<PAGE> 1
As filed with the Securities and Exchange Commission on May 23, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POLICY MANAGEMENT SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
South Carolina 57-0723125
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One PMS Center (P.O. Box Ten)
Blythewood, S.C. (Columbia, S.C.) 29016 (29202)
(Address of Principal Executive Offices) (Zip Code)
POLICY MANAGEMENT SYSTEMS CORPORATION
401(K) RETIREMENT SAVINGS PLAN
(Full title of the plan)
Stephen G. Morrison, Secretary
Policy Management Systems Corporation
One PMS Center
Blythewood, South Carolina 29016
(803) 735-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount Proposed Proposed Amount of
to be registered to be maximum maximum registration
registered offering aggregate fee
price offering
per price (1)
share (1)
Common Stock, par
value $.01 per 400,000 $48.125 $19,250,000 $4,812.50
share. . . . .
(1) Pursuant to Rule 457(h), these prices are estimated solely for
the purpose of calculating the registration fee and are based upon
the average of the high and low sales prices of the Registrant's
Common Stock on the New York Stock Exchange on May 17, 1995.
There are also registered hereunder such additional indeterminate
number of shares as may be issued as a result of the antidilution
provisions of the Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified by Part I of
this Form S-8 Registration Statement (the "Registration Statement")
will be sent or given to participants in the plan listed on the
cover of the Registration Statement (the "Plan") as specified in
Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"). Such documents are not being filed
with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant
to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Policy Management Systems
Corporation (the "Company") with the Commission are incorporated
herein by reference:
(1) the Annual Report on Form 10-K for the fiscal year ended
December 31, 1994; and
the description of the Common Stock, $.01 par value per share
("Common Stock"), of the Company which is contained in the
Company's Form 8-A Registration Statement declared effective
by the Commission on July 6, 1990, including any amendments or
reports filed for the purpose of updating such description.
All documents and reports subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which de-registers
such securities then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the
date of filing of such documents or reports. Any statement
contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement
so modified or superseded, except as so modified or superseded,
shall not be deemed to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
The South Carolina Business Corporation Act (the "Act)
permits, and in certain circumstances requires, indemnification of
directors and officers for liability and expenses incurred by them
in connection with any civil, criminal or administrative claim or
proceeding in which they may become involved by reason of being a
director or officer of the Company. The Act applies to both civil
and criminal actions (including civil actions brought as derivative
actions by or in the right of the Company) and permits
indemnification if the director or officer acted in good faith in
what he reasonably believed to be the best interest of the Company
and, in addition, in criminal actions, if he had no reasonable
cause to believe his conduct to be unlawful. If the required
standard of conduct is met, indemnification may include counsel
fees and disbursements of the director or officer, and judgments,
fines, penalties and settlement payments. Directors and officers
who are successful with respect to any claim against them are
entitled to indemnification as a matter of right for reasonable
expenses incurred. On the other hand, if the charges made in any
action are sustained, either the Board of Directors, acting by
disinterested members, independent legal counsel or the holders of
stock entitled to vote will determine if the required standard of
conduct has been met to permit indemnification. If, in an action
brought by or in the right of the Company, the director or officer
is adjudged to be liable, he will only
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be entitled to such indemnity for reasonable expenses incurred as
the court conducting the proceeding finds to be fair and reasonable
under the circumstances.
The Act also provides for indemnification of persons who, at
the request of the Company, act as directors or officers of other
companies. The Company's Articles of Incorporation currently
provide that the Company shall indemnify the persons to the extent
permitted to be indemnified by the Act as summarized outlined
above.
Officers and directors of the Company are presently covered by
insurance which (with certain exceptions and within certain
limitations) indemnifies them against any losses or liabilities
arising from any alleged "wrongful act" including any alleged
breach of duty, neglect, error, misstatement, misleading statement,
omission or other act done or wrongfully attempted. The cost of
such insurance is borne by the Company as permitted by the Articles
of Incorporation of the Company and the laws of the State of South
Carolina.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
Exhibit
Number Description
4.1 - Restated Articles of Incorporation of the
Company, as amended, filed as an exhibit to
Form 10-K Annual Report for the year ended
December 31, 1994 and incorporated herein
by reference.
4.2 - Restated By-laws of the Company, as
amended, filed as an exhibit to Form 10-K
Annual Report for the year ended December
31, 1994 and incorporated herein by
reference.
4.3 - Policy Management Systems Corporation
401(k) Retirement Savings Plan, as amended.
23 - Consent of Coopers & Lybrand L.L.P.
24 - Power of Attorney by the Officers and
Directors who signed this Registration
Statement set forth on page 6 herein.
NOTE: Neither an opinion of counsel concerning compliance
with the requirements of ERISA nor an Internal
Revenue Service (IRS) determination letter that the
Plan is qualified under Section 401 of the Internal
Revenue Code is included because the Company, the
sponsor of the Plan, recently submitted the Plan to
the IRS and is awaiting a response and will make all
changes required by the IRS in order to qualify the
Plan.
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Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(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 by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Blythewood, State of South Carolina, on this 23rd day of
May, 1995.
POLICY MANAGEMENT SYSTEMS CORPORATION
BY (SIGNATURE) /s/ Timothy V. Williams
(NAME AND TITLE) Timothy V. Williams,
Executive Vice President,
Chief Financial Officer
DATE May 23, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signatures" constitutes and
appoints Timothy V. Williams, G. Larry Wilson and Stephen G.
Morrison and each of them (with full power to each of them to act
alone) his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities to sign any or all
amendments to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, 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 for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any one of them, or their substitute or
substitutes, may or shall lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
the capacities indicated on this 23rd day of May, 1995.
BY (SIGNATURE) /s/ G. Larry Wilson
(NAME AND TITLE) G. Larry Wilson, Chairman of the Board
Directors, President and Chief
Executive Officer (Principal
Executive Officer)
DATE May 23, 1995
BY (SIGNATURE) /s/ Timothy V. Williams
(NAME AND TITLE) Timothy V. Williams, Executive Vice
President, Chief Financial Officer
(Principal Financial Officer)
DATE May 23, 1995
BY (SIGNATURE) /s/ Stan F. Stoudenmire
(NAME AND TITLE) Stan F. Stoudenmire, Vice President and
Corporate Controller (Principal
Accounting Officer)
DATE May 23, 1995
BY (SIGNATURE) /s/ Roy L. Faulks
(NAME AND TITLE) Roy L. Faulks, Vice Chairman of the
Board of Directors
DATE May 23, 1995
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BY (SIGNATURE) /s/ Steven A. Denning
(NAME AND TITLE) Steven A. Denning, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ Joe M. Henson
(NAME AND TITLE) Joe M. Henson, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ Frederick B. Karl
(NAME AND TITLE) Frederick B. Karl, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ Dr. John M. Palms
(NAME AND TITLE) Dr. John M. Palms, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ Joseph D. Sargent
(NAME AND TITLE) Joseph D. Sargent, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ John P. Seibels
(NAME AND TITLE) John P. Seibels, Director
DATE May 23, 1995
BY (SIGNATURE) /s/ Richard G. Trub
(NAME AND TITLE) Richard G. Trub, Director
DATE May 23, 1995
Pursuant to the requirements of the Securities Act of 1933, the
Policy Management Systems Corporation 401(k) Retirement Savings
Plan has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Blythewood, State of South Carolina, on this 23rd day of
May, 1995.
POLICY MANAGEMENT SYSTEMS
CORPORATION 401(k) RETIREMENT
SAVINGS PLAN
BY (SIGNATURE) /s/ Gilbert D. Johnson
(NAME AND TITLE) GIlbert D. Johnson
for the Administrative Committee
DATE May 23, 1995
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EXHIBIT INDEX
Exhibit
Number Description
4.1(1) Restated Articles of Incorporation of the
Company, as amended.
4.2(1) Restated By-laws of the Company, as amended.
4.3 Policy Management Systems Corporation 401(k)
Retirement Savings Plan, as amended.
23 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney executed by the officers and
directors who signed this Registration Statement set
forth on page 6 herein.
(1) Filed as an exhibit to Form 10-K Annual Report for the year
ended December 31, 1994 and incorporated herein by
reference.
<PAGE> 1
THE POLICY MANAGEMENT SYSTEMS CORPORATION
401(k) RETIREMENT SAVINGS PLAN (1)
(Established Effective April 1, 1990) (2)
ARTICLE 1
INTRODUCTION
1.01 History of the Plan. Effective April 1, 1990, the Board of
Directors of Policy Management Systems Corporation (the "Company")
established the Policy Management Systems Corporation 401(k)
Retirement Plan (the "Plan") to provide a before-income tax savings
retirement program for all eligible employees of the Company. The
Plan also replaced the retirement plan portion of the Stock
Purchase Savings Program for Employees of Policy Management Systems
Corporation. The Plan has at all times since its establishment
been intended to meet the requirements of a qualified profit
sharing plan under Section 401(a) of the Internal Revenue Code of
1986 (the "Code"), as amended, and the Employee Retirement Income
Security Act of 1974, as amended (the "Act").
The related retirement plans of Advanced System Applications, Inc.
(ASA) and Mandat Computer Corporation (MDC), both wholly-owned
subsidiaries of the Company, were merged into the Plan effective
January 1, 1991 and July 1, 1991, respectively. On December 31,
1992, the Stock Purchase Savings Program for Employees of Policy
Management Systems Corporation was merged into the Plan and all
assets available to participants in such plan were transferred into
the Plan. The Plan was subsequently renamed the Policy Management
Systems Corporation 401(k) Retirement Savings Plan.
Effective January 1, 1994, the related retirement plan of Cybertek
Corporation (Cybertek), a wholly-owned subsidiary of the Company,
was merged into the Plan.
Effective January 1, 1995, the related retirement plan of PMS, Inc.
(PMS), a wholly-owned subsidiary of the Company, will be merged
into the Plan in accordance with the provisions of Article 20
hereof.
1.02 Amendment and Restatement. Section 9.01 of the Plan
specifically grants the Company, by action of the Committee, the
power to modify, alter, or amend the Plan to the extent that it
may deem advisable. Because of the number of plan mergers and
legislative and regulatory changes that have taken place since the
Plan was established in 1990, as well as the need to provide for
the merger of the PMS
(1) Previously called "The Policy Management Systems Corporation
401(k) Retirement Plan" (as amended by Fifth Amendment; effective
March 16, 1993).
(2) Any historical reference to an Amendment refers to the
Amendments of Policy Management Systems Corporation 401(k)
Retirement Savings Plan.
<PAGE> 2
plan, the Company deems it advisable to amend and restate the Plan
in accordance with the terms and conditions hereinafter set forth.
ARTICLE 2
DEFINITIONS
Certain terms of this Plan have defined meanings which are set
forth in this Article and which shall govern unless the context in
which they are used clearly indicates that some other meaning is
intended.
2.01 Account shall mean the Account established and maintained by
the Committee or Trustee for each Participant or their
Beneficiaries to which shall be allocated each Participant's
interest in the Fund. Each Account shall be comprised of the sub-
accounts described in Section 5.01.
2.02 Act shall mean Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as the same may be amended
from time to time.
2.03 Adjustment shall mean for any Valuation Date the aggregate
earnings, realized or unrealized appreciation, losses, expenses,
and realized or unrealized depreciation of each Fund since the
immediately preceding Valuation Date. The determination of the
Adjustment shall be made by the Trustee as provided in Section
5.02(b) and shall be final and binding.
2.04 Affiliate shall mean the Company and any corporation which
is a member of a controlled group of corporations (as defined in
Code Section 414(b)) which includes the Company; any trade or
business which is under common control (as defined in Code Section
414(c)) with the Company; any organization which is a member of an
affiliated service group (as defined in Code Section 414(m)) which
includes the Company; and any other entity required to be
aggregated with the Company pursuant to regulations under Code
Section 414(o).
2.05 Affiliated Sponsor shall mean any corporation and any other
entity that wishes to adopt this Plan; provided, however, that any
such entity described in this paragraph must be designated by the
Board as an Affiliated Sponsor under the Plan in Schedule A
attached hereto. See Section 14.01 for provisions relating to an
Affiliated Sponsor's adoption of the Plan. (As amended by Fourth
Amendment; effective January 1, 1992).
2.06 After-Tax Contributions shall mean after-tax contributions
made under the Stock Purchase Plan and transferred to this Plan
pursuant to Articles 15 and 18 and Employee After-Tax Contributions
made pursuant to Section 4.07. (As amended by Fourth Amendment;
effective December 31, 1992).
2.07 After-Tax Contribution Account shall mean the portion of a
Participant's Account
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attributable to After-Tax Contributions and the total of the
Adjustments which have been credited to or deducted from a
Participant's Account with respect to After-Tax Contributions.
2.08 Authorized Leave of Absence shall mean any temporary layoff
or any absence authorized by the Employer under the Employer's
standard personnel practices provided that all persons under
similar circumstances must be treated alike in the granting of such
Authorized Leaves of Absence and provided further that the
Participant returns within the period of authorized absence. An
absence due to service in the Armed Forces of the United States
shall be considered an Authorized Leave of Absence to the extent
required by Federal law.
2.09 Before-Tax Contribution Account shall mean the portion of a
Participant's Account attributable to Before-Tax Contributions and
the total of the Adjustments which have been credited to or
deducted from a Participant's Account with respect to Before-Tax
Contributions.
2.10 Before-Tax Contributions shall mean Code Section 401(k)
contributions made to the Plan during the Plan Year by the
Employer, at the election of the Participant, in lieu of cash
compensation and that are made pursuant to a salary reduction
agreement. Such contributions are nonforfeitable when made and
distributable only as specified in Article 6 below.
2.11 Beneficiary. For unmarried Participants, any individual(s),
trust(s), estate(s), partnership(s), corporation(s) or other entity
or entities designated by the Participant in accordance with
procedures established by the Committee to receive any Distribution
to which the Participant is entitled under the Plan in the event of
the Participant's death. The Committee may require certification
by a Participant in any form it deems appropriate of the
Participant's marital status prior to accepting or honoring any
Beneficiary designation. Any Beneficiary designation shall be void
if the Participant revokes the designation or marries. Any
Beneficiary designation shall be void to the extent it conflicts
with the terms of a qualified domestic relations order.
If an unmarried Participant fails to designate a Beneficiary or if
the designated Beneficiary fails to survive the Participant and the
Participant has not designated a contingent Beneficiary, the
Beneficiary shall be the surviving descendants of the Participant
(who shall take per stirpes) and if there are no surviving
descendants, the Beneficiary shall be the Participant's estate.
For the purposes of the foregoing sentence, the term "descendants"
shall include any persons adopted by a Participant or by any of his
descendants.
A married Participant's Beneficiary shall be his spouse at the time
of his death unless the Participant has designated a non-spouse
Beneficiary (or Beneficiaries) with the written consent of his
spouse, given in the presence of a Notary Public or Plan
representative on a form provided by the Committee, or unless the
terms of a
<PAGE> 4
qualified domestic relations order require payment to a non-spouse
Beneficiary. A married Participant's designation of a non-spouse
Beneficiary in accordance with the preceding sentence shall remain
valid until revoked by the Participant or until the Participant
marries a spouse who has not consented to a designation in
accordance with the preceding sentence.
For the purposes of this Section, revocation of prior Beneficiary
designations will occur when a Participant (i) files a valid
designation with the Committee, or (ii) files a signed statement
with the Committee evidencing his intent to revoke any prior
designations.
2.12 Board shall mean the Board of Directors of the Company.
2.13 Break in Service shall mean a period of five or more
consecutive Plan Years in each of which an Employee has less than
501 Hours of Service. A period of Authorized Absence shall not
result in a Break in Service if employment is resumed immediately
upon expiration of such period.
2.14 Code shall mean the Internal Revenue Code of 1986, as
amended.
2.15 Committee shall mean the Committee appointed by the Board
under Article 7 to administer the Plan.
2.16 Company shall mean Policy Management Systems Corporation and
its successors and assigns which adopt this Plan.
2.17 Compensation shall be determined in accordance with the
rules described below.
(a) Compensation shall include a Participant's base salary
(prior to incentive base adjustment) or wages received for personal
services actually rendered in the course of employment with the
Employer but shall exclude bonuses, commissions, shift
differentials, and overtime.
(b) Compensation shall include salary deferrals under a
cafeteria plan or under this Plan which are not currently
includable in the Participant's gross income by reason of Code
Sections 125 or 402(g). Other than such salary deferrals,
Compensation shall not include Employer contributions to a plan of
deferred compensation which are not includable in the employee's
gross income for the taxable year in which contributed or any
distributions from a plan of deferred compensation.
(c) In addition to other applicable limitations set forth in
the Plan, and notwithstanding any other provision of the Plan to
the contrary, for Plan Years beginning on or after January 1, 1989
and before January 1, 1994, the annual Compensation of each
Employee taken into account under this Plan for any such Plan Year
shall not exceed $200,000, as adjusted for increases in the cost of
<PAGE> 5
living pursuant to Code Section 401(a)(17). For Plan Years
beginning on or after January 1, 1994, the annual Compensation of
each Employee taken into account under the Plan shall not exceed
the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner of
the Internal Revenue for increases in the cost of living in
accordance with Code Section 401(a)(17)(B). The cost-of-living
adjustment in effect for a calendar year applies to any period, not
exceeding 12 months, over which Compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the annual
compensation limit will be multiplied by a fraction, the numerator
of which is the number of months in the determination period, and
the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference
in this Plan to the limitation under Code Section 401(a)(17) shall
mean the OBRA '93 annual compensation limit set forth in the
preceding paragraph. If Compensation for any prior determination
period is taken into account in determining an Employee's benefits
accruing in the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA '93 annual compensation
limit in effect for that prior determination period. For this
purpose, for determination periods beginning before the first day
of the first Plan Year beginning on or after January 1, 1994, the
OBRA '93 annual compensation limit is $150,000.
In determining the Compensation of a Participant for purposes of
the above Compensation limitation, the family aggregation rules of
Code Section 414(q)(6) shall apply, except in applying such rules,
the term "family" shall include only the spouse of the Participant
and any lineal descendants of the Participant who have not attained
age 19 before the close of the Plan Year. If, as a result of the
application of this paragraph, the Compensation limitation applies
to a family aggregation unit, the limitation shall be prorated
among the affected individuals in proportion to each such affected
individual's Compensation as determined under this Section prior to
the application of this limitation.
(d) Notwithstanding the above, Compensation for purposes of
Article 10 shall mean any definition of Compensation, as determined
by the Committee, that satisfies the requirements of Code Section
414(s).
2.18 Company Stock shall mean the common stock of the Company.
2.19 Cost of Living Factor shall mean the cost of living factor
prescribed by the Secretary of the Treasury under Section 415(d) of
the Code for years beginning after December 31, 1987, as applied to
such items and in such manner as the Secretary may provide.
2.20 Credited Service. The number of years of service as an
Employee of the Employer which shall be measured in accordance with
the following rules:
<PAGE> 6
(a) An Employee shall receive credit for all Credited Service
under the terms of the Stock Purchase Plan.
(b) After the Effective Date, an Employee shall receive one
year of Credited Service for any Plan Year, including the Plan Year
in which employment commences and the Plan Year in which employment
terminates, during which the Employee is credited with 1,000 or
more Hours of Service.
(c) An Employee shall not receive any Credited Service for any
period of employment during any Plan Year if the Employee is
credited with less than 1,000 Hours of Service during such Plan
Year.
(d) A nonvested Participant shall not receive Credited Service
for any period of employment which precedes a Break in Service.
(e) For Participants who were participants in the Advanced
System Applications, Inc. Employees Profit Sharing Plan as of
December 31, 1990, such Participants shall receive Credited Service
for each year of service for which they received credit under the
Advanced System Applications, Inc. Employees Profit Sharing Plan.
(As amended by Second Amendment; effective January 1, 1991).
(f) Credited Service shall not include any employment with an
Affiliated Sponsor prior to its designation as an Affiliated
Sponsor or any period of employment with a predecessor employer
prior to its acquisition by the Employer except to the extent
provided in Schedule B or to the extent otherwise required by this
Section 2.20.
(g) For Participants who were participants in the Mandat
Computer Corp. Monetary Accumulation Plan ("Mandat Plan") as of
February 28, 1991, such Participants shall receive Credited Service
for each year of service for which they would have received credit
under the Mandat Plan, had the Mandat Plan defined Credited Service
as defined in Sections 2.20(b), (c), (e) and (f) above with respect
to employment with Mandat Computer Corp. (As amended by Third
Amendment; effective July 1, 1991).
(h) A Participant who was employed by Cybertek Corporation
prior to January 1, 1994, shall receive Credited Service for his
years of vesting service under the terms of the Cybersaver 401(k)
Plan for Employees of Cybertek Corporation (the "Cybertek Plan").
(As amended by Sixth Amendment; effective January 1, 1994).
(i) A Participant who was a participant in the Cybertek Plan on
December 31, 1993 and who completes 1,000 Hours of Service in the
12-consecutive-month period beginning on April 1, 1993 and ending
March 31, 1994, shall be credited with 1 year of Credited Service.
In addition, if the Participant completes 1,000 Hours of Service in
the 12-consecutive-month period beginning January 1, 1994
<PAGE> 7
and ending December 31, 1994, such Participant shall be credited
with 1 year of Credited Service. (As amended by Sixth Amendment;
effective January 1, 1994).
(j) A Participant who was a participant in the PMS, Inc. Profit
Sharing/401(k) Plan and Trust ("PMS Plan") on December 31, 1994,
shall receive Credited Service for each year of service for which
the Participant received credit under the PMS Plan.
2.21 Distribution shall mean payment by the Trustee to or for the
benefit of a Participant, Beneficiary or other person entitled to
benefits as provided in this Plan.
2.22 Early Retirement Date shall mean, for Plan Years beginning
prior to January 1, 1994, the first day of the month following the
day on which a Participant has earned 25 years of Credited Service
and attained age 60; and for Plan Years beginning on or after
January 1, 1994, the first day of the month following the day on
which a Participant has earned 5 years of Credited Service and
attained age 55. (As amended by Sixth Amendment; effective January
1, 1994).
2.23 Effective Date, as evidenced by this amendment and
restatement, shall mean April 1, 1990. Provided, however, to the
extent it is necessary for certain provisions of this Plan to apply
to the Advanced System Applications, Inc. Employee Profit Sharing
Plan, the Mandat Plan, the Stock Purchase Plan, the Cybertek Plan,
or the PMS Plan prior to the Effective Date hereof in order for
such plans to maintain their qualified status under the Code, such
provisions shall be considered retroactive amendments of, and
applicable to, such plans as of such applicable date which is prior
to the Effective Date and which is required to be applicable in
order for such plans to maintain such qualified status.
2.24 Employee shall mean any U.S. citizen or U.S. resident
regularly employed by the Employer. However, any individual who is
a member of any collective bargaining unit shall not be considered
an Employee unless the collective bargaining agreement expressly
provides otherwise. Individuals described in Code Section 414(n)
(leased employees) shall not be considered Employees under this
Plan.
2.25 Employer shall mean the Company and any Affiliated Sponsor.
2.26 Employer Contribution shall mean Employer Matching
Contributions and Qualified Nonelective Contributions.
2.27 Employer Contribution Account shall mean the portion of a
Participant's total Account attributable to Employer Matching
Contributions, and the total of the Adjustments which have been
credited to or deducted from a Participant's Account with respect
to such Employer Matching Contributions.
2.28 Employer Matching Contribution shall have that meaning set
forth in Section
<PAGE> 8
4.01(a).
2.29 Entry Date shall mean January 1, April 1, July 1, and
October 1 of each Plan Year.
2.30 Fiduciary shall mean any party named as a Fiduciary in
Article 7 of the Plan. Any party shall be considered a Fiduciary
of the Plan only to the extent of the powers and duties
specifically allocated to such party under the Plan.
2.31 Fund shall mean, with respect to each investment option
offered by the Committee, the money and other properties held and
administered by the Trustee in accordance with the Plan and Trust
Agreement under such investment option. Fund shall also mean the
portion of the Accounts invested in Company Stock.
2.32 Hour of Service shall mean:
(a) Each hour for which an Employee is paid, or entitled to
payment, for performance of duties for an Employer.
(b) Each hour for which an Employee is paid, or entitled to
payment, by an Employer, on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship is terminated) due to vacation, holiday,
illness, incapacity, layoff, jury duty, military duty, or leave of
absence.
(c) Each hour for which an Employee is absent from work and not
paid by reason of: (i) the pregnancy of the Employee, (ii) birth of
a child of the Employee, (iii) placement of a child with the
Employee in connection with the adoption of the child by the
Employee, or (iv) caring for a child referred to in (i) through
(iii) immediately following birth or placement. Hours credited
under this paragraph shall be credited at the rate of 8 hours per
day, but shall not, in the aggregate, exceed the number of hours
required to prevent the Employee from incurring a One-Year Break in
Service (a maximum of 501 hours) during the first computation
period in which a One-Year Break in Service would otherwise occur,
provided, however, that this rule shall apply only during the Plan
Year in which the absence from work begins and the immediately
following Plan Year. This paragraph (c) shall apply only to
Participants who begin their absence from work for a reason
specified in this paragraph (c) on or after the Effective Date.
(d) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer. These
hours shall be credited to the Employee for the computation period
or period to which the award or agreement pertains, rather than the
computation period in which the award, agreement, or payment is
made.
(e) In lieu of the foregoing, an Employee who is not compensated
on an hourly basis (such as salary, commission or piecework
employees) shall be credited
<PAGE> 9
with 45 Hours of Service for each week (or 10 Hours of Service for
each day) in which such Employee would be credited with Hours of
Service in hourly pay. However, this method of computing Hours of
Service may not be used for any Employee whose Hours of Service is
required to be counted and recorded by any Federal law, such as the
Fair Labor Standards Act. Any such method must yield an
equivalency of at least 1,000 hours per computation period.
The following rules shall apply in determining whether an Employee
completes an "Hour of Service":
1. The same hours shall not be credited under subparagraphs (a),
(b) or (c) above, as the case may be, and subparagraph (d) above,
nor shall the same hours credited under subparagraphs (a) through
(d) above be credited under subparagraph (e) above.
2. The rules relating to determining hours of service for
reasons other than the performance of duties and for crediting
hours of service to particular periods of employment shall be those
rules stated in Department of Labor regulations Title 29, Chapter
XXV, subchapter C, part 2530, Sections 200b2(b) and 200b2(c),
respectively.
2.33 Inactive Participant shall mean any person who terminates
employment or otherwise ceases to be a Participant, but whose
Account in the Plan has not been totally distributed.
2.34 Normal Retirement Age shall mean the first day of the first
month following the month in which the Participant: (i) has
attained age 65; and (ii) has earned five years of Credited Service
or reached the fifth anniversary date of participation in the Plan.
(As amended by Fifth Amendment; effective April 1, 1990).
2.35 Participant shall mean an Employee who becomes eligible to
participate in the Plan as provided in Article 3 (whether or not
actually making Before-Tax or After-Tax Contributions).
2.36 Permanent Disability shall mean a physical or mental
condition of a Participant resulting from bodily injury, disease,
or mental disorder which entitles the Participant to Social
Security disability benefits. In lieu of a determination of
Permanent Disability by the Social Security Administration, the
Committee and Participant may designate a physician or physicians
to determine whether the Participant is Permanently Disabled by
virtue of the Participant's total inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or to be of long continued and indefinite duration.
If such physicians disagree on whether the Participant is
Permanently Disabled, the Committee shall select a third physician
whose decision shall be final.
<PAGE> 10
2.37 Plan shall mean the Policy Management Systems Corporation
401(k) Retirement Savings Plan as set forth in this document
together with any subsequent amendments hereto.
2.38 Plan Administrator or Administrator as that term is defined
in Section 3(16) of the Act shall mean the Company.
2.39 Plan Year shall mean the annual period from each January 1
through the following December 31. The first Plan Year shall be
the period April 1, 1990 through December 31, 1990.
2.40 Qualified, as used in "qualified plan" or "qualified trust"
shall mean a plan and trust which are entitled to the tax benefits
provided respectively by Sections 401 and 501 of the Code, and
related provisions of the Code.
2.41 Qualified Nonelective Contribution shall have that meaning
as defined in Section 4.01(b).
2.42 Qualified Nonelective Contribution Account shall mean the
portion of a Participant's Account attributable to Qualified
Nonelective Contributions and the total of the Adjustments which
have been credited to or deducted from a Participant's Account with
respect to Qualified Nonelective Contributions.
2.43 Retirement shall mean the Termination of Employment of a
Participant on or after his Normal Retirement Age or Early
Retirement Date.
2.44 Rollover Account shall mean the portion of a Participant's
Account attributable to Rollover Contributions, and the total of
the Adjustments which have been credited to or deducted from a
Participant's Account with respect to Rollover Contributions.
2.45 Rollover Contribution shall have that meaning as defined in
Section 4.06.
2.46 Stock Purchase Plan. The Stock Purchase Savings Program for
Employees of Policy Management Systems Corporation which was merged
into this Plan effective 12/31/92.
2.47 Termination of Employment shall mean that an Employee has
ceased to be employed by the Employer for any of the following
reasons:
(i) Voluntary resignation from service of the Employer; or
(ii) Discharge from the service of the Employer by the Employer;
or
(iii) Retirement; or
(iv) Death; or
<PAGE> 11
(v) Permanent Disability;
Provided, however, that an Employee who ceases to be actively
employed by reason of an Authorized Leave of Absence shall not be
considered as having a Termination of Employment.
2.48 Treasury Regulation means regulations pertaining to certain
Sections of the Code as issued by the Secretary of the Treasury.
2.49 Trust or Trust Agreement shall mean the separate Agreement
of Trust entered into between the Employer and the Trustee which
governs the creation of the Fund and all amendments thereto which
may hereafter be made.
2.50 Trustee shall mean the persons, corporation, association or
a combination of them acting as Trustee under the Trust Agreement.
2.51 Valuation Date shall mean each March 31, June 30, September
30, and December 31.
2.52 Defined Terms. A defined term, such as "Retirement," will
normally govern the definitions of derivatives therefrom, such as
"Retire," even though such derivatives are not specifically defined
and even if they are or are not initially capitalized. The
masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender, unless the context clearly indicates
to the contrary. Singular and plural nouns and pronouns shall be
interchangeable as the factual context may allow or require. The
words "hereof," "herein," "hereunder" and other similar compounds
of the word "here" shall mean and refer to the entire Plan and not
to any particular provision or Section.
<PAGE> 12
ARTICLE 3
PARTICIPATION
3.01 Eligibility to Participate.
(a) Each Employee who was a Participant in the Stock Purchase
Plan on the Effective Date was eligible to participate in this Plan
on the Effective Date.
(b) Each other Employee shall be eligible to participate on the
Entry Date (provided he is employed on such date) coincident with
or next following his (i) attainment of age 18 and (ii) completion
of any 6-consecutive-month period of employment.
(c) Each Employee of a corporation or a trade or business
acquired by the Company or an Affiliate who is entitled to receive
past service credit in accordance with Schedule B will become
eligible to participate in the Plan on the first Entry Date
following said acquisition if the Employee satisfies the 6-months-
service requirement of paragraph (b), taking into account Hours of
Service credited prior to said acquisition. (As amended by Fourth
Amendment; effective January 1, 1992).
3.02 Participation
(a) Each Employee who first meets the eligibility requirements
of Section 3.01 shall commence participation in the Plan as of the
first Entry Date which coincides with or immediately follows
completion of such requirements.
(b) In order to commence making Before-Tax or After-tax
Contributions to the Plan, a Participant may be required to
complete certain forms and submit such forms to the Committee prior
to the Entry Date on which contributions are to begin.
3.03 Termination of Participation and Rehire.
(a) An Employee's participation in the Plan shall continue
until the Participant has a Termination of Employment. Any
Participant who has a Termination of Employment shall cease to be
a Participant and his benefits shall thereafter be governed by the
provisions of Article 6.
(b) An Employee who was a Participant at the time of his
Termination of Employment and who is subsequently rehired may
resume participation on the date of his re-employment. (As amended
by Fourth Amendment; effective December 31, 1992).
<PAGE> 13
(c) An Employee who has a Termination of Employment and was not
yet a Participant in the Plan shall receive credit for any Hour of
Service rendered prior to his termination (only for purposes of
this Article 3) and shall participate in accordance with the
requirements of Section 3.01(b) upon his re-employment.
3.04 Not Contract for Employment. Participation in the Plan
shall not give any Employee the right to be retained in the
Employer's employ, nor shall any Employee, upon dismissal from or
voluntary termination of his employment, have any right or interest
in the Fund, except as herein provided.
<PAGE> 14
ARTICLE 4
CONTRIBUTIONS
4.01 Employer Contributions. Contributions to the Trust shall be
made by the Employer as follows:
(a) Employer Matching Contributions. As of the end of each
calendar month, the Employer will contribute for allocation to each
Participant's Employer Contribution Account as of the last day of
that Plan Year, an amount equal to 50% of the Participant's Basic
Before-Tax or Basic After-Tax, but not both, Contribution for such
month. For Plan Years beginning on or after January 1, 1995, the
Employer will match 100% of the first 3% and 50% of the next 3% of
the Participant's Basic Before-Tax or Basic After-Tax, but not
both, Contribution.
Each Participant shall designate, in a manner prescribed by the
Committee, whether the Employer Matching Contribution will relate
to his or her Basic Before-Tax Contributions or Basic After-Tax
Contributions. No Employer Matching Contributions shall be made on
account of Additional Contributions. Forfeitures shall be applied
to reduce the Employer Matching Contribution. (As amended by Fourth
Amendment; effective January 1, 1992).
(b) Qualified Nonelective Contributions. In the sole
discretion of the Employer, an additional Employer Contribution may
be made to the Plan which shall be known as a "Qualified
Nonelective Contribution." Such contribution shall be made in
order to satisfy the requirements of Sections 10.03(a) or 10.06(a),
and shall be paid to the Trustee on behalf of Non-highly
Compensated Employees (see Section 10.01(m)) in accordance with
applicable Treasury Regulations.
(c) Form and Timing of Contributions.
(i) Employer Contributions shall be made to the Trustee in
cash, Company Stock, or other property acceptable to the Trustee as
soon as practicable following the last day of the calendar month
for which the Employer Contribution is made and by the date
prescribed by law for filing the Employer's Federal income tax
returns, including extensions thereof; provided, however, that in
no event shall such amounts be contributed to the Trust later than
the end of the twelve-month period following the close of the Plan
Year for which such Contributions were made. (As amended by Fourth
Amendment; effective January 1, 1992).
<PAGE> 15
(ii) Except as provided in this Section, Employer
Contributions shall never inure to the benefit of any Employer,
shall be held for the exclusive purpose of providing benefits to
Participants and their Beneficiaries (and contingently for
defraying reasonable expenses of administering the Plan), and shall
be held and distributed by the Trustee only in accordance with this
Plan.
(iii) Upon an Employer's request and to the extent permitted
by the Code and other applicable laws and regulations thereunder,
a contribution which was made by a mistake in fact or conditioned
upon the initial qualification of the Plan under Code Section
401(a) or upon the deductibility of the contribution under Section
404 of the Code shall be returned to the Employer within one year
after the payment of the contribution, the denial of the Plan's
initial qualification, or the disallowance of the deduction (to the
extent disallowed) whichever is applicable.
(iv) All Employer Matching Contributions made prior to
January 1, 1994 shall be invested in Company Stock. All Employer
Matching Contributions made after January 1, 1994 shall be invested
in one or more investment Funds designated by the Committee, which
may, at the Committee's discretion, include a Fund comprised
primarily of Company Stock. It is the intent of the Plan to have
the ability, if the Committee so designates, to include a Fund
comprised primarily of Company Stock and to acquire and hold
Qualifying Employer Securities (as defined by Act Section
407(d)(5)). The Trustee is hereby explicitly authorized to acquire
such Qualifying Employer Securities on behalf of the Plan, to the
extent appropriate if the Committee determines to make a Fund
available which includes Company Stock. Provided, however, any
Participant who is fully vested in his Employer Contribution
Account shall be entitled to direct the investment of the assets in
his Employer Contribution Account. Such right to direct the
investment in the Employer Contribution Account shall be limited to
the amounts in the Employer Contribution Account as of the end of
the Plan Year immediately preceding the effective date the
Participant directs such investment. The investment options are as
described in Section 5.06. (As amended by Fifth Amendment;
effective July 1, 1993; also, as amended by Seventh Amendment;
effective January 1, 1994).
<PAGE> 16
4.02 Requirements for Receiving Employer Matching Contribution.
A Participant will be entitled to receive an allocation of any
Employer Matching Contributions made on his or her behalf during
any given Plan Year only if: (i) the Participant is actively
employed on the last day of the Plan Year; and (ii) the Participant
has earned 1,000 or more Hours of Service during the Plan Year.
Participants retiring, dying, or who incur a Permanent Disability
during the Plan Year shall be deemed to have earned 1,000 Hours of
Service and to have been employed on the last day of the Plan Year
for the purposes of the preceding sentence.
4.03 Employee Before-Tax Contributions . A Participant may elect
to make Employee Before-Tax Contributions each payroll period by
means of payroll deduction. A Participant may contribute as a
Before-Tax Contribution up to 10% (15% for Plan Years beginning on
or after January 1, 1995) of his Compensation in even increments of
2% (1% for Plan Years beginning on or after January 1, 1995)
subject to the limitations described in Sections 10.02(a), 10.03,
and Article 11. Employee Before-Tax Contributions, as described
herein, shall be the sum of the following:
(a) Basic Before-Tax Contributions. Contributions made to the
Plan on a before-tax basis by payroll deduction of two percent
(2%), four percent (4%) or six percent (6%) of Compensation, as
designated by the Participant. Effective for Plan Years beginning
on or after January 1, 1995, in lieu of the contribution limits in
the preceding sentence, Participants may contribute up to six
percent (6%) of Compensation to the Plan. Basic Before-Tax
Contributions may be matched by the Employer as provided in Section
4.01.
(b) Additional Before-Tax Contributions. In addition to Basic
Before-Tax Contributions, a Participant may authorize that an
additional two percent (2%) or four percent (4%) of Compensation be
contributed to the Plan by payroll deduction on a before-tax basis.
Effective for Plan Years beginning on or after January 1, 1995, in
lieu of the contribution limits in the preceding sentence, the
Participant's additional contribution can be up to nine percent
(9%) of Compensation. Additional Before-Tax Contributions shall
not be matched by Employer Contributions.
(As amended by the Fourth Amendment; effective January 1, 1992)
4.04 Change in Before-Tax Contribution Percentage or Suspension
of Before-Tax Contributions.
(a) Increases or Decreases in Contribution Percentage. A
Participant may increase or decrease the percentage of his
Compensation contributed as Before-Tax Contributions on each Entry
Date by delivering written notice to the Committee. A change made
pursuant to this paragraph shall become effective, on a prospective
basis, on the first day of the first payroll period beginning on or
after the Entry Date following receipt of the Participant's written
authorization of such change, provided such written authorization
is received at least 30 days before such Entry Date.
<PAGE> 17
(b) Suspension of Contributions.
(i) A Participant may suspend his Before-Tax Contributions at
any time by proper written notice to the Committee. The suspension
of Before-Tax Contributions will be effective as soon as
administratively practicable, after the Participant delivers the
completed form to the Committee. A Participant who has suspended
Before-Tax Contributions may resume making such Before-Tax
Contributions on any Entry Date, but only after informing the
Employer in writing in accordance with Section 4.05(a). (As amended
by Sixth Amendment; effective January 1, 1994).
(ii) A Participant's Before-Tax Contributions shall
automatically be suspended beginning on the first payroll period
that commences after such Participant ceases active employment with
the Employer.
(iii) The Committee may, in its sole discretion, reduce or
suspend Before-Tax Contributions by any Participant to the extent
necessary to comply with the requirements of Article 10.
(c) Automatic Adjustment. If a Participant's rate of pay
changes, payroll deduction will be made at his designated
percentage then in effect on the basis of his new rate of pay,
commencing on the first day of the pay period coinciding with or
next following the date on which the change in the rate of pay took
effect.
(d) Direction by Committee. Any reduction, increase, or
suspension of Before-Tax Contributions described in this Section
4.04 shall be made in such manner as the Committee may prescribe
from time to time consistent with the provisions of this Section.
4.05 Elections and Payment of Before-Tax Contributions.
(a) Elections to make Before-Tax Contributions shall be made in
writing on a form prescribed by the Committee prior to entering the
Plan and by designating on such form the percentage of Compensation
that will be contributed as a Before-Tax Contribution during each
pay period. The election to make Before-Tax Contributions shall be
effective no earlier than the pay period beginning on or after the
Entry Date falling at least 30 days after the Employer receives
such election form. The Committee may prescribe rules and
regulations regarding the manner and timing of the Participant's
election. Before-Tax Contributions shall be subject to the
limitations described in Section 10.02 (maximum dollar contribution
limit) and Article 11 (Code Section 415 limit).
<PAGE> 18
(b) It is expressly intended that, to the extent allowable by
law, Before-Tax Contributions shall not be included in the gross
income of the Employee for income tax purposes and shall be deemed
contributions under a cash or deferred arrangement pursuant to
Section 401(k) of the Code.
(c) Before-Tax Contributions shall be deducted by the Employer
from the Participant's Compensation and paid to the Trustee as
promptly as possible. A Participant's Before-Tax Contributions
shall be allocated to such Participant's Before-Tax Account.
(d) Under no circumstances may Before-Tax Contributions be
contributed and allocated to the Trust later than thirty days after
the close of the Plan Year for which the contributions are deemed
to be made, or such later time as provided in applicable Treasury
Regulations.
4.06 Rollover Contributions. Without regard to any limitation on
contributions set forth in this Article, a Participant shall, if
the Committee consents, be permitted to transfer to the Trustee
during any Plan Year an amount in cash, provided such amount was
either:
(a) received by the Participant from a Qualified plan
maintained by a previous employer of the Employee and qualifies as
a rollover amount within the meaning of Section 402(c) of the Code
and no portion of the property received is attributable to
contributions made on behalf of the Participant while he was a
Participant and a key employee in a top-heavy plan; or
(b) received by the Participant from an individual retirement
account or individual retirement annuity and qualifies as a
rollover contribution within the meaning of Section
408(d)(3)(A)(ii) of the Code.
Such property shall be held by the Trustee in the Participant's
Rollover Account. All such amounts so held shall at all times be
fully vested and nonforfeitable. Such amounts shall be distributed
to the Participant upon his Termination of Employment in the manner
provided in Article 6.
4.07 Employee After-Tax Contributions. A Participant may elect
to make Employee After-Tax Contributions to the Plan through
payroll deduction as follows:
(a) Basic After-Tax Contributions. Contributions made to the
Plan on an after-tax basis by payroll deduction of two percent
(2%), four percent (4%) or six percent (6%) of Compensation,
as designated by the Participant. Effective for Plan Years
beginning on or after January 1, 1995, in lieu of the contribution
limits in the preceding sentence, Participants may contribute up to
six percent (6%) of Compensation to the Plan. Basic After-Tax
Contributions may be matched by the Employer as provided in Section
4.01(a).
<PAGE> 19
(b) Additional After-Tax Contributions. In addition to Basic
After-Tax Contributions, a Participant may authorize that an
additional two percent (2%) or four percent (4%) of Compensation be
contributed to the Plan by payroll deduction on an after-tax basis.
Effective for Plan Years beginning on or after January 1, 1995, in
lieu of the contribution limits in the preceding sentence, the
Participant's additional contribution can be up to nine percent
(9%) of Compensation. Additional After-Tax Contributions shall
not be matched by Employer Contributions.
The rules that apply to making Before-Tax Contributions, as set
forth in Sections 4.04 and 4.05 also apply to a Participant's
election to make After-Tax Contributions except to the extent that
such rules relate to the taxation of the contribution.
(As amended by Fourth Amendment; effective December 31, 1992).
4.08 Aggregate Limit on Employee Contributions. Notwithstanding
the above, in no event shall the sum of percentages elected in
Sections 4.03 and 4.07 exceed fifteen percent.
<PAGE> 20
ARTICLE 5
ACCOUNTS AND ALLOCATIONS
5.01 Participant Accounts.
(a) This Plan is an "individual account plan," as that term is
used in the Act. A separate Account shall be maintained for each
Participant, Inactive Participant or Beneficiary, so long as he has
an interest in the Trust Fund.
(b) The Account of each Participant shall be comprised of the
following sub-accounts to the extent appropriate under the
circumstances:
(i) The Before-Tax Contribution Account shall reflect a
Participant's Before-Tax Contributions, if any, made to the Trust;
(ii) The Employer Contribution Account shall reflect (A)
Employer Matching Contributions made on behalf of a Participant,
and (B) employer matching contributions made on behalf of a
Participant under the Stock Purchase Plan which are transferred to
the Plan pursuant to Articles 15 or 18. Within this sub-account,
there shall be maintained such additional sub-accounts as are
necessary to properly administer the Plan;
(iii) The After-Tax Contribution Account shall reflect the
After-Tax Contributions, if any, made under the Stock Purchase Plan
which are transferred to the Plan from the Stock Purchase Plan
pursuant to Articles 15 and 18 and the After-Tax Contributions, if
any, made pursuant to Section 4.07. Within this sub-account, there
shall be maintained such additional sub-accounts as are necessary
to properly administer the Plan;
(iv) The Qualified Nonelective Contribution Account shall
reflect the Qualified Nonelective Contributions, if any, made to a
Participant's Account;
(v) The Rollover Account shall reflect any Rollover
Contributions transferred to the Trust.
(As amended by Fourth Amendment; effective December 31, 1992).
(c) As of each Valuation Date, each Participant's Account shall
equal:
(i) his total Account as determined on the immediately
preceding Valuation Date; plus
<PAGE> 21
(ii) his contributions added to his Account since the
immediately preceding Valuation Date; plus
(iii) his Employer Contributions added to his Account since
the immediately preceding Valuation Date; plus
(iv) his Rollover Contributions added to his Account since
the immediately preceding Valuation Date; minus
(v) his Distributions, if any, since the immediately
preceding Valuation Date; plus or minus
(vi) his allocable share of Adjustments.
5.02 Valuation.
(a) On each Valuation Date, the Trustee shall allocate the
Adjustment for each Fund as of such Valuation Date (determined
pursuant to Section 5.02(b)) made among the Accounts in the same
proportion that the portion of each such Account invested in each
Fund bears to the total investment of all such Accounts in each
Fund. The Committee may direct that expenses attributable to
general Plan administration be allocated among the Accounts of all
Participants in proportion to their Account balances.
(b) The Adjustment for any Valuation Date shall be determined
in the following manner:
(i) The Trustee shall determine the fair market value of each
Fund, including accrued income, as of such Valuation Date;
(ii) The fair market value shall be reduced by (1)
forfeitures (if any) which become allocable as of such Valuation
Date, and (2) the Employer Matching Contribution (if any) which is
paid into the Fund by the current Valuation Date;
(iii) The amount computed under subparagraph (b) will be
reduced by the value of the Fund as of the Valuation Date preceding
the current Valuation Date and the remainder shall be the
Adjustment for the current Valuation Date attributable to each
Fund;
(iv) For loans issued under Section 6.12, the Adjustment
shall be the interest actually paid on the outstanding loan
principal balance since the preceding Valuation Date;
(v) The Committee may, in its sole discretion, establish
Valuation procedures to supplement or replace the procedures set
forth above.
<PAGE> 22
5.03 Value of Account for Purposes of Distribution.
(a) Upon a Participant's Termination of Employment, the value
of such Participant's Account to be distributed in accordance with
Article 6 shall be equal to the value of the Participant's Account
as of the Valuation Date coinciding with or immediately succeeding
the date of Termination of Employment.
(b) The Account, valued as determined in the preceding
paragraph (a) or the remaining undistributed portion thereof, shall
continue to be adjusted on each Valuation Date following the date
of Termination of Employment as provided in Section 5.02 until
fully distributed to the Participant.
(As amended by Fourth Amendment; effective January 1, 1992).
5.04 Errors. Where an error or omission is discovered in any
Participant's Account, the Committee shall make appropriate
corrective adjustments as of the end of the Plan Year in which the
error or omission is discovered. If it is not practical to correct
the error retroactively then, when it is necessary to add to an
Account, such addition shall be treated as an expense of the Trust
Fund; and when a subtraction is to be made from the Account, the
amount so generated shall be treated as a forfeiture and shall be
allocated as any other forfeiture.
5.05 Allocations Do Not Affect Vesting. The fact that an
allocation has been made shall not operate to vest in any
Participant any right or interest in, or to vest any specific
assets of the Fund except as herein provided.
5.06 Directed Investments.
(a) The Committee shall select investment Funds, which may, in
the Committee's discretion, include Funds comprised primarily of
Company Stock, to be made available to Participants under the Plan
from time to time in accordance with applicable law. Such
investment options will be disclosed to Participants in summary
form and, where required by applicable law, a copy of any
prospectus or other disclosure document relating to an investment
option shall be made available to Participants by the Committee.
(As amended by Seventh Amendment; effective January 1, 1994).
(b) Pursuant to rules established by the Committee, a
Participant shall be entitled to direct the investment in any Fund
of the assets in his Before-Tax Contribution, After-Tax
Contribution, and Rollover Accounts. In addition, a Participant
who is fully vested in his Employer Contribution Account may also
direct the investment of the assets in his Employer Contribution
Account. A Participant may direct the investment of his Account by
delivering a written direction to the Trustee on a form prescribed
by the Committee, at such times
<PAGE> 23
prescribed by the Committee, but no less than twice each Plan Year.
(c) Such Accounts shall be credited with the actual income
derived from the investments in such Accounts and with the actual
expenses related to such Accounts; and such Accounts shall be
valued as of each Valuation Date to reflect the fair market value
of the Funds in which such Accounts are invested.
(d) The Trustee shall be relieved from any liability for the
making, retention, or sale of any investment pursuant to the
written direction of a Participant.
(e) Notwithstanding anything herein to the contrary, in the
case of Plan Years before January 1, 1995, the Employee Before-Tax
Contribution, After-Tax Contribution, and Rollover Accounts of a
Participant experiencing a Termination of Employment who has
declined to receive a Distribution (including the failure of a
Participant to complete the forms required by the Committee to
process a Distribution within the timeframe established by the
Committee) shall be invested in their entirety in a Fund offering
a guaranteed rate of income or, if no such Fund is offered, in a
Fund designated by the Committee.
5.07 Accounts of Inactive Participants and Beneficiaries. The
provisions of this Article relating to maintenance of Accounts,
valuation, and directed investments apply to the Accounts of
Inactive Participants and Beneficiaries as well as the Accounts of
Participants.
<PAGE> 24
ARTICLE 6
VESTING AND DISTRIBUTIONS
6.01 Retirement. A Participant who has attained Normal
Retirement Age shall become 100% vested in his Account. Upon the
Participant's Retirement on or after his Normal Retirement Age the
Participant shall be entitled to a Distribution of all amounts
credited to his Account on the date specified in Section 6.05.
6.02 Permanent Disability. In the event of Termination of
Employment on account of Permanent Disability, a Participant shall
become 100% vested in his Account as of the date of such Permanent
Disability and shall be entitled to a Distribution of all amounts
credited to the Participant's Account on the date specified in
Section 6.05.
6.03 Death. In the event of the Participant's death, all amounts
credited to the Participant's Account shall become 100% vested and
shall be distributed to the Participant's Beneficiary on the date
specified in Section 6.05.
6.04 Other Termination of Employment.
(a) Upon a Participant's Termination of Employment for any
reason other than Retirement, Permanent Disability or death, the
Participant shall be entitled to the vested portion of his Account.
That portion of the Participant's Account which is not vested upon
such Termination of Employment shall be subject to forfeiture by
such Participant in accordance with Section 6.08.
(b) The vested portion of any Participant's Account shall be
determined as follows:
(i) A Participant who ceases to be an Employee shall always
be one hundred percent (100%) vested in his Before-Tax Contribution
Account, his Qualified Nonelective Contribution Account, his
Rollover Account and his After-Tax Contribution Account;
(ii) Any Participant who ceases to be an Employee shall be
100% vested in his Employer Contribution Account if he has earned
five or more years of Credited Service. If the Participant has
earned less than five years of Credited Service upon his
Termination of Employment, he shall have no vested interest in his
Employer Contribution Account and the entire Account shall be
forfeited in accordance with Section 6.08.
<PAGE> 25
6.05 Commencement of Distribution.
(a) The Participant's Account will be distributed no later than
ninety (90) days after the end of the Plan Year of the
Participant's Termination of Employment, provided the Participant
consents to the Distribution in writing on a form satisfactory to
the Committee. In the event of the Participant's death, the
Participant's Account shall be distributed to the Participant's
Beneficiary within ninety (90) days of the date of death. The
Committee shall direct the Trustee to distribute a Participant's
vested Account regardless of whether the Participant consents to
such Distribution under the following circumstances:
(i) If the Participant's vested Account balance is less than
or equal to $3,500 at the time of Distribution and at the time of
any prior Distribution, such Account will be distributed no later
than ninety (90) days after the Valuation Date that immediately
follows such Termination of Employment;
(ii) If the Participant has attained age 70.5, the
Participant's Account will be distributed no later than ninety (90)
days after the end of the Plan Year in which the Participant
attains age 70.5. If the Participant remains employed after age
70.5, Distributions shall be made on each Valuation Date following
allocation of the Employer Contributions.
(iii) If the Participant has terminated employment and has
attained his Normal Retirement Age.
(b) In the event of a Participant's request for a Distribution
on account of hardship (see Section 6.13), Distribution shall
commence no later than ninety (90) days after such request is
approved by the Committee.
(c) Notwithstanding anything in the Plan to the contrary,
unless a Participant otherwise elects, (except as otherwise
provided in Section 6.05(d)), the payment of benefits under the
Plan to such Participants will begin not later than the sixtieth
(60th) day after the latest of the close of the Plan Year in which:
(i) The date on which such Participant attains the earlier of
age sixty-five (65) or Normal Retirement Age,
(ii) Occurs the tenth (10th) anniversary of the year in which
such Participant commenced participation in the Plan, or
(iii) Such Participant terminates such Participant's service
with the Employer.
<PAGE> 26
(d) Notwithstanding anything to the contrary in 6.05(c), the
failure of a Participant to consent to a distribution while a
benefit is immediately distributable, within the meaning of any
other applicable section of the Plan, shall be deemed an election
to defer commencement of payment of any benefit sufficient to
satisfy this Section 6.05.
The Committee may establish, for administrative purposes, uniform
and nondiscriminatory guidelines concerning the Distribution of
benefits.
6.06 Withdrawal of After-Tax Contributions and Certain Employer
Contributions. Employee After-Tax Contributions may be withdrawn
at any time upon written request of a Participant. In addition, a
Participant may withdraw all or any part of his vested Employer
Contributions transferred to the Plan from the Stock Purchase Plan
pursuant to Article 18 and the vested Employer Matching
Contributions on his Basic After-Tax Contributions, but only to the
extent that such contributions have been in the Plan or the Stock
Purchase Plan for at least two full Plan Years after the Plan Year
in which such contributions were made. However, if a Participant
has at least 60 Months of Participation, then the two-year
restriction in the preceding sentence shall not apply. A
Participant may request only one withdrawal pursuant to this
Section each Plan Year, unless additional withdrawals are required
by Sections 6.12 and 6.13. Effective January 1, 1995, the
withdrawal provisions of the preceding two sentences shall also
apply to vested Employer Contributions transferred to this Plan
from the Stock Purchase Plan pursuant to Article 15.
For purposes of this Section, a Month of Participation shall mean
any month during which a Participant has an After-Tax Account or
Before-Tax Account in the Plan, the Stock Purchase Plan, or any
prior plan with respect to the Stock Purchase Plan. Effective
January 1, 1995, a Month of Participation shall mean any month
during which a Participant has an account balance. All withdrawals
from the After-Tax Contribution Account will be taken from the
oldest After-Tax Contributions first and will be deemed to occur in
the following order:
(a) First, from After-Tax Contributions made prior to January
1, 1987 (excluding any income credited thereon);
(b) Second, from After-Tax Contributions made after December
31, 1986, and all income earned on After-Tax Contributions
regardless of when made.
However, if a Participant who is not fully vested in his Employer
Matching Contributions withdraws Basic After-Tax Contributions that
have been matched pursuant to Section 4.01(a) or pursuant to the
terms of the Stock Purchase Plan, then the Employer Matching
Contributions attributed to the withdrawn Basic After-Tax
Contributions shall be forfeited; provided, however, that if the
Participant repays the entire amount of the Distribution before the
end of the five-year period beginning on the date of withdrawal,
then the forfeited amounts will be restored to the Participant's
Account. Notwithstanding the preceding sentence, any Employer
Matching Contributions forfeited due to the withdrawal
<PAGE> 27
of Basic After-Tax Contributions made during the year of withdrawal
shall not be restored under any circumstances. Effective January
1, 1995, if a Participant who is not fully vested in his Employer
Matching Contributions withdraws Basic After-Tax Contributions that
have been matched pursuant to Section 4.01(a) or pursuant to the
tems of the Stock Purchase Plan, then the Employer Matching
Contributions attributable to the withdrawn Basic After-Tax
Contributions shall not be forfeited.
In general, all Distributions pursuant to this Section 6.06 shall
be made as soon as practicable after the Valuation Date next
succeeding the Distribution request. However, to the extent that
the Distribution is a prerequisite to receiving a hardship
Distribution pursuant to Section 6.13, the Distribution shall be
made as soon as practicable after the Distribution request, based
on the value of the amounts eligible for Distribution as of the
Valuation Date coincident with or immediately preceding the
Distribution request minus any Distributions since such Valuation
Date.
(As amended by Fourth Amendment; effective December 31, 1992).
6.07 Method of Distribution.
(a) The method of Distribution of a Participant's Account
(regardless of whether such Distribution is made by reason of a
withdrawal or a Termination of Employment) shall be in the form of
payment in a single lump sum.
(b) If a Distribution is made upon the death of a Participant,
the Participant's Account will be paid to the Participant's
Beneficiary or Beneficiaries in the manner described in the
preceding paragraph (a).
(c) Distributions will be made in whole shares of Company Stock
to the extent the Participant's Account is invested in Company
Stock on the Valuation Date preceding Distribution. Fractional
shares and the portion of the Participant's Account not invested in
Company Stock shall be distributed in cash. No Distribution shall
be made in the form of an annuity.
(d) The Committee shall issue directions to the Trustees
concerning the recipient and the Distribution date of benefits
which are to be paid from the Trust pursuant to the Plan.
(e) Notwithstanding anything to the contrary, the Committee
shall not distribute any Account having a balance greater than
$3,500 on the Distribution date or at the time of any prior
Distribution without the consent of the Participant; provided this
rule shall not apply to any Participant who has attained his Normal
Retirement Age.
<PAGE> 28
6.08 Disposition of Forfeitures.
(a) A Participant who is not vested in his Employer
Contribution Account (a "non-vested Participant") and who incurs a
Termination of Employment shall forfeit the non-vested portion of
his Employer Contribution Account as of the date of Distribution of
the Participant's Account or upon the Participant incurring a Break
in Service, whichever occurs earlier. If the non-vested
Participant resumes employment with the Employer prior to incurring
a Break in Service, then the previously forfeited Employer Matching
Contributions attributed to Before-Tax Contributions,valued as of
the date of forfeiture, shall become the Participant's beginning
Employer Contribution Account on the last day of the Plan Year in
which he resumes participation in the Plan. Previously forfeited
Employer Matching Contributions attributable to After-Tax
Contributions, valued as of the date of forfeiture, shall be
restored to the Participant's Account if (i) the Participant is
reemployed before he incurs a Break in Service and (ii) repays the
entire amount of the withdrawn After-Tax Contributions and any
earnings thereon, valued as of the date of Distribution, within
five years of the date he is reemployed. In such event, the
Participant's Account shall be restored as soon as administratively
practicable after repayment of the withdrawn After-Tax
Contributions and earnings thereon. The Participant's Account
shall be restored first from forfeitures allocable on such date
and, if forfeitures are insufficient, from Employer Matching
Contributions allocable on such date.
(b) Forfeitures shall be used to reduce Employer Matching
Contributions as of the last day of the Plan Year in which the
forfeiture occurs or as soon as administratively feasible
thereafter.
6.09 Payment to Minors and Incapacitated Persons. In the event
that any amount is payable to a minor or to any person who, in the
judgment of the Committee, is incapable of making proper
disposition thereof, such payment shall be made for the benefit of
such minor or such person in any of the following ways the
Committee, in its sole discretion, shall determine:
(a) By payment to the legal representative of such minor or
such person;
(b) By payment directly to such minor or such person;
(c) By payment in discharge of bills incurred by or for the
benefit of such minor or such person. The Trustee shall make such
payments as directed by the Committee without the necessary
intervention of any guardian or like fiduciary, and without any
obligation to require bond or to see to the further application of
such payment. Any payment so made shall be in complete discharge
of the Plan's obligation to the Participant and his Beneficiaries.
<PAGE> 29
6.10 Application for Benefits. The Committee may require a
Participant or Beneficiary to complete and file with the Committee
certain forms as a condition precedent to the payment of benefits.
The Committee may rely upon all such information given to it,
including the Participant's current mailing address. It is the
responsibility of all persons interested in Distributions from the
Trust Fund to keep the Committee informed of their current mailing
addresses.
6.11 Distributions Pursuant to Qualified Domestic Relations
Orders. Notwithstanding anything to the contrary in this Plan, a
"qualified domestic relations order," as defined in Code Section
414(p), may provide that any amount to be distributed to an
alternate payee may be distributed immediately even though the
Participant is not yet entitled to a Distribution under the Plan.
The intent of this Section 6.11 is to provide for the Distribution
of benefits to an alternate payee as permitted by Treasury
Regulation 1.401(a)-13(g)(3).
6.12 Loans. Beginning on or after January 1, 1991, a Participant
may request a loan of his Account by obtaining an application from
the Committee, completing it and submitting it to the Committee.
The Committee may approve or deny a Participant's application based
on written guidelines established by the Committee from time to
time, provided such guidelines shall be applied in a uniform
nondiscriminatory manner and shall be disclosed to Participants.
Loan proceeds will be distributed within a reasonable period of
time after the Participant completes any documents deemed necessary
by the Committee to complete his loan application. The Committee
may, in accordance with uniform nondiscriminatory rules, charge an
administrative fee, payable by Plan Participants for the processing
of loan applications. In addition, the following shall apply:
(a) The total loans of any Participant at any point in time
shall not exceed the lesser of (i) 50% of the Participant's vested
Account balance, or (ii) the total amount held in the Participant's
Before-Tax Contribution Account, After-Tax Contribution Account and
Rollover Account, or (iii) $50,000, reduced by the excess (if any)
of (A) the highest outstanding balance of any loan from the Plan
during the one-year period ending on the day before the date on
which such loan was made, over (B) the outstanding loan balance of
any loan made from the Plan on the date on which the loan was made.
(b) Each loan shall be supported by the Participant's
promissory note for the amount of the loan, including interest,
payable to the order of the Trustee. In addition, each loan shall
be supported by an assignment of the Participant's entire right,
title and interest in and to his Account and supported by any other
reasonable security required by the Trustee.
(c) Loans shall be available to all Participants on a
reasonably equivalent basis. Except as provided below, loans shall
not be made available to Participants who are
<PAGE> 30
Highly Compensated Employees, officers or shareholders of the
Employer in an amount which is greater than is available to other
Participants. No Participant shall be permitted to have more than
one loan issued and outstanding with respect to his Account at any
time, and no Participant shall be issued a new loan within six
months of repayment of a Plan loan.
(d) Interest shall be charged on any loan at a rate determined
in the sole discretion of the Committee, but shall provide the Plan
with a return commensurate with the interest rates charged by
persons in the business of lending money for loans which would be
made under similar circumstances in accordance with DOL Regulation
sec. 2550.408b-1(c).
(e) The length and the terms of the repayment of any such loan
shall be determined by the Committee in its sole discretion. The
length of any loan shall not exceed five years. However, if the
loan is used to acquire any dwelling unit which within a reasonable
time after the loan is made is to be used as the principal
residence of the Participant, the length of such loan shall be for
a reasonable time, as determined by the Committee, that may exceed
five years. In no event shall the term of the loan extend beyond
the Participant's Termination of Employment.
(f) Each loan shall provide for level amortization with
payments to be made at such regular intervals as the Committee
determines in its discretion, but not less frequently than once
every three months over the term of the loan. Repayment shall be
made through payroll deductions and the Participant will be
required to authorize such payroll deductions as a condition to
receiving the loan. Repayments will be held by the Trustee and
credited to the Participant's Account on each Valuation Date.
(g) A Participant who requests a loan shall be deemed to have
directed the Committee to segregate assets in his Account equal to
the amount of the loan and invest such assets in the Participant's
loan and any income or loss therefrom shall be credited to the
Participant's Account. Loans shall be deemed to be withdrawn pro
rata from the Participant's sub-accounts described in Section
6.12(a).
(h) No loan will be made by the Plan in an amount less than
$1,000 or the amount established by the Committee from time to
time.
(i) The Committee may establish such additional guidelines and
rules as its deems necessary to carry out the provisions of this
Section 6.12 and any rules regarding Plan loans set forth in other
documents shall hereby be incorporated by reference into this Plan.
6.13 Hardship Withdrawal.
(a) Any Participant may request the Committee to distribute to
him part or all of his Before-Tax Contribution Account (excluding
income earned on Before-Tax
<PAGE> 31
Contributions), his Rollover Account, and his vested Employer
Contribution Account to meet a hardship experienced by the
Participant.
(b) Hardship Distributions out of the Participant's Before-Tax
Contribution Account may not exceed the sum of the Participant's
Before-Tax Contributions in such sub-account at the time the
hardship withdrawal is made.
(c) For purposes of this Section, a hardship shall be deemed to
exist if a Participant establishes to the satisfaction of the
Committee that a Distribution is necessary for: (1) uninsured
medical expenses incurred by the Participant or his dependents; (2)
purchase of a primary residence by the Participant; (3) payment of
tuition and related educational expenses for the next 12 months of
post-secondary education for the Participant or his dependents; (4)
prevention of the eviction from or foreclosure on the Participant's
principal residence; or (5) other bona fide financial hardships as
permitted by Treasury Regulations or other regulatory or judicial
authority. (As amended by Fourth Amendment; effective December 31,
1992).
(d) Upon not less than 30 days prior written notice filed with
the Company, a Participant who has demonstrated the existence of a
hardship described in paragraph (c) and who has obtained all
Distributions and withdrawals (other than for hardship) and all
nontaxable loans available under all plans maintained by the
Employer, may, in addition, withdraw all or a part of his Before-
Tax Contributions, but in no event more than is necessary to
alleviate such hardship. Any Participant who makes a withdrawal
pursuant to this Section may not make any Before-Tax or After-Tax
Contributions to the Plan (or any comparable contributions to any
other plan maintained by the Employer) until an Entry Date which is
at least 12 months after the effective date of such withdrawal. In
addition, for the taxable year of the Participant following the
taxable year in which such hardship withdrawal is received, the
limit on Before-Tax Contributions set forth in Section 10.02 shall,
with respect to such Participant, be reduced by the amount of the
Before-Tax Contributions made for such Participant for the taxable
year of the Participant in which such hardship withdrawal is
received. (As amended by Fourth Amendment; effective December 31,
1992).
(e) The request to receive a hardship Distribution shall be
made on such forms and following such procedures as the Committee
may prescribe from time to time. Under no circumstances shall the
Committee permit a Participant to repay to the Plan the amount of
any withdrawal by a Participant under this Section.
(f) A Participant shall not be permitted to make more than one
hardship withdrawal during any 12-month period.
6.14 Direct Rollover. Effective for Distributions made on or
after January 1, 1993, and notwithstanding any provision of the
Plan to the contrary, a Participant may elect, at the time and in
the manner prescribed by the Committee, to have any portion of
<PAGE> 32
an eligible rollover Distribution paid directly to an eligible
retirement plan specified by the Participant in a direct rollover.
A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the Participant. An eligible rollover
Distribution is any Distribution of all or any portion of the
balance to the credit of the Participant, except that an eligible
rollover Distribution does not include: any Distribution that is
one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of
the Participant or the joint lives (or joint life expectancies) of
the Participant and the Participant's designated Beneficiary, or
for a specified period of ten years or more; any Distribution to
the extent such Distribution is required under Code Section
401(a)(9); and the portion of any Distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
An eligible retirement plan is an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described 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 accepts the Participant's eligible rollover
Distribution. However, in the case of an eligible rollover
Distribution to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement
annuity.
<PAGE> 33
ARTICLE 7
ADMINISTRATION OF THE PLAN
7.01 Named Fiduciary. The following parties are named as
Fiduciaries of the Plan and shall have the authority to control and
manage the operation and administration of the Plan:
(i) The Employer;
(ii) The Board;
(iii) The Trustee;
(iv) The Committee.
The Fiduciaries named above shall have only the powers and duties
expressly allocated to them under the Plan and Trust; provided,
however, if a power or responsibility is not expressly allocated to
a named Fiduciary, the power or responsibility shall be that of the
Employer. Except as otherwise provided herein, no Fiduciary shall
have any liability for, or responsibility to inquire into, the acts
and omissions of any other Fiduciary in the exercise of powers or
the discharge of responsibilities assigned to such other Fiduciary
under this Plan or the Trust.
7.02 Company. The Company shall have the right to amend the Plan
in whole or in part pursuant to Section 9.01. The Company shall be
the Plan Administrator within the meaning of Section 3(16) of the
Act.
7.03 Board of Directors.
(a) The Board shall have the following powers and duties with
respect to the Plan:
(i) to cause the Employer to make contributions to the Plan
as required by the Plan and the Act;
(ii) to appoint and remove the members of the Committee;
(iii) to terminate the Plan in whole or in part.
(b) The Board shall have no other responsibilities with respect
to the Plan.
7.04 Trustee. The Trustee shall exercise all of the powers and
duties assigned to the Trustee as set forth in Article 8. The
Trustee shall have no other responsibilities with respect to the
Plan.
<PAGE> 34
7.05 Committee.
(a) A Committee of not less than three or more than five
individuals shall be appointed by and serve at the pleasure of the
Board to administer the Plan. The Committee members shall serve
without compensation. The Board shall have the right to remove any
member of the Committee at any time, with or without cause. A
member may resign at any time by written notice to the Committee
and the Board. If a vacancy in the Committee should occur, a
successor shall be appointed by the Board. The Committee shall by
written notice keep the Trustee notified of current membership of
the Committee, its officers and agents. The Committee shall
furnish the Trustee a certified signature card for each member of
the Committee and for all purposes hereunder the Trustee shall be
conclusively entitled to rely upon such certified signatures.
(b) The Committee shall appoint a Chairman and a Secretary from
among its members of the Committee. All resolutions,
determinations and other actions shall be by a majority vote of all
members of the Committee. The Committee may appoint such agents,
who need not be members of the Committee, as it deems necessary for
the effective performance of its duties, and may delegate to such
agents such powers and duties, whether ministerial or
discretionary, as the Committee deems expedient or appropriate.
The compensation of such agents shall be fixed by the Committee;
provided, however, that in no event shall compensation be paid if
such payment violates the provisions of the Act.
(c) The Committee shall have complete control of the
administration of the Plan with all powers necessary to enable it
to properly carry out the provisions of the Plan. In addition to
all implied powers and responsibilities necessary to carry out the
objectives of the Plan and to comply with the requirements of the
Act, the Committee shall have the following specific powers and
responsibilities:
(i) To appoint and remove the Trustee;
(ii) To construe the Plan and Trust and to determine all
questions arising in the administration, interpretation and
operation of the Plan;
(iii) To decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan and Trust;
(iv) To determine the benefits of the Plan to which any
Participant, Beneficiary or other person may be entitled;
(v) To keep records of all acts and determinations of the
Committee, and to keep all such records, books of accounts, data
and other documents as may be necessary for the proper
administration of the Plan;
<PAGE> 35
(vi) To prepare and distribute to all Plan Participants and
Beneficiaries information concerning the Plan and their rights
under the Plan, including, but not limited to, all information
which is required to be distributed by the Act, the regulations
thereunder, or by any other applicable law;
(vii) To file with the Secretary of Labor such reports and
additional documents as may be required by the Act and regulations
issued thereunder, including, but not limited to, summary plan
descriptions, modifications and changes, annual reports, terminal
reports and supplementary reports;
(viii) To file with the Secretary of the Treasury all reports
and information required to be filed by the Internal Revenue Code,
the Act and regulations issued under each; and
(ix) To do all things necessary to operate and administer the
Plan in accordance with its provisions and in compliance with
applicable provisions of Federal law.
(d) To enable the Committee to perform its functions, the
Employer shall supply full and timely information of all matters
relating to the Compensation and length of service of all
Participants, their Retirement, death or other cause of Termination
of Employment, and such other pertinent facts as the Committee may
require. The Committee shall advise the Trustee of such facts and
issue to the Trustee such instructions as may be required by the
Trustee in the administration of the Plan. Members of the
Committee and each Employer shall be entitled to rely upon all
tables, certificates and reports furnished by an actuary, upon all
certificates and reports made by an accountant selected and
approved by the Board, and upon all opinions given by counsel or by
Committee and each Employer and their officers. The Trustee shall
be fully protected in respect to any action taken or suffered by it
in good faith in reliance upon the advice or opinion of any such
actuary, accountant or counsel, and all action so taken or suffered
shall be conclusive upon all Employees, Participants or other
persons interested in the Plan.
7.06 Committee to Establish Rules and Procedures. The Committee
shall establish rules and procedures to be followed by the
Participants and Beneficiaries in filing applications for benefits
and for furnishing and verifying proofs necessary to establish age,
Credited Service, Compensation and any other matters required in
order to establish their right to benefits in accordance with the
Plan.
7.07 Standard of Fiduciary Duty. Any Fiduciary, or any person
designated by a Fiduciary to carry out Fiduciary responsibilities
with respect to the Plan, shall discharge his duties solely in the
interests of the Participants and Beneficiaries for
<PAGE> 36
the exclusive purpose of providing them with benefits and defraying
the reasonable expenses of administering the Plan. Any Fiduciary
shall discharge his duties with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matter would
use in the conduct of an enterprise of a like character and with
like aims. Any Fiduciary shall discharge his duties in accordance
with the documents and instruments governing the Plan insofar as
such documents and instruments are consistent with the provisions
of the Act. Notwithstanding any other provisions of the Plan, no
Fiduciary shall be authorized to engage in any transaction which is
prohibited by Sections 406 and 2003(a) of the Act or Section 4975
of the Code in the performance of its duties hereunder.
7.08 Claims Procedure. Any Participant, Inactive Participant,
Beneficiary, or spouse or authorized representative thereof
(hereinafter referred to as "Claimant"), may file a claim for
benefits under the Plan by submitting to the Committee a written
statement describing the nature of the claim and requesting a
determination of its validity under the terms of the Plan. Within
30 days after the date such claim is received by the Committee, it
shall issue a ruling with respect to the claim. If the claim is
wholly or partially denied, written notice shall be furnished to
the Claimant, which notice shall set forth in a manner calculated
to be understood by the Claimant:
(a) The specific reason or reasons for denial;
(b) Specific reference to pertinent Plan provisions upon which
the denial is based;
(c) A description of any additional material or information
necessary for the Claimant to perfect the claim and an explanation
of why such material or information is necessary; and
(d) An explanation of the claim review procedures.
Any Claimant whose claim for benefits has been denied, or his
designated representative, may appeal such denial by resubmitting
to the Committee a written statement requesting a review of the
denial within 60 days of the date the Claimant receives notice of
such denial. Such statement shall set forth the reasons supporting
the claim, the reasons such claim should not have been denied, and
any other issues or comments which the Claimant deems appropriate
with respect to the claim.
If the Claimant shall request in writing, the Committee shall make
copies of the Plan documents pertinent to his claim available for
examination of the Claimant.
Within 60 days after the request for further review is received,
the Committee shall review its determination of benefits and the
reasons therefor and notify the Claimant in writing of its final
decision. Such written notice shall include specific reasons for
the decision, written in a manner calculated to be understood by
the Claimant, with specific references to the pertinent Plan
provisions on which the decision is based.
<PAGE> 37
7.09 Indemnification of Committee. To the extent permitted under
the Act, the Plan shall indemnify the Board and the Committee
against any cost or liability which they may incur in the course of
administering the Plan and executing the duties assigned pursuant
to the Plan. The Employer shall indemnify the Committee and the
members of the Board against any personal liability or cost not
provided for in the preceding sentence which they may incur as a
result of any act or omission in relation to the Plan or its
Participants. The Employer may purchase Fiduciary liability
insurance to insure its obligation under this Section.
7.10 Payment of Expenses. All expenses of administration may be
paid out of the Trust Fund, unless paid by the Employer. Such
expenses shall include expenses incident to the functioning of the
Administrator, including, but not limited to, fees of accountants,
counsel, other specialists and their agents, and other costs of
administering the Plan. Nothing herein shall authorize the Plan to
pay expenses associated with establishing the Plan. The Committee
is authorized to review and approve reasonable expenses pursuant to
the foregoing.
(As amended by Addendum No. 1; effective April 1, 1990).
7.11 Administrative Discretion. Notwithstanding anything to the
contrary in the Plan, the Committee shall have the sole and
absolute discretion with respect to:
(a) The interpretation of the terms of the Plan;
(b) The determination of individuals' entitlement to benefits,
eligibility, and any other aspects of the Plan relating to such
individuals;
(c) The determination of all benefits and resolution of all
questions pertaining to the administration, interpretation and
application of this Plan's provisions, either by rules of general
applicability or by particular decisions; and
(d) Other matters which come within the purview of such
Committee's functions, duties and powers (express and implied)
under the Plan and/or applicable law. Any and all administrative,
judicial and/or other review and/or adjudication with respect to
such Committee's exercise or non-exercise of such discretion shall
be based upon the arbitrary and capricious standard. Accordingly,
no exercise and/or non-exercise of such discretion by such
Committee shall be overturned or otherwise modified pursuant to
such review and/or adjudication unless such Committee is found to
have exercised and/or failed to exercise such discretion
arbitrarily and capriciously.
<PAGE> 38
ARTICLE 8
TRUST FUND AND TRUSTEE
8.01 General Nature of Trustee's Responsibilities.
(a) To the extent acceptable to it, the Trustee shall receive
such sums of money or other property as shall from time to time be
paid or delivered by the Employer to hold for management and
Distribution under the terms of the Plan. All such money and
property so held, together with all investments made therewith and
proceeds thereof, and such earnings, profits, increments, and
accruals thereon as may occur from time to time, less any payments
which the Trustee, from time to time, may be authorized to make
therefrom, shall constitute the Trust Fund.
(b) The Fund shall be held by the Trustee in trust and shall be
administered, controlled and invested in accordance with the Plan
and Trust. In the management of the Fund and the discharge of its
duties hereunder, the Trustee shall act solely in the interests of
the Participants, Inactive Participants and their spouses or
Beneficiaries. The Trustee shall discharge its duties in
accordance with this Plan and Trust with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims. The Trustee's obligations relate
solely to the Trust Fund and it shall have no responsibility
whatsoever for the control, management, administration, or revision
of the Plan itself or for procuring contributions required in the
Plan.
(c) Notwithstanding anything contained in this Plan and Trust
to the contrary, it shall be impermissible at any time prior to the
satisfaction of all liabilities with respect to Participants,
Inactive Participants and their spouses for any part of this Fund
to be used for or diverted to any purpose other than the exclusive
benefit of such Participants, Inactive Participants and their
spouses or Beneficiaries, except for payments of benefits under the
terms of the Plan and payments of expenses and charges properly
payable out of the Fund as set forth herein.
8.02 Investment Powers. The Trustee shall make available to
Participants in accordance with rules established by the Committee
the Funds selected by the Committee in accordance with Section
5.06. All Employer Matching Contributions made prior to January 1,
1994 shall be invested by the Trustee in Company Stock. All
Employer Matching Contributions made on or after January 1, 1994,
shall be invested by the Trustee in the investment Fund or Funds
designated by the Committee. Subject to the foregoing:
<PAGE> 39
(a) All investment determinations made by the Trustee shall be
made in conformity with the standard of Fiduciary duty (especially
the prudent man rule) set forth in the Act;
(b) The Trustee shall cause the investments of the Trust Fund
to be diversified to the extent necessary to minimize the risk of
large losses (unless such diversification would be imprudent);
(c) In no event shall the Trustee maintain the indicia of
ownership of any assets of the Fund outside the jurisdiction of the
United States District Courts;
(d) The Trustee shall exercise its investment discretion so as
to provide sufficient cash assets as the Committee may suggest will
be necessary from time to time to meet the liquidity requirements
for the administration of the Plan;
(e) The foregoing paragraphs of this Section 8.02 are
limitations on the investment powers of the Trustee and (except as
expressly provided) take precedence over the powers set forth in
this paragraph (e). Except as specifically limited above, the
Trustee is authorized and empowered to retain, invest and reinvest
any and all of the Trust Funds as it shall deem to be in the best
interests of the Participants and there shall be no other
additional restrictions -- whether by law or otherwise -- on the
investment powers of the Trustee. Consequently the Trustee may
invest the Fund in property (or a part interest therein) which is
real or personal, tangible or intangible, wherever located, whether
or not productive of income or consisting of wasting assets, as the
Trustee shall deem best for the Participants, Inactive Participants
and their spouses and Beneficiaries. Furthermore, the Trustee may,
without regard to any law now or hereafter in force limiting
investments by fiduciaries, invest in a range of investments which
includes, among other things, real estate (whether income-producing
or not); securities issued by any Employer which has adopted the
Plan or any other corporation; speculative common stocks; any
common trust fund or mutual fund held or administered by the
Trustee, any of its subsidiaries, or any other corporation; any
real estate investment trust in which the Trustee or any other
corporation may have any interest whatsoever; low risk bonds;
mortgages on real or personal property wherever situated; equipment
trust certificates; notes or other evidence of indebtedness; shares
of investment companies and mutual funds; interests in partnerships
and trusts; insurance policies and contracts; option contracts such
as those traded on an option exchange; and any other property or
joint or other part interest in property (including without
limitation, part interests in bonds and mortgages or notes and
mortgages), real or personal, of any kind, class or character,
which the Trustee may in its discretion deem suitable for the Fund,
and irrespective (except to the extent specifically set forth
above) of whether any Trustee, individually or as Trustee, is
acting as a participator of any part interest in property that may
be acquired.
<PAGE> 40
(i) The Trustee is explicitly authorized to acquire and hold
"qualifying employer securities" and "qualifying employer real
property," as those terms are defined in the Act. Up to 100% of
the assets of the Plan may be invested in qualifying employer
securities and/or qualifying employer real property.
(ii) The Trustee is explicitly authorized to invest all or
part of the Fund in deposits which bear a reasonable rate of
interest in any bank, or trust company or other financial
institution (including the Trustee, if applicable).
(iii) The Trustee is explicitly authorized to engage in a
transaction with a common or collective trust fund or pooled
investment fund maintained now or created and maintained at a
future time by any bank or trust company (including the Trustee, if
applicable) supervised by a State or Federal agency provided that
such transaction is a sale or a purchase of an interest in such
common or collective trust and further provided that such bank or
trust company receives not more than reasonable compensation. This
general power is meant to be broad enough to avoid specific
identification of all such funds in this document; and any officer
of the Employer, is authorized (1) to certify to bank examiners and
other parties which specific funds are included in this general
power and (2) to adopt any declarations or enter into any
agreements required so that the Trustee may make investments in
such funds.
8.03 Valuation. The fair market value of the Fund shall be
determined by the Trustee as of each Valuation Date and on such
other dates as the Trustee is directed by the Committee.
8.04 Other Powers. In the management, care and disposition of
the Fund, the Trustee, and its successors, may do all things and
execute such instruments as may be deemed necessary or proper in
order to carry out the provisions of the Plan and this Article 8,
including the following powers (in addition to the investment
powers set forth above), all of which may be exercised without
order of or report to any court and without giving bond:
(a) To sell, exchange, or otherwise dispose of any property at
any time held in the Fund at public or private sale, for cash or on
terms without advertisement; and no person dealing with the Trustee
shall be bound to see to the application of monies paid;
(b) To retain, manage, operate, repair and improve, and to
mortgage and/or lease and/or grant options to sell (for any period
whatsoever) any real or personal
<PAGE> 41
property held by the Trustee;
(c) To compromise, compound, and settle any debt or obligation
due to or from it as Trustee hereunder; and to reduce the rate of
interest on, to extend or otherwise modify, or foreclose upon
default or to otherwise enforce, and to abandon, if it shall deem
it advisable, any property, whether real or personal, which may at
any time be held by it, and in general to protect in every way the
interest of the Fund, either before or after default;
(d) To vote in person or by proxy on any stocks and other
securities held by it, unless by law or regulatory authority the
right to vote be proscribed as to it but vested in Participants of
the Fund, in which latter event the vote shall be only by the
Participants or as directed by them;
(e) To join in, or to dissent from or to oppose, the
reorganization, capitalization, consolidation, sale or merger of
corporations or properties in which the Trustee may be interested
as Trustee, upon such terms and conditions as it may deem wise; and
to accept any securities which may be issued upon any such
reorganization, recapitalization, consolidation, sale or merger and
thereafter to hold the same;
(f) To register any stocks, bonds, or other securities except
interests in real property, held in the Fund in its own name as
Trustee or in the name of a nominee; and to hold any investment in
bearer form, or to combine certificates representing such
investments with certificates of the same issue held by the Trustee
in other fiduciary capacities, or to deposit or to arrange for the
deposit of such securities in a qualified central depository even
though, when so deposited, such securities may be merged and held
in bulk in the name of the nominee of such depository with other
securities deposited therein by any other person; or to deposit or
to arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with
a Federal reserve bank, provided that the books and records of the
Trustee shall at all times show that all such investments are part
of the Fund;
(g) To borrow or raise monies for purposes deemed appropriate
by the Trustee, including the making of Distributions under the
Plan in such amount and upon such terms and conditions as in its
absolute discretion the Trustee may deem advisable; and for any
sums so borrowed to issue its promissory note as Trustee and to
secure the repayment thereof by pledging all or any part of the
Fund; and no person lending money to the Trustee shall be bound to
see to the application of the money loaned or to inquire into the
validity, expediency or propriety of any such borrowing, it being
intended that the Trustee shall also have the power to borrow from
the Trustee's lending department, provided in such case the
interest charged on the loan does not exceed the prevailing
interest rates for a loan of the type made;
<PAGE> 42
(h) To employ agents from time to time, at the expense of the
Fund, and to delegate to them such ministerial and limited duties
as the Trustee sees fit;
(i) To consult with counsel, who may be counsel to the
undersigned Employer, actuaries and other professional advisors,
and to act upon the legal advice of such counsel;
(j) To make, execute, acknowledge and deliver any and all
deeds, leases, assignments and instruments and to do all acts which
they may deem necessary or proper to carry out the investment
provisions of the Plan;
(k) To make Distributions wholly or partly in cash or in kind;
(l) To reserve from investment and to keep unproductive of
income any amounts or part of the Fund as it may from time to time
deem advisable.
8.05 Prohibited Transaction. Anything in this Plan and Trust to
the contrary notwithstanding (and especially the powers granted to
the Trustee herein), the Trustee shall not be authorized to engage
in any transaction which is prohibited by Sections 406 and/or
2003(a) of the Act or Section 4975 of the Code unless the Trustee
determines that such transaction is exempt under the terms of the
Act and the Code therefrom.
8.06 Administration of the Plan; Payments of Benefits; Reliance
on Committee. The Committee shall have the exclusive authority and
responsibility for communicating to the Trustee any and all
decisions and directions concerning the administration of the Plan
and the payment of benefits thereunder (including payees, amounts,
addresses, dates of payments, etc.). In the event the Trustee
shall deem it necessary to withhold any payments or Distributions
pending compliance with legal requirements with respect to probate
of Wills, appointment of a personal representative, payment of or
provision for estate or inheritance taxes, for death duties, or
otherwise, the Trustee shall notify the Committee and shall
thereafter take no action pending compliance, or pending receipt of
the Committee's instructions to distribute. Orders and directions
from the Committee need not specify the purpose of the payment so
ordered, and the Trustee shall not be responsible in any way
respecting the purpose or propriety of such payments or for the
administration of the Plan and Trust.
The Trustee shall not be responsible in any respect for the
adequacy of the Fund to meet or discharge any payments or
liabilities under the Plan; and payments shall be limited to
amounts available in the Fund. Any order or direction from the
Committee shall constitute a certification to the Trustee that the
action directed is one which is in conformity with the provisions
of the Plan and of the Act. To the extent permitted by law, the
Trustee shall not be liable for any action taken
<PAGE> 43
(especially any payment made from the Fund) at the direction of the
Committee or for any failure to act, if such action can under the
terms of the Plan and Trust be taken only after receipt from the
Committee of specific directions or for failure to act pending
receipt of directions from the Committee when direction is required
or is requested in writing by the Trustee.
8.07 Directing the Trustee.
(a) Participants shall be permitted to direct the investment of
their Accounts in accordance with Section 5.06.
(b) The Committee may from time to time direct the Trustee as
to the investment of all or part of the Trust Fund. The Committee
may also from time to time appoint an investment manager or
managers for all, or any part, of the Trust Fund; provided no
investment manager shall be appointed unless it qualifies as an
investment manager within the meaning of Section 3(38) of the Act.
Any such investment manager shall be a named Fiduciary of the Plan
and shall qualify by accepting its appointment as investment
manager in writing.
(c) Upon the appointment and qualification of an investment
manager, the investment manager shall have, subject to any
guidelines issued by the Committee, exclusive power and authority
for the investment and reinvestment of the portion of the Trust
Fund designated by the Committee and shall have the power to direct
the acquisition and disposition of any and all assets and
investment of the Trust Fund. The Trustee shall be relieved from
any liability for the making, retention, or sale of any investment
by or at the direction of an investment manager appointed in the
manner herein set forth or by or at the direction of the Employer.
If the Committee and the Trustee consist of the same individuals,
nothing herein shall be construed to relieve the Committee of its
obligation to review the performance of the investment manager from
time to time.
8.08 Records and Reports.
(a) The Trustee shall keep accurate and detailed accounts of
all investments, receipts and disbursements, and other transactions
hereunder. Within ninety (90) days following the close of each
fiscal year, the Trustee shall file a written report with the
Employer or the Committee setting forth all investments, receipts
and disbursements, and other transactions effected by the Trustee
during such fiscal year. Upon the expiration of ninety (90) days
from the date of filing such annual or other account, the Trustee
shall be forever released and discharged from any liability or
accountability to the Employer as respects the
<PAGE> 44
propriety of its acts or transactions shown in such accounts (other
than liability for acts of fraud or willful misconduct), except
with respect to any such acts or transactions as to which the
Employer shall within such ninety (90) day period file with the
Trustee a written statement claiming a breach of the Trustee's
Fiduciary duties or failure to fulfill the Trustee's obligations
under the Plan and Trust. The Trustee shall never be required to
file any inventory or appraisals, or any annual or other returns to
any court or to post bond.
(b) The Trustee shall be entitled to have a judicial settlement
of any account for which it is responsible. In any such proceeding
or for any judicial instructions required in connection with the
Fund, the only necessary parties thereto in addition to the Trustee
will be the Employer and the Committee. However, the Trustee may
bring in other persons as a party or party defendant.
(c) Any party entitled to written notice or to an accounting
may waive such notice or accounting required under this Section.
To the extent the Trustee is also a member of the Committee, the
Employer and the Committee shall be deemed to waive the notice and
accounting requirements unless the Employer or Committee notifies
the Trustee, within the required notice period, that it intends to
enforce the writing and accounting requirement.
8.09 Notification to Trustee.
(a) Any notice, direction, order, request, certification or
instruction of the Committee to the Trustee shall be in writing
signed by a member of the Committee or shall be presented at a
meeting with the Trustee. To the extent that the Trustee and the
Committee are the same individuals this requirement shall not be
applicable. Any action by the Employer pursuant to any of the
provisions of the Plan or of this Article 8 shall be authorized or
evidenced by a resolution of the Board or by an officer of the
Employer authorized by resolution of the Board to take actions in
connection with this Plan and Trust. The Trustee and every other
person shall be entitled to rely conclusively upon any and all such
notices, directions, orders, requests, certifications and
instructions received from the Committee or from the Employer and
reasonably believed to be properly executed, and shall act and be
fully protected in acting in accordance therewith.
(b) The Trustee, from time to time, may request and be entitled
to certified copies of resolutions of the Employer evidencing the
appointment and termination of office of any members of the
Committee and of successors to such members together with specimens
of their signatures; and the Trustee shall be entitled to rely
conclusively upon such resolutions and signatures as evidence of
the identity of the members of the Committee and shall not be
charged with notice of any change with respect thereto until the
Employer shall have furnished the Trustee with certified copies of
resolutions relative to such change.
8.10 Expenses. All expenses of making purchases and sales, other
expenses of managing
<PAGE> 45
the Fund (including the employment of agents and advisors and the
Trustee's compensation) and any taxes levied or assessed against
the Trustee in respect to the Fund shall constitute a lien against
the assets of the Fund and may be paid by the Trustee (without
approval of the Committee) if not paid by the Employer within a
reasonable time after becoming due. No Trustee receiving
compensation from an Employer or Affiliate as an employee shall be
paid compensation for services as Trustee from the Fund.
8.11 Trustee's Tenure and Succession.
(a) Any Trustee may be removed at any time upon sixty (60) days
notice in writing to the Trustee signed by an authorized member of
the Committee.
(b) Any Trustee may resign at any time upon sixty (60) days
notice in writing to an authorized officer of the Committee.
Within ninety (90) days after such removal or resignation of a
Trustee, the removed or resigning Trustee shall file with the
Employer or the Committee a written account setting forth all
investments, receipts and disbursements, and other transactions in
which such Trustee has participated since the end of the latest
fiscal year in which such an accounting was filed with the Employer
or Committee and containing an exact description of all securities
purchased and sold, the cost or net proceeds of sale, and showing
the securities and investments held at the date of such removal or
resignation and the cost of each item thereof as carried on the
books of the Trustee. Except with respect to any such acts or
transactions as to which the Employer or Committee shall within
such ninety (90) day period file with the Trustee a written
statement claiming a breach of fiduciary duty or failure to observe
the terms of this Article 8, upon the expiration of ninety (90)
days from the date of filing such report, the Trustee participating
in such accounting shall be forever released and discharged from
any liability or accountability to the Employer as respects the
propriety of the Trustee's acts or transactions shown in such
report (other than liability for acts of fraud or willful
misconduct) and the Employer shall thereafter reimburse, indemnify,
and hold harmless the Trustee of and from any and all costs,
claims, losses, demands, or liabilities in respect of its acts,
transactions, duties, obligations or responsibilities as Trustee
during the period covered by such account except those arising from
the Trustee's breach of its fiduciary responsibility under the Act.
(c) Any party entitled to written notice or accounting may
waive the written notice and accounting required under this
Section. If the removed or resigning Trustee was a member of the
Committee at the time of such removal or resignation, the Employer
and the Committee shall be deemed to waive the notice and
accounting requirements unless the Employer or Committee notifies
the
<PAGE> 46
removed or resigning Trustee, within the required notice period,
that it intends to enforce the notice and accounting requirements.
8.12 Successor Trustee. Upon the removal or resignation of a
Trustee acting under this Plan and Trust, a successor Trustee may
be appointed as provided herein. The Trustee who has resigned or
has been removed shall do anything required so that the successor
Trustee shall be able to carry out the rights, duties and
obligations of the Trustee set forth herein. A successor Trustee
shall not be responsible for any act or omission of a predecessor
Trustee, and shall not be required to make any claim or demand
against a predecessor Trustee unless the Committee shall in writing
request the successor Trustee to participate in a claim against a
predecessor Trustee. A successor Trustee shall have and may
exercise all the rights, powers and duties given to an original
Trustee named herein, as such rights, powers and duties may be
amended from time to time. Such rights, powers and duties attach
to the office of Trustee and are not personal to any specific
Trustee which may be serving as Trustee under this Plan and Trust
at any given time.
8.13 Bond and Security. The Trustee shall not be required to
give any bond or any other security for the faithful performance of
the Trustee's duties under this Plan and Trust, except such as may
be required by any law which prohibits the waiver thereof.
8.14 Commingling. If the Committee consents or directs, the Fund
which is held by the Trustee may be commingled with the trust
assets of any Affiliated Sponsor which adopts this Plan and Trust.
No individual Employer shall at any time own any specific assets in
such commingled Fund, its interest being an undivided interest of
its pro rata portion of the entire Fund.
<PAGE> 47
ARTICLE 9
AMENDMENT AND TERMINATION
9.01 Right to Amend. The Company intends for the Plan to be
permanent so long as the corporation exists; however, it reserves
the right to modify, to alter, or to amend this Plan or the Trust,
from time to time by action of the Committee, to any extent that it
may deem advisable, including, but not limited to, any amendment
deemed necessary to ensure the continued qualification of the Plan
under Section 401(a) of the Code or to ensure compliance with the
Act; provided, however, the Company shall not have the authority to
amend this Plan in any manner which will:
(a) permit any part of the Fund (other than such part as is
required to pay taxes and administrative expenses) to be used for
or diverted to purposes other than for the exclusive benefit of the
Participants or their Beneficiaries;
(b) cause or permit any portion of the Fund to revert to or
become the property of the Employer;
(c) change the duties, liabilities, or responsibilities of the
Trustee without its prior written consent.
9.02 Termination and Discontinuance of Contributions. The
Company shall have the right at any time to terminate this Plan and
any Affiliated Sponsor shall have the right to discontinue
permanently its contributions hereunder. Upon Plan termination,
all Participants' Accounts shall become fully vested and
nonforfeitable and the Committee shall direct the Trustee with
reference to the disposition of the Fund, after payment of any
expenses properly chargeable against the Fund. Alternatively, the
Committee may direct the Trustee to either continue to hold the
Fund in Trust and distribute the Accounts of Participants in the
manner provided in Article 6, or to immediately distribute all
amounts held in Trust to the Participants as of the date of such
termination. If this Plan is partially terminated, the provisions
of this Section shall apply only to the Participants affected by
the partial termination.
9.03 IRS Approval of Termination. The Trustee shall not be
required to make any Distribution from this Plan in the event of
complete or partial termination until the Internal Revenue Service
has issued a favorable determination with respect to termination.
<PAGE> 48
ARTICLE 10
SPECIAL DISCRIMINATION RULES
10.01 Definitions.
(a) Actual Contribution Percentage or ACP shall mean the ratio
(expressed as a percentage) of (i) the sum of the Employer Matching
Contributions and After-Tax Contributions made by or on behalf of
the Participant for the Plan Year and, to the extent permitted in
Treasury Regulations and elected by the Employer, the Participant's
Qualified Before-Tax Contributions and Qualified Nonelective
Contributions for the Plan Year, to (ii) the Participant's
Compensation for the Plan Year. The Employer, on an annual basis,
may elect to include or not to include Qualified Before-Tax
Contributions and Qualified Nonelective Contributions in computing
the ACP for a Plan Year. Furthermore, an Employer may elect on an
annual basis to count a Participant's Employer Matching
Contribution toward satisfying the required minimum contribution
under Section 12.03 (minimum contribution for non-key employees in
a top-heavy plan) in lieu of including such contributions in the
ACP.
(b) Actual Deferral Percentage or ADP shall mean the ratio
(expressed as a percentage) of (i) the sum of Before-Tax
Contributions on behalf of a Participant for the Plan Year
(excluding any Excess Deferrals by a Non-highly Compensated
Employee) and, to the extent permitted in Treasury Regulations and
elected by the Employer, the Participant's Qualified Nonelective
Contributions for the Plan Year to (ii) the Participant's
Compensation for the Plan Year. The Employer, on an annual basis,
may elect to include or not include Qualified Nonelective
Contributions in computing the ADP for a Plan Year.
(c) Average Actual Contribution Percentage shall mean the
average (expressed as a percentage) of the Actual Contribution
Percentages of the Participants in a group. The percentage shall
be rounded to the nearest one-hundredth of one percent (four
decimal places).
(d) Average Actual Deferral Percentage shall mean the average
(expressed as a percentage) of the Actual Deferral Percentages of
the Participants in a group. The percentage shall be rounded to
the nearest one-hundredth of one percent (four decimal places).
(e) Combined ADP and ACP Test shall have the meaning as defined
in Section 10.10.
<PAGE> 49
(f) Excess Deferrals shall have that meaning as defined in
Section 10.02.
(g) Excess ACP Contributions shall have that meaning as defined
in Section 10.08.
(h) Excess ADP Deferrals shall have that meaning as defined in
Section 10.05.
(i) Family Member shall mean, with respect to either (1) an
active or former employee who was a 5% or more owner of an Employer
or (2) a Highly Compensated Employee who is one of the ten highest
paid Highly Compensated Employees during the current Plan Year:
(1) his spouse; or
(2) his lineal ascendants or descendants; or
(3) the spouses of his lineal ascendants or descendants.
(j) Gap Period Income shall mean the income or loss
attributable to an Excess ADP Deferral, Excess Deferral, or Excess
ACP Contribution (collectively referred to in this definition as
"Excess Amounts") for the period beginning on the January 1
following the Plan Year in which the Excess Amount arose and ending
on the date the Excess Amount is actually distributed or forfeited
(the "Gap Period"). Gap Period Income may be determined under any
or all of the following procedures provided the method selected is
used consistently for all Distributions or forfeitures attributable
to the same types of Excess Amounts during the Plan Year:
(1) Actual income or loss earned on the Excess Amount during
the Gap Period;
(2) An amount equal to ten percent (10%) of the income or
loss allocable to the Excess Amount during the preceding Plan Year
multiplied by the number of complete months during the Gap Period.
For purposes of determining the number of whole months during the
Gap Period, any Distribution or forfeiture occurring on or before
the 15th day of the month shall be deemed to have been made on the
1st day of that month. All other Distributions or forfeitures
shall be deemed to have been made on the last day of that month;
(3) Income or loss determined using any other method approved
by the Internal Revenue Service.
<PAGE> 50
(k) Highly Compensated Employee shall mean any Employee
eligible to participate in the Plan who, during the current or
prior Plan Year:
(1) was a 5% or more owner of an Employer;
(2) received Compensation from an Employer in excess of
$75,000;
(3) received Compensation from an Employer in excess of
$50,000 and was among the "top paid group" (as defined in Code
Section 414(q) and ignoring the exclusions for age and service) of
the Employer's Employees during the Plan Year; or
(4) was an officer of the Employer receiving Compensation in
excess of 50% of the amount specified in Code Section 415(b)(1)(A).
For this purpose no more than 50 Employees shall be deemed
officers.
For purposes of the definition of "Highly Compensated Employee,"
the term "compensation" shall be defined as provided in Code
Section 414(q)(7). The $50,000 and $75,000 limitations referred to
in this Section shall be adjusted in the same manner as the
limitations specified in Code Section 415(b)(1)(A). Finally, the
term "Highly Compensated Employee" shall be determined in
accordance with Section 414(q) of the Code and Regulations
thereunder.
(l) Maximum Combined Percentage shall have the meaning as
defined in Section 10.10(c).
(m) Non-highly Compensated Employee shall mean an Employee of
the Employer who is neither a Highly Compensated Employee nor a
Family Member of a Highly Compensated Employee.
(n) Qualified Before-Tax Contribution shall mean Before-Tax
Contributions designated by the Committee as Qualified Before-Tax
Contributions. In addition, the following requirements must be
satisfied:
(1) The aggregate of all Before-Tax Contributions for the
Plan Year, including the Qualified Before-Tax Contributions, must
satisfy the requirements of Section 10.03(a);
(2) The Before-Tax Contributions for the Plan Year, excluding
the Qualified Before-Tax Contributions, must satisfy the
requirements of Section 10.03(a);
(3) If the Employer elects to aggregate Qualified Before-Tax
Contributions with Employer Matching Contributions in order to
avoid Excess ACP Contributions, such Qualified Before-Tax
Contributions shall only be taken into account to the extent
necessary to satisfy the provisions of Section 10.06(a)(ii); and
<PAGE> 51
(4) Qualified Before-Tax Contributions must satisfy all other
provisions of this Plan applicable to Before-Tax Contributions and
shall remain part of the Participant's Before-Tax Account.
Nevertheless, except as provided in this Section 10.01(n),
Qualified Before-Tax Contributions shall be excluded in determining
whether any other contribution or benefit satisfies the
nondiscrimination requirements of Code Sections 401(a)(4) and
401(k)(3).
10.02 $7,000 Limit on Before-Tax Contributions.
(a) Notwithstanding any other provision of the Plan to the
contrary, the aggregate of a Participant's Before-Tax Contributions
during a calendar year may not exceed $7,000 multiplied by the Cost
of Living Factor. Any Before-Tax Contributions in excess of the
foregoing limits ("Excess Deferral"), plus any income and minus any
loss allocable thereto, may be distributed to the applicable
Participant no later than April 15 following the Plan Year in which
the Before-Tax Contributions were made.
(b) Any Participant who has an Excess Deferral during a
calendar year may receive a Distribution of the Excess Deferral
during such calendar year plus any income or minus any loss
allocable thereto, provided (i) the Participant requests the
Distribution of the Excess Deferral, (ii) the Distribution occurs
after the date the Excess Deferral arose, and (iii) the Committee
designates the Distribution as a Distribution of an Excess
Deferral.
(c) If a Participant makes a Before-Tax Contribution under this
Plan and in the same calendar year makes a contribution to a Code
Section 401(k) plan containing a cash or deferred arrangement
(other than this Plan), a Code Section 408(k) plan (simplified
employee pension plan), or a Code Section 403(b) plan (tax
sheltered annuity) and, after the return of any Excess Deferral
pursuant to Section 10.02(a) and (b), the aggregate of all such
Before-Tax Contributions and contributions exceed the limitations
contained in Code Section 402(g), then such Participant may request
that the Committee return all or a portion of the Participant's
Before-Tax Contributions for the calendar year plus any income and
minus any loss allocable thereto. The amount by which such Before-
Tax Contributions and contributions exceed the Code Section 402(g)
limitations will also be known as an Excess Deferral.
(d) Any request for a return of Excess Deferrals pursuant to
Section 10.02(c) must:
(i) be made in writing;
(ii) be submitted to the Committee not later than the March
1 following the Plan Year in which the Excess Deferral arose;
<PAGE> 52
(iii) specify the amount of the Excess Deferral; and
(iv) contain a statement that if the Excess Deferral is not
distributed, it will, when added to amounts deferred under other
plans or arrangements described in Sections 401(k), 408(k), or
403(b) of the Code, exceed the limit imposed on the Participant by
Section 402(g) of the Code for the year in which the Excess
Deferral occurred.
(e) Before-Tax Contributions may only be returned to the extent
necessary to eliminate a Participant's Excess Deferral. Excess
Deferrals shall be treated as Annual Additions under the Plan. In
no event shall the returned Excess Deferrals for a particular
calendar year exceed the Participant's aggregate Before-Tax
Contributions for such calendar year.
(f) The income or loss allocable to a Before-Tax Contribution
that is returned to a Participant pursuant to Section 10.02(a) or
(c) shall be determined by multiplying the income or loss allocable
to the Participant's Account for the calendar year in which the
Excess Deferral arose by a fraction. The numerator of the fraction
is the Excess Deferral. The denominator of the fraction is the
value of the Participant's Account balance on the last day of the
calendar year in which the Excess Deferral arose reduced by any
income allocated to the Participant's Account for such calendar
year and increased by any loss allocated to the Participant's
Account for such calendar year. In addition, any Gap Period Income
may, in the discretion of the Committee, also be returned.
(g) The income or loss allocable to an Excess Deferral that is
returned to a Participant pursuant to Section 10.02(b) shall be
determined using the same methods used to compute the Gap Period
Income with the "Gap Period" commencing on January 1 of the
calendar year in which the Before-Tax Contribution was made and
ending on the date the Excess Deferral was distributed.
(h) See Section 6.13(d) for circumstances under which a
Participant's maximum annual Before-Tax Contribution could be
reduced as a result of such Participant receiving a hardship
Distribution.
10.03 Average Actual Deferral Percentage.
(a) The Average Actual Deferral Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Deferral Percentage for Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(i) The Average Actual Deferral Percentage for Participants
who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for Participants who
are Non-highly Compensated Employees for the Plan Year multiplied
by 1.25; or
<PAGE> 53
(ii) The excess of the Average Actual Deferral Percentage for
Participants who are Highly Compensated Employees for the Plan Year
over the Average Actual Deferral Percentage for Participants who
are Non-highly Compensated Employees for the Plan Year is not more
than two percentage points, and the Average Actual Deferral
Percentage for Participants who are Highly Compensated Employees is
not more than the Average Actual Deferral Percentage for
Participants who are Non-highly Compensated Employees multiplied by
two.
(b) The permitted disparity between the Average Actual Deferral
Percentage for Highly Compensated Employees and the Average Actual
Deferral Percentage for Non-Highly Compensated Employees may be
further reduced as required by Section 10.10.
(c) If at the end of the Plan Year, the Plan does not comply
with the provisions of Section 10.03(a), the Employer may do any or
all of the following, except as otherwise provided in the Code or
in Treasury Regulations, in order to comply with such provision:
(i) Distribute Before-Tax Contributions to certain Highly
Compensated Employees as provided in Section 10.05;
(ii) Make a Qualified Nonelective Contribution on behalf of
the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees' Before-Tax
Contributions as provided in Section 10.01(b). Such Qualified
Nonelective Contributions must satisfy the additional requirements
described in (d) below.
(d) Qualified Nonelective Contributions used to satisfy the
provisions of Section 10.03(a) must satisfy the following
requirements:
(i) All Qualified Nonelective Contributions for the Plan Year
must satisfy the nondiscrimination requirements of Code Section
401(a)(4) (prohibition against discrimination in favor of Highly
Compensated Employees);
(ii) Qualified Nonelective Contributions that are not used to
satisfy the provisions of Sections 10.03(a) or 10.06(a) must
satisfy the nondiscrimination requirements of Code Section
401(a)(4);
(iii) Qualified Nonelective Contributions used to satisfy the
provisions of Section 10.03(a) must satisfy all other provisions of
the Plan applicable to Before-Tax Contributions. Nevertheless,
such Qualified Nonelective Contributions shall be excluded in
determining whether any other contribution or benefit satisfies the
nondiscrimination requirements of Code Section 401(a)(4) and shall
be excluded in determining whether the provisions of Section
10.06(a) of this Plan are satisfied.
<PAGE> 54
10.04 Special Rules For Determining Average Actual Deferral
Percentage.
(a) The Actual Deferral Percentage for any Highly Compensated
Employee for the Plan Year who is eligible to have Before-Tax
Contributions allocated to his Account under two or more
arrangements described in Section 401(k) of the Code that are
maintained by an Employer or its Affiliates shall be determined as
if such Before-Tax Contributions were made under a single
arrangement.
(b) If two or more plans maintained by the Employer or its
Affiliates are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), all Before-Tax
Contributions that are made pursuant to those plans shall be
treated as having been made pursuant to one plan.
(c) For purposes of determining the ADP of a Participant who is
either a 5% or more owner of an Employer or one of the ten highest
paid Highly Compensated Employees during the Plan Year, the Before-
Tax Contributions and Compensation of such Participant shall
include the Before-Tax Contributions and Compensation of his Family
Members. Any person who is a Family Member shall not be treated as
a separate Employee in determining the Average Actual Deferral
Percentage for either Non-highly Compensated Employees or for
Highly Compensated Employees.
(d) The determination and treatment of the Before-Tax
Contributions and Actual Deferral Percentage of any Participant
shall be in accordance with such other requirements as may be
prescribed from time to time in Treasury Regulations.
10.05 Distribution of Excess ADP Deferrals.
(a) Before-Tax Contributions exceeding the limitations of
Section 10.03(a) ("Excess ADP Deferrals") and any income or loss
allocable to such Excess ADP Deferral shall be designated by the
Committee as Excess ADP Deferrals and shall be distributed to
Highly Compensated Employees whose Accounts were credited with
Excess ADP Deferrals in the preceding Plan Year. In determining
the amount of Excess ADP Deferrals for each Highly Compensated
Employee, the Committee shall reduce the ADP for each Highly
Compensated Employee as follows:
(i) The ADP for the Highly Compensated Employee(s) with the
highest ADP will be reduced until equal to the second highest ADPs
under the Plan; then
(ii) The ADP for the two (or more) Highly Compensated Employees
with the highest ADPs under the Plan will be reduced until equal to
the third highest ADP level under the Plan; then
<PAGE> 55
(iii) The steps described in (i) and (ii) shall be repeated
with respect to the third and successive highest ADP levels under
the Plan until the Plan complies with one or both of the ADP tests
described in Section 10.03(a).
(b) To the extent administratively practicable, the Committee
shall distribute all Excess ADP Deferrals and any income or loss
allocable thereto (including, in the discretion of the Committee,
Gap Period Income) prior to March 15 following the end of the Plan
Year in which the Excess ADP Deferrals arose. In any event,
however, the Excess ADP Deferrals and any income or loss allocable
thereto (including, in the discretion of the Committee, Gap Period
Income) shall be distributed prior to the end of the Plan Year
following the Plan Year in which the Excess ADP Deferrals arose.
Excess ADP Deferrals shall be treated as Annual Additions under the
Plan.
(c) The income or loss allocable to Excess ADP Deferrals shall
be determined by multiplying the income or loss allocable to the
Participant's Account for the Plan Year in which the Excess ADP
Deferrals arose by a fraction. The numerator of the fraction is
the Excess ADP Deferral. The denominator of the fraction is the
value of the Participant's Account balance on the last day of the
Plan Year in which the Excess ADP Deferrals arose reduced by any
income allocated to the Participant's Account for such Plan Year
and increased by any loss allocated to the Participant's Account
for the Plan Year.
(d) If an Excess Deferral has been distributed to the
Participant pursuant to Section 10.02(a) or (b), then any Excess
ADP Deferral allocable to such Participant for the same Plan Year
shall be reduced by the amount of such Excess Deferral.
(e) Distribution of Excess ADP Deferrals to Participants
described in Section 10.04(c) shall be made in accordance with the
provisions of Proposed Treasury Regulation sec. 1.401(k)-1(f)(5)(iii)
or any successor Treasury Regulation thereto.
(f) Notwithstanding anything in this Plan to the contrary, to
the extent a matched Before-Tax Contribution is an Excess ADP
Deferral and is distributed in accordance with this Section, the
Employer Matching Contribution attributable to the Before-Tax
Contribution must be forfeited at the time of such Distribution,
unless the Employer Matching Contribution is an Excess ACP
Contribution. If the Employer Matching Contribution is an Excess
ACP Contribution, it shall be forfeited or distributed in
accordance with Section 10.08 or 10.09. Any Employer Matching
Contributions that are forfeited pursuant to this paragraph shall
be disregarded in determining whether the limitations of Section
10.06 are satisfied.
<PAGE> 56
10.06 Average Actual Contribution Percentage.
(a) The Average Actual Contribution Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Contribution Percentage for Non-highly Compensated Employees for
the same Plan Year must satisfy one of the following tests:
(i) The Average Actual Contribution Percentage for Participants
who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Contribution Percentage for Participants
who are Non-highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(ii) The excess of the Average Actual Contribution Percentage
for Participants who are Highly Compensated Employees for the Plan
Year over the Average Actual Contribution Percentage for
Participants who are Non-highly Compensated Employees for the Plan
Year is not more than two percentage points, and the Average Actual
Contribution Percentage for Participants who are Highly Compensated
Employees is not more than the Average Actual Contribution
Percentage for Participants who are Non-highly Compensated
Employees multiplied by two.
(b) If at the end of the Plan Year, the Plan does not comply
with the provisions of Section 10.06(a), the Employer may do any or
all of the following, except as otherwise provided in the Code or
in Treasury Regulations, in order to comply with such provision:
(i) Aggregate Qualified Before-Tax Contributions of Non-
highly Compensated Employees with Employer Matching Contributions
of such Participants as provided in Section 10.01(a);
(ii) Distribute vested Employer Matching Contributions to
certain Highly Compensated Employees as provided in Section 10.08;
(iii) Forfeit nonvested Employer Matching Contributions of
certain Highly Compensated Employees as provided in Section 10.09;
(iv) Distribute After-Tax Contributions to certain Highly
Compensated Employees as provided in Section 10.8;
(v) Make a Qualified Nonelective Contribution on behalf of
the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees' Employer
Matching Contributions as provided in Section 10.01(a). Such
Qualified Nonelective Contribution must satisfy the additional
requirements described in (c) below.
<PAGE> 57
(c) Qualified Nonelective Contributions used to satisfy the
provisions of Section 10.06(a) must satisfy the following
requirements:
(i) All Qualified Nonelective Contributions for the Plan Year
must satisfy the nondiscrimination requirements of Code Section
401(a)(4) (prohibition against discrimination in favor of Highly
Compensated Employees);
(ii) Qualified Nonelective Contributions that are not used to
satisfy the provisions of Sections 10.03(a) or 10.06(a) must
satisfy the nondiscrimination requirements of Code Section
401(a)(4); and
(iii) Qualified Nonelective Contributions used to satisfy the
provisions of Section 10.06(a) shall be excluded in determining
whether any other contribution or benefit satisfies the
nondiscrimination requirements of Code Section 401(a)(4) and shall
be excluded in determining whether the provisions of Section
10.03(a) of this Plan are satisfied.
10.07 Special Rules For Determining Average Actual Contribution
Percentages.
(a) The Actual Contribution Percentage for any Highly
Compensated Employee for the Plan Year who is eligible to have
Employer Matching Contributions or Before-Tax Contributions
allocated to his Account under two or more arrangements described
in Sections 401(a) or 401(k) of the Code, that are maintained by an
Employer or its Affiliates, shall be determined as if such
contributions were made under a single arrangement.
(b) If two or more plans maintained by the Employer or its
Affiliates are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), then all Employer Matching
Contributions that are made pursuant to those plans shall be
treated as having been made pursuant to one plan.
(c) For purposes of determining the Actual Contribution
Percentage of a Participant who is a 5% or more owner of an
Employer or one of the ten highest paid Highly Compensated
Employees during the Plan Year, the Employer Matching Contributions
and Compensation of such Participant shall include all Employer
Matching Contributions and Compensation of Family Members. Family
Members shall not be treated as separate Employees for purposes of
determining the Average Actual Contribution Percentage for either
Non-highly Compensated Employees or for Highly Compensated
Employees.
(d) The determination and treatment of the Actual Contribution
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the
<PAGE> 58
Secretary of the Treasury.
10.08 Distribution of Excess ACP Contributions.
(a) After-Tax Contributions and Employer Matching Contributions
exceeding the limitations of Section 10.06(a) ("Excess ACP
Contributions") and any income or loss allocable to such Excess ACP
Contributions may be designated by the Committee as Excess ACP
Contributions and may be distributed in the Plan Year following the
Plan Year in which the Excess ACP Contributions arose to those
Highly Compensated Employees whose Accounts were credited with
Excess ACP Contributions in the preceding Plan Year. The amount of
Excess ACP Contributions to be distributed to a Highly Compensated
Employee shall be determined using the procedure described in
Section 10.05(a).
(b) To the extent administratively practicable, the Committee
shall distribute all Excess ACP Contributions and any income or
loss allocable thereto (including, in the discretion of the
Committee, Gap Period Income) prior to March 15 following the end
of the Plan Year in which the Excess ACP Contributions arose. In
any event, however, the Excess ACP Contributions and any income or
loss allocable thereto (including, in the discretion of the
Committee, Gap Period Income) shall be distributed prior to the end
of the Plan Year following the Plan Year in which the Excess ACP
Contributions arose.
(c) The income or loss allocable to Excess ACP Contributions
shall be determined by multiplying the income or loss allocable to
the Participant's Account for the Plan Year in which the Excess ACP
Contributions arose by a fraction. The numerator of the fraction
is the Excess ACP Contributions. The denominator of the fraction
is the value of the Participant's Account on the last day of the
Plan Year reduced by any income allocated to the Participant's
Account by such Plan Year and increased by any loss allocated to
the Participant's Account for the Plan Year.
(d) Amounts distributed to Highly Compensated Employees under
this Section 10.08 shall be treated as Annual Additions with
respect to the Employee who received such amount.
(e) Distribution of Excess ACP Contributions to Participants
described in Section 10.07(c) shall be made in accordance with the
provisions of Proposed Treasury Regulations sec. 1.401(m)-1(e)(4)(iii)
or any successor Treasury Regulations thereto.
10.09 Forfeiture of Excess ACP Contributions.
(a) Any nonvested Excess ACP Contributions and any income or
loss allocable to the Excess ACP Contributions (including, in the
discretion of the Committee, Gap Period Income) may be forfeited
and applied as provided in Section 4.01.
<PAGE> 59
(b) The amount of any nonvested Excess ACP Contributions to be
forfeited by a particular Highly Compensated Employee shall be
determined pursuant to the procedure described in Section 10.05(a).
(c) The income or loss allocable to Excess ACP Contributions
shall be determined pursuant to the formula described in Section
10.08(c).
(d) Participants described in Section 10.07(c) shall forfeit
their Excess ACP Contributions in accordance with Proposed Treasury
Regulation sec. 1.401(m)-1(e)(4)(iii) or any successor Treasury
Regulation thereto.
(e) Amounts forfeited by Highly Compensated Employees under
this Section shall not be treated as Annual Additions with respect
to the Employee who forfeited such amount.
(f) Notwithstanding anything to the contrary contained herein,
After-Tax Contributions and vested Employer Matching Contributions
may not be forfeited to correct an Excess ACP Contribution.
10.10 Combined ACP and ADP Test.
(a) The Plan must satisfy the Combined ACP and ADP Test
described in this Section 10.10 only if (1) the Average Actual
Deferral Percentage of the Highly Compensated Employees exceeds
125% of the Average Actual Deferral Percentage of the Non-highly
Compensated Employees and (2) the Average Actual Contribution
Percentage of the Highly Compensated Employees exceeds 125% of the
Average Actual Contribution Percentage of the Non-highly
Compensated Employees.
(b) The Combined ACP and ADP Test is satisfied if the sum of
the Highly Compensated Employees' Average Actual Deferral
Percentage and Average Actual Contribution Percentage is equal to
or less than the Maximum Combined Percentage defined in paragraph
(c) below.
(c) The Maximum Combined Percentage shall be determined by
adjusting the Non-Highly Compensated Employees' Average Actual
Deferral Percentage and Average Actual Contribution Percentage in
the following manner:
(i) The greater of the two percentages shall be multiplied by
1.25; and
(ii) The lesser of the two percentages shall be increased by
two percentage points; however, in no event shall such adjusted
percentage exceed twice the original percentage.
The sum of (i) and (ii) shall be the Maximum Combined Percentage.
<PAGE> 60
(d) In the event the Plan does not satisfy the Combined ADP and
ACP Test, the Highly Compensated Employees' Average Actual Deferral
Percentage shall be decreased by distributing Before-Tax
Contributions to certain Highly Compensated Employees using the
procedures described in Section 10.05 until the sum of such
percentage and the Highly Compensated Employees' Average Actual
Contribution Percentage equals the Maximum Combined Percentage.
(e) The Highly Compensated Employees' Average Actual
Contribution Percentage shall not be reduced in order to satisfy
the Combined ADP and ACP Test.
(f) In addition to returning Before-Tax Contributions to
certain Highly Compensated Employees in order to satisfy the
Combined ADP and ACP Test, income or loss allocable to such Before-
Tax Contributions (including, in the discretion of the Committee,
any Gap Period Income) shall also be distributed.
(g) To the extent administratively practicable, the Committee
shall distribute the Before-Tax Contributions and allocable income
or loss (including, in the discretion of the Committee, Gap Period
Income) prior to March 15 following the end of the Plan Year for
which the Combined ADP and ACP Test is computed. In any event,
however, such Before-Tax Contributions and allocable income or loss
(including, in the discretion of the Committee, Gap Period Income)
shall be distributed by the end of the Plan Year following the Plan
Year for which the Combined ADP and ACP Test is computed. Before-
Tax Contributions that are distributed pursuant to this Section
10.10 shall be treated as Annual Additions under the Plan.
(h) The income or loss allocable to returned Before-Tax
Contributions shall be determined using the same procedures as
Section 10.05(c).
(i) To the extent the provisions of this Section 10.10 conflict
with the requirements of Proposed Treasury Regulation Section
1.401(m)-2 or any successor regulation thereto, the provisions of
such Treasury Regulation shall prevail.
10.11 Order of Applying Certain Sections of Article. In applying
the provisions of this Article 10, the determination and
Distribution of Excess Deferrals shall be made first (to the extent
possible), the determination and elimination of Excess ADP
Deferrals shall be made second, the determination and elimination
of Excess ACP Contributions shall be made third and finally the
determination and any necessary adjustment related to the Combined
ADP and ACP Test shall be made.
<PAGE> 61
ARTICLE 11
MAXIMUM BENEFITS
11.01 General Rule.
(a) Notwithstanding any other provision of this Plan, for any
Plan Year, the Annual Additions to a Participant's Account, when
combined with the Annual Additions to the Participant's Account
under all other Qualified individual account plans maintained by
the Employer or its Affiliates, shall not exceed the lesser of
$30,000 or twenty-five percent (25%) of the Participant's
Compensation for such Plan Year (the "maximum permissible amount").
(b) The Employer hereby elects that the limitation year for
purposes of Code Section 415 shall be the Plan Year.
(c) For purposes of determining the limit on Annual Additions
under paragraph (a) of this Section, the dollar limit described
therein, to wit, $30,000, shall be increased for each Plan Year to
the extent permitted by law.
(d) If the amount to be allocated to a Participant's Account
exceeds the maximum permissible amount (and for this purpose
Employer Matching Contributions shall be deemed to be allocated
after Before-Tax Contributions and After-Tax Contributions), due to
the allocation of forfeitures, a reasonable error in estimating
Compensation or a reasonable error in determining the amount of
Before-Tax Contributions that would be made for a Participant, the
excess will be disposed of as follows:
(i) The Participant's After-Tax Contributions (and earnings
thereon) and Before-Tax Contributions (and earnings thereon) shall
be returned to the Participant to the extent such action will
reduce the excess over the maximum permissible amount.
(ii) If there remains an excess after (i), such remaining
excess shall be reallocated among the Participants whose Accounts
have not exceeded the limit in the proportion that the Compensation
of each such Participant bears to the Compensation of all such
Participants. If such reallocation would result in an addition to
another Participant's Account which exceeds the permitted limit,
that excess shall likewise be reallocated among the Participants
whose Accounts do not exceed the limit. However, if the allocation
or reallocation of the excess amounts pursuant to these provisions
causes the limitations of Section 415 of the Internal Revenue Code
to be exceeded with respect to each Participant
<PAGE> 62
for the limitation year, then any such excess shall be held
unallocated in a suspense account. If the suspense account is in
existence at any time during a limitation year, other than the
limitation year described in the preceding sentence, all amounts in
the suspense account shall be allocated and reallocated to
Participants' Accounts (subject to the limitations of Code Section
415) before any Employer Contributions which would constitute
Annual Additions may be made to the Plan for that limitation year.
If a Participant's Annual Additions under this Plan and under
another individual account plan maintained by an Employer or its
Affiliates would result in an excess amount for a limitation year,
the excess amount will be deemed to consist of the Annual Additions
last allocated. If an excess amount is allocated to a Participant
on an allocation date of this Plan which 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 as of such date, times
(ii) the ratio of (A) the Annual Additions allocated to the
Participant for the limitation year as of such date under this
Plan, to (B) the total Annual Additions allocated to the
Participant for the limitation year as of such date under this and
all the other qualified defined contribution plans maintained by
the Employer or its Affiliates.
11.02 Combined Plan Limitation. If the Employer or its Affiliates
maintains, or at any time maintained, a qualified defined benefit
plan covering any Participant in this Plan, the sum of the
Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed 1.0 in any limitation
year, and the annual benefit otherwise payable to the Participant
under such defined benefit plan shall be frozen or reduced to the
extent necessary so that the sum of such fractions shall not exceed
1.0.
11.03 Definitions. For the purposes of this Article 11, the
following definitions shall apply:
(a) "Annual Addition" shall mean the sum of:
(i) After-Tax Contributions;
(ii) Employer Contributions;
(iii) forfeitures; and
<PAGE> 63
(iv) amounts described in Code Sections 415(1)(1) and
419A(d)(2).
(b) "Affiliates" shall have that meaning contained in Section
2.04 except that for purposes of determining who is an Affiliate
the phrase "more than 50 percent" shall be substituted for the
phrase "at least 80 percent" each place it appears in Code Section
1563(a)(1).
(c) "Compensation" shall, for purposes of this Article 11 mean
the Participant's wages within the meaning of Code Section 3401(a)
and all other payments of compensation to the Participant by the
Employer (in the course of the Employer's trade or business) for
which the Employer is required to furnish the Participant a written
statement under Code Sections 6041(a), 6051(a)(3) and 6052.
Compensation shall not, however, include amounts paid or reimbursed
by the Employer for moving expenses incurred by the Participant to
the extent that at the time of payment it is reasonable to believe
that these amounts are deductible by the Employee under Code
Section 217.
(d) "Defined benefit fraction" means a fraction, the numerator
of which is the sum of the Participant's projected annual benefits
under all the defined benefit plans (whether or not terminated)
maintained by the Employer or its Affiliates, and the denominator
of which is the lesser of (i) 125 percent of the dollar limitation
in effect for the limitation year under Section 415(b)(1)(A) of the
Internal Revenue Code or (ii) 140 percent of the highest average
Compensation.
(e) "Defined contribution fraction" means a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's Account under all the defined contribution plans
(whether or not terminated) maintained by the Employer or its
Affiliates for the current, and all prior limitation years; and the
denominator of which is the sum of the maximum aggregate amounts
for the current and all prior limitation years of service with the
Employer or its Affiliates (regardless of whether a defined
contribution plan was maintained by the Employer or its
Affiliates). The maximum aggregate amount in any limitation year
is the lesser of (i) 125 percent of the dollar limitation in effect
under Section 415(c)(1)(A) of the Code; or (ii) 35 percent of the
Participant's Compensation for such year.
(f) "Highest average Compensation" means the average
Compensation for the three consecutive years of service with the
Employer that produces the highest average.
(g) "Projected annual benefit" means the annual retirement
benefit (adjusted to an actuarially equivalent straight life
annuity if such benefit is expressed in a form other than a
straight life annuity or qualified joint and survivor annuity) to
which the Participant would be entitled under the terms of the Plan
assuming (i) the Participant will continue employment until Normal
Retirement Age under the Plan (or current age, if later), and (ii)
the Participant's Compensation for the current limitation year and
all other relevant factors used to determine benefits under the
Plan will remain constant for all future limitation years.
<PAGE> 64
ARTICLE 12
TOP HEAVY RULES
12.01 General. The provisions of this Article of the Plan shall
become effective in any Plan Year in which the Plan is determined
to be Top Heavy and shall supersede any conflicting provision of
this Plan.
12.02 Definitions.
(a) Top Heavy. The Plan shall be Top Heavy for the Plan Year
if, as of the Valuation Date which coincides with or immediately
precedes the Determination Date, the value of the Participant
Accounts of Key Employees exceeds 60% of the value of all
Participant Accounts. If the Employer maintains more than one
plan, all plans in which any Key Employee participates and all
plans which enable this Plan to satisfy the antidiscrimination
requirements of Code Sections 401(a)(4) and 410 must be combined
with this Plan ("required aggregation group") for the purposes of
applying the 60% test described in the preceding sentence. Plans
maintained by the Employer which are not in the required
aggregation group may be combined at the Employer's election with
this Plan for the purposes of determining Top Heavy status if the
combined plan satisfies the requirements of Code Section 401(a)(4)
and 410 ("permissive aggregation group"). In determining the value
of Participant Accounts, all Distributions made during the five-
year period ending on the Determination Date shall be included and
any unallocated Employer Contributions or forfeitures attributable
to the Plan Year in which the Determination Date falls shall also
be included. The Account of (i) any Employee who at one time was
a Key Employee but who is not a Key Employee for any of the five
Plan Years ending on the Determination Date; and (ii) any Employee
who has not performed services for the Employer or a related
employer maintaining a plan in the aggregation group for the five
Plan Years ending on the Determination Date, shall be disregarded
in determining Top Heavy status.
If the Employer maintains a defined benefit plan during the Plan
Year which is subject to aggregation with this Plan, the 60% test
shall be applied after calculating the present value of the
Participants' accrued benefits under the defined benefit plan in
accordance with the rules set forth in that plan and combining the
present value of such accrued benefits with the Participants'
Account balances under this Plan.
<PAGE> 65
Solely for the purpose of determining if the Plan, or any other
plan included in the required aggregation group, is Top-Heavy, a
Non-Key Employee's accrued benefit in a defined benefit plan shall
be determined under (i) the method, if any, that uniformly applies
for accrual purposes under all plans maintained by the Affiliates,
or (ii) if there is no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate permitted under the
fractional accrual rate of Code Section 411(b)(1)(C).
(b) Key Employee. Any Employee of the Employer who, during the
Plan Year or the four preceding Plan Years was an officer receiving
Compensation in excess of 50% of the limit described in Code
Section 415(b)(1)(A), one of the ten Employees of the Employer
owning the largest interests in the Employer and receiving
Compensation equal to or greater than the dollar limit described in
Code Section 415(c)(1)(A), a greater than 5% owner of the Employer,
a greater than 1% owner of the Employer receiving Compensation in
excess of $150,000, or the Beneficiary of a Key Employee. The Code
Section 415(b)(1)(A) and 415(c)(1)(A) limits referred to in the
preceding sentence shall be the specified dollar limit plus any
increases reflecting cost of living adjustments specified by the
Secretary of the Treasury.
(c) Determination Date. The last day of the Plan Year
immediately preceding the Plan Year for which Top Heavy status is
determined. For the first Plan Year, the Determination Date shall
be the last day of the first Plan Year.
(d) Non-Key Employee. Any Participant who is not a Key
Employee.
(e) Employer. The term "Employer" shall include any Affiliate
of such Employer.
(f) Compensation. The term "Compensation" shall have that
meaning as defined in Section 11.03(c).
12.03 Minimum Benefit.
(a) Except as provided below, the Employer Contributions
allocated on behalf of any Non-Key Employee who is employed by the
Employer on the Determination Date shall not be less than the
lesser of (i) 3% of such Non-Key Employee's Compensation, or (ii)
the largest percentage of Employer Contributions and Before-Tax
Contributions, as a percentage of the Key Employee's Compensation,
allocated on behalf of any Key Employee for such Plan Year.
Before-Tax Contributions allocated to the Accounts of Non-Key
Employees and Employer Matching Contributions allocated to the
Accounts of Non-Key Employees that are used to satisfy the
provisions of Section 10.06 shall not be considered in determining
whether a Non-Key Employee has received the minimum contribution
required by this Section 12.03.
<PAGE> 66
(b) The minimum allocation is determined without regard to any
Social Security contribution and shall be made even though, under
other Plan provisions, the Non-Key Employee would have received a
lesser allocation or no allocation for the Plan Year because of the
Non-Key Employee's failure to complete 1,000 Hours of Service, his
failure to make mandatory After-Tax Contributions, or his
Compensation is less than a stated amount.
(c) If the Employer maintains a defined benefit plan in
addition to this Plan, the minimum contribution and benefit
requirements for both plans in a Top Heavy Plan Year may be
satisfied by an allocation of Employer Contributions to the Account
of each Non-Key Employee in the amount of 5% of the Non-Key
Employee's Compensation.
12.04 Combined Plan Limitation For Top Heavy Years.
In any Plan Year during which more than 90% of the Participant
Account balances are attributable to Key Employees, 100% or an
equivalent factor shall be substituted for 125% or an equivalent
factor in the combined plan fraction denominators set forth in the
Section of this Plan which limits maximum benefits pursuant to
Section 415 of the Code. In any Plan Year during which more than
60% but not more than 90% of the Participant Account balances are
attributable to Key Employees, 100% or an equivalent factor shall
be substituted for 125% or an equivalent factor in the combined
plan fraction denominators unless the Account of each Non-Key
Employee participating in the Plan receives an allocation which
satisfies Section 12.03 above, except that for this purpose the
figure "4%" shall be substituted for "3%" where it appears in
Section 12.03(a) and the figure "7.5%" shall be substituted for
"5%" where it appears in Section 12.03(c).
<PAGE> 67
ARTICLE 13
MISCELLANEOUS
13.01 Headings. The headings and sub-headings in this Plan have
been inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof.
13.02 Action by Employer. Except for the Company's power to amend
the Plan (see Section 9.01), any action by an Employer under this
Plan shall be by resolution of its Board of Directors, or by any
person or persons duly authorized by resolution of said Board to
take such action.
13.03 Spendthrift Clause. Except as otherwise required by a
"qualified domestic relations order" as defined in Code Section
414(p), none of the benefits, payments, proceeds or Distributions
under this Plan shall be subject to the claim of any creditor of
any Participant or Beneficiary, or to any legal process by any
creditor of such Participant or Beneficiary, and none of them shall
have any right to alienate, commute, anticipate or assign any of
the benefits, payments, proceeds or Distributions under this Plan
except for the extent expressly provided herein to the contrary.
If any Participant shall attempt to dispose of the benefits
provided for him hereunder, or to dispose of the right to receive
such benefits, or in the event there should be an effort to assign
such benefits or the right to receive such benefits by attachment,
execution or other legal or equitable process, such right to
benefits shall pass and be transferred, at the discretion of the
Plan Administrator, to such one or more as may be appointed by the
Plan Administrator from among the Beneficiaries, if any theretofore
designated by the Participant, or from the spouse, children or
other dependents of the Participant, in such shares as the
Committee may appoint. Any appointment so made by the Committee
may be revoked by it at any time and further appointment made by it
which may include the Participant.
13.04 Discrimination. The Employer, the Committee, the Trustee
and all other persons involved in the administration and operation
of the Plan shall administer and operate the Plan and Trust in a
uniform and consistent manner with respect to all Participants
similarly situated and shall not permit discrimination in favor of
Highly Compensated Employees (as defined in Code Section 414(q)).
13.05 Release. Any payment to a Participant or Beneficiary, or to
their legal representatives, in accordance with the provisions of
this Plan, shall to the extent thereof be in full satisfaction of
all claims hereunder against the Trustee, Plan Administrator,
Committee and the Employer, any of whom may require such
Participant, Beneficiary, or legal representative, as a condition
precedent to such payment, to execute a receipt and release
therefor in such form as shall be determined by the Trustee, the
Committee, or the Employer, as the case may be.
<PAGE> 68
13.06 Compliance with Applicable Laws. The Company, through the
Plan Administrator, shall interpret and administer the Plan in such
manner that the Plan and Trust shall remain in compliance with the
Code, with the Act, and with all other applicable laws,
regulations, and rulings. Notwithstanding anything to the contrary
in the Plan, as evidenced by the amendment and/or restatement
thereof pursuant to this or any other document or other writing,
(i) any form of Distribution available under the Plan prior to any
such amendment and/or restatement of the Plan, which form of
Distribution is a protected benefit under Code Section 411(d)(6),
and (ii) any benefit or other feature which was accrued or
available to Participants under the Plan, prior to any such
amendment and/or restatement, the reduction or elimination of any
of which, under any such amendment and/or restatement, would result
in a violation of Code Section 411 or other applicable provision of
the Code and thereby cause the Plan to fail to qualify under Code
Section 401(a), shall be preserved under the Plan, and shall not be
reduced or eliminated, only to the extent such preservation is
necessary, and only to the extent the absence of such reduction or
elimination (as the case may be) is necessary, to avoid a violation
of Code Section 411 or other applicable provision of the Code which
would cause the Plan to lose qualification under Code Section
401(a). To the extent not otherwise prohibited by applicable law
and as expressly agreed to in writing, a Participant may waive his
rights under the Plan with respect to benefits which have not yet
accrued.
13.07 Merger. In the event of any merger or consolidation of the
Plan with any other plan, or the transfer of assets or liabilities
by the Plan to another plan, each Participant must receive
(assuming that the Plan would terminate) the benefit immediately
after the merger, consolidation, or transfer which is equal to or
greater than the benefit such Participant would have been entitled
to receive immediately before the merger, consolidation, or
transfer (assuming that the plan had then terminated).
13.08 Governing Law. The Plan shall be governed by the laws of
the State of South Carolina to the extent that such laws are not
preempted by Federal law.
13.09 Unclaimed Benefits. If a Participant with a vested Account
balance incurs a Termination of Employment prior to his Retirement
and the Participant or the Participant's Beneficiary fails to
request a Distribution within 60 days after such Participant
attains or would have attained age 65, a notice of the
Participant's entitlement to benefits will be sent by registered
mail to the Participant's last known address. If within three
months of such mailing, the Participant or Beneficiary does not
make a written claim on such vested Account, the Committee shall
direct that such Account be cancelled on the records of the Plan
and the amount of such Account treated as a forfeiture. In the
event such Participant or Beneficiary later requests a Distribution
of his vested Account, the Plan shall distribute such vested
Account to the Participant or Beneficiary, as the case may be,
within 60 days of such request. A Beneficiary claiming ownership
of the Participant's vested Account shall be required to present
evidence of the Participant's death and of the Beneficiary's
designation as such.
<PAGE> 69
ARTICLE 14
ADOPTION OF THE PLAN BY AFFILIATED SPONSORS
14.01 Adoption Procedure. With the consent of the Company,
expressed by resolution of the Board, any Affiliated Sponsor
eligible by law to do so may adopt this Plan for its Employees, by
meeting the following requirements.
(a) The adopting corporation's Board of Directors shall approve
the adoption of the Plan, and said corporation shall execute and
file with the Company an adoption instrument by which it agrees to
be bound as a participating Employer by all terms, provisions,
conditions, and limitations of the Plan as herein provided with
respect to its eligible Employees. The adoption instrument
executed by any such organization shall specify the effective date
of the adoption of the Plan and shall become, as to said
organization and its Employees, a part of the Plan and Trust.
(b) Any such Affiliated Sponsor shall compile and shall submit
all information required by the Committee with reference to persons
in its employment eligible for participation in the Plan.
14.02 No Joint Venture Implied. The adoption of the Plan by any
Employer shall not create a joint venture or partnership relation
between it and any other party hereto, nor shall said action ever
be construed as having that effect. Any right, duties,
liabilities, and obligations assumed hereunder by each Employer, or
imposed upon it pursuant to or as a result of the terms and
provisions of this Plan, shall relate to and affect such Employer
alone.
14.03 Expenses to be Shared. Each Affiliated Sponsor shall pay a
proportionate part of all necessary expenses incurred in the
administration of the Plan. The Employer's proportion of said
expenses each Plan Year shall be the same as the proportion of
total Participants employed by all Employers represented by the
Participants employed by said Employer during said Plan Year.
14.04 Transfer of Members. If a Participant employed by one
Affiliated Sponsor is transferred to the employment of another
Affiliated Sponsor, he shall maintain all of his rights under the
Plan, and his employment and Plan participation shall be considered
uninterrupted, as if no transfer had been made. Separate Employer
Contribution Accounts shall be maintained for contributions made on
behalf of a Participant by separate Employers, and forfeitures from
each Account shall be allocated only to Participants who are
employed by the Employer in question. Credited Service with all
Affiliated Sponsors shall be aggregated for purposes of determining
said transferred Participant's vested portion of his Employer
Contribution Accounts so maintained.
<PAGE> 70
14.05 Withdrawal of Affiliated Sponsor. Any Affiliated Sponsor
may withdraw from the Plan by giving three (3) months notice in
writing of its intention to withdraw to the Trustee and the
Committee, unless a shorter notice shall be agreed by the Company.
Notwithstanding the foregoing, no Affiliated Sponsor shall be
permitted to withdraw from the Plan if, in the opinion of the
Company's legal counsel, such withdrawal would adversely affect the
Plan's status as a Qualified plan.
14.06 Treatment of Funds on Withdrawal. Upon the effective date
of the withdrawal of an Affiliated Sponsor, the Accounts of the
Participants employed by said Employer shall be either distributed
in a lump sum to said Participants or transferred to a successor
trust, as the withdrawing Employer so directs. Notwithstanding the
foregoing, if in the opinion of the Company's counsel, carrying out
the wishes of the withdrawing Employer would adversely affect the
Qualified status of the Plan, the Accounts of the Participants
employed by the withdrawing Employer shall be distributed,
transferred or held as part of the Trust as determined by the
Committee.
14.07 Joint Employees. Notwithstanding anything to the contrary
contained herein, if a Plan Participant receives Compensation
simultaneously from two (2) or more Employers participating in the
Plan, each Employer shall contribute to the Trust on behalf of said
Participant an amount determined according to the Compensation paid
by said Employer only, and separate Employer's Contribution
Accounts shall be maintained for such a Participant for each such
Employer's Contributions. In no event, however, shall a
Participant's benefits be duplicated as a result of this Section.
Forfeitures from said Accounts shall be allocated as provided in
Section 14.04.
14.08 Affiliated Sponsors Share of Total Contribution.
(a) For each Plan Year that this Plan is in effect as to a
particular Employer, the Employer shall make Employer Contributions
on behalf of Participants employed by the Employer in accordance
with Section 4.01.
(b) For any Plan Year, an Affiliated Sponsor may elect in
writing to vary its own contribution to the Trust from the formula
described above. The particular Employer shall deliver said
written election to the Board within the time described in (a)
above. In said event, the provisions of Section 14.08(a) shall not
apply to the particular Employer, and the total amount of said
Employer's Contribution for said Plan Year shall be allocated to
its Employees who are Participants in the Plan on the last day of
said Plan Year in accordance with the provisions of Section 4.01.
Notwithstanding the foregoing, in no event shall an Affiliated
Sponsor be permitted to adopt its own contribution formula if such
formula would, in the opinion of the Company's legal counsel,
adversely affect the Qualified status of the Plan.
<PAGE> 71
ARTICLE 15
TRANSFER OF STOCK PURCHASE PLAN ACCOUNTS
15.01 Election to Participate in the Plan. On or prior to April
1, 1990, and within 90 days after April 1, 1990, all Stock Purchase
Plan Participants will be permitted to elect to discontinue their
participation in the Stock Purchase Plan and participate in this
Plan. Stock Purchase Plan Participants electing to participate in
this Plan shall commence participation immediately and shall
thereafter be eligible to participate only in this Plan until each
succeeding January 1, when Participants will be given an
opportunity to participate in the Stock Purchase Plan.
15.02 Transfer of Retirement Plan Accounts. Stock Purchase Plan
Participants who elect to participate in this Plan and who
participate in the Retirement Plan portion of the Stock Purchase
Plan will, as soon as practicable after their election to
participate in this Plan, have their Stock Purchase Plan Accounts
transferred to this Plan and merged into their Plan sub-accounts as
follows:
(a) The Employer Contribution Account under the Stock Purchase
Plan shall be merged into the Participant's Employer Contribution
Account under this Plan and shall thereafter be maintained and
distributed in accordance with the provisions of this Plan;
(b) The Employee Contribution Account under the Stock Purchase
Plan shall be merged into the Participant's After-Tax Contribution
Account under this Plan and shall thereafter be maintained and
distributed in accordance with the provisions of this Plan;
(c) The Seibels Bruce Group Account under the Stock Purchase
Plan shall be merged into the Participant's Employer Contribution
Account under this Plan.
To the extent that a Participant's Account under the Stock Purchase
Plan is invested in Company Stock, the Trustee of the Stock
Purchase Plan shall be authorized but not required to transfer that
portion of the Participant's Account in kind. To the extent that
a Participant's Account under the Stock Purchase Plan is invested
in U.S. government bonds, the Participant shall be permitted to
direct a transfer of such bonds in kind to the Plan and the Plan
shall hold such bonds as a directed Investment Fund in accordance
with Section 5.06 of the Plan. No transfer of any Participant's
Account in this Plan or the Stock Purchase Plan shall thereafter
occur between the Plan and the Stock Purchase Plan.
<PAGE> 72
ARTICLE 16
MERGER OF THE
ADVANCED SYSTEM APPLICATIONS, INC.
EMPLOYEES PROFIT SHARING PLAN
WITH AND INTO THE PLAN
(Established by Second Amendment; effective January 1, 1991)
16.01 General Provisions. Effective as of January 1, 1991 (the
"Merger Effective Date"), the Advanced System Applications, Inc.
Employees Profit Sharing Plan (the "ASA Plan") is merged with and
into the Plan. The Plan shall, as of the Merger Effective Date,
assume all obligations of the ASA Plan and be responsible for
payment of all vested account balances under the terms and
provisions of the ASA Plan for (i) participants in the ASA Plan
immediately prior to the Merger Effective Date, and (ii) former
participants and beneficiaries with vested account balances under
the ASA Plan immediately prior to the Merger Effective Date. Such
participants and beneficiaries shall, as of the Merger Effective
Date, automatically become Plan Participants with respect to such
vested account balances under the ASA Plan. The Plan shall provide
for said payment of benefits with the assets transferred to the
Trust accompanying the Plan as set forth in Section 16.02 herein.
16.02 Transfer of Plan Assets. Effective as of the Merger
Effective Date, the assets of the ASA Plan, which are held by the
trustee of the trust accompanying the ASA Plan, shall become assets
of the Plan, and shall be transferred to the Trustee as soon as
possible following the Merger Effective Date, where such assets
shall be held by the Trustee under the provisions of the Plan and
its accompanying Trust for the exclusive benefit of Participants
and Beneficiaries under the post-merger Plan, as provided under the
terms and provisions hereof.
16.03 Code Section 401(a) (12) Requirements. As required by Code
Section 401(a) (12), each Participant shall (as if the Plan then
terminated) receive a benefit immediately after the merger and
transfers contemplated under Section 16.02 above which is equal to
or greater than the benefit he would have been entitled to receive
immediately before such transfer and merger (as if either the ASA
Plan or the Plan had then terminated).
16.04 Segregation of Accounts Transferred. Amounts transferred
pursuant to Section 16.02 above shall be segregated and accounted
for separately. Such amounts shall collectively be referred to as
a Participant's "ASA Account." Notwithstanding the preceding
sentences of this Section, to the extent it is no longer
administratively necessary to maintain a Participant's ASA Account
as a separate, segregated account, such account may be merged into
or consolidated with one or more of the sub-accounts established
for the Participant as part of his general Account.
<PAGE> 73
16.05 Method of Distribution. A Participant (or his Beneficiary)
who has an ASA Account and is otherwise entitled to a Distribution
under the terms of this Plan may receive his Account by either or
both of the following methods:
(a) Lump sum cash payment;
(b) A series of monthly, quarterly, or annual installment
payments, of substantially equal amounts, over a period not
exceeding the life expectancy of the Participant (or Beneficiary)
or the joint life expectancy of the Participant and his Beneficiary
(as determined by the Committee in accordance with the actuarial
tables adopted by it for this purpose).
16.06 Vesting. Any Participant who was a participant in the ASA
Plan as of December 31, 1990, shall be vested in his ASA Account
which is not fully vested to the Participant at the time
transferred pursuant to Section 16.02 above according to the
following schedule:
Credited Service Vested Percentage
less than 3 years 0%
3 years 30%
4 years 40%
5 years or more 100%
For purposes of the above schedule, years of Credited Service shall
be years of Credited Service as of the end of the Plan Year in
which his termination of employment occurs. If the Participant has
earned less than three years of Credited Service as of such date,
he shall have no vested interest in such accounts and the entire
balance of such accounts shall be forfeited in accordance with
Section 6.08 of the Plan.
16.07 Outstanding Loans. Any outstanding loans made by the ASA
Plan to participants or beneficiaries in the ASA Plan shall
continue according to the terms and provisions of the loan
documents. The following provisions shall apply with respect to
any such outstanding loan:
(a) In the event a Participant or Beneficiary defaults on such
loan or fails to repay such loan in the time set forth in the
promissory note, the Plan Administrator may satisfy any amount of
principal or interest due and unpaid on the loan at the time of any
default on the loan, and any interest accruing thereafter, by
deduction from the Participant's or Beneficiary's ASA Account.
Such amount of principal and interest due and unpaid shall be
deemed to have been deducted and distributed to the Participant or
Beneficiary immediately upon default, unless such Participant or
Beneficiary was not, at the time of default, eligible to receive a
Distribution under the provisions of this Plan, in which event such
amount shall be deemed to have been deducted and distributed at
such time as the Participant or Beneficiary first becomes eligible
to receive a Distribution
<PAGE> 74
under the provisions of this Plan.
(b) To the extent that an amount is borrowed by a Participant
or Beneficiary from his ASA Account, the Participant's or
Beneficiary's ASA Account will not share in the earnings or losses
of the Trust Fund, but will only share the earnings and losses
based upon the loan made to the Participant or Beneficiary. A
Participant or Beneficiary with an outstanding loan from the Plan
shall have automatically elected to direct the investment of his
ASA Account to the extent so borrowed in accordance with the
preceding sentence.
(c) Notwithstanding any provision of this Plan to the contrary,
this Plan may distribute the promissory note of a Participant or
Beneficiary or may cancel all or a portion of the indebtedness
evidenced by such note in lieu of making a cash Distribution
required by this Plan.
16.08 Investment of Transferred Assets. Notwithstanding any other
provisions of this Plan to the contrary, the assets transferred
from the ASA Plan under Section 16.02 above shall be liquidated and
invested by the Trustee pursuant to the investment directions of
Participants as provided in Section 5.06.
16.09 Early Retirement. With respect to Plan Years beginning
before January 1, 1994 and notwithstanding any other provisions of
this Plan to the contrary, and in addition to the otherwise
applicable provisions of Section 2.22 of this Plan, a Participant
whose ASA Account was transferred to this Plan under Section 16.02
above, shall be entitled to early retirement under the provisions
of this Plan but only with respect to his ASA Account by
substituting the following for Section 2.22 hereof:
2.22 Early Retirement Date shall mean the first day
of the month following the day on which a Participant has
earned 10 years of Credited Service and attained age 55."
<PAGE> 75
ARTICLE 17
MERGER OF THE
MANDAT COMPUTER CORP.
MONETARY ACCUMULATION PLAN
WITH AND INTO THE PLAN
(Established by Third Amendment; effective July 1, 1991)
17.01 General Provisions. Effective as of July 1, 1991 (the
"Merger Effective Date"), the Mandat Computer Corp. Monetary
Accumulation Plan (the "Mandat Plan") is merged with and into the
Plan. The Plan shall assume, as of the Merger Effective Date, all
obligations of the Mandat Plan and be responsible for payment of
all vested account balances under the terms and provisions of the
Mandat Plan for (i) participants in the Mandat Plan immediately
prior to the Merger Effective Date, and (ii) former participants
and beneficiaries with vested account balances under the Mandat
Plan immediately prior to the Merger Effective Date. Such
participants and beneficiaries shall become, as of the Merger
Effective Date, Plan Participants with respect to such vested
account balances under the Mandat Plan. The Plan shall provide for
said payment of benefits with the assets transferred to the Trust
accompanying the Plan as set forth in Section 17.02 herein.
17.02 Transfer of Plan Assets. Effective as of the Merger
Effective Date, the assets of the Mandat Plan, which are held by
the trustee of the trust accompanying the Mandat Plan, shall become
assets of the Plan, and shall be transferred to the Trustee as soon
as possible following the Merger Effective Date, where such assets
shall be held by the Trustee under the provisions of the Plan and
its accompanying Trust for the exclusive benefit of Participants
and Beneficiaries under the post-merger Plan, as provided under the
terms and provisions hereof.
17.03 Code Section 401(a) (12) Requirements. As required by Code
Section 401(a) (12), each Participant shall receive a benefit
immediately after the merger and transfers pursuant to Section
17.02 above which is equal to or greater than the benefit he would
have been entitled to receive immediately before such transfer and
merger as if either the Mandat Plan or the Plan had then
terminated.
17.04 Segregation of Accounts Transferred. Amounts transferred
pursuant to Section 17.02 above shall be segregated and accounted
for separately. Such segregated sub-accounts shall consist of a
"Mandat Before-Tax Contribution Account" which shall be treated in
the same manner as the Before-Tax Contributions, as defined in
Section 2.10, made by the Participant. There shall also be the
"Mandat Matching Contribution Account" which shall be treated in
the same manner as the Employer Matching Contribution, as defined
in Section 2.28; provided, however, the entire balance of the
Mandat Matching Contribution Account shall at all times remain
vested with the Participant,
<PAGE> 76
notwithstanding any provision to the contrary relating to Employer
Matching Contributions. The Mandat Before-Tax Contribution Account
and Mandat Matching Contribution Account are referred to
collectively as a Participant's "Mandat Account." Notwithstanding
the preceding sentences of this Section, to the extent it is no
longer administratively necessary to maintain a Participant's
Mandat Account as a separate, segregated account, such account may
be merged into or consolidated with one or more of the sub-accounts
established for the Participant as part of his general Account.
17.05 Method of Distribution. A Participant (or his Beneficiary)
who has a Mandat Account and is otherwise entitled to a
Distribution under the terms of this Plan may receive his Account
by either of the following methods:
(a) Lump sum cash payment; or
(b) A series of substantially equal annual installments over a
period not exceeding the lesser of five years or the Participant's
life expectancy.
Provided, however, a Distribution shall be made in a single lump
sum if the total of the Participant's Account balance does not
exceed $3,500 or if the Participant does not elect the Distribution
method within a reasonable time as determined by the Committee.
17.06 Vesting. Any Participant who was a participant in the
Mandat Plan as of February 28, 1991, shall be fully vested in the
amounts transferred from the Mandat Plan to the Plan pursuant to
Section 17.02 above.
17.07 Outstanding Loans. Any outstanding loans made by the Mandat
Plan to participants or beneficiaries in the Mandat Plan shall
continue according to the terms and provisions of the loan
documents. The following provisions shall apply with respect to
any such outstanding loan:
(a) In the event a Participant or Beneficiary defaults on such
loan or fails to repay such loan in the time set forth in the
promissory note, the Plan Administrator may satisfy any amount of
principal or interest due and unpaid on the loan at the time of any
default on the loan, and any interest accruing thereafter, by
deduction from the Participant's or Beneficiary's Mandat Account.
Such amount of principal and interest due and unpaid shall be
deemed to have been deducted and distributed to the Participant or
Beneficiary immediately upon default, unless such Participant or
Beneficiary was not, at the time of default, eligible to receive a
Distribution under the provisions of this Plan, in which event such
amount shall be deemed to have been deducted and distributed at
such time as the Participant or Beneficiary first becomes eligible
to receive a Distribution under the provisions of this Plan.
<PAGE> 77
(b) To the extent that an amount is borrowed by a Participant
or Beneficiary from his Mandat Account, the Participant's or
Beneficiary's Mandat Account will not share in the earnings or
losses of the Trust Fund, but will only share the earnings and
losses based upon the loan made to the Participant or Beneficiary.
A Participant or Beneficiary with an outstanding loan from the Plan
shall have automatically elected to direct the investment of his
Mandat Account to the extent so borrowed in accordance with the
preceding sentence.
(c) Notwithstanding any provision of this Plan to the contrary,
this Plan may distribute the promissory note of a Participant or
Beneficiary or may cancel all or a portion of the indebtedness
evidenced by such note in lieu of making a cash Distribution
required by this Plan.
17.08 Investment of Transferred Assets. Notwithstanding any other
provisions of this Plan to the contrary, the assets transferred
from the Mandat Plan under Section 17.02 above shall be liquidated
and invested by the Trustee pursuant to the investment directions
of Participants as provided in Section 5.06.
<PAGE> 78
ARTICLE 18
MERGER OF THE
STOCK PURCHASE SAVINGS PROGRAM
FOR EMPLOYEES OF
POLICY MANAGEMENT SYSTEMS CORPORATION
WITH AND INTO THE PLAN
(Established by Fourth Amendment; effective December 31, 1992)
18.01 General Provisions. Effective as of December 31, 1992 (the
"Merger Effective Date"), the Stock Purchase Savings Program for
Employees of Policy Management Systems Corporation (the "Stock
Purchase Plan") is merged with and into the Plan. The Plan shall,
as of the Merger Effective Date, assume all obligations of the
Stock Purchase Plan and be responsible for payment of all vested
account balances under the terms and provisions of the Stock
Purchase Plan for (i) participants in the Stock Purchase Plan
immediately prior to the Merger Effective Date, and (ii) former
participants and beneficiaries with vested account balances under
the Stock Purchase Plan immediately prior to the Merger Effective
Date. Such participants and beneficiaries shall, as of the Merger
Effective Date, automatically become Plan Participants with respect
to such vested account balances under the Stock Purchase Plan. It
is the intent of the Employer that rules governing contributions,
accounts, and distributions under the terms of the Stock Purchase
Plan be applied to Employee After-Tax Contributions and Employer
Matching Contributions related to such After-Tax Contributions
under this Plan unless specifically changed by this Plan. The Plan
shall provide for said payment of benefits with the assets
transferred to the Trust accompanying the Plan as set forth in
Section 18.02 herein.
18.02 Transfer of Plan Assets. Effective as of the Merger
Effective Date, the assets of the Stock Purchase Plan, which are
held by the trustee of the trust accompanying the Stock Purchase
Plan, shall become assets of the Plan, and shall be transferred to
the Trustee as soon as possible following the Merger Effective
Date, where such assets shall be held by the Trustee under the
provisions of the Plan and its accompanying Trust for the exclusive
benefit of Participants and Beneficiaries under the post-merger
Plan, as provided under the terms and provisions hereof. Any
unallocated forfeitures that are transferred to the Plan from the
Stock Purchase Plan shall be used to reduce Employer Matching
Contributions on behalf of any Participant in the Plan.
18.03 Code Section 401(a)(12) Requirements. As required by Code
Section 401(a)(12), each Participant shall (as if the Plan then
terminated) receive a benefit immediately after the merger and
transfers contemplated under Section 18.02 above which is equal to
or greater than the benefit he would have been entitled to receive
immediately before such transfer and merger (as if either the Stock
Purchase Plan or the Plan had then terminated).
<PAGE> 79
18.04 Segregation of Accounts Transferred. Amounts transferred to
the Plan pursuant to Section 18.02 above shall be segregated and
accounted for separately for recordkeeping purposes in accordance
with the provisions of Article 5. Notwithstanding the preceding
sentence, to the extent it is no longer administratively necessary
to maintain a separate, segregated account for amounts transferred
to the Plan pursuant to Section 18.02, such account may be merged
into or consolidated with one or more of the sub-accounts
established for the Participant as part of his general Account.
18.05 Loans. No amounts transferred to the Plan pursuant to this
Article, Employee After-Tax Contributions, or Employer Matching
Contributions on Basic After-Tax Contributions shall be available
for Plan loans.
<PAGE> 80
ARTICLE 19
MERGER OF THE CYBERSAVER 401(k) PLAN
FOR EMPLOYEES OF CYBERTEK CORPORATION
WITH AND INTO THE PLAN
(Established by Sixth Amendment, effective January 1, 1994)
19.01 General Provisions. Effective as of January 1, 1994 (the
"Merger Effective Date"), the Cybersaver 401(k) Plan for Employees
of Cybertek Corporation (the "Cybertek Plan") is merged with and
into the Plan. The Plan shall, as of the Merger Effective Date,
assume all obligations of the Cybertek Plan and be responsible for
payment of all vested account balances under the terms and
provisions of the Cybertek Plan for (i) participants in the
Cybertek Plan immediately prior to the Merger Effective Date, and
(ii) former participants and beneficiaries with vested account
balances under the Cybertek Plan immediately prior to the Merger
Effective Date. Such participants and beneficiaries shall, as of
the Merger Effective Date, automatically become Plan Participants
and Beneficiaries under this Plan. Moreover, any employee of
Cybertek Corporation who would have become a participant in the
Cybertek Plan on January 1, 1994, had the Cybertek Plan not been
merged into this Plan, shall automatically become a Participant in
this Plan as of the Merger Effective Date. The Plan shall provide
for said payment of benefits with the assets transferred to the
Trust accompanying the Plan as set forth in Section 19.02 herein.
19.02 Transfer of Plan Assets. Effective as of the Merger
Effective Date, the assets of the Cybertek Plan, which are held by
the trustee of the trust accompanying the Cybertek Plan, shall
become assets of the Plan, and shall be transferred to the Trustee
as soon as possible following the Merger Effective Date. Such
assets shall be held by the Trustee under the provisions of the
Plan and its accompanying Trust for the exclusive benefit of
Participants and Beneficiaries under the post-merger Plan, as
provided under the terms and provisions hereof.
19.03 Code Section 401(a)(12) Requirements. As required by Code
Section 401(a)(12), each Participant shall (as if the Plan then
terminated) receive a benefit immediately after the merger and
transfer contemplated under Section 19.02 above which is equal to
or greater than the benefit he would have been entitled to receive
immediately before such transfer and merger (as if either the
Cybertek Plan or the Plan had then terminated).
19.04 Accounting for Accounts Transferred. Amounts transferred to
the Plan pursuant to Section 19.02 above shall be combined with the
existing assets of the Plan and for recordkeeping purposes
generally accounted for by adding such amounts to the sub-accounts
currently in use under the Plan for contributions of similar
character. Notwithstanding the preceding sentence, amounts
transferred to the Plan attributable to Participant Regular
Matching and Profit Sharing Accounts under the Cybertek Plan shall
be segregated and accounted for separately as "Cybertek Regular
Matching Accounts" and "Cybertek Profit Sharing Accounts,"
respectively, for recordkeeping
<PAGE> 81
purposes. Except as otherwise provided in this Article 19, these
Cybertek Regular Matching and Profit Sharing Accounts shall be
treated in the same manner as all other Accounts in the Plan.
Notwithstanding the preceding sentences of this Section, to the
extent it is no longer administratively necessary to maintain a
Participant's Cybertek Regular Matching and Profit Sharing Accounts
as separate, segregated accounts, such accounts may be merged into
or consolidated with one or more of the sub-accounts established
for the Participant as part of his general Account.
19.05 Method of Distribution. A Participant (or his Beneficiary)
who is otherwise entitled to a Distribution under the terms of this
Plan may receive his Cybertek Regular Matching and Profit Sharing
Accounts and his other Accounts under the Plan, provided the entire
amount in such Accounts exceeds $3,500, by either of the following
methods:
A. A lump sum payment; or
B. Payment of such amount directly from the Trust (as
adjusted for gains and losses), in uniform annual or more frequent
installments of at least $100 (provided, however, that the first
installment may be larger than the remaining installments) to such
Participant over a period not longer than the joint and last
survivor expectancy of the Participant and his spouse, if any,
reasonably determined from the expected return multiples prescribed
in Treasury Regulation Section 1.72-9.
If the Participant fails to make an election within the time period
prescribed by the Committee, his Accounts shall be distributed in
a lump sum payment.
19.06 Normal Retirement Age. A Participant who had an account
balance under the Cybertek Plan on the day before the Merger
Effective Date shall be deemed to have attained his Normal
Retirement Age for purposes of Section 2.34 on his sixty-fifth
birthday.
19.07 Vesting. A Participant who was a participant in the
Cybertek Plan as of December 31, 1993, shall be vested in his
Cybertek Regular Matching Account if it is not fully vested at the
time transferred pursuant to Section 19.02 above according to the
following schedule:
Credited Service Vested Percentage
less than 3 0%
3 20%
4 40%
5 (or more) 100%
<PAGE> 82
19.08 Special Withdrawal after Age 59 1/2. A Participant who had
an account balance under the Cybertek Plan on the day before the
Merger Effective Date, and who has completed at least seven years
of Credited Service may make one withdrawal from his Before-Tax
Contribution Account at any time after his attainment of age 59 1/2
and before his Termination of Employment.
19.09 Forfeitures. A Participant who has a Cybertek Regular
Matching Account in which he is not fully vested and who incurs a
Termination of Employment shall forfeit the nonvested portion of
such Account upon the first to occur of a Break in Service or the
Distribution of the Participant's entire vested interest in all of
his Accounts. The disposition of such forfeitures shall be as set
forth in Section 6.08 of the Plan.
If a Participant incurs a Termination of Employment, receives a
Distribution, forfeits his nonvested Cybertek Regular Matching
Account in accordance with the preceding paragraph, and is rehired
prior to incurring a Break in Service, he will be given the
opportunity to repay the total amount distributed to him from his
Cybertek Regular Matching Account in which case any amounts
forfeited due to his Distribution shall be reinstated to his
Cybertek Regular Matching Account. All such repayments must be
made before (1) the Participant has a Break in Service commencing
after such withdrawal, or (2) the fifth anniversary of the date
the Participant is rehired, whichever is earlier. This buyback
option shall also apply to Participants who had a separation from
service under the Cybertek Plan and forfeited the nonvested
portions of their Cybertek Regular Matching Accounts prior to the
Merger Effective Date.
For purposes of this Section, a Participant who incurs a
Termination of Employment prior to obtaining any vested interest in
his Cybertek Profit Sharing Account is treated as having been
cashed-out of the Plan on his termination date and his status as a
Participant in the Plan shall cease as of that date. If a
terminated Participant who is deemed to have received a
Distribution pursuant to the preceding sentence resumes employment
and again becomes eligible to participate in the Plan before
incurring a Break in Service, the Participant's Cybertek Profit
Sharing Account will be restored to its value as of the date of the
deemed Distribution.
19.10 Investment of Transferred Assets. Notwithstanding any other
provisions of this Plan to the contrary, the assets transferred
from the Cybertek Plan under Section 19.02 above shall be
liquidated and invested by the Trustee pursuant to the investment
directions of the Participants as provided in Section 5.06.
<PAGE> 83
ARTICLE 20
MERGER OF THE PMS, INC. PROFIT SHARING/401(k) PLAN AND TRUST
WITH AND INTO THE PLAN
20.01 General Provisions. Effective as of January 1, 1995 (the
"Merger Effective Date"), the PMS, Inc. Profit Sharing/401(k) Plan
and Trust (the "PMS Plan") is merged with and into the Plan. The
Plan shall be the surviving plan with respect to such merger, and
the Plan shall not be terminated as a result of such merger. The
Plan shall, as of the Merger Effective Date, assume all obligations
of the PMS Plan and be responsible for payment of all vested
account balances under the terms and provisions of the PMS Plan for
(i) participants in the PMS Plan immediately prior to the Merger
Effective Date, and (ii) former participants and beneficiaries with
vested account balances under the PMS Plan immediately prior to the
Merger Effective Date. Such participants and beneficiaries shall,
as of the Merger Effective Date, automatically become Plan
Participants and Beneficiaries under this Plan. Moreover, any
employee of PMS, Inc. who would have become a participant in the
PMS Plan on January 1, 1995, had the PMS Plan not been merged into
this Plan, shall automatically become a Participant in this Plan as
of the Merger Effective Date. The Plan shall provide for said
payment of benefits with the assets transferred to the Trust
accompanying the Plan as set forth in Section 20.02 herein.
20.02 Transfer of Plan Assets. Effective as of the Merger
Effective Date, the assets of the PMS Plan, which are held by the
trustee of the trust accompanying the PMS Plan, shall become assets
of the Plan, and shall be transferred to the Trustee as soon as
possible following the Merger Effective Date. Such assets shall be
held by the Trustee under the provisions of the Plan and its
accompanying Trust for the exclusive benefit of Participants and
Beneficiaries under the post-merger Plan, as provided under the
terms and provisions hereof.
20.03 Code Section 401(a)(12) Requirements. As required by Code
Section 401(a)(12), each Participant shall (as if the Plan then
terminated) receive a benefit immediately after the merger and
transfer contemplated under Section 20.02 above which is equal to
or greater than the benefit he would have been entitled to receive
immediately before such transfer and merger (as if either the PMS
Plan or the Plan had then terminated).
20.04 Accounting for Accounts Transferred. Amounts transferred to
the Plan pursuant to Section 20.02 above shall be combined with the
existing assets of the Plan and for recordkeeping purposes
generally accounted for by adding such amounts to the sub-accounts
currently in use under the Plan for contributions of similar
character. Notwithstanding the preceding sentence, amounts
transferred to the Plan attributable to Participant Discretionary
Employer Account and Matching Employer Account under the PMS Plan
shall be segregated and accounted for separately, on a combined
basis, as the "PMS Employer Contribution Account", for
recordkeeping purposes. Except as otherwise provided in this
Article 20, these PMS Employer Contribution Accounts shall be
treated in the same manner as all other Accounts in the Plan.
Notwithstanding
<PAGE> 84
the preceding sentences of this Section, to the extent it is no
longer administratively necessary to maintain a Participant's PMS
Employer Contribution Account as a separate, segregated account,
such account may be merged into or consolidated with one or more of
the sub-accounts established for the Participant as part of his
general Account.
20.05 Vesting. A Participant who was a participant in the PMS
Plan as of December 31, 1994, shall be vested in his PMS Employer
Contribution Account if it is not fully vested at the time
transferred pursuant to Section 20.02 above according to the
following schedule:
Credited Service Vested Percentage
less than 2 0%
2 20%
3 40%
4 60%
5 (or more) 100%
20.06 Forfeitures. A Participant who has a PMS Employer
Contribution Account in which he is not fully vested and who incurs
a Termination of Employment shall forfeit the nonvested portion of
such Account upon the first to occur of a Break in Service or the
Distribution of the Participant's entire vested interest in all of
his Accounts. The disposition of such forfeitures shall be as set
forth in Section 6.08 of the Plan.
If a Participant incurs a Termination of Employment, receives a
Distribution, forfeits his nonvested PMS Employer Contribution
Account in accordance with the preceding paragraph, and is rehired
prior to incurring a Break in Service, he will be given the
opportunity to repay the total amount distributed to him from his
PMS Employer Contribution Account in which case any amounts
forfeited due to his Distribution shall be reinstated to his PMS
Employer Contribution Account. All such repayments must be made
before (1) the Participant has a Break in Service commencing after
such withdrawal, or (2) the fifth anniversary of the date the
Participant is rehired, whichever is earlier. This buyback option
shall also apply to Participants who had a separation from service
under the PMS Plan and forfeited the nonvested portions of their
PMS Discretionary Contribution and Matching Contribution Accounts
prior to the Merger Effective Date.
For purposes of this Section, a Participant who incurs a
Termination of Employment prior to obtaining any vested interest in
his PMS Employer Contribution Account is treated as having been
cashed-out of the Plan on his termination date and his status as a
Participant in the Plan shall cease as of that date. If a
terminated Participant who is deemed to have received a
Distribution pursuant to the preceding sentence resumes employment
and again becomes eligible to participate in the Plan before
incurring a Break in Service, the Participant's PMS Employer
Contribution Account will be restored to its value as of the date
of the deemed Distribution.
<PAGE> 85
20.07 Investment of Transferred Assets. Notwithstanding any other
provisions of this Plan to the contrary, the assets transferred
from the PMS Plan under Section 20.02 above shall be liquidated and
invested by the Trustee pursuant to the investment directions of
the Participants as provided in Section 5.06.
20.08 Outstanding Loans. Any outstanding loans made by the PMS,
Inc. Plan to participants or beneficiaries in the PMS, Inc. Plan
shall continue according to the terms and provisions of the loan
documents. The following provisions shall apply with respect to
any such outstanding loan:
(a) In the event a Participant or Beneficiary defaults on such
loan or fails to repay such loan in the time set forth in the
promissory note, the Plan Administrator may satisfy any amount of
principal or interest due and unpaid on the loan at the time of any
default on the loan, and any interest accruing thereafter, by
deduction from the Participant's or Beneficiary's PMS, Inc.
Account. Such amount of principal and interest due and unpaid
shall be deemed to have been deducted and distributed to the
Participant or Beneficiary immediately upon default, unless such
Participant or Beneficiary was not, at the time of default,
eligible to receive a Distribution under the provisions of this
Plan, in which event such amount shall be deemed to have been
deducted and distributed at such time as the Participant or
Beneficiary first becomes eligible to receive a Distribution under
the provisions of this Plan.
(b) To the extent that an amount is borrowed by a Participant
or Beneficiary from his PMS, Inc. Account, the Participant's or
Beneficiary's PMS, Inc. Account will not share in the earnings or
losses of the Trust Fund, but will only share the earnings and
losses based upon the loan made to the Participant or Beneficiary.
A Participant or Beneficiary with an outstanding loan from the Plan
shall have automatically elected to direct the investment of his
PMS, Inc. Account to the extent so borrowed in accordance with the
preceding sentence.
(c) Notwithstanding any provision of this Plan to the contrary,
this Plan may distribute the promissory note of a Participant or
Beneficiary or may cancel all or a portion of the indebtedness
evidenced by such note in lieu of making a cash Distribution
required by this Plan.
20.09 Normal Retirement Age. A Participant who has had an account
balance under the PMS, Inc. Plan on the day before the Merger
Effective Date shall be deemed to have attained his Normal
Retirement Age for purposes of Section 2.34 on his sixty-fifth
birthday.
<PAGE> 86
IN WITNESS WHEREOF, the Company has caused this Plan to be duly
executed and its seal to be hereunto affixed on the date indicated
below, but effective as of April 1, 1990.
POLICY MANAGEMENT SYSTEMS CORPORATION
BY (SIGNATURE) /s/ Robert L. Gresham
(NAME AND TITLE) Robert L. Gresham, Secretary for the
Committee
DATE March 29, 1995
<PAGE> 87
SCHEDULE A
TO THE
POLICY MANAGEMENT SYSTEMS CORPORATION
401(k) RETIREMENT SAVINGS PLAN
Affiliated Sponsors
Policy Management Corporation (From 04/01/90 through 12/31/93)
Cybertek Solutions, L.P.
01/01/95
PMSI, L.P.
01/01/95
<PAGE> 88
SCHEDULE B
TO THE
POLICY MANAGEMENT SYSTEMS CORPORATION
401(k) RETIREMENT SAVINGS PLAN
The employees in the following acquired companies (or hired from
such companies if PMSC acquired only the assets of said company)
received NO back vesting credit for prior service with the
acquired company.
Armfelt & Associates 03/01/88
Aavant Health Management 05/07/87
Allied Research Incorporated 02/12/87
Autocheck, Inc. 11/01/89
Brandanger & Associates 05/01/88
CAPSCO PALLM Systems, Inc. 04/01/92
Consolidated Insurance Services 02/28/87
E.C. Preston & Company, Inc. 02/21/88
Hooper Holmes, Inc. 09/16/88
Inspections Services Inc. 09/30/89
Jensen & More, Inc. 08/27/87
MVR Services, Inc. 11/01/87
NAK & Associates 09/01/88
National Technical Services 11/18/88
Pennsylvania National Insurance 01/02/89
Rapid Information Service 04/01/88
Schneider & Associates 11/04/88
Sullins Ins. Audit Services 11/14/88
SIS, Inc. 04/01/88
The employees in the following acquired companies (or hired from
such companies if PMSC acquired only the assets of said company)
received back vesting credit for prior service with the acquired
company only if the employee: was employed prior to 1987;
completed 1,000 hours of service during 1987; and was employed on
December 31, 1987. If the employee did not meet these criteria,
then the employee did NOT receive any back vesting credit for
prior service.
Commercial Services, Inc. 12/17/85
Insurance Companies Inspection Bureau 01/20/86
O'Hanlon Reports, Inc. 08/29/86
Southwest Reports, Inc. 07/01/86
Standard Service Bureau 05/01/86
Underwriters Service Company, Inc. 06/01/86
<PAGE> 89
The employees in the following acquired companies (or hired from
such companies if PMSC acquired only the assets of said company)
received back vesting credit for prior service with the acquired
company from the last date of hire with the acquired company.
Business Computer Systems 07/01/83
Compuclaim 12/01/84
Harbor Insurance 02/29/84
Informatics 02/15/86
Mutual Data Inc. 06/22/83
Nationwide Computer Service 10/01/87
Scottish & York Insurance 06/30/82
The employees in the following acquired companies (or hired from
such companies if PMSC acquired only the assets of said company)
received back vesting credit for prior service with the acquired
company as provided in the Plan under the specified Sections:
Advanced System Applications, Inc.
(as provided in Section 16.06) 11/01/89
Cybertek Corporation
(as provided in Section 19.07) 08/25/93
Management Data Communications
(as provided in Section 17.06) 01/10/91
PMS, Inc.
(as provided in Section 20.05) 10/31/90
<PAGE> 1
EXHIBIT 4.3
POLICY MANAGEMENT SYSTEMS CORPORATION
401(k) RETIREMENT SAVINGS PLAN
Article 1
INTRODUCTION
Article 2
DEFINITIONS
2.01 Account . . . . . . . . . . . . . . . . . . . . . . . . .2
2.02 Act . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.03 Adjustment. . . . . . . . . . . . . . . . . . . . . . . .2
2.04 Affiliate . . . . . . . . . . . . . . . . . . . . . . . .2
2.05 Affiliated Sponsor. . . . . . . . . . . . . . . . . . . .2
2.06 After-Tax Contributions . . . . . . . . . . . . . . . . .2
2.07 After-Tax Contribution Account. . . . . . . . . . . . . .2
2.08 Authorized Leave of Absence . . . . . . . . . . . . . . .3
2.09 Before-Tax Contribution Account . . . . . . . . . . . . .3
2.10 Before-Tax Contributions. . . . . . . . . . . . . . . . .3
2.11 Beneficiary . . . . . . . . . . . . . . . . . . . . . . .3
2.12 Board . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.13 Break in Service. . . . . . . . . . . . . . . . . . . . .4
2.14 Code. . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.15 Committee . . . . . . . . . . . . . . . . . . . . . . . .4
2.16 Company . . . . . . . . . . . . . . . . . . . . . . . . .4
2.17 Compensation. . . . . . . . . . . . . . . . . . . . . . .4
2.18 Company Stock . . . . . . . . . . . . . . . . . . . . . .5
2.19 Cost of Living Factor . . . . . . . . . . . . . . . . . .5
2.20 Credited Service. . . . . . . . . . . . . . . . . . . . .5
2.21 Distribution. . . . . . . . . . . . . . . . . . . . . . .7
2.22 Early Retirement Date . . . . . . . . . . . . . . . . . .7
2.23 Effective Date. . . . . . . . . . . . . . . . . . . . . .7
2.24 Employee. . . . . . . . . . . . . . . . . . . . . . . . .7
2.25 Employer. . . . . . . . . . . . . . . . . . . . . . . . .7
2.26 Employer Contribution . . . . . . . . . . . . . . . . . .7
2.27 Employer Contribution Account . . . . . . . . . . . . . .7
2.28 Employer Matching Contribution. . . . . . . . . . . . . .7
2.29 Entry Date. . . . . . . . . . . . . . . . . . . . . . . .7
2.30 Fiduciary . . . . . . . . . . . . . . . . . . . . . . . .7
2.31 Fund. . . . . . . . . . . . . . . . . . . . . . . . . . .8
<PAGE> 2
2.32 Hour of Service . . . . . . . . . . . . . . . . . . . . .8
2.33 Inactive Participant. . . . . . . . . . . . . . . . . . .9
2.34 Normal Retirement Age . . . . . . . . . . . . . . . . . .9
2.35 Participant . . . . . . . . . . . . . . . . . . . . . . .9
2.36 Permanent Disability. . . . . . . . . . . . . . . . . . .9
2.37 Plan. . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.38 Plan Administrator. . . . . . . . . . . . . . . . . . . .9
2.39 Plan Year . . . . . . . . . . . . . . . . . . . . . . . 10
2.40 Qualified . . . . . . . . . . . . . . . . . . . . . . . 10
2.41 Qualified Nonelective Contribution. . . . . . . . . . . 10
2.42 Qualified Nonelective Contribution Account. . . . . . . 10
2.43 Retirement. . . . . . . . . . . . . . . . . . . . . . . 10
2.44 Rollover Account. . . . . . . . . . . . . . . . . . . . 10
2.45 Rollover Contribution . . . . . . . . . . . . . . . . . 10
2.46 Stock Purchase Plan . . . . . . . . . . . . . . . . . . 10
2.47 Termination of Employment . . . . . . . . . . . . . . . 10
2.48 Treasury Regulation . . . . . . . . . . . . . . . . . . 10
2.49 Trust . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.50 Trustee . . . . . . . . . . . . . . . . . . . . . . . . 11
2.51 Valuation Date. . . . . . . . . . . . . . . . . . . . . 11
2.52 Defined Terms . . . . . . . . . . . . . . . . . . . . . 11
Article 3
PARTICIPATION
3.01 Eligibility to Participate. . . . . . . . . . . . . . . 12
3.02 Participation . . . . . . . . . . . . . . . . . . . . . 12
3.03 Termination of Participation and Rehire . . . . . . . . 12
3.04 Not a Contract for Employment . . . . . . . . . . . . . 13
Article 4
CONTRIBUTIONS
4.01 Employer Contributions. . . . . . . . . . . . . . . . . 14
4.02 Requirements for Receiving Employer Matching
Contributions . . . . . . . . . . . . . . . . . . . . 16
4.03 Employee Before-Tax Contributions . . . . . . . . . . . 16
4.04 Change of Before-Tax Contribution Percentage or
Suspension of Before Tax Contribution . . . . . . . . 16
<PAGE> 3
4.05 Elections and Payment of Before-Tax Contributions . . . 17
4.06 Rollover Contributions. . . . . . . . . . . . . . . . . 18
4.07 Employee After-Tax Contributions. . . . . . . . . . . . 18
4.08 Aggregate Limit on Employee Contributions . . . . . . . 19
Article 5
ACCOUNTS AND ALLOCATIONS
5.01 Participant Accounts. . . . . . . . . . . . . . . . . . 20
5.02 Valuation . . . . . . . . . . . . . . . . . . . . . . . 21
5.03 Value of Account for Purposes of Distribution . . . . . 22
5.04 Errors. . . . . . . . . . . . . . . . . . . . . . . . . 22
5.05 Allocations Do Not Affect Vesting . . . . . . . . . . . 22
5.06 Directed Investments. . . . . . . . . . . . . . . . . . 22
5.07 Accounts of Inactive Participants and Beneficiaries . . 23
Article 6
VESTING AND DISTRIBUTIONS
6.01 Retirement. . . . . . . . . . . . . . . . . . . . . . . 24
6.02 Permanent Disability. . . . . . . . . . . . . . . . . . 24
6.03 Death . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.04 Other Termination of Employment . . . . . . . . . . . . 24
6.05 Commencement of Distribution. . . . . . . . . . . . . . 25
6.06 Withdrawal of After-Tax Contributions
and Certain Employer Contributions . . . . . . . . . . 26
6.07 Method of Distribution. . . . . . . . . . . . . . . . . 27
6.08 Disposition of Forfeitures. . . . . . . . . . . . . . . 28
6.09 Payment to Minors and Incapacitated Persons . . . . . . 28
6.10 Application for Benefits. . . . . . . . . . . . . . . . 29
6.11 Distributions Pursuant to
Qualified Domestic Relations Orders. . . . . . . . . . 29
6.12 Loans . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.13 Hardship Withdrawal . . . . . . . . . . . . . . . . . . 30
6.14 Direct Rollover . . . . . . . . . . . . . . . . . . . . 31
Article 7
ADMINISTRATION OF THE PLAN
7.01 Named Fiduciary . . . . . . . . . . . . . . . . . . . . 33
7.02 Company . . . . . . . . . . . . . . . . . . . . . . . . 33
7.03 Board of Directors. . . . . . . . . . . . . . . . . . . 33
7.04 Trustee . . . . . . . . . . . . . . . . . . . . . . . . 33
7.05 Committee . . . . . . . . . . . . . . . . . . . . . . . 34
7.06 Committee to Establish Rules and Procedures . . . . . . 35
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7.07 Standard of Fiduciary Duty. . . . . . . . . . . . . . . 35
7.08 Claims Procedure. . . . . . . . . . . . . . . . . . . . 36
7.09 Indemnification of Committee. . . . . . . . . . . . . . 37
7.10 Payment of Expenses . . . . . . . . . . . . . . . . . . 37
7.11 Administrative Discretion . . . . . . . . . . . . . . . 37
Article 8
TRUST FUND AND TRUSTEE
8.01 General Nature of Trustee's Responsibilities. . . . . . 38
8.02 Investment Powers . . . . . . . . . . . . . . . . . . . 38
8.03 Valuation . . . . . . . . . . . . . . . . . . . . . . . 40
8.04 Other Powers. . . . . . . . . . . . . . . . . . . . . . 40
8.05 Prohibited Transaction. . . . . . . . . . . . . . . . . 42
8.06 Administration of the Plan. . . . . . . . . . . . . . . 42
8.07 Directing the Trustee . . . . . . . . . . . . . . . . . 43
8.08 Records and Reports . . . . . . . . . . . . . . . . . . 43
8.09 Notification to Trustee . . . . . . . . . . . . . . . . 44
8.10 Expenses. . . . . . . . . . . . . . . . . . . . . . . . 44
8.11 Trustee's Tenure and Succession . . . . . . . . . . . . 45
8.12 Successor Trustee . . . . . . . . . . . . . . . . . . . 46
8.13 Bond and Security . . . . . . . . . . . . . . . . . . . 46
8.14 Commingling . . . . . . . . . . . . . . . . . . . . . . 46
Article 9
AMENDMENT AND TERMINATION
9.01 Right to Amend. . . . . . . . . . . . . . . . . . . . . 47
9.02 Termination and Discontinuance of Contributions . . . . 47
9.03 IRS Approval of Termination . . . . . . . . . . . . . . 47
Article 10
SPECIAL DISCRIMINATION RULES
10.01 Definitions . . . . . . . . . . . . . . . . . . . . . . 48
10.02 $7,000 Limit on Before-Tax Contributions. . . . . . . . 51
10.03 Average Actual Deferral Percentage. . . . . . . . . . . 52
10.04 Special Rules For Determining
Average Actual Deferral Percentage . . . . . . . . . . 54
10.05 Distribution of Excess ADP Deferrals. . . . . . . . . . 54
10.06 Average Actual Contribution Percentage. . . . . . . . . 56
<PAGE> 5
10.07 Special Rules for Determining
Average Actual Contribution Percentages. . . . . . . . 57
10.08 Distribution of Excess ACP Contributions. . . . . . . . 58
10.09 Forfeiture of Excess ACP Contributions. . . . . . . . . 58
10.10 Combined ACP and ADP Test . . . . . . . . . . . . . . . 59
10.11 Order of Applying Certain Sections of Article . . . . . 60
Article 11
MAXIMUM BENEFITS
11.01 General Rule. . . . . . . . . . . . . . . . . . . . . . 61
11.02 Combined Plan Limitations . . . . . . . . . . . . . . . 62
11.03 Definitions . . . . . . . . . . . . . . . . . . . . . . 62
Article 12
TOP HEAVY RULES
12.01 General . . . . . . . . . . . . . . . . . . . . . . . . 64
12.02 Definitions . . . . . . . . . . . . . . . . . . . . . . 64
12.03 Minimum Benefit . . . . . . . . . . . . . . . . . . . . 65
12.04 Combined Plan Limitations For Top Heavy Years . . . . . 66
Article 13
MISCELLANEOUS
13.01 Headings. . . . . . . . . . . . . . . . . . . . . . . . 67
13.02 Action by Employer. . . . . . . . . . . . . . . . . . . 67
13.03 Spendthrift Clause. . . . . . . . . . . . . . . . . . . 67
13.04 Discrimination. . . . . . . . . . . . . . . . . . . . . 67
13.05 Release . . . . . . . . . . . . . . . . . . . . . . . . 67
13.06 Compliance with Applicable Laws . . . . . . . . . . . . 68
13.07 Merger. . . . . . . . . . . . . . . . . . . . . . . . . 68
13.08 Governing Law . . . . . . . . . . . . . . . . . . . . . 68
13.09 Unclaimed Benefits. . . . . . . . . . . . . . . . . . . 68
<PAGE> 6
Article 14
ADOPTION OF THE PLAN BY AFFILIATED SPONSORS
14.01 Adoption Procedure. . . . . . . . . . . . . . . . . . . 69
14.02 No Joint Venture Implied. . . . . . . . . . . . . . . . 69
14.03 Expenses to be Shared . . . . . . . . . . . . . . . . . 69
14.04 Transfer of Members . . . . . . . . . . . . . . . . . . 69
14.05 Withdrawal of Affiliated Sponsor. . . . . . . . . . . . 70
14.06 Treatment of Funds on Withdrawal. . . . . . . . . . . . 70
14.07 Joint Employees . . . . . . . . . . . . . . . . . . . . 70
14.08 Affiliated Sponsors Share of Total Contribution . . . . 70
Article 15
TRANSFER OF STOCK PURCHASE PLAN ACCOUNTS
15.01 Election to Participate in the Plan . . . . . . . . . . 71
15.02 Transfer of Retirement Plan Accounts. . . . . . . . . . 71
Article 16
MERGER OF THE ADVANCES SYSTEMS APPLICATIONS, INC.
16.01 General Provisions. . . . . . . . . . . . . . . . . . . 72
16.02 Transfer of Plan Assets . . . . . . . . . . . . . . . . 72
16.03 Code Section 401(a)(12) . . . . . . . . . . . . . . . . 72
16.04 Segregation of Accounts Transferred . . . . . . . . . . 72
16.05 Method of Distribution. . . . . . . . . . . . . . . . . 73
16.06 Vesting . . . . . . . . . . . . . . . . . . . . . . . . 73
16.07 Outstanding Loans . . . . . . . . . . . . . . . . . . . 73
16.08 Investment of Transferred Assets. . . . . . . . . . . . 74
16.09 Early Retirement. . . . . . . . . . . . . . . . . . . . 74
Article 17
MERGER OF THE MANDAT COMPUTER CORP.
17.01 General Provisions. . . . . . . . . . . . . . . . . . . 75
17.02 Transfer of Plan Assets . . . . . . . . . . . . . . . . 75
17.03 Code Section 401(a)(12) . . . . . . . . . . . . . . . . 75
17.04 Segregation of Accounts Transferred . . . . . . . . . . 75
<PAGE> 7
17.05 Method of Distribution. . . . . . . . . . . . . . . . . 76
17.06 Vesting . . . . . . . . . . . . . . . . . . . . . . . . 76
17.07 Outstanding Loans . . . . . . . . . . . . . . . . . . . 76
17.08 Investment of Transferred Assets. . . . . . . . . . . . 77
Article 18
MERGER OF THE STOCK PURCHASE SAVINGS PLAN
FOR EMPLOYEES OF POLICY MANAGEMENT SYSTEMS
WITH AND INTO THE PLAN
18.01 General Provisions. . . . . . . . . . . . . . . . . . . 78
18.02 Transfer of Plan Assets . . . . . . . . . . . . . . . . 78
18.03 Code Section 401(a)(12) Requirements. . . . . . . . . . 78
18.04 Segregation of Accounts Transferred . . . . . . . . . . 79
18.05 Loans . . . . . . . . . . . . . . . . . . . . . . . . . 79
Article 19
MERGER OF THE CYBERSAVER 401(k) PLAN
FOR EMPLOYEES OF CYBERTEK CORPORATION
WITH AND INTO THE PLAN
19.01 General Provisions. . . . . . . . . . . . . . . . . . . 80
19.02 Transfer of Plan Assets . . . . . . . . . . . . . . . . 80
19.03 Code Section 401(a)(12) Requirements. . . . . . . . . . 80
19.04 Accounting for Accounts Transferred . . . . . . . . . . 80
19.05 Method of Distribution. . . . . . . . . . . . . . . . . 81
19.06 Normal Retirement Age . . . . . . . . . . . . . . . . . 81
19.07 Vesting . . . . . . . . . . . . . . . . . . . . . . . . 81
19.08 Special Withdrawal after Age 59 1/2 . . . . . . . . . . 82
19.09 Forfeitures . . . . . . . . . . . . . . . . . . . . . . 82
19.10 Investment of Transferred Assets. . . . . . . . . . . . 82
<PAGE> 8
Article 20
MERGER OF THE PMS, INC. PROFIT SHARING/401(k) PLAN AND TRUST
WITH AND INTO THE PLAN
20.01 General Provisions. . . . . . . . . . . . . . . . . . . 83
20.02 Transfer of Plan Assets . . . . . . . . . . . . . . . . 83
20.03 Code Section 401(a)(12) Requirements. . . . . . . . . . 83
20.04 Accounting for Accounts Transferred . . . . . . . . . . 83
20.05 Vesting . . . . . . . . . . . . . . . . . . . . . . . . 84
20.06 Forfeitures . . . . . . . . . . . . . . . . . . . . . . 84
20.07 Investment of Transferred Assets. . . . . . . . . . . . 85
20.08 Outstanding Loans . . . . . . . . . . . . . . . . . . . 85
20.09 Normal Retirement Age . . . . . . . . . . . . . . . . . 85
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-8 of our report, which includes an
explanatory paragraph related to litigation and investigations into
possible security law violations, dated February 9, 1995, on our
audits of the financial statements of Policy Management Systems
Corporation which report is included in Form 10-K. We also consent
to the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
May 23, 1995
Atlanta Georgia
