hours of Service per day if he is paid on a daily
basis) for each week (or day) during the period of time during which no duties
are performed; except that an Employee will not be credited with a greater
number of Hours of Service for a period during which no duties are performed
than the number of hours for which he is regularly scheduled for the
performance of duties during the period or, in the case of an Employee without
a regular work schedule, on the basis of 40 Hours of Service per week (or 8
Hours of Service per day if he is paid on a daily basis).
(c) Credit for Back Pay. An Employee will be
credited with one Hour of Service for each hour for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to by
one or more Controlled Group Members; except that an hour will not be credited
under both subsection (a) or (b), as the case may be, and this subsection (c),
and Hours of Service credited under this subsection (c) with respect to periods
described in subsection (b) will be subject to the limitations and provisions
under subsection (b).
-3-
<PAGE> 7
(d) Credit for Certain Absences. If an Employee is
absent from work on or after the Effective Date for any period by reason of the
pregnancy of the Employee, by reason of the birth of a child of the Employee,
by reason of the placement of a child with the Employee, or for purposes of
caring for a child for a period beginning immediately following the birth or
placement of that child, the Employee will be credited with Hours of Service
(solely for the purpose of determining whether he has a One Year Break in
Service under the Plan) equal to (i) the number of Hours of Service which
otherwise would normally have been credited to him but for his absence, or (ii)
if the number of Hours of Service under clause (i) is not determinable, 8 Hours
of Service per normal workday of the absence, provided, however, that the total
number of Hours of Service credited to an Employee under this subsection (d) by
reason of any pregnancy, birth or placement will not exceed 501 Hours of
Service. Hours of Service will not be credited to an Employee under this
subsection (d) unless the Employee furnishes to the Committee such timely
information as the Committee may reasonably require to establish that the
Employee's absence from work is for a reason specified in this subsection (d)
and the number of days for which there was such an absence.
(e) Manner of Counting Hours. No hour will be
counted more than once or be counted as more than one Hour of Service even
though the Employee may receive more than straight-time pay for it. With
respect to Employees whose compensation is not determined on the basis of
certain amounts for each hour worked during a given period and for whom hours
are not required to be counted and recorded by any federal law (other than
ERISA), Hours of Service will be credited on the basis of 10 Hours of Service
daily, 45 Hours of Service weekly, 95 Hours of Service semi-monthly, or 190
Hours of Service monthly, if the Employee's compensation is determined on a
daily, weekly, semi-monthly or monthly basis, respectively, for each period in
which the Employee would be credited with at least one Hour of Service under
this section. Except as otherwise provided in subsection (d), Hours of Service
will be credited to eligibility and vesting computation periods in accordance
with the provisions of 29 C.F.R. Section 2530.200b-2, which provisions are
incorporated in this Plan by reference.
1.18 "Matching Contribution Account" means the Account
established for each Participant, the balance of which is attributable to
Participating Employer matching contributions, if any, made pursuant to Article
3, forfeitures and earnings and losses of the Trust Fund with respect to such
contributions and forfeitures.
1.19 [Reserved]
-4-
<PAGE> 8
1.20 "One Year Break in Service" means a period of at least
12 consecutive months in which an Employee is absent from service. A One Year
Break in Service Year will begin on the Employee's termination date (as defined
in Section 1.30) and will end on the day on which the Employee again performs
an Hour of Service for a Controlled Group Member.
If an Employee who is absent from work with a
Controlled Group Member because of (i) the Employee's pregnancy, (ii) the birth
of the Employee's child, (iii) the placement of a child with the Employee in
connection with the Employee's adoption of the child, or (iv) caring for such
child immediately following such birth or placement, will be absent for such
reason beyond the first anniversary of the first date of his absence, his
period of absence, solely for purposes of preventing a One Year Break in
Service, will commence on the second anniversary of the first day of his
absence from work. The period of absence from work between the first and
second anniversaries of the first date of his absence from work will not be
taken into account in determining whether the Employee has completed a Year of
Service. The provisions of this paragraph will not apply to an Employee unless
the Employee furnishes to the Committee such timely information that the
Committee may reasonably require to establish (i) that the absence from work is
for one of the reasons specified in this paragraph and (ii) the number of days
for which there was such an absence.
Notwithstanding the foregoing, if an Employee is
classified as a part-time Employee in accordance with standard personnel
practices of his Participating Employer and is subject to the 1,000 Hour of
Service requirement of Section 1.30, the term 'One Year Break in Service' means
a 12 consecutive month computation period (determined under Section 1.30) in
which the Employee fails to complete more than 500 Hours of Service.
1.21 "Participant" means an Employee or former Employee who
has met the applicable eligibility requirements of Article 2 and who has not
yet received a distribution of the entire amount of his vested interest in the
Plan.
1.22 "Participating Employer" means each Controlled Group
Member set forth on Appendix A and any other Controlled Group Member or
organizational unit of the Company or a Controlled Group Member which is
designated as a Participating Employer under the Plan by the Board of
Directors.
1.23 "Plan" means the employee thrift plan set forth herein,
as amended from time to time.
-5-
<PAGE> 9
1.24 "Plan Year" means the period with respect to which the
records of the Plan are maintained, which will be the 12-month period beginning
on January 1 and ending on December 31.
1.25 "Qualified Plan" means an employee benefit plan that is
qualified under Code section 401(a).
1.26 "Trust Agreement" means the agreement or agreements
executed by the Company and the Trustee which establishes a trust fund to
provide for the investment, reinvestment, administration and distribution of
contributions made under the Plan and the earnings thereon, as amended from
time to time.
1.27 "Trust Fund" means the assets of the Plan held by the
Trustee pursuant to the Trust Agreement.
1.28 "Trustee" means the one or more individuals or
organizations who have entered into the Trust Agreement as Trustee, and any
duly appointed successor.
1.29 "Valuation Date" means the date with respect to which
the Trustee determines the fair market value of the assets comprising the Trust
Fund or any portion thereof. The regular Valuation Date will be the last day
of each Plan Year. However, if the Committee determines that the fair market
value of any asset comprising the Trust Fund has changed substantially since
the previous Valuation Date, or if the Committee determines it to be in the
best interests of the Plan and the Participants to value any asset of the Trust
Fund at a time other than the regular Valuation Date, the Committee may fix, in
a uniform and nondiscriminatory manner, one or more interim Valuation Dates.
1.30 "Year of Service" means each period of 365 days
(determined by aggregating periods of service that are not consecutive)
beginning on the date an Employee is first credited with an Hour of Service (or
is again credited with an Hour of Service following his reemployment) and
ending on the earlier of (i) the date on which the Employee quits, retires, is
discharged or dies or (ii) the first anniversary of the date on which the
Employee is absent from service with a Controlled Group Member for any other
reason, such as vacation, holiday, sickness, disability, leave of absence or
layoff (the earlier of such dates is hereafter referred to as the Employee's
"termination date"). An Employee's period of service for purposes of
determining a Year of Service will include each period in which the Employee is
absent from service for less than 12 months (measured from the Employee's
termination date) and any periods during which he is in the service of the
armed forces of the United States and his reemployment rights are guaranteed by
law, provided he returns to employment with a Controlled Group Member within
the time such rights are guaranteed.
-6-
<PAGE> 10
Notwithstanding the foregoing, if an Employee is
classified as a part-time Employee in accordance with standard personnel
practices of his Participating Employer and did not participate in the
Company's Employee Stock Purchase Plan immediately before the Effective Date,
the term 'Year of Service' means the completion of 1,000 Hours of Service
during the 12 consecutive months beginning on the date the Employee first
performs an Hour of Service, or during the 12 consecutive months beginning on
any anniversary of such date.
If a part-time Employee who is subject to the 1,000
Hour of Service requirement of this Section transfers to full-time status, his
service for the computation period in which the transfer occurs (but not for
prior computation periods) will be determined under the elapsed time method, or
if more favorable to the Employee, on the basis of his Hours of Service
completed as of the date of such transfer. If a full-time Employee transfers
to part-time status and becomes subject to the 1,000 Hour of Service
requirement of this Section, he will receive credit for service under the
elapsed time method through the date of the transfer, and his service during
the computation period in which the transfer occurs will be credited on the
basis of Hours of Service (with any fractional year prior to the date of
transfer converted to hours on the basis of 190 Hours of Service for each month
in which the Employee was credited with at least one Hour of Service).
-7-
<PAGE> 11
ARTICLE 2
PARTICIPATION
2.1 Eligibility to Participate. Each Employee who had both
attained age 21 and completed a Year of Service before the Effective Date, or
who was eligible to participate in the Company's Employee Savings and
Investment Plan immediately before the Effective Date, will be a Participant as
of the first payroll period beginning on or after the Effective Date, if he is
then employed by a Participating Employer. Each Employee who is not a
Participant as of the Effective Date will become a Participant as of the first
payroll period beginning on or after the first Entry Date following the date he
has both attained age 21 and completed a Year of Service, if he is then
employed by a Participating Employer.
2.2 Exclusions from Participation.
(a) Ineligible Employees. An Employee who is
otherwise eligible to participate in the Plan will not become or continue as an
active Participant if (i) he is covered by a collective bargaining agreement
that does not expressly provide for participation in the Plan, provided that
the representative of the Employees with whom the collective bargaining
agreement is executed has had an opportunity to bargain concerning retirement
benefits for those Employees; (ii) he is represented by a bargaining
representative but is not covered by a collective bargaining agreement, unless
the Company and the bargaining representative agree in writing that the
Employee will be eligible to participate in the Plan; (iii) he is a nonresident
alien who receives no earned income (within the meaning of Code section
911(d)(2)) from a Participating Employer which constitutes income from sources
within the United States (within the meaning of Code section 861(a)(3)); (iv)
he is a leased employee required to be treated as an Employee under Code
section 414(n) or he is classified by a Participating Employer as an
independent contractor whose compensation for services is reported on a form
other than Form W-2 or any successor form for reporting wages paid to
employees; (v) he is employed by a Controlled Group Member or an organizational
unit thereof that has not been designated as a Participating Employer by the
Board; or (vi) he is then on an approved leave of absence without pay or in the
service of the armed forces of the United States.
(b) Exclusion after Participation. A Participant
who becomes ineligible under subsection (a) may not elect to have Deferral
Contributions made or continued to the Plan.
-8-
<PAGE> 12
(c) Participation after Exclusion. An Employee or
Participant who is excluded from active participation will be eligible to
participate in the Plan on the first day he is no longer described in
subsection (a) and is credited with one or more Hours of Service by a
Participating Employer, provided that he has otherwise met the requirements of
Section 2.1. This subsection will apply to an Employee who returns from an
approved leave of absence or from military leave and who would otherwise be
treated as a new Employee under Section 2.3 only if he returns to employment
with a Controlled Group Member immediately following the expiration of the
leave of absence or, in the case of an Employee on military leave, during the
period in which reemployment rights are guaranteed by law.
2.3 Reemployment Provisions. All Hours of Service are
counted in determining eligibility to participate, except as otherwise provided
in this Section.
(a) Termination of Employment before Participation.
If an Employee terminates employment before becoming a Participant and is
reemployed by a Controlled Group Member before incurring a number of
consecutive One Year Breaks in Service at least equal to the greater of five or
his aggregate Years of Service, he will become a Participant on the later of
the Entry Date initially determined under Section 2.1 or the date he is
credited with one or more Hours of Service by a Participating Employer after
reemployment; but if he is reemployed by a Controlled Group Member after
incurring a number of consecutive One Year Breaks in Service at least equal to
the greater of five or his aggregate Years of Service, he will be treated as a
new Employee for purposes of the Plan and his Hours of Service completed before
his reemployment will be disregarded in determining when he will become a
Participant.
(b) Termination of Employment after Participation.
A Participant who terminates employment will again become an active Participant
immediately upon his reemployment by a Participating Employer.
-9-
<PAGE> 13
ARTICLE 3
CONTRIBUTIONS
3.1 Participant Deferral Contributions.
(a) Amount of Deferral Contributions. A
Participant may elect, in accordance with procedures established by the
Committee from time to time, to have Deferral Contributions made to the Plan by
the Participating Employers, provided the amount of a Participant's Deferral
Contributions for any payroll period will not be less than 2% nor more than 15%
of his Compensation for the payroll period.
(b) Modification and Suspension of Deferral
Contributions. A Participant may increase or decrease the amount of his
Deferral Contributions during the Plan Year, provided that only one such
modification may be made during each calendar quarter of the Plan Year. A
Participant may suspend his Deferral Contributions at any time during the Plan
Year, and a suspension of his Deferral Contributions will not be considered a
modification for purposes of this subsection (b). A Participant who suspends
his Deferral Contributions may not again authorize Deferral Contributions to
the Plan until the first day of the calendar quarter following such suspension,
or such other time as the Committee prescribes. The Committee will adopt from
time to time procedures for administering the rules contained in this
subsection.
(c) Limitations on Deferral Contributions. The sum
of a Participant's Deferral Contributions and his elective deferrals (within
the meaning of Code section 402(g)(3)) under any other plans, contracts or
arrangements of any Controlled Group Member will not exceed $7,000 (as adjusted
for cost of living increases in the manner described in Code section 415(d))
for any taxable year of the Participant. A Participant's Deferral
Contributions will also be subject to the deferral percentage limitation set
forth in Section 10.6. In the event a Participant's Deferral Contributions and
other elective deferrals (whether or not under a plan, contract or arrangement
of a Controlled Group Member) for any taxable year exceed the foregoing $7,000
limitation, the excess allocated by the Participant to Deferral Contributions
(adjusted for Trust Fund earnings and losses in the manner described in Section
10.6(d)) may, in the discretion of the Committee, be distributed to the
Participant no later than April 15 following the close of such taxable year.
The amount of Deferral Contributions distributed to a Participant for a Plan
Year pursuant to this Section will be reduced by any excess Deferral
Contributions previously
-10-
<PAGE> 14
distributed to him pursuant to Section 10.6(c) for the same Plan Year.
3.2 Participating Employer Matching Contributions.
(a) Amount of Matching Contributions. Each
Participating Employer may, but is not required to, make such matching
contributions to the Plan as determined in its sole discretion consistent with
any applicable law, and such contributions will be allocated as single, uniform
percentage of the Deferral Contributions of all Participants employed by the
Participating Employer as provided in the resolutions authorizing such
contributions.
(b) Limitation on Matching Contributions.
Participating Employer matching contributions will be subject to the
contribution percentage limitation set forth in Section 10.7.
3.3 Time of Payment. Deferral Contributions will be paid
to the Trustee as soon as practicable following the close of each calendar
month during the Plan Year. Matching contributions may be paid to the Trustee
on any date or dates selected by the Participating Employer, but in no event
later than the time prescribed by law (including extensions) for filing the
Participating Employer's federal income tax return for its tax year ending with
or within the Plan Year.
3.4 Investment of Contributions. Participating Employer
matching contributions will be invested by the Trustee pursuant to the Trust
Agreement solely in shares of Company Stock, provided, however, that from and
after January 1, 1994, a Participant who has attained age 55 may direct the
Trustee to transfer all or any portion of his Matching Contribution Account to
any other investment fund established under the Trust Agreement. The Deferral
Contributions allocated to a Participant's Deferral Contribution Account will
be invested by the Trustee in accordance with the Participant's directions in
investment funds established pursuant to the Trust Agreement. The Committee
from time to time will establish rules and procedures regarding Participant
investment directions, including without limitation rules and procedures with
respect to the manner in which such directions may be furnished, the frequency
with which such directions may be changed during the Plan Year and the minimum
portion of a Participant's Account that may be invested in any one investment
fund.
3.5 Rollover and Transfer Contributions. Unless directed
to do so by the Committee, the Trustee is not authorized to accept (i) any part
of the cash or other assets distributed to a Participant from a Qualified Plan
or from an individual retirement account or annuity described in Code section
408, or
-11-
<PAGE> 15
(ii) a direct transfer of assets to the Plan on behalf of a Participant from
the trustee or other funding agent of a Qualified Plan. Any amounts
contributed to the Plan pursuant to this Section will be allocated to the
Participant's Transfer Account.
-12-
<PAGE> 16
ARTICLE 4
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.1 Establishment of Accounts. The Committee will
establish a Deferral Contribution Account and a Matching Contribution Account
for each Participant and may establish one or more subaccounts of a
Participant's Accounts, if the Committee determines that subaccounts are
necessary or desirable in administering the Plan.
4.2 Allocation of Contributions and Forfeitures. Each
Deferral Contribution made by a Participating Employer on behalf of a
Participant will be allocated by the Committee to the Participant's Deferral
Contribution Account. Each Participating Employer matching contribution (if
any) made with respect to a Plan Year and all forfeitures arising during that
Plan Year will be allocated by the Committee to the Matching Contribution
Accounts of Participants employed by that Participating Employer in the ratio
that the Deferral Contributions made on behalf of each such Participant bear to
the total Deferral Contributions made on behalf of all such Participants, as
provided in resolutions authorizing the Participating Employer matching
contribution.
4.3 Limitation on Allocations. Article 10 sets forth
certain rules under Code sections 401(k), 401(m) and 415 that limit the amount
of contributions and forfeitures that may be allocated to a Participant's
Accounts for a Plan Year.
4.4 Allocation of Trust Fund Income and Loss.
(a) Accounting Records. The Committee, through its
accounting records, will clearly segregate each Account and subaccount and will
maintain a separate and distinct record of all income and losses of the Trust
Fund attributable to each Account or subaccount. Income or loss of the Trust
Fund will include any unrealized increase or decrease in the fair market value
of the assets of the Trust Fund.
(b) Method of Allocation. The share of net income
or net loss of the Trust Fund to be credited to, or deducted from, each Account
will be the allocable portion of the net income or net loss of the Trust Fund
attributable to each Account determined by the Committee as of each Valuation
Date in a uniform and nondiscriminatory manner, based upon the ratio that each
Account balance as of the previous Valuation Date bears to all Account
balances after adjustment for withdrawals, distributions and other additions or
subtractions that may be appropriate. The share of net income or net loss to
be credited
-13-
<PAGE> 17
to, or deducted from, any subaccount will be an allocable portion of the net
income or net loss credited to or deducted from the Account under which the
subaccount is established.
4.5 Valuation of Trust Fund. The fair market value of the
total net assets comprising the Trust Fund will be determined by the Trustee as
of each Valuation Date.
4.6 No Guarantee. The Participating Employers, the
Committee and the Trustee do not guarantee the Participants or their
Beneficiaries against loss or depreciation or fluctuation of the value of the
assets of the Trust Fund.
4.7 Annual Statement of Accounts. The Committee will
furnish each Participant and each Beneficiary of a deceased Participant, at
least annually, a statement showing (i) the value of his Accounts at the end of
the Plan Year, (ii) the allocations to and distributions from his Accounts
during the Plan Year, and (iii) his vested and nonforfeitable interest in his
Accounts at the end of the Plan Year. No statement will be provided to a
Participant or Beneficiary after the Participant's entire vested and
nonforfeitable interest in his Accounts has been distributed.
-14-
<PAGE> 18
ARTICLE 5
VESTING
5.1 Determination of Vested Interest. Except as provided
in Section 5.2, the interest of each Participant in his Deferral Contribution
Account and his Matching Contribution Account will be 100% vested and
nonforfeitable at all times.
5.2 Unclaimed Distribution. If the Committee cannot locate
a person entitled to receive a benefit under the Plan within a reasonable
period (as determined by the Committee in its discretion), the amount of the
benefit will be treated as a forfeiture during the Plan Year in which the
period ends. If, before final distributions are made from the Trust Fund
following termination of the Plan, a person who was entitled to a benefit which
has been forfeited under this Section makes a claim to the Committee or the
Trustee for his benefit, he will be entitled to receive, as soon as
administratively feasible, a benefit in an amount equal to the value of the
forfeited benefit on the date of forfeiture. This benefit will be reinstated
from Participating Employer contributions made to the Plan for this purpose.
5.3 Application of Forfeited Amounts. The amount of a
Participant's Accounts which is forfeited pursuant to Section 5.2 will be
applied to reduce Participating Employer contributions pursuant to Article 3.
-15-
<PAGE> 19
ARTICLE 6
DISTRIBUTIONS TO PARTICIPANTS
6.1 Basic Rules Governing Distributions.
(a) Timing of Distributions. Except as set forth
in Sections 6.2 and 6.3, distribution of a Participant's vested Account
Balances will be made as soon as practicable after the Valuation Date
coinciding with or immediately following the Participant's termination of
employment, or if earlier, the date on which the Participant becomes eligible
to receive benefits under the Social Security Act on account of total and
permanent disability. If a loan is outstanding from the Trust Fund to the
Participant on the date his vested Account balances become distributable, the
amount distributed to the Participant will be reduced by any security interest
in his Accounts held by the Plan by reason of the loan.
(b) Form of Distributions. Distributions will be
made in a single lump sum payment. Shares of Company Stock allocated to a
Participant's Accounts will be distributed in the form of whole shares plus
cash for any fractional share, unless the Participant elects to receive the
cash value of such shares.
(c) Participant's Consent to Certain Payments. If
the amount of a Participant's vested Account balances exceeds $3,500, the
Committee will not distribute the Participant's vested Account balances to him
prior to his attainment of age 62 unless he consents to the distribution. The
foregoing provision will not apply to any distributions required under Sections
10.6 and 10.7.
6.2 Withdrawals after Age 59-1/2. A Participant who has
not terminated employment may request a distribution from his Accounts if he
has reached age 59-1/2. A Participant who is a director, officer or principal
stockholder of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934 may exercise the foregoing withdrawal right only in
accordance with rules and procedures established from time to time by the
Committee. All other Participants may exercise their withdrawal rights at any
time or times during the Plan Year.
6.3 Hardship Distributions.
(a) General Rule. A Participant who has not
terminated employment may request a distribution from his Deferral Contribution
Account in the event of his hardship. A distribution will be on account of
hardship only if the distribution is necessary to satisfy an immediate and
heavy
-16-
<PAGE> 20
financial need of the Participant, as defined below, and satisfies all other
requirements of this Section.
(b) Deemed Financial Need. For purposes of this
Section, a distribution is made on account of an immediate and heavy financial
need of the Participant only if the distribution is for (i) the payment of
medical expenses described in Code section 213(d) previously incurred by the
Participant, the Participant's spouse or any dependents of the Participant (as
defined in Code section 152) or necessary for such persons to obtain medical
care described in Code section 213(d); (ii) costs directly related to the
purchase of a principal residence for the Participant (excluding mortgage
payments); (iii) the payment of tuition and related educational fees for the
next 12 months of post-secondary education for the Participant, his spouse,
children, or dependents (as defined in Code section 152); (iv) payments
necessary to prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's principal
residence; or (v) the payment of funeral expenses of a family member.
(c) Reasonable Reliance Test. A distribution will
be considered necessary to satisfy an immediate and heavy financial need of the
Participant only if all three of the following requirements are satisfied: (i)
the distribution is not in excess of the amount required to relieve the
immediate and heavy financial need of the Participant (taking into account the
taxable nature of the distribution); (ii) the Participant represents in
writing, on forms provided by the Committee, that the need cannot be relieved
through reimbursement or compensation by insurance or otherwise, by reasonable
liquidation of the Participant's assets, to the extent such liquidation would
not itself cause an immediate and heavy financial need, by cessation of
Deferral Contributions under the Plan, or by distributions other than hardship
distributions or nontaxable (at the time of the loan) loans from the Plan and
any other plans maintained by any Controlled Group Member or any other entity
by which the Participant is employed, or by borrowing from commercial sources
on reasonable commercial terms; and (iii) the Committee determines that it can
reasonably rely on the Participant's written representation.
(d) Limitation for Loans. No distribution under
this Section will be made in an amount that is greater than the excess of the
Participant's vested interest in his Accounts over the aggregate amount of
outstanding loans, plus accrued interest, secured by the Participant's
Accounts.
(e) Source of Hardship Distributions. The
cumulative amount distributed to a Participant on account of hardship will not
exceed the amount of his Deferral Contributions
-17-
<PAGE> 21
that have not been previously withdrawn (but not the income allocable to his
Deferral Contributions) and, with respect to hardship distributions on and
after June 1, 1994, the balance, if any, of his Transfer Account.
6.4 Distribution Procedures. Distributions pursuant to
Sections 6.2 and 6.3 will be made as soon as practicable following the
Committee's approval of the Participant's written request for withdrawal and
will be made in the form described in Section 6.1(b). Distributions pursuant
to Section 6.2 will be made first from the Participant's Transfer Account, next
from the vested portion of his Matching Contribution Account, and last from
this Deferral Contribution Account. No distribution under this Section will be
made in an amount that is greater than the excess of the Participant's vested
interest in the Accounts from which the distributions are made over the
aggregate amount of outstanding loans, plus accrued interest, secured by such
Accounts. For purposes of determining the amount available for distribution, a
Participant's Accounts will be valued as of the Valuation Date immediately
preceding the date on which the Participant requests a distribution.
6.5 Loans to Participants.
(a) Effective Date. The provisions of this Section
will be effective as of a date determined by the Committee in its discretion
and communicated to Participants.
(b) General Provisions. A Participant may, subject
to the provisions of this Section, borrow from the vested interest in his
Accounts, provided, however, that no loan may be made from the portion of the
Trust Fund that is invested in Company Stock. All such loans will be subject
to the requirements of this Section and such other rules as the Committee may
from time to time prescribe, including without limitation any rules restricting
the purposes for which loans will be approved. The Committee will have
complete discretion as to approval of a loan hereunder and as to the terms
thereof, provided that its decisions will be made on a uniform and
nondiscriminatory basis and in accordance with this Section. If the Committee
approves a loan, the Committee will direct the Trustee to make the loan and
will advise the Participant and the Trustee of the terms and conditions of the
loan. Nothing in this Section will require the Committee to make loans
available to Participants.
(c) Terms and Conditions. Loans to Participants
will be made according to the following terms and conditions and such
additional terms and conditions as the Committee may from time to time
establish: (i) no loan will be for a term of longer than five years; (ii) all
loans will become due and payable in
-18-
<PAGE> 22
full upon termination (by death or otherwise) of the Participant's employment
with the Controlled Group and upon the occurrence of such other events as the
Committee may from time to time specify; (iii) all loans will bear a reasonable
rate of interest as determined by the Committee from time to time; (iv) all
loans will be made only upon receipt of adequate security (the security for a
loan will be the Participant's interest in the separate investment fund
established under subsection (g) for that loan) in an amount that does not
exceed 50% of the Participant's vested interest under the Plan); (v) payments
of principal and interest will be made through payroll deductions sufficient to
provide for substantially level amortization of principal and interest with
payments not less frequently than quarterly, which will be irrevocably
authorized by the Participant in writing on a form provided by the Committee at
the time the loan is made; (vi) the amount of any indebtedness (including
accrued and unpaid interest) under any loan will be deducted from a
Participant's interest in the Trust Fund if and only if such indebtedness or
any installment thereof is not paid when due (including amounts due by
acceleration) unless the Committee determines that there is adequate security
for such loan other than the Participant's interest in the Trust Fund; (vii) no
more than one outstanding loan will be permitted with respect to a Participant
at any time, except that a Participant may have a home loan and a loan which is
not a home loan outstanding at the same time; and (viii) all loans will be
evidenced by a note containing such additional terms and conditions as the
Committee will determine.
(d) Maximum Amount of Loans. The amount of any
loan made pursuant to this Section, when added to the outstanding balance of
all other loans to the Participant from all qualified employer plans (as
defined in Code section 72(p)(4)) of the Controlled Group, will not exceed the
lesser of (i) one-half of the nonforfeitable interest in his Accounts, or (ii)
$50,000 reduced by the excess, if any, of (A) the highest outstanding balance
of all other loans from qualified employer plans of the Controlled Group to the
Participant during the 1-year period ending on the date on which such loan was
made, over (B) the outstanding balance of all loans from qualified employer
plans of the Controlled Group to the Participant on the date on which such loan
was made.
(e) Minimum Loan. The minimum loan permitted under
this Section is $1,000. If such minimum amount exceeds the limitations of
subsection (d), no loan will be made.
(f) Source of Loans. All loans will be made first
from a Participant's Transfer Account, next from his Matching Contribution
Account, and last from his Deferral Contribution Account.
-19-
<PAGE> 23
(g) Investment of Loan Payments. All loans will be
treated as a separate investment fund of the borrowing Participant. All
payments with respect to a loan will be credited to the borrowing Participant's
Accounts and will be invested in the investment funds under the Trust Agreement
in accordance with the Participant's latest investment directions pursuant to
Section 3.5.
6.6 Reemployment of Participant. If a Participant who
terminated employment again becomes an Employee before receiving a distribution
of his Account balances, no distribution from the Trust Fund will be made while
he is an Employee, and amounts distributable to him on account of his prior
termination will be held in the Trust Fund until he is again entitled to a
distribution under the Plan.
6.7 Valuation of Accounts. A Participant's distributable
Account balances will be valued as of the Valuation Date immediately preceding
the date the Accounts are to be distributed, except that there will be added to
the value of his Accounts the fair market value of any amounts allocated to his
Accounts under Article 4 after that Valuation Date.
6.8 Direct Rollovers
(a) Distributions after 1992. Notwithstanding any
other provision of the Plan, for distributions made on or after January 1,
1993, a Distributee (as hereinafter defined) may elect, at any time and in the
manner prescribed by the Committee, to have any portion of an Eligible Rollover
Distribution (as hereinafter defined) paid directly to an Eligible Retirement
Plan (as hereinafter defined) specified by the Distributee.
(b) Eligible Rollover Distribution. An Eligible
Rollover Distribution is any distribution of all or any portion of the balance
to the credit of the Distributee, except that an Eligible Rollover Distribution
does not include (i) any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for the life
or life expectancy of the Distributee or the joint lives or life expectancies
of the Distributee and the Distributee's designated beneficiary, or for a
specified period of ten years or more, (ii) any distribution to the extent such
distribution is required by Code section 401(a)(9), and (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) Eligible Retirement Plan. An Eligible Retirement
Plan is an individual retirement account described in Code section 408(a), an
individual retirement annuity described
-20-
<PAGE> 24
in Code section 408(b), an annuity plan described in Code section 403(a), or a
qualified trust described in Code section 401(a) that is a defined contribution
plan within the meaning of Code section 414(i), that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to a Participant's surviving Spouse, an Eligible Retirement Plan
is an individual retirement account or individual retirement annuity.
(d) Distributee. A Distributee includes a
Participant, the Participant's Spouse, or a Participant's former spouse who is
an alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code.
6.9 Restrictions on Distributions. Article 11 sets forth
certain rules under various provisions of the Code relating to restrictions on
distributions to Participants.
-21-
<PAGE> 25
ARTICLE 7
DISTRIBUTIONS TO BENEFICIARIES
7.1 Designation of Beneficiary. Each Participant will have
the right to designate a Beneficiary or Beneficiaries to receive his vested
Account balances upon his death. The designation will be made on forms
prescribed by the Committee and will be effective upon receipt by the
Committee. A Participant will have the right to change or revoke any
designation by filing a new designation or notice of revocation with the
Committee, but the revised designation or revocation will be effective only
upon receipt by the Committee.
7.2 Consent of Spouse Required. A Participant who is
married may not designate a Beneficiary other than, or in addition to, his
spouse unless his spouse consents to the designation by means of a written
instrument that is signed by the spouse, contains an acknowledgment by the
spouse of the effect of the consent, and is witnessed by a member of the
Committee (other than the Participant) or by a notary public. The designation
will be effective only with respect to the consenting spouse, whose consent
will be irrevocable. A Beneficiary designation to which a spouse has consented
may not be changed by the Participant without spousal consent (other than to
designate the spouse as Beneficiary), unless the spouse's consent expressly
permits Beneficiary designations by the Participant without any further consent
of the spouse.
7.3 Failure to Designate Beneficiary. In the event a
Participant has not designated a Beneficiary, or in the event no Beneficiary
survives a Participant, the distribution of the Participant's vested Account
balances upon his death will be made (i) to the Participant's spouse, if
living, (ii) if his spouse is not then living, to his then living issue by
right of representation, (iii) if neither his spouse nor his issue are then
living, to his then living parents, and (iv) if none of the above are then
living, to his estate.
7.4 Distributions to Beneficiaries. Distribution of a
Participant's vested Account balances to the Participant's Beneficiary will be
made as soon as practicable after Participant's death. The Participant's
vested Account balances will be distributed to the Beneficiary in a single lump
sum payment and will be in the same form as provided for Participants in
Section 6.1(b). The Participant's Account balances will be valued as of the
Valuation Date coinciding with or immediately preceding the date the Accounts
are to be distributed to his Beneficiary, except that there will be added to
the value of the Participant's Accounts the fair market value of any amounts
-22-
<PAGE> 26
allocated to his Accounts under Article 4 after that Valuation Date. If a loan
is outstanding from the Trust Fund to the Participant on the date of his death,
the amount distributed to his Beneficiary will be reduced by any security
interest in the Participant's Accounts held by the Plan by reason of the loan.
7.5 Restrictions on Distributions. Article 11 sets forth
certain rules under various provisions of the Code relating to restrictions on
distributions to Beneficiaries.
-23-
<PAGE> 27
ARTICLE 8
PROVISIONS REGARDING COMPANY STOCK
8.1 Powers and Duties of the Committee.
(a) Committee as Named Fiduciary. Except as
otherwise provided in this Section, the Committee will be the named fiduciary
within the meaning of ERISA section 402(a)(2) for purposes of all shareholder
action authorized or permitted to be taken with respect to Company Stock held
in the Trust Fund. The powers and duties of the Committee as named fiduciary
for this purpose will include, without limitation, the powers and duties to
direct the Trustee with respect to the voting of all shares of Company Stock;
to direct the Trustee to accept or reject a tender offer for shares of Company
Stock; to direct the Trustee to sell shares of Company Stock under any other
circumstances to any person, including the Company, provided that any sale to
the Company or other "disqualified person" within the meaning of Code section
4975 or "party in interest" within the meaning of ERISA section 3(14) is made
at a price which is not less than adequate consideration as defined in ERISA
section 3(18) and no commission is charged with respect to the sale; and to
exercise any options, warrants or other rights in connection with shares of
Company Stock held in the Trust Fund. The Committee will also have the power,
in its discretion, to permit each Participant and Beneficiary to direct the
Trustee to take or to refrain from taking any action with respect to the shares
of Company Stock allocated to his Accounts that the Committee could have
directed the Trustee to take or refrain from taking. If the Committee permits
Participants and Beneficiaries to direct the Trustee in connection with any
matter relating to Company Stock held in the Trust Fund, each Participant and
Beneficiary who furnishes instructions to the Trustee will be a named fiduciary
within the meaning of ERISA section 402(a)(2) with respect to such matter, but
the Committee will retain the power and duty to direct the Trustee with respect
to shares of Company Stock allocated to the Accounts of Participants and
Beneficiaries who fail to furnish timely instructions to the Trustee and with
respect to any shares of Company Stock that have not been allocated to
Participants' Accounts. The Committee will adopt from time to time whatever
procedures it determines to be appropriate in order to exercise its powers and
duties under this subsection (a) and may retain advisors and consultants
(including, without limitation, legal counsel and financial advisors) who are
independent of the Company, the Board and the Trustee to the extent the
Committee determines such independent advice to be necessary or appropriate.
-24-
<PAGE> 28
(b) Delegation of Powers and Duties. The Committee
may, in its discretion, delegate any power or duty allocated to it pursuant to
subsection (a) above to another person or entity, who will act as an
independent fiduciary and will exercise such power or duty to the same extent
as it could have been exercised by the Committee. The persons or entities to
which such powers and duties may be delegated will include, without limitation,
the Board or any committee of the Board, the Trustee, any other person or
entity that meets the requirements of an investment manager under ERISA section
3(38), or any other person or entity that the Committee determines in good
faith has the requisite knowledge and experience concerning the matter with
respect to which the delegation is made. The Committee may also remove any
fiduciary to whom it has delegated any power or duty and exercise such power or
duty itself or appoint a successor fiduciary. For purposes of Sections 8.2 and
8.3, the term "Committee" will also mean any fiduciary to which the Committee
has delegated any power or duty pursuant to this subsection (b).
8.2 Voting Company Stock. Unless the Committee determines
otherwise pursuant to Section 8.1, voting rights with respect to shares of
Company Stock held in the Trust Fund will be exercised by Participants and
Beneficiaries and the procedures of this Section will apply. Before each
annual or special meeting of its shareholders, the Committee will cause to be
sent to each Participant and Beneficiary who has Company Stock allocated to his
Accounts on the record date of such meeting a copy of the proxy solicitation
material for the meeting, together with a form requesting confidential
instructions to the Trustee on how to vote the shares of Company Stock
allocated to his Accounts. Upon receipt of such instructions, the Trustee will
vote the shares allocated to such Participant's or Beneficiary's Accounts as
instructed. The Trustee will vote allocated shares of Company Stock for which
it does not receive timely instructions from Participants or Beneficiaries in
accordance with the Committee's instructions. A Participant's or Beneficiary's
right to instruct the Trustee with respect to voting shares of Company Stock
will not include rights concerning the exercise of any appraisal rights,
dissenters' rights or similar rights granted by applicable law to the
registered or beneficial holders of Company Stock. These matters will be
exercised by the Trustee in accordance with the Committee's instructions.
8.3 Tender Offer for Company Stock. Unless the Committee
determines otherwise pursuant to Section 8.1, the right to accept or reject a
tender offer for shares of Company Stock held in the Trust Fund will be
exercised by Participants and Beneficiaries and the procedures of this Section
will apply. In the event of a tender offer for shares of Company Stock subject
to Section 14(d)(1) of the Securities Exchange Act of 1934 or subject to Rule
13e-4 promulgated under that Act (as those
-25-
<PAGE> 29
provisions may from time to time be amended or replaced by successor provisions
of federal securities laws), the Committee will advise each Participant and
Beneficiary who has shares of Company Stock allocated to his Accounts in
writing of the terms of the tender offer as soon as practicable after its
commencement and will furnish each Participant and Beneficiary with a form by
which he may instruct the Trustee confidentially to tender shares allocated to
his Accounts. The Trustee will tender those shares it has been properly
instructed to tender, and will not tender those shares which it has been
properly instructed not to tender. The Committee will also advise Participants
and Beneficiaries that the Committee will furnish instructions to the Trustee
with respect to allocated shares for which no instructions are received from
Participants and Beneficiaries and will furnish such related documents as are
prepared by any person and provided to the shareholders of the Company pursuant
to the Securities Exchange Act of 1934. The Committee may also provide
Participants with such other material concerning the tender offer as the
Committee in its discretion determines to be appropriate. The number of shares
to which a Participant's instructions apply will be the total number of shares
allocated to his Accounts as of the latest date for which Participant
statements were prepared. The Committee will advise the Trustee of the
commencement date of any tender offer and, until receipt of that advice, the
Trustee will not be obligated to take any action under this Section. Funds
received in exchange for tendered stock will be credited to the Accounts of the
Participant or Beneficiary whose stock was tendered and will be used by the
Trustee to purchase Company Stock, if available on a national securities
exchange, commencing on the earlier of the following dates: (a) the trading
day following the first date on which the closing price of the Company Stock on
a national securities exchange on which the Company Stock is then traded is
within 20% of the closing price on the tenth trading day preceding the
commencement date of the tender offer or (b) the thirtieth trading day after
the expiration date of the tender offer, of which date the Committee will
advise the Trustee. In the interim, or if Company Stock is not available for
purchase, the Trustee will invest such funds in short term investments
permitted under the Trust Agreement.
-26-
<PAGE> 30
ARTICLE 9
ADMINISTRATION OF THE PLAN AND TRUST AGREEMENT
9.1 Appointment of Committee Members. The Board will
appoint an Administrative Committee consisting of at least three or more
members, to hold office at the pleasure of the Board. Members of the Committee
are not required to be Employees or Participants. Any member may resign by
giving notice, in writing, filed with the Board.
9.2 Officers and Employees of the Committee. The Committee
will choose from its members a Chairman and a Secretary. The Secretary will
keep a record of the Committee's proceedings and all dates, records and
documents pertaining to the Committee's administration of the Plan. The
Committee may employ and suitably compensate such persons or organizations to
render advice with respect to the duties of the Committee under the Plan as the
Committee determines to be necessary or desirable.
9.3 Action of the Committee. Action of the Committee may
be taken with or without a meeting of Committee members, provided that action
will be taken only upon the vote or other affirmative expression of a majority
of the Committee's members qualified to vote with respect to such action. The
Chairman or the Secretary of the Committee may execute any certificate or other
written direction on behalf of the Committee. In the event the Committee
members qualified to vote on any question are unable to determine such question
by a majority vote or other affirmative expression of a majority of the
Committee members qualified to vote on such question, such question will be
determined by the Board. A member of the Committee who is a Participant may
not vote on any question relating specifically to himself unless he is the sole
member of the Committee.
9.4 Expenses and Compensation. The expenses of
administering the Plan, including without limitation the expenses of the
Committee properly incurred in the performance of its duties under the Plan,
will be paid from the Trust Fund, and all such expenses paid by the
Participating Employers on behalf of the Plan will be reimbursed from the Trust
Fund unless the Participating Employers in their discretion elect not to submit
such expenses for reimbursement. Notwithstanding the foregoing, the members of
the Committee will not be compensated by the Plan for their services as
Committee members.
9.5 General Powers and Duties of the Committee. The
Committee will have the full power and responsibility to administer the Plan
and the Trust Agreement and to construe and
-27-
<PAGE> 31
apply their provisions. For purposes of ERISA, the Committee will be the named
fiduciary with respect to the operation and administration of the Plan and the
Trust Agreement. In addition, the Committee will have the powers and duties
granted by the terms of the Trust Agreement. The Committee, and all other
persons with discretionary control respecting the operation, administration,
control, and/or management of the Plan, the Trust Agreement, and/or the Trust
Fund, will perform their duties under the Plan and the Trust Agreement solely
in the interests of Participants and their Beneficiaries.
9.6 Specific Powers and Duties of the Committee. The
Committee will administer the Plan and the Trust Agreement and will have the
authority and discretion to (i) resolve all questions relating to the
eligibility of Employees to become Participants; (ii) determine the amount of
benefits payable to Participants or their Beneficiaries, and determine the time
and manner in which such benefits are to be paid; (iii) authorize and direct
all disbursements by the Trustee from the Trust Fund; (iv) engage any
administrative, legal, accounting, clerical, or other services it deems
appropriate in administering the Plan or the Trust Agreement; (v) construe and
interpret the Plan and the Trust Agreement, supply omissions from, correct
deficiencies in, and resolve ambiguities in the language of the Plan and the
Trust Agreement, and adopt rules for the administration of the Plan and the
Trust Agreement which are not inconsistent with the terms of such documents;
(vi) compile and maintain all records it determines to be necessary,
appropriate or convenient in connection with the administration of benefit
payments; (vii) determine the disposition of assets in the Trust Fund in the
event the Plan is terminated; (viii) review the performance of the Trustee with
respect to the Trustee's administrative duties, responsibilities and
obligations under the Plan and the Trust Agreement, report to the Board
regarding such administrative performance of the Trustee, and recommend to the
Board, if necessary, the removal of the Trustee and the appointment of a
successor Trustee; and (ix) resolve all questions of fact relating to any
matter for which it has administrative responsibility.
9.7 Allocation of Fiduciary Responsibility. The Committee
from time to time may allocate to one or more of its members and may delegate
to any other persons or organizations any of its rights, powers, duties and
responsibilities with respect to the operation and administration of the Plan
and the Trust Agreement that are permitted to be delegated under ERISA. Any
such allocation or delegation will be made in writing, will be reviewed
periodically by the Committee, and will be terminable upon such notice as the
Committee in its discretion deems reasonable and proper under the
circumstances. Whenever a person or organization has the power and authority
under the Plan or the
-28-
<PAGE> 32
Trust Agreement to delegate discretionary authority respecting the
administration of the Plan or the Trust Fund to another person or organization,
the delegating party's responsibility with respect to such delegation is
limited to the selection of the person to whom authority is delegated and the
periodic review of such person's performance and compliance with applicable law
and regulations. Any breach of fiduciary responsibility by the person to whom
authority has been delegated which is not proximately caused by the delegating
party's failure to properly select or supervise, and in which breach the
delegating party does not otherwise participate, will not be considered a
breach by the delegating party.
9.8 Information to be Submitted to the Committee. To
enable the Committee to perform its functions, the Participating Employers will
supply full and timely information to the Committee on all matters relating to
Employees and Participants as the Committee may require and will maintain such
other records required by the Committee to determine the benefits due to
Participants or their Beneficiaries under the Plan.
9.9 Notices, Statements and Reports. The Company will be
the "administrator" of the Plan as defined in ERISA section 3(16)(A) for
purposes of the reporting and disclosure requirements imposed by ERISA and the
Code. The Committee will assist the Company, as requested, in complying with
such reporting and disclosure requirements.
9.10 Claims Procedure.
(a) Filing Claim for Benefits. If a Participant or
Beneficiary does not receive the benefits which he believes he is entitled to
receive under the Plan, he may file a claim for benefits with the Committee.
All claims will be made in writing and will be signed by the claimant. If the
claimant does not furnish sufficient information to determine the validity of
the claim, the Committee will indicate to the claimant any additional
information which is required.
(b) Notification by the Committee. Each claim will
be approved or disapproved by the Committee within 90 days following the
receipt of the information necessary to process the claim. In the event the
Committee denies a claim for benefits in whole or in part, the Committee will
notify the claimant in writing of the denial of the claim. Such notice by the
Committee will also set forth, in a manner calculated to be understood by the
claimant, the specific reason for such denial, the specific Plan provisions on
which the denial is based, a description of any additional material or
information necessary to perfect the claim with an explanation of why such
material or information is necessary, and an explanation of the Plan's claim
review
-29-
<PAGE> 33
procedure as set forth in subsection (c). If no action is taken by the
Committee on a claim within 90 days, the claim will be deemed to be denied for
purposes of the review procedure.
(c) Review Procedure. A claimant may appeal a
denial of his claim by requesting a review of the decision by the Committee or
a person designated by the Committee, which person will be a named fiduciary
under ERISA section 402(a)(2) for purposes of this Section. An appeal must be
submitted in writing within six months after the denial and must (i) request a
review of the claim for benefits under the Plan, (ii) set forth all of the
grounds upon which the claimant's request for review is based and any facts in
support thereof, and (iii) set forth any issues or comments which the claimant
deems pertinent to the appeal. The Committee or the named fiduciary designated
by the Committee will make a full and fair review of each appeal and any
written materials submitted in connection with the appeal. The Committee or
the named fiduciary designated by the Committee will act upon each appeal
within 60 days after receipt thereof unless special circumstances require an
extension of the time for processing, in which case a decision will be rendered
as soon as possible but not later than 120 days after the appeal is received.
The claimant will be given the opportunity to review pertinent documents or
materials upon submission of a written request to the Committee or named
fiduciary, provided the Committee or named fiduciary finds the requested
documents or materials are pertinent to the appeal. On the basis of its
review, the Committee or named fiduciary will make an independent determination
of the claimant's eligibility for benefits under the Plan. The decision of the
Committee or named fiduciary on any claim for benefits will be final and
conclusive upon all parties thereto. In the event the Committee or named
fiduciary denies an appeal in whole or in part, it will give written notice of
the decision to the claimant, which notice will set forth in a manner
calculated to be understood by the claimant the specific reasons for such
denial and which will make specific reference to the pertinent Plan provisions
on which the decision was based.
9.11 Service of Process. The Committee may from time to
time designate an agent of the Plan for the service of legal process. The
Committee will cause such agent to be identified in materials it distributes or
causes to be distributed when such identification is required under applicable
law. In the absence of such a designation, the Company will be the agent of
the Plan for the service of legal process.
9.12 Correction of Participants' Accounts. If an error or
omission is discovered in the Accounts of a Participant, or in the amount
distributed to a Participant, the Committee will make such equitable
adjustments in the records of the Plan as may be necessary or appropriate to
correct such error or omission as of
-30-
<PAGE> 34
the Plan Year in which such error or omission is discovered. Further, a
Participating Employer may, in its discretion, make a special contribution to
the Plan which will be allocated by the Committee only to the Account of one or
more Participants to correct such error or omission.
9.13 Payment to Minors or Other Persons Under Legal
Disability. If any benefit becomes payable to a minor, payment of such benefit
will be made only to the guardian of the person or the estate of the minor,
provided the guardian acknowledges in writing, in a form acceptable to the
Committee, receipt of the payment on behalf of the minor. If any benefit
becomes payable to any other person under a legal disability, payment of such
benefit will be made only to the conservator or the guardian of the estate of
such person appointed by a court of competent jurisdiction. Any payment made
in accordance with the provisions of this Section on behalf of a minor or other
person under a legal disability will fully discharge the Plan's obligation to
such person.
9.14 Uniform Application of Rules and Policies. The
Committee in exercising its discretion granted under any of the provisions of
the Plan or the Trust Agreement will do so only in accordance with rules and
policies established by it which will be uniformly applicable to all
Participants and Beneficiaries.
9.15 Funding Policy. The Plan is to be funded through
Participating Employer contributions and earnings on such contributions; and
benefits will be paid to Participants and Beneficiaries as provided in the
Plan.
9.16 The Trust Fund. The Trust Fund will be held by the
Trustee for the exclusive benefit of Participants and Beneficiaries. The
assets held in the Trust Fund will be invested and reinvested in accordance
with the terms of the Trust Agreement, which is hereby incorporated into and
made a part of the Plan. All benefits will be paid solely out of the Trust
Fund, and no Participating Employer will be otherwise liable for benefits
payable under the Plan.
-31-
<PAGE> 35
ARTICLE 10
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS TO
PARTICIPANTS' ACCOUNTS
10.1 Priority over Other Contribution and Allocation
Provisions. The provisions set forth in this Article will supersede any
conflicting provisions of Articles 3 and 4.
10.2 Definitions Used in this Article. The following words
and phrases, when used with initial capital letters, will have the meanings set
forth below.
(a) "Annual Addition" means the sum of the
following amounts with respect to all Qualified Plans and Welfare Benefit Funds
maintained by the Controlled Group Members:
(i) the amount of Controlled Group Member
contributions with respect to the Limitation Year allocated to the
Participant's account;
(ii) the amount of any forfeitures for the
Limitation Year allocated to the Participant's account;
(iii) the amount, if any, carried forward
pursuant to Section 10.4 or a similar provision in another Qualified Plan and
allocated to the Participant's account;
(iv) the amount of a Participant's voluntary
nondeductible contributions for the Limitation Year, provided, however, that
the Annual Addition for any Limitation Year beginning before January 1, 1987
will not be recomputed to treat all of the Participant's nondeductible
voluntary contributions as part of the Annual Addition;
(v) the amount allocated after March 31,
1984 to an individual medical benefit account (as defined in Code section
415(l)(2)) which is part of a Defined Benefit Plan or an annuity plan; and
(vi) the amount derived from contributions
paid or accrued after December 31, 1985 in taxable years ending after such date
that are attributable to post-retirement medical benefits allocated to the
separate account of a key employee (as defined in Code section 419A(d)(3))
under a Welfare Benefit Fund. A Participant's Annual Addition will not include
any nonvested amounts restored to his account following his reemployment
before incurring five consecutive One Year Breaks in Service, and a corrective
allocation pursuant to Section 9.12 will be
-32-
<PAGE> 36
considered an Annual Addition for the Limitation Year to which it relates.
(b) "Average Contribution Percentage" means the
average of the Contribution Percentages of each Participant in a group of
Participants.
(c) "Average Deferral Percentage" means the average
of the Deferral Percentages of each Participant in a group of Participants.
(d) "Contribution Percentage" means the ratio
(expressed as a percentage) determined by dividing the Matching Contributions
made to the Plan on behalf of a Participant who is eligible to receive an
allocation of Matching Contributions for a Plan Year (but only to the extent
such Matching Contributions are not taken into account in determining the
Participant's Deferral Percentage for the Plan Year) by the Participant's
Compensation for the Plan Year. A Participant is eligible to receive an
allocation of Matching Contributions for purposes of determining his
Contribution Percentage even though no Matching Contributions are made to the
Plan on his behalf because of the suspension of his Deferral Contributions
under the terms of the Plan, because of an election not to participate, or
because of the limitations contained in Sections 10.3 through 10.5 of the Plan.
(e) "Deferral Percentage" means the ratio
(expressed as a percentage) determined by dividing the Deferral Contributions
made to the Plan on behalf of a Participant who is eligible to make Deferral
Contributions for all or any portion of a Plan Year by the Participant's
Compensation for the Plan Year. In addition, if the Matching Contributions to
the Plan for any Plan Year satisfy the requirements of Code section
401(k)(2)(B) and (C), a Participant's Deferral Percentage will be determined by
aggregating the Deferral Contributions and the Matching Contributions made to
the Plan on his behalf for such Plan Year, unless such aggregation is
prohibited in regulations prescribed by the Secretary of the Treasury. A
Participant is eligible to make Deferral Contributions for purposes of
determining his Deferral Percentage even though he does not make Deferral
Contributions because of the suspension of his Deferral Contributions under the
terms of the Plan, because of an election not to participate, or because of the
limitations contained in Sections 10.3 through 10.5 of the Plan. A Deferral
Contribution will be taken into account for a Plan Year only if (i) the
allocation of such contribution is not contingent on participation in the Plan
or the performance of services after the Plan Year, (ii) such contribution is
paid to the Trustee within 12 months after the end of the Plan Year, and (iii)
such contribution relates to Compensation that either would have been received
by the Participant in the Plan Year, or that is
-33-
<PAGE> 37
attributable to services performed during the Plan Year and that would have
been received within two and one-half months after the Plan Year, but for the
election to defer.
(f) "Defined Benefit Dollar Limitation" means for
any Limitation Year, $90,000 or such amount as determined by the Commissioner
of Internal Revenue under Code section 415(d)(1) as of the January 1 falling
within such Limitation Year.
(g) "Defined Benefit Fraction" means a fraction,
the numerator of which is the Projected Annual Benefit of a Participant under
all Defined Benefit Plans maintained by a Controlled Group Member determined as
of the close of the Limitation Year and the denominator of which is the lesser
of (i) 140% of the Participant's average Includable Compensation that may be
taken into account for the Limitation Year under Code section 415(b)(1)(B), or
(ii) 125% of the Defined Benefit Dollar Limitation, determined as of the close
of the Limitation Year. If the Participant was a participant in a Defined
Benefit Plan maintained by a Controlled Group Member in existence on July 1,
1982, or on May 6, 1986, the denominator of the Defined Benefit Fraction will
not be less than 125% of the greater of the Participant's accrued Projected
Annual Benefit under such plan as of the end of the last Limitation Year
beginning before January 1, 1983, or his accrued Projected Annual Benefit of
the end of the last Limitation Year beginning January 1, 1987. The preceding
sentence applies only if the Defined Benefit Plan satisfied the requirements of
Code section 415 as in effect at the end of such Limitation Year.
(h) "Defined Benefit Plan" means a Qualified Plan
other than a Defined Contribution Plan.
(i) "Defined Contribution Dollar Limitation" means
for any Limitation Year, $30,000 or, if greater, 25% of the Defined Benefit
Dollar Limitation for the same Limitation Year. If a short Limitation Year is
created because of a Plan amendment changing the Limitation Year to a different
12-consecutive month period, the Defined Contribution Dollar Limitation for the
short Limitation Year will not exceed the amount determined in the preceding
sentences multiplied by a fraction, the numerator of which is the number of
months in the short Limitation Year and the denominator of which is 12.
(j) "Defined Contribution Fraction" means a
fraction, the numerator of which is the sum of the Annual Additions allocated
to the Participant's accounts for the applicable Limitation Year and each prior
Limitation Year, and the denominator of which is the sum of the lesser of the
following products for each Limitation Year in which the Participant was an
Employee (regardless of whether a Defined
-34-
<PAGE> 38
Contribution Plan was in existence for such Limitation Year) (i) the Defined
Contribution Dollar Limitation (determined for this purpose without regard to
the provisions of Code section 415(c)(6)) effective for the Limitation Year
multiplied by 125%, or (ii) 35% of the Participant's Includable Compensation
for such Limitation Year.
(k) "Defined Contribution Plan" means a Qualified
Plan described in Code section 414(i).
(l) "Family Member" means, with respect to an
Employee, the Employee's spouse and lineal ascendants or descendants and the
spouses of such lineal ascendants or descendants.
(m) "Highly Compensated Employee" means any
Employee who performs services for a Controlled Group Member during the
determination year (as hereinafter defined) and who during the look-back year
(as hereinafter defined): (i) received Compensation from a Controlled Group
Member in excess of $75,000 (as adjusted pursuant to Code section 415(d)); (ii)
received Compensation from a Controlled Group Member in excess of $50,000 (as
adjusted pursuant to Code section 415(d)) and was a member of the top-paid
group (as hereafter defined) for such year; or (iii) was an officer of a
Controlled Group Member and received Compensation during such year that is
greater than 50% of the dollar limitation in effect under Code section
415(b)(1)(A) (but limited to no more than 50 Employees or, if lesser, the
greater of three Employees or 10% of the Employees). The term Highly
Compensated Employee also includes: (i) an Employee who is both described in
the preceding sentence if the term "determination year" is substituted for the
term "look-back year" and the Employee is one of the 100 Employees who received
the most Compensation from the Controlled Group during the determination year;
and (ii) an Employee who is a 5-percent owner at any time during the look-back
year or determination year. If no officer has satisfied the Compensation
requirement of (ii) above during either a determination year or look-back year,
the officer with the highest Compensation for such year will be treated as a
Highly Compensated Employee. For purposes of this subsection, the
determination year is the Plan Year, and the look-back year is the
twelve-month period immediately preceding the determination year. A Highly
Compensated Employee also includes any Employee who separated from service (or
was deemed to have separated) prior to the determination year, performs no
services for a Controlled Group Member during the determination year, and was a
Highly Compensated Employee for either the separation year or any determination
year ending on or after the Employee's 55th birthday. The term "top-paid
group" means that group of Employees consisting of the top 20% of such
Employees ranked on the basis of Compensation received during the Plan Year.
For purposes of this subsection, Compensation will include Deferral
-35-
<PAGE> 39
Contributions under the Plan or any other 401(k) arrangement and any amounts
that would have been received as cash but for an election to receive benefits
under a Code section 125 cafeteria plan. All determinations under this
definition will be made in accordance with Code section 414(q) and the Treasury
Regulations thereunder.
(n) "Includable Compensation" means an Employee's
total wages from the Controlled Group as determined for purposes of Internal
Revenue Service Form W-2, excluding, however: (i) moving expense
reimbursements that are deductible by the Employee under Code section 217, (ii)
contributions of Controlled Group Members to a simplified employee pension plan
to the extent such contributions are deductible by the Employee and
contributions of Controlled Group Members to any other plan of deferred
compensation that are not includable in the Employee's gross income, (iii)
distributions to the Employee from any plan of deferred compensation other than
an unfunded, nonqualified plan of deferred compensation, (iv) amounts realized
from the exercise of a nonqualified stock option, (v) amounts realized under
Code section 83 with respect to restricted property that becomes freely
transferable or is no longer subject to a substantial risk of forfeiture, (vi)
amounts realized from the disposition of stock acquired under a qualified stock
option within the meaning of Code section 422, and (vii) any other amounts that
receive special tax benefits within the meaning of section 1.415-2(d)(2) of the
Treasury Regulations. The annual Includable Compensation of an Employee taken
into account for any purpose for any Plan Year will not exceed $150,000 for any
Plan Year, as adjusted in regulations prescribed by the Secretary of the
Treasury. For purposes of applying the $150,000 limit set forth in the
preceding sentence, if an Employee is a Highly Compensated Employee who is
either (i) a 5-percent owner, determined in accordance with Code section 414(q)
and the Treasury Regulations promulgated thereunder or (ii) one of the 10 most
highly compensated Employees ranked on the basis of Compensation paid by the
Controlled Group during the year, such Highly Compensated Employee and the
members of his family (as hereafter defined) will be treated as a single
employee and the Compensation of each member of the family will be aggregated
with the Compensation of the Highly Compensated Employee. The limitation on
Compensation will be allocated among such Highly Compensated Employee and his
family members in proportion to each individual's Compensation. For purposes
of this Section 10.2(m), the term "family" means an Employee's spouse and any
lineal descendants who are under age 19 at the end of the Plan Year in
question.
(o) "Limitation Year" means the
12-consecutive-month period used by a Qualified Plan for purposes of computing
the limitations on benefits and annual additions
-36-
<PAGE> 40
under Code section 415. The Limitation Year for this Plan is the Plan Year.
(p) "Maximum Annual Addition" means with respect to
a Participant for any Limitation Year an amount equal to the lesser of (i) the
Defined Contribution Dollar Limitation or (ii) 25% of the Participant's
Includable Compensation.
(q) "Nonhighly Compensated Employee" means an
Employee who is neither a Highly Compensated Employee nor a Family Member of a
Highly Compensated Employee.
(r) "Projected Annual Benefit" means the annual
benefit (as defined in Code section 415(b)(2)) to which a Participant would be
entitled under the terms of a Defined Benefit Plan maintained by a Controlled
Group Member, assuming that the Participant will continue employment until his
normal retirement age under the Defined Benefit Plan (or current age, if later)
and that the Participant's Includable Compensation for the current Limitation
Year and all other relevant factors used to determine benefits under the
Defined Benefit Plan will remain constant for all future Limitation Years.
(s) "Matching Contribution" means the Participating
Employer matching contribution made to the Plan on behalf of a Participant
pursuant to Article 3.
(t) "Welfare Benefit Fund" means an organization
described in paragraph (7), (9), (17) or (20) of Code section 501(c), a trust,
corporation or other organization not exempt from federal income tax, or to the
extent provided in Treasury Regulations, any account held for an employer by
any person, which is part of a plan of an employer through which the employer
provides benefits to employees or their beneficiaries, other than a benefit to
which Code sections 83(h), 404 (determined without regard to section 404(b)(2))
or 404A applies, or to which an election under Code section 463 applies.
(u) "Compensation" means the wages as defined in
Code section 3401(a) for purposes of income tax withholding at the source (but
determined without regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or services performed)
that are paid to a Participant by the Participating Employers. In addition,
Compensation includes any contributions made by the Participating Employers on
behalf of an Employee pursuant to a deferral election under the Plan or under
any other employee benefit plan containing a cash or deferred arrangement under
Code section 401(k) and any amounts that would have been received as cash but
for an election to receive benefits under a cafeteria plan meeting the
requirements of Code section 125. The annual
-37-
<PAGE> 41
Compensation of an Employee taken into account for any purpose will not exceed
$200,000 for any Plan Year ending before January 1, 1994, as adjusted in
regulations prescribed by the Secretary of the Treasury, and will not exceed
$150,000 for any Plan Year beginning after December 31, 1993, as adjusted in
regulations prescribed by the Secretary of the Treasury. For purposes of
applying the $150,000 limit set forth in the preceding sentence, if an Employee
is a Highly Compensated Employee who is either (i) a 5-percent owner,
determined in accordance with Code section 414(q) and the Treasury Regulations
promulgated thereunder or (ii) one of the 10 most highly compensated Employees
ranked on the basis of Compensation paid by the Controlled Group during the
year, such Highly Compensated Employee and the members of his family (as
hereafter defined) will be treated as a single employee and the Compensation of
each member of the family will be aggregated with the Compensation of the
Highly Compensated Employee. The limitation on Compensation will be allocated
among such Highly Compensated Employee and his family members in proportion to
each individual's Compensation. For purposes of this Section 10.2(u), the
term "family" means an Employee's spouse and any lineal descendants who are
under age 19 at the end of the Plan Year in question.
10.3 General Allocation Limitation. The Annual Addition of
a Participant for any Limitation Year will not exceed the Maximum Annual
Addition. If, except for the application of this section, the Annual Addition
of a Participant for any Limitation Year would exceed the Maximum Annual
Addition, the excess Annual Addition attributable to this Plan will not be
allocated to the Participant's Account for the Plan Year included in such
Limitation Year, but will be subject to the provisions of Section 10.4. The
limitations contained in this Article will apply on an aggregate basis to all
Defined Contribution Plans and all Defined Benefit Plans (whether or not any of
such plans have terminated) established by the Controlled Group Members.
10.4 Excess Allocations.
(a) Participants Covered by One Defined
Contribution Plan. If the Participant is not covered under another Defined
Contribution Plan or a Welfare Benefit Fund maintained by a Controlled Group
Member during the Limitation Year and the amount allocated or otherwise
allocable to his Account would exceed the Maximum Annual Addition, the
Participant's Deferral Contributions will be returned to the Participant
(together with earnings, if any, attributable to the returned Deferral
Contributions) to the extent necessary to reduce the excess Annual Addition.
If an excess Annual Addition remains after the return of such Deferral
Contributions plus earnings, the Participating Employer contributions and
-38-
<PAGE> 42
forfeitures which would continue to cause the Participant's Annual Addition to
exceed the Maximum Annual Addition will be successively allocated in the manner
described in Section 4.2 among the Accounts of eligible Participants whose
Annual Additions do not exceed the Maximum Annual Addition. If, after such
allocations have been made, there remain Participating Employer contributions
or forfeitures which cannot be allocated without causing the Annual Addition of
a Participant to exceed the Maximum Annual Addition, the forfeitures which
cause the Annual Addition to exceed the Maximum Annual Addition and the
Participating Employer contributions which result from a reasonable error in
estimating the Participant's Includable Compensation or from any other limited
facts and circumstances which the Commissioner of Internal Revenue finds
justifiable under section 1.415-6(b)(6) of the Treasury Regulations and which
cause the Participant's Annual Addition to exceed the Maximum Annual Addition
will be held in a suspense account in the Trust Fund to be carried forward and
used in subsequent Limitation Years to reduce Participating Employer
contributions to the Plan. If a suspense account is in existence at any time
during a Limitation Year, all amounts in the suspense account must be allocated
before any contributions which would constitute Annual Additions will be made
to the Plan for that Limitation Year. Such suspense account will not
participate in the allocation of the net income or net loss of the Trust Fund.
(b) Participants Covered by Two or More Defined
Contribution Plans. If, in addition to this Plan, the Participant is covered
under another Defined Contribution Plan or a Welfare Benefit Fund maintained by
a Controlled Group Member during the Limitation Year, the following provisions
will apply. The Annual Addition which may be credited to a Participant's
Account under this Plan for any such Limitation Year will not exceed the
Maximum Annual Addition reduced by the Annual Addition credited to a
Participant's accounts under the other Defined Contribution Plans and Welfare
Benefit Funds for the same Limitation Year. If the Annual Addition with
respect to the Participant under the other Defined Contribution Plans and
Welfare Benefit Funds maintained by a Controlled Group Member is less than the
Maximum Annual Addition and the Participating Employer contribution that would
otherwise be contributed or allocated to the Participant's Account under this
Plan would cause the Annual Addition for the Limitation Year to exceed the
Maximum Annual Addition, the amount to be contributed or allocated to the
Participant's Account under this Plan will be reduced so that the Annual
Addition under all such Defined Contribution Plans and Welfare Benefit Funds
for the Limitation Year will equal the Maximum Annual Addition. If the
aggregate Annual Addition with respect to the Participant under such other
Defined Contribution Plans and Welfare Benefit Funds is equal to or greater
than the Maximum Annual Addition, no amount will be
-39-
<PAGE> 43
contributed or allocated to the Participant's Account under this Plan for the
Limitation Year. An excess Annual Addition will be reduced in the manner
described in subsection (c).
(c) Reduction of Excess Allocations. As soon as is
administratively feasible after the end of the Limitation Year, the Maximum
Annual Addition for the Limitation Year will be determined on the basis of the
Participant's Includable Compensation for the Limitation Year. If a
Participant's Annual Addition under this Plan and the other Defined
Contribution Plans and Welfare Benefit Funds maintained by Controlled Group
Members would result in the Annual Addition exceeding the Maximum Annual
Addition for the Limitation Year, the excess amount will be deemed to consist
of the Annual Addition last allocated. In making this determination, the
Annual Addition attributable to a Welfare Benefit Fund will be deemed to have
been allocated first regardless of the actual date of allocation. If an excess
amount was allocated to a Participant on an allocation date of this Plan that
coincides with an allocation date of another plan, the excess amount attributed
to this Plan will be the product of (i) the total excess amount allocated as of
such date and (ii) the ratio of the Annual Addition allocated to the
Participant for the Limitation Year as of such date under this Plan to the
total Annual Addition allocated to the Participant for the Limitation Year as
of such date under this and all the other Defined Contribution Plans. Any
excess amount attributed to this Plan will be disposed of in the manner
described in subsection (a).
10.5 Aggregate Benefit Limitation. If a Controlled Group
Member maintains, or at any time maintained, one or more Defined Benefit Plans
covering any Participant in this Plan, the sum of the Defined Benefit Fraction
and the Defined Contribution Fraction for any Limitation Year will equal no
more than one (1.0). The provisions of the Defined Benefit Plans will govern
the order of reduction of Annual Additions or benefit accruals necessary to
meet this limitation. If the provisions of the Defined Benefit Plans are
silent, the current Annual Addition under this Plan will be reduced first, and
then the rate of accrual under the Defined Benefit Plans will be reduced, if
necessary to meet this limitation. If the Defined Contribution Plans taken
into account in determining the Participant's Annual Addition under this
Article satisfied the requirements of Code section 415 as in effect for all
Limitation Years beginning before January 1, 1987, an amount will be subtracted
from the numerator of the Defined Contribution Fraction (not exceeding such
numerator) as prescribed by the Secretary of the Treasury so that the sum of
the Defined Contribution Fraction and the Defined Benefit Fraction does not
exceed 1.0. For purposes of this Section, a Participant's voluntary
nondeductible contributions to
-40-
<PAGE> 44
a Defined Benefit Plan will be treated as being part of a separate Defined
Contribution Plan.
10.6 Limitation on Deferral Contributions.
(a) Average Deferral Percentage Test.
Notwithstanding any other provision of the Plan, the Average Deferral
Percentage for a Plan Year for Participants who are Highly Compensated
Employees will not exceed the greater of: (i) the Average Deferral Percentage
for Participants who are Nonhighly Compensated Employees multiplied by 1.25; or
(ii) the lesser of (A) the Average Deferral Percentage for Participants who are
Nonhighly Compensated Employees plus two percentage points or (B) the Average
Deferral Percentage for Participants who are Nonhighly Compensated Employees
multiplied by 2.0. The multiple use of the alternative test in clause (ii) of
this subsection will be restricted as provided in regulations prescribed by the
Secretary of the Treasury.
(b) Suspension of Deferral Contributions. If at
any time during a Plan Year the Committee determines, on the basis of estimates
made from information then available, that the limitation described in
subsection (a) above will not be met for the Plan Year, the Committee in its
discretion may reduce or suspend the Deferral Contributions of one or more
Participants who are Highly Compensated Employees to the extent necessary (i)
to enable the Plan to meet such limitation or (ii) to reduce the amount of
excess Deferral Contributions that would otherwise be distributed pursuant to
subsection (c) below.
(c) Reduction of Excess Deferral Contributions.
If, for any Plan Year, the Average Deferral Percentage for Participants who are
Highly Compensated Employees exceeds the limitation described in subsection (a)
above, the Deferral Percentage for such Participants will be reduced (in the
order of Deferral Percentages, beginning with the highest of such percentages
as provided below) until the limitation in subsection (a) is satisfied. The
highest Deferral Percentage will be reduced first until the limitation in
subsection (a) is satisfied or the percentage equals the next highest
percentage, and the process will be repeated until such limitation is
satisfied. In order to reduce a Participant's Deferral Percentage, the
Participant's excess Deferral Contributions will be distributed to him. If
Matching Contributions are taken into account in determining Deferral
Percentages, a Participant's Deferral Percentage will be reduced by
distributing first Deferral Contributions in excess of 5% of Compensation and
by distributing next the remaining Deferral Contributions and Matching
Contributions, in proportion to the amount of such contributions for the Plan
Year. All distributions under this subsection will be increased by Trust Fund
earnings and decreased by Trust Fund
-41-
<PAGE> 45
losses for the Plan Year and for the period between the end of the Plan Year
and the date of distribution and will be made within two and one-half months
following the close of the Plan Year, if practicable, but in no event later
than the last day of the immediately following Plan Year. The amount of excess
Deferral Contributions distributed pursuant to this Section with respect to a
Participant for the Plan Year will be reduced by any Deferral Contributions
previously distributed to the Participant for the same Plan Year pursuant to
Section 3.1(c). The excess Deferral Contributions of Participants who are
subject to the family aggregation rules of Section 10.8(d) will be allocated
among the family members in proportion to the Deferral Contributions (and
amounts treated as Deferral Contributions) of the family members.
(d) Determination of Earnings and Losses. The
earnings and losses of the Trust Fund for the Plan Year allocable to the
portion of a Participant's Deferral Contributions that are distributed pursuant
to subsection (c) above will be determined by multiplying the Trust Fund
earnings or losses for the Plan Year allocable to the Participant's Deferral
Contribution Account by a fraction, the numerator of which is the amount of
Deferral Contributions to be distributed to the Participant and the denominator
of which is the balance of the Participant's Deferral Contribution Account on
the last day of the Plan Year, reduced by the earnings and increased by the
losses allocable to such Account for the Plan Year. The earnings and losses of
the Trust Fund allocable to the Participant's Deferral Contributions that are
distributed pursuant to subsection (c) for the period between the end of the
Plan Year and the date of such distribution will be determined in accordance
with regulations prescribed by the Secretary of the Treasury interpreting Code
section 401(k). The earnings and losses of the Trust Fund allocable to the
portion of a Participant's Matching Contributions that are distributed pursuant
to subsection (c) above will be determined in the manner described in Section
10.7(c).
10.7 Limitation on Matching Contributions.
(a) Average Contribution Percentage Test.
Notwithstanding any other provision of the Plan, the Average Contribution
Percentage for a Plan Year for Participants who are Highly Compensated
Employees will not exceed the greater of: (i) the Average Contribution
Percentage for Participants who are Nonhighly Compensated Employees multiplied
by 1.25; or (ii) the lesser of (A) the Average Contribution Percentage Test for
Participants who are Nonhighly Compensated Employees plus two percentage points
or (B) the Average Contribution Percentage for Participants who are Nonhighly
Compensated Employees multiplied by 2.0. The multiple use of the alternative
test contained in
-42-
<PAGE> 46
clause (ii) of this subsection will be restricted as provided in regulations
prescribed by the Secretary of the Treasury.
(b) Reduction of Excess Matching Contributions.
If, for any Plan Year, the Average Contribution Percentage for Participants who
are Highly Compensated Employees exceeds the limitation described in subsection
(a) above, the Contribution Percentage for each such Participant will be
reduced (in the order of Contribution Percentages, beginning with the highest
of such percentages as provided below) until the limitation in subsection (a)
is satisfied. The highest Contribution Percentage will be reduced first until
the limitation in subsection (a) is satisfied or the percentage equals the next
highest percentage, and the process will be repeated if necessary until such
limitation is satisfied. In order to reduce a Participant's Contribution
Percentage, the Participant's excess Matching Contributions (increased by Trust
Fund earnings and decreased by Trust Fund losses for the Plan Year and for the
period between the end of the Plan Year and the date of distribution) will be
distributed to the Participant within two and one-half months following the
close of the Plan Year, if practicable, but in no event later than the last day
of the immediately following Plan Year. The excess Matching Contributions of
Participants who are subject to the family aggregation rules of Section 10.8(d)
will be allocated among the family members in proportion to the Matching
Contributions made on behalf of the family members.
(c) Determination of Earnings and Losses. The
earnings and losses of the Trust Fund for the Plan Year allocable to the
portion of a Participant's Matching Contributions that are distributed pursuant
to Section 10.6 or subsection (b) above will be determined by multiplying the
Trust Fund earnings or losses for the Plan Year allocable to the Participant's
Matching Contribution Account by a fraction, the numerator of which is the
amount of Matching Contributions to be distributed and the denominator of which
is the balance of the Participant's Matching Contribution Account on the last
day of the Plan Year, reduced by the earnings and increased by the losses
allocable to such Account for the Plan Year. The earnings and losses of the
Trust Fund allocable to a Participant's Matching Contributions that are
distributed pursuant to Section 10.6 or subsection (b) above for the period
between the end of the Plan Year and the date of such distribution will be
determined in accordance with regulations prescribed by the Secretary of the
Treasury interpreting Code sections 401(k) and 401(m).
10.8 Aggregation Rules.
(a) Code Section 415. For purposes of the
allocation limitations under Code section 415 set forth in this Article, (i)
all Defined Benefit Plans ever maintained by a
-43-
<PAGE> 47
Controlled Group Member will be treated as one Defined Benefit Plan, and all
Defined Contribution Plans ever maintained by a Controlled Group Member will be
treated as one Defined Contribution Plan, and (ii) Controlled Group Members
will be determined in accordance with the 50% control rule of Code section
415(h).
(b) Code Section 401(k). For purposes of the
limitation on Deferral Contributions set forth in this Article, the Average
Deferral Percentage for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have deferral contributions allocated
to his account under two or more plans or arrangements described in Code
section 401(k) that are maintained by the Company or any Controlled Group
Member will be determined as if all such deferral contributions were made under
a single arrangement (unless such plans or arrangements may not be permissively
aggregated under applicable regulations). Plans that are aggregated for
purposes of satisfying the minimum coverage rules of Code section 410(b) (other
than for purposes of the average benefits percentage test) will be treated as a
single plan for such purposes.
(c) Code Section 401(m). The Contribution
Percentage of a Participant who is a Highly Compensated Employee for a Plan
Year and who is eligible to make voluntary Employee contributions or receive
deferral contributions or matching employer contributions allocated to his
account under two or more Defined Contribution Plans maintained by the Company
or a Controlled Group Member will be determined as if all such contributions
were made to a single plan (unless such plans may not be permissively
aggregated under applicable regulations). Plans that are aggregated for
purposes of satisfying the minimum coverage rules of Code section 410(b) (other
than for purposes of the average benefits percentage test) will be treated as a
single plan for such purposes.
(d) Family Members. For purposes of determining
the Contribution Percentage or the Deferral Percentage of a Participant who is
both a Highly Compensated Employee and either (i) a 5-percent owner, determined
in accordance with Code section 414(q) and the Treasury Regulations promulgated
thereunder or (ii) one of the 10 most highly compensated Employees ranked on
the basis of Compensation paid by the Controlled Group during the year,
determined in accordance with Code section 414(q) and the Treasury Regulations
promulgated thereunder, the Matching Contributions, Deferral Contributions, and
Compensation of such Participant will include the Matching Contributions,
Deferral Contributions and Compensation of Family Members, and Family Members
will be disregarded in determining the Contribution Percentage or the Deferral
Percentage of Participants who are not such Highly Compensated Employees.
-44-
<PAGE> 48
ARTICLE 11
RESTRICTIONS ON DISTRIBUTIONS TO
PARTICIPANTS AND BENEFICIARIES
11.1 Priority over Other Distribution Provisions. The
provisions set forth in this Article will supersede any conflicting provisions
of Article 6 or Article 7.
11.2 General Restrictions.
(a) Distributions Prior to a Separation from
Service. Except for distributions permitted under Article 6 with respect to
Participants who attain age 59-1/2 or suffer a hardship, a Participant's
interest in the Plan will not be distributed before the Participant's
separation from service, disability or death unless: (i) the Plan is
terminated without the establishment or maintenance by the Participating
Employers of another defined contribution plan (other than an employee stock
ownership plan as defined in Code section 4975(e)(7)); (ii) a Participating
Employer that is a corporation sells all or substantially all of the assets
used by the Participating Employer in a trade or business to a person other
than a Controlled Group Member and the Participant becomes an employee of the
acquiring employer; or (iii) a Participating Employer that is a corporation
disposes of its interest in a subsidiary to a person other than an Controlled
Group Member but only if the Participant continues employment with the
subsidiary. An event will not be treated as described in clause (ii) or (iii)
above unless the Participating Employer continues to maintain the Plan after
the disposition.
(b) Lump Sum Distribution Required. An event
described in subparagraph (a) that would otherwise permit distribution of a
Participant's interest in the Plan will not be treated as described in
subparagraph (a) unless the Participant receives a lump sum distribution by
reason of the event. A lump sum distribution for this purpose will be a
distribution described in Code section 402(d)(4), without regard to clauses
(i), (ii), (iii), and (iv) of subparagraph (A), subparagraph (B), or
subparagraph (F) thereof.
11.3 Restrictions on Commencement of Distributions. The
provisions of this Section will apply to restrict the Committee's ability to
delay the commencement of distributions. Unless a Participant elects otherwise
in writing, distribution of the Participant's vested interest in his Account
will begin no later than the 60th day after the close of the Plan Year in
which occurs the latest of (i) the date on which the Participant attains age
62, (ii) the tenth anniversary of the Plan Year in
-45-
<PAGE> 49
which the Participant began participation in the Plan, or (iii) the
Participant's termination of employment.
11.4 Restrictions on Delay of Distributions. The following
provisions will apply to limit a Participant's ability to delay the
distribution of benefits.
(a) General Rule. Distribution of a Participant's
entire vested and nonforfeitable interest will be made or commence not later
than April 1 following the calendar year in which he attains age 70-1/2. On or
before December 31 of such calendar year and of each succeeding calendar year,
distribution of the entire amount of any additional balances in the
Participant's Accounts (determined as of the preceding Valuation Date) will be
made in a lump sum.
(b) Rule for Certain Participants Who Attained Age
70-1/2 Before 1988. Notwithstanding subsection (a), if a Participant attained
age 70-1/2 before January 1, 1988 and was not a 5-percent owner (as such term
is defined in Code Section 416(i)) at any time during the five-plan-year period
ending in the calendar year in which he attained age 70-1/2, then distribution
of his entire vested and nonforfeitable interest will be made or commence not
later than April 1 following the earlier of (i) the calendar year in which his
employment with the Controlled Group terminates or (ii) the calendar year in
which he becomes a 5-percent owner.
(c) Rule for Participants Who Attained Age 70-1/2
in 1988. If a Participant attained age 70-1/2 during 1988 and had not
terminated employment with the Controlled Group as of January 1, 1989,
distribution of his entire vested and nonforfeitable interest will be made or
commence not later than April 1, 1990.
11.5 Limitation to Assure Benefits Payable to Beneficiaries
are Incidental. In the event that any payments under the Plan are to be made
to someone other than the Participant or jointly to the Participant and his
spouse or other payee, such payments must conform to the "incidental benefit"
rules of Code section 401(a)(9)(G) and Treasury Regulation section
1.401(a)(9)-2.
11.6 Restrictions in the Event of Death. Upon the death of
a Participant, the following distribution provisions will apply to limit the
Beneficiary's ability to delay distributions. If the Participant dies after
distribution of his benefit has begun, the remaining portion of his benefit
will continue to be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death; but if he dies before
distribution of his benefit commences, his entire
-46-
<PAGE> 50
benefit will be distributed no later than five years after his death, unless an
individual who is a designated Beneficiary elects to receive distributions in
substantially equal installments over the Beneficiary's life or life expectancy
beginning no later than one year after the Participant's death. If the
designated Beneficiary is the Participant's surviving spouse, the date
distributions are required to begin will not be earlier than the date on which
the Participant would have attained age 70-1/2, and, if the spouse dies before
payments begin, subsequent distributions will be made as if the spouse had been
the Participant. Any amount paid to a child of the Participant will be treated
as if it had been paid to the surviving spouse if the amount becomes payable to
the surviving spouse when the child reaches the age of majority.
11.7 Compliance with Regulations. Distributions under the
Plan to Participants or Beneficiaries will be made in accordance with Treasury
Regulations issued under Code section 401(a)(9).
11.8 Delayed Payments. If the amount of a distribution
required to begin on a date determined under the applicable provisions of the
Plan cannot be ascertained by such date, or if it is not possible to make such
payment on such date because the Committee has been unable to locate a
Participant or Beneficiary after making reasonable efforts to do so, a payment
retroactive to such date may be made no later than 60 days after the earliest
date on which the amount of such payment can be ascertained or the date on
which the Participant or Beneficiary is located (whichever is applicable).
-47-
<PAGE> 51
ARTICLE 12
TOP-HEAVY PROVISIONS
12.1 Priority over Other Plan Provisions. If the Plan is or
becomes a Top-Heavy Plan in any Plan Year, the provisions of this Article will
supersede any conflicting provisions of the Plan. However, the provisions of
this Article will not operate to increase the rights or benefits of
Participants under the Plan except to the extent required by Code section 416
and other provisions of law applicable to Top-Heavy Plans.
12.2 Definitions Used in this Article. The following words
and phrases, when used with initial capital letters, will have the meanings set
forth below.
(a) "Defined Benefit Dollar Limitation" means the
limitation described in Section 10.2(f).
(b) "Defined Benefit Plan" means the Qualified Plan
described in Section 10.2(h).
(c) "Defined Contribution Dollar Limitation" means
the limitation described in Section 10.2(i).
(d) "Defined Contribution Plan" means the Qualified
Plan described in Section 10.2(k).
(e) "Determination Date" means for the first Plan
Year of the Plan the last day of the Plan Year and for any subsequent Plan Year
the last day of the preceding Plan Year.
(f) "Determination Period" means the Plan Year
containing the Determination Date and the four preceding Plan Years.
(g) "Includable Compensation" means the compensation
described in Section 10.2(n).
(h) "Key Employee" means any Employee or former
Employee (and the Beneficiary of a deceased Employee) who at any time during
the Determination Period was (i) an officer of a Controlled Group Member, if
such individual's Includable Compensation (modified as described below) exceeds
50% of the Defined Benefit Dollar Limitation, (ii) an owner (or considered an
owner under Code section 318) of one of the ten largest interests in a
Controlled Group Member, if such individual's Includable Compensation exceeds
the Defined Contribution Dollar Limitation, (iii) a 5% owner of a Controlled
Group Member, or (iv) a 1% owner of a Controlled Group Member who has annual
-48-
<PAGE> 52
Includable Compensation of more than $150,000. The determination of who is a
Key Employee will be made in accordance with Code section 416(i). For purposes
of this subsection, Includable Compensation will include the amount of any
salary reduction contributions pursuant to a cash or deferred arrangement
meeting the requirements of Code section 401(k) or a cafeteria plan meeting the
requirements of Code section 125.
(i) "Minimum Allocation" means the allocation
described in the first sentence of Section 12.3(a).
(j) "Permissive Aggregation Group" means the
Required Aggregation Group of Qualified Plans plus any other Qualified Plan or
Qualified Plans of a Controlled Group Member which, when considered as a group
with the Required Aggregation Group, would continue to satisfy the requirements
of Code sections 401(a)(4) and 410 (including simplified employee pension
plans).
(k) "Present Value" means present value based only
on the interest and mortality rates specified in a Defined Benefit Plan.
(l) "Required Aggregation Group" means the group of
plans consisting of (i) each Qualified Plan (including simplified employee
pension plans) of a Controlled Group Member in which at least one Key Employee
participates, and (ii) any other Qualified Plan (including simplified employee
pension plans) of a Controlled Group Member which enables a Qualified Plan to
meet the requirements of Code sections 401(a)(4) or 410.
(m) "Top-Heavy Plan" means the Plan for any Plan
Year in which any of the following conditions exists: (i) if the Top-Heavy
Ratio for the Plan exceeds 60% and the Plan is not a part of any Required
Aggregation Group or Permissive Aggregation Group of Qualified Plans; (ii) if
the Plan is a part of a Required Aggregation Group but not part of a Permissive
Aggregation Group of Qualified Plans and the Top-Heavy Ratio for the Required
Aggregation Group exceeds 60%; or (iii) if the Plan is a part of a Required
Aggregation Group and part of a Permissive Aggregation Group of Qualified Plans
and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.
(n) "Top-Heavy Ratio" means a fraction, the
numerator of which is the sum of the Present Value of accrued benefits and the
account balances (as required by Code section 416)) of all Key Employees with
respect to such Qualified Plans as of the Determination Date (including any
part of any accrued benefit or account balance distributed during the five-year
period ending on the Determination Date), and the denominator of which is the
sum of the Present Value of the accrued benefits and
-49-
<PAGE> 53
the account balances (including any part of any accrued benefit or account
balance distributed in the five-year period ending on the Determination Date)
of all Employees with respect to such Qualified Plans as of the Determination
Date. The value of account balances and the Present Value of accrued benefits
will be determined as of the most recent Top-Heavy Valuation Date that falls
within or ends with the 12-month period ending on the Determination Date,
except as provided in Code section 416 for the first and second Plan Years of a
Defined Benefit Plan. The account balances and accrued benefits of a
participant who is not a Key Employee but who was a Key Employee in a prior
year will be disregarded. The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, transfers and contributions unpaid as
of the Determination Date are taken into account will be made in accordance
with Code section 416. Employee contributions described in Code section
219(e)(2) will not be taken into account for purposes of computing the
Top-Heavy Ratio. When aggregating plans, the value of account balances and
accrued benefits will be calculated with reference to the Determination Dates
that fall within the same calendar year. The accrued benefit of any Employee
other than a Key Employee will be determined under the method, if any, that
uniformly applies for accrual purposes under all Qualified Plans maintained by
all Controlled Group Members and included in a Required Aggregation Group or a
Permissive Aggregation Group or, if there is no such method, as if the benefit
accrued not more rapidly than the slowest accrual rate permitted under the
fractional accrual rate of Code section 411(b)(1)(C). Notwithstanding the
foregoing, the account balances and accrued benefits of any Employee who has
not performed services for an employer maintaining any of the aggregated plans
during the five-year period ending on the Determination Date will not be taken
into account for purposes of this subsection.
(o) "Top-Heavy Valuation Date" means the last day of
each Plan Year.
12.3 Minimum Allocation.
(a) Calculation of Minimum Allocation. For any
Plan Year in which the Plan is a Top-Heavy Plan, each Participant who is not a
Key Employee will receive an allocation of Participating Employer
contributions and forfeitures of not less than the lesser of 3% of his
Includable Compensation for such Plan Year or the percentage of Includable
Compensation that equals the largest percentage of Participating Employer
contributions (including Deferral Contributions) and forfeitures allocated to a
Key Employee. The Minimum Allocation is determined without regard to any
Social Security contribution. Deferral Contributions made on behalf of
Participants who are not Key Employees will not be treated as Participating
Employer
-50-
<PAGE> 54
contributions for purposes of the Minimum Allocation. Matching Contributions
that are allocated to Participants who are not Key Employees and that are taken
into account in determining a Participant's Deferral Percentage or Contribution
Percentage will not be treated as Participating Employer contributions for such
Plan Year for purposes of the Minimum Allocation. The Minimum Allocation
applies even though under other Plan provisions the Participant would not
otherwise be entitled to receive an allocation, or would have received a lesser
allocation for the Plan Year because (i) the non-Key Employee fails to make
mandatory contributions to the Plan, (ii) the non-Key Employee's Includable
Compensation is less than a stated amount, or (iii) the non-Key Employee fails
to complete 1,000 Hours of Service in the Plan Year.
(b) Limitation on Minimum Allocation. No Minimum
Allocation will be provided pursuant to subsection (a) to a Participant who is
not employed by a Controlled Group Member on the last day of the Plan Year.
(c) Minimum Allocation When Participant is Covered
by Another Qualified Plan. If a Controlled Group Member maintains one or more
other Defined Contribution Plans covering Employees who are Participants in
this Plan, the Minimum Allocation will be provided under this Plan, unless such
other Defined Contribution Plans make explicit reference to this Plan and
provide that the Minimum Allocation will not be provided under this Plan, in
which case the provisions of subsection (a) will not apply to any Participant
covered under such other Defined Contribution Plans. If a Controlled Group
Member maintains one or more Defined Benefit Plans covering Employees who are
Participants in this Plan, and such Defined Benefit Plans provide that
Employees who are participants therein will accrue the minimum benefit
applicable to top-heavy Defined Benefit Plans notwithstanding their
participation in this Plan, then the provisions of subsection (a) will not
apply to any Participant covered under such Defined Benefit Plans. If a
Controlled Group Member maintains one or more Defined Benefit Plans covering
Employees who are Participants in this Plan, and the provisions of the
preceding sentence do not apply, then each Participant who is not a Key
Employee and who is covered by such Defined Benefit Plans will receive a
Minimum Allocation determined by applying the provisions of subsection (a) with
the substitution of "5%" in each place that "3%" occurs therein.
(d) Nonforfeitability. The Participant's Minimum
Allocation, to the extent required to be nonforfeitable under Code section
416(b) and the special vesting schedule provided in this Article, may not be
forfeited under Code section 411(a)(3)(B) (relating to suspension of benefits
on reemployment)
-51-
<PAGE> 55
or 411(a)(3)(D) (relating to withdrawal of mandatory contributions).
12.4 Modification of Aggregate Benefit Limit.
(a) Modification. Subject to the provisions of
subsection (b), in any Plan Year in which the Top-Heavy Ratio exceeds 60%, the
aggregate benefit limit described in Article 10 will be modified by
substituting "100%" for "125%" in Sections 10.2(g) and (j).
(b) Exception. The modification of the aggregate
benefit limit described in subsection (a) will not be required if the Top-Heavy
Ratio does not exceed 90% and one of the following conditions is met: (i)
Employees who are not Key Employees do not participate in both a Defined
Benefit Plan and a Defined Contribution Plan which are in the Required
Aggregation Group, and the Minimum Allocation requirements of Section 12.3(a)
are met when such requirements are applied with the substitution of "4%" for
"3%"; (ii) the Minimum Allocation requirements of Section 12.3(c) are met when
such requirements are applied with the substitution of "7 1/2%" for "5%"; or
(iii) Employees who are not Key Employees have an accrued benefit of not less
than 3% of their average Includable Compensation for the five consecutive Plan
Years in which they had the highest Includable Compensation multiplied by their
Years of Service in which the Plan is a Top-Heavy Plan (not to exceed a total
such benefit of 30%), expressed as a life annuity commencing at the
Participant's normal retirement age in a Defined Benefit Plan which is in the
Required Aggregation Group.
12.5 Minimum Vesting.
(a) Required Vesting. For any Plan Year in which
this Plan is a Top-Heavy Plan, the minimum vesting schedule set forth in
subsection (b) will automatically apply to the Plan to the extent it provides
a higher vested percentage than the regular vesting schedule set forth in
Article 5. The minimum vesting schedule applies to all Account balances
including amounts attributable to Plan Years before the effective date of Code
section 416 and amounts attributable to Plan Years before the Plan became a
Top-Heavy Plan. Further, no reduction in vested Account balances may occur in
the event the Plan's status as a Top-Heavy Plan changes for any Plan Year, and
any change in the effective vesting schedule from the schedule set forth in
subsection (b) to the regular schedule set forth in Article 5 will be treated
as an amendment subject to Section 14.1(iii). However, this subsection does
not apply to the Account balances of any Employee who does not have an Hour of
Service after the Plan has initially become a Top-Heavy Plan, and such
Employee's
-52-
<PAGE> 56
Account balances will be determined without regard to this Section.
(b) Minimum Vesting Schedule.
<TABLE>
<CAPTION>
Percentage Vested
Years of Service and Nonforfeitable
- ---------------- ------------------
<S> <C>
Less than 2 0
2 but less than 3 20
3 but less than 4 40
4 but less than 5 60
5 but less than 6 80
6 or more 100
</TABLE>
-53-
<PAGE> 57
ARTICLE 13
ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS
13.1 Adoption Procedure. Any Controlled Group Member may
become a Participating Employer under the Plan provided that (i) the Board
approves the adoption of the Plan by the Controlled Group Member and designates
the Controlled Group Member as a Participating Employer; (ii) the Controlled
Group Member adopts the Plan and Trust Agreement together with all amendments
then in effect by appropriate resolutions of the board of directors of the
Controlled Group Member; and (iii) the Controlled Group Member by appropriate
resolutions of its board of directors agrees to be bound by any other terms and
conditions which may be required by the Board, provided that such terms and
conditions are not inconsistent with the purposes of the Plan.
13.2 Effect of Adoption by Controlled Group Member. A
Controlled Group Member that adopts the Plan pursuant to this Article will be
deemed to be a Participating Employer for all purposes hereunder, unless
otherwise specified in the resolutions of the Board designating the Controlled
Group Member as a Participating Employer. In addition, the Board may provide,
in its discretion and by appropriate resolutions, that the Employees of the
Controlled Group Member will receive credit for their employment with the
Controlled Group Member prior to the date it became a Controlled Group Member
for purposes of determining either or both the eligibility of such Employees to
participate in the Plan and the vested and nonforfeitable interest of such
Employees in their Account balances provided that such credit will be applied
in a uniform and nondiscriminatory manner with respect to all such Employees.
-54-
<PAGE> 58
ARTICLE 14
AMENDMENT OF THE PLAN
14.1 Right to Amend the Plan.
(a) In General. The Company reserves to the
Compensation Committee of the Board of Directors the right to amend the Plan at
any time and from time to time to the extent it may deem advisable or
appropriate, provided that (i) no amendment will increase the duties or
liabilities of the Trustee without its written consent; (ii) no amendment will
cause a reversion of Plan assets to the Participating Employers not otherwise
permitted under the Plan; (iii) no amendment will have the effect of reducing
the percentage of the vested and nonforfeitable interest of any Participant in
his Account nor will the vesting provisions of the Plan be amended unless each
Participant with at least three Years of Service (including Years of Service
disregarded pursuant to the reemployment provisions (if any) of Article 5) is
permitted to elect to continue to have the prior vesting provisions apply to
him, within 60 days after the latest of the date on which the amendment is
adopted, the date on which the amendment is effective, or the date on which the
Participant is issued written notice of the amendment; and (iv) no amendment
will be effective to the extent that it has the effect of decreasing a
Participant's Account balance or eliminating an optional form of distribution
as it applies to an existing Account balance.
(b) Authority of the Board. The Company also
reserves to the Board of Directors the right to amend the Plan at any time and
from time to time to the extent it may deem advisable or appropriate, subject
to the limitations on amendments set forth in subsection (a).
14.2 Amendment Procedure. Any amendment to the Plan will be
made only pursuant to action of the Board or of the Compensation Committee of
the Board. A certified copy of the resolutions adopting any amendment and a
copy of the executed amendment will be delivered to the Trustee, the Committee
and the Company. Upon such action by the Board or the Compensation Committee
of the Board, the Plan will be deemed amended as of the date specified as the
effective date by such action or in the instrument of amendment. The effective
date of any amendment may be before, on or after the date of such action,
except as otherwise set forth in Section 14.1.
14.3 Effect on Participating Employers. Unless an amendment
expressly provides otherwise, all Participating Employers will be bound by any
amendment to the Plan.
-55-
<PAGE> 59
ARTICLE 15
TERMINATION, PARTIAL TERMINATION AND
COMPLETE DISCONTINUANCE OF CONTRIBUTIONS
15.1 Continuance of Plan. The Participating Employers
expect to continue the Plan indefinitely, but they do not assume an individual
or collective contractual obligation to do so, and the right is reserved to the
Company, by action of the Board, to terminate the Plan or to completely
discontinue contributions thereto at any time. In addition, subject to
remaining provisions of this Article, any Participating Employer at any time
may discontinue its participation in the Plan with respect to its Employees.
15.2 Complete Vesting. If the Plan is terminated, or if
there is a complete discontinuance of contributions to the Plan by the
Participating Employers, the amounts allocated or to be allocated to the
Accounts of all affected Participants will become 100% vested and
nonforfeitable without regard to their Years of Service. For purposes of this
Section, a Participant who has terminated employment and is not again an
Employee at the time the Plan is terminated or there is a complete
discontinuance of Participating Employer contributions will not be an affected
Participant entitled to full vesting if the Participant had no vested interest
in his Account balance attributable to Participating Employer contributions at
his termination of employment. In the event of a partial termination of the
Plan, the amounts allocable to the Accounts of those Participants who cease to
participate on account of the facts and circumstances which result in the
partial termination will become 100% vested and nonforfeitable without regard
to their Years of Service.
15.3 Disposition of the Trust Fund. If the Plan is
terminated, or if there is a complete discontinuance of contributions to the
Plan, the Committee will instruct the Trustee either (i) to continue to
administer the Plan and pay benefits in accordance with the Plan until the
Trust Fund has been depleted, or (ii) to distribute the assets remaining in the
Trust Fund, unless distribution is prohibited by Section 11.2. If the Trust
Fund is to be distributed, the Committee will make, after deducting estimated
expenses for termination of the Trust Fund and distribution of its assets, the
allocations required under the Plan as though the date of completion of the
Trust Fund termination were a Valuation Date. The Trustee will distribute to
each Participant the amount credited to his Account as of the date of
completion of the Trust Fund termination.
15.4 Withdrawal by A Participating Employer. A
Participating Employer may withdraw from participation in the
-56-
<PAGE> 60
Plan or completely discontinue contributions to the Plan only with the approval
of the Board. If any Participating Employer withdraws from the Plan or
completely discontinues contributions to the Plan, a copy of the resolutions of
the board of directors of the Participating Employer adopting such action,
certified by the secretary of such board of directors and reflecting approval
by the Board, will be delivered to the Committee as soon as it is
administratively feasible to do so, and the Committee will communicate such
action to the Trustee and to the Employees of the Participating Employer.
-57-
<PAGE> 61
ARTICLE 16
MISCELLANEOUS
16.1 Reversion Prohibited.
(a) General Rule. Except as provided in
subsections (b), (c) and (d), it will be impossible for any part of the Trust
Fund either (i) to be used for or diverted to purposes other than those which
are for the exclusive benefit of Participants and their Beneficiaries (except
for the payment of taxes and administrative expenses), or (ii) to revert to a
Controlled Group Member.
(b) Disallowed Contributions. Each contribution of
the Participating Employers under the Plan is expressly conditioned upon the
deductibility of the contribution under Code section 404. If all or part of a
Participating Employer's contribution is disallowed as a deduction under Code
section 404, such disallowed amount (reduced by any Trust Fund losses
attributable thereto) may be returned by the Trustee to the Participating
Employer with respect to which the deduction was disallowed (upon the direction
of the Committee) within one year after the disallowance.
(c) Mistaken Contributions. If a contribution is
made by a Participating Employer by reason of a mistake of fact, then so much
of the contribution as was made as a result of the mistake (reduced by any
Trust Fund losses attributable thereto) may be returned by the Trustee to the
Participating Employer (upon direction of the Committee) within one year after
the mistaken contribution was made.
(d) Failure to Qualify. In the event the Internal
Revenue Service determines that the Plan and the Trust Agreement, as amended by
amendments acceptable to the Company, initially fail to constitute a qualified
plan and establish a tax-exempt trust under the Code, then notwithstanding any
other provisions of the Plan or the Trust Agreement, the contributions made by
the Participating Employers prior to the date of such determination will be
returned to the Participating Employers within one year after such
determination and the Plan and Trust Agreement will terminate, but only if the
application for determination was made within the time prescribed by law for
filing the Company's income tax return for the taxable year in which the Plan
and the Trust Agreement were adopted, or such later date as the Secretary of
the Treasury may prescribe.
-58-
<PAGE> 62
16.2 Bonding, Insurance and Indemnity.
(a) Bonding. To the extent required under ERISA,
the Participating Employers will obtain, pay for and keep current a bond or
bonds with respect to each Committee member and each Employee who receives,
handles, disburses, or otherwise exercises custody or control of, any of the
assets of the Plan.
(b) Insurance. The Participating Employers, in
their discretion, may obtain, pay for and keep current a policy or policies of
insurance, insuring the Committee members, the members of the board of
directors of each Participating Employer and other Employees to whom any
fiduciary responsibility with respect to the administration of the Plan has
been delegated against any and all costs, expenses and liabilities (including
attorneys' fees) incurred by such persons as a result of any act, or omission
to act, in connection with the performance of their duties, responsibilities
and obligations under the Plan and any applicable law.
(c) Indemnity. If the Participating Employers do
not obtain, pay for and keep current the type of insurance policy or policies
referred to in subsection (b), or if such insurance is provided but any of the
parties referred to in subsection (b) incur any costs or expenses which are not
covered under such policies, then the Participating Employers will indemnify
and hold harmless, to the extent permitted by law, such parties against any and
all costs, expenses and liabilities (including attorneys' fees) incurred by
such parties in performing their duties and responsibilities under this Plan,
provided that such party or parties were acting in good faith within what was
reasonably believed to have been the best interests of the Plan and its
Participants.
16.3 Merger, Consolidation or Transfer of Assets. There
will be no merger or consolidation of all or any part of the Plan with, or
transfer of the assets or liabilities of all or any part of the Plan to, any
other Qualified Plan unless each Participant who remains a Participant
hereunder and each Participant who becomes a participant in the other Qualified
Plan would receive a benefit immediately after the merger, consolidation or
transfer (determined as if the other Qualified Plan and the Plan were then
terminated) which is equal to or greater than the benefit they would have been
entitled to receive under the Plan immediately before the merger, consolidation
or transfer if the Plan had then terminated.
16.4 Spendthrift Clause. The rights of any Participant or
Beneficiary to and in any benefits under the Plan will not be subject to
assignment or alienation, and no Participant or Beneficiary will have the power
to assign, transfer or dispose of
-59-
<PAGE> 63
such rights, nor will any such rights to benefits be subject to attachment,
execution, garnishment, sequestration, the laws of bankruptcy or any other
legal or equitable process. This Section will not apply to a "qualified
domestic relations order". A "qualified domestic relations order" means a
judgment, decree or order made pursuant to a state domestic relations law which
satisfies the requirements of Code section 414(p). Payment to an alternate
payee pursuant to a qualified domestic relations order will be made in an
immediate lump sum payment, if the order so provides.
16.5 Rights of Participants. Participation in the Plan will
not give any Participant the right to be retained in the employ of a Controlled
Group Member or any right or interest in the Plan or the Trust Fund except as
expressly provided herein.
16.6 Gender, Tense and Headings. Whenever any words are
used herein in the masculine gender, they will be construed as though they were
also used in the feminine gender in all cases where they would so apply.
Whenever any words used herein are in the singular form, they will be construed
as though they were also used in the plural form in all cases where they would
so apply. Headings of Articles, Sections and subsections as used herein are
inserted solely for convenience and reference and constitute no part of the
Plan.
16.7 GOVERNING LAW. THE PLAN WILL BE CONSTRUED AND GOVERNED
IN ALL RESPECTS IN ACCORDANCE WITH APPLICABLE FEDERAL LAW AND, TO THE EXTENT
NOT PREEMPTED BY SUCH FEDERAL LAW, IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, INCLUDING WITHOUT LIMITATION, THE TEXAS STATUTE OF LIMITATIONS, BUT
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
Executed at Dallas, Texas, this 19th day of December, 1994.
A. H. BELO CORPORATION
By /s/ Michael J. McCarthy
--------------------------------
-60-
<PAGE> 64
APPENDIX A
PARTICIPATING EMPLOYERS
DFW Suburban Newspapers, Inc.
-61-
<PAGE> 1
EXHIBIT 4.12
FIRST AMENDMENT
TO
A. H. BELO CORPORATION
EMPLOYEE THRIFT PLAN
A. H. Belo Corporation, a Delaware corporation, adopts the following
amendments to the A. H. Below Employee Thrift Plan (the "Plan").
1. Section 3.2 of the Plan is amended in its entirety to read as
follows:
3.2 Participating Employer Matching Contributions.
(a) Amount of Matching Contributions. Each
Participating Employer will pay to the Plan as a matching contribution
for each payroll period the amount, if any, designated for that
Participating Employer on Appendix B to the Plan. In addition, each
Participating Employer may make an additional matching contribution
for any Plan Year if authorized by its board of directors, but no
Participating Employer will be required to make an additional matching
contribution for any Plan Year. Participating Employer matching
contributions may be made in cash or in shares of Company Stock or
both.
(b) Calculation of Matching Contributions.
Participating Employer matching contributions will be calculated
solely on the basis of Deferral Contributions and Compensation for
each payroll period within the Plan Year.
(c) Limitation on Matching Contributions.
Participating Employer matching contributions will be subject to the
limitations set forth in Section 10.7, unless such contributions are
taken into account in determining Participant deferral percentages
under Section 10.6, in which case matching contributions will be
subject to the limitations set forth in Section 10.6.
2. Section 3.3 is amended in its entirety to read as follows:
<PAGE> 2
3.3 Time of Payment. Deferral Contributions and
Participating Employer matching contributions made with respect to
payroll periods will be paid to the Trustee as soon as practicable
following the close of each calendar month during the Plan Year.
Additional matching contributions may be paid to the Trustee on any
date or dates selected by the Participating Employer, but in no event
later than the time prescribed by law (including extensions) for
filing the Participating Employer's federal income tax return for its
tax year ending with or within the Plan Year.
3. Section 4.2 is amended to read in its entirety as follows:
4.2 Allocation of Contributions and Forfeitures. Each
Deferral Contribution made by a Participating Employer on behalf of a
Participant will be allocated by the Committee to the Participant's
Deferral Contribution Account. Each Participating Employer matching
contribution made with respect to a payroll period and all forfeitures
will be allocated by the Committee to the Matching Contribution
Accounts of Participants employed by that Participating Employer in
the ratio that the Deferral Contributions made on behalf of each such
Participant bear to the total Deferral Contributions made on behalf of
all such Participants for each such payroll period, taking into
account for purposes of this ratio only Deferral Contributions that do
not exceed the percent of each Participant's Compensation for the
payroll period that is set forth on Appendix B.
4. The fourth sentence of Section 10.6(c) of the Plan
("Limitation on Deferral contributions") is amended in its entirety to read as
follows:
If Matching Contributions are taken into account in determining
Deferral Percentages, a Participant's Deferral Percentage will be
reduced by distributing first Deferral Contributions in excess of the
percent of Compensation for which Matching Contributions are made (as
set forth on Appendix B) and by distributing next the remaining
Deferral Contributions and Matching Contributions, in proportion to
the amount of such contributions for the Plan Year.
2
<PAGE> 3
5. The Plan is amended by the addition of a new appendix, which
will read as follows:
APPENDIX B
RATE OF MATCHING CONTRIBUTIONS
1. Matching Contributions for Participants Employed by
DFW Suburban Newspapers, Inc. Effective with the first payroll period
beginning after June 3, 1995, DFW Suburban Newspapers, Inc. will pay
to the Plan as a matching contribution for each payroll period an
amount equal to 50% of each Participant's Deferral Contributions, but
only to the extent that the Participant's Deferral Contributions do
not exceed 5% of the Participant's Compensation for the payroll
period.
6. The foregoing amendments will be effective on and after June
4, 1995.
Executed at Dallas, Texas, this 17th day of July, 1995.
A. H. BELO CORPORATION
By /s/ M. Perry
-------------------------------
3
<PAGE> 1
EXHIBIT 4.14
FIRST AMENDMENT TO MASTER TRUST AGREEMENT
by and between
A. H. BELO CORPORATION
and
MELLON BANK, N.A.
THIS FIRST AMENDMENT TO MASTER TRUST AGREEMENT is made and entered
into this 3rd day of March, 1995, effective March 3, 1995
(this "Amendment"), by and between A. H. BELO CORPORATION (hereinafter referred
to as the "Corporation") and MELLON BANK, N. A. (hereinafter referred to as the
"Master Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation and the Master Trustee made and entered into
a Master Trust Agreement (the "Agreement") on December 22, 1992, effective as
of July 1, 1992; and
WHEREAS, the Corporation and the Master Trustee desire to amend the
Agreement in certain ways;
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby amend the Agreement as follows:
1. The representations and definitions set forth above are
incorporated herein by this reference thereto.
2. The following text shall be added as new Section 1.3:
"1.3 Notwithstanding anything else in this Agreement
to the contrary: (1) the Master Trustee is not a
party to, and has not duties or responsibilities
under, the Plans; (2) the Administrator shall be
required to certify n writing to the Master Trustee
the identity of any fiduciary which is named in the
Plan and which has the power to manage and control
Plan assets, and the Master Trustee shall be entitled
to rely upon such certification until notified
otherwise
<PAGE> 2
in writing by the Administrator: (3) in any and all
cases where the Master Trustee is required by this
Agreement to act with reference to Plan terms, the
Administrator shall have the responsibility to
certify the relevant provisions to the Master Trustee
in writing, and the Master Trustee shall be entitled
to rely upon such certification until notified
otherwise in writing by the Administration: (4)
absent written certification to the Master Trustee
pursuant to this paragraph, the Master Trustee shall
be chargeable with no knowledge of any Plan terms and
shall be deemed to be in compliance with the Plans;
and (5) in any case in which a provision of this
Agreement conflicts with any provision in the Plans,
this Agreement shall control. Notwithstanding the
preceding sentence, the Master Trustee reserves the
right to see, a judicial and/or administrative
determination as to its proper course of action under
this Agreement."
3. Except as set forth herein, the Agreement is hereby ratified
and confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto, each intending to be legally
bound hereby, have executed this First Amendment to Master Trust Agreement as
of the day and year first above written.
A. H. BELO CORPORATION
By /s/Vicky C. Teherani
--------------------------------------
Name: Vicky C. Teherani
Title: Vice President & Treasurer
MELLON BANK, N.A.
By /s/Robert Sass
--------------------------------------
Name: Robert Sass
Title Vice President
2
<PAGE> 1
EXHIBIT 5.1
<TABLE>
<S> <C> <C>
LAW OFFICES OF ___________________________________________________________________________________
LOCKE PURNELL RAIN HARRELL 2200 ROSS AVENUE . SUITE 2200 AUSTIN OFFICE:
DALLAS . TEXAS 75201-6776 515 CONGRESS AVENUE . SUITE 2500
(A PROFESSIONAL CORPORATION) (214) 740-8000 AUSTIN . TEXAS 78701-3500
FAX: (214) 740-8800 (512) 305-4700
TELEX: 73-0911 LOCKE DAL .
NEW ORLEANS OFFICE:
601 POYDRAS STREET . SUITE 2400
WRITER'S DIRECT DIAL NUMBER NEW ORLEANS . LOUISIANA 70130-6036
(504) 558-5100
</TABLE>
July 31, 1995
A. H. Belo Corporation
Communications Center
400 South Record Street
Dallas, Texas 75202
Re: Registration of 25,000 shares of Common Stock, par value
$1.67, pursuant to a Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for A. H. Belo Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-8 (the "Registration Statement"), of 25,000
shares of Series A Common Stock, par value 1.67 per share, of the Company (the
"Common Stock") to be offered to employees of the Company (including its direct
or indirect subsidiaries) pursuant to the A. H. Belo Corporation Employee
Thrift Plan (the "Plan").
Based upon our examination of such papers and documents as we have
deemed relevant or necessary in rendering this opinion, and based on our review
of the Delaware General Corporation Law, we hereby advise you that we are of
the opinion that assuming, with respect to shares of Common Stock issued after
the date hereof, (i) the receipt of proper consideration for the issuance
thereof in excess of the par value thereof, (ii) the availability of a
sufficient number of shares of Common Stock authorized by the Company's
Certificate of Incorporation then in effect, (iii) compliance with the terms of
any agreement entered into in connection with any options or shares of Common
Stock issued or allocated in connection with the Plan, and (iv) no change
occurs in the applicable law or the pertinent facts, shares of Common Stock
allocable to participants' accounts under the Plan will be legally issued,
fully paid and non-assessable shares of Common Stock.
<PAGE> 2
A. H. Belo Corporation
July 31, 1995
Page 2
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement filed by the Company with the Securities and Exchange
Commission. By so consenting, we do not thereby admit that our firm's consent
is required by Section 7 of the Securities Act.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ GUY KERR
--------------------------
Guy Kerr
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Employee Thrift Plan of A.H. Belo Corporation of our
report dated January 26, 1995, except for Note 13, as to which the date is
February 1, 1995, with respect to the consolidated financial statements of A.H.
Belo Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
July 26, 1995
