<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 1995
REGISTRATION NO. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
THE ACTAVA GROUP INC.
(Exact name of registrant as specified in its charter)
Delaware 58-0971455
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4900 Georgia-Pacific Center 30303
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
(Full title of the plan)
-------------------------
WALTER M. GRANT, SECRETARY
THE ACTAVA GROUP INC.
4900 Georgia Pacific Center
Atlanta, Georgia 30303
(Name and address of agent for service)
404-658-9000
(Telephone number, including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of registration
be registered registered (1) offering price per aggregate offering fee
share (2) price (2)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 200,000 shares $13 11/16 $2,737,500 $944
value $1 per share
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 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 employee benefit plan described herein.
(2) Pursuant to Rule 457 (h)(1), these figures are based upon the
average of the high and low prices of the Common Stock on July 20, 1995, as
reported in the New York Stock Exchange consolidated reporting system, and are
used solely for the purpose of calculating the registration fee.
- --------------------------------------------------------------------------------
This Registration Statement on Form S-8 covering additional shares of
common stock, par value $1 per share, of The Actava Group Inc. (the "Company")
offered pursuant to The Actava Group Inc. Employees Stock Purchase Plan, as
amended and restated, (as well as an indeterminate amount of interests in the
Plan) is filed in accordance with the Securities Act of 1933. Shares of common
stock, par value $1 per share, of the Company offered pursuant to the Plan were
previously covered by Registration Statement No. 2-72579 filed May 26, 1981 and
a post-effective amendment to the Registration Statement (No. 33-1038) filed
October 22, 1985.
<PAGE> 2
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement; and all documents subsequently filed by The
Actava Group Inc. ("Actava" or the "Company") or The Actava Group Inc.
Employees Stock Purchase Plan, as amended and restated (the "Plan")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered
have been sold or which de-registers all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing
of such documents.
(a) (1) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, Form 10-K/A
Amendment No. 1 filed on April 28, 1995, and Form
10-K/A Amendment No. 2 filed July 13, 1995 amending
Actava's Form 10-K for the fiscal year ended December
31, 1994;
(2) The Plan's Annual Report on Form 11-K for the fiscal
year ended December 31, 1994;
(b) The Company's Current Report on Form 8-K dated April 12, 1995
and Form 8-K/A Amendment No. 1 filed on April 28, 1995
amending the Company's Current Report on Form 8-K dated April
12, 1995;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995; and
(d) The description of the Company's common stock which is
contained in Actava's Registration Statement on Form 8-B filed
under the 1934 Act, including any amendment or report filed
for the purpose of updating such description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of Title 8 of the Delaware Code gives a corporation power
to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The same Section also gives a corporation power
to
II-1
<PAGE> 3
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper. Also, the Section states that, to
the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense
of any such action, suit or proceeding, or in defense of any claim,
issue or matter herein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
The By-Laws of the Company provide that the Company shall indemnify
the officers and directors of the Company to the extent permitted by
the General Corporation Law of the State of Delaware.
The officers and directors of the Company are included under an
insurance policy purchased by the Company covering its liabilities and
expenses and those of its subsidiaries which might arise in connection
with the lawful indemnification of its directors and officers and
those of its subsidiaries for certain of their liabilities, including
liabilities under the Securities Act, and expenses and also covering
these officers and directors against certain other liabilities and
expenses.
In addition, officers and directors of the Company are also provided
indemnification under the terms of Indemnification Agreements with the
Company. The Indemnification Agreements provide for indemnification
of directors and officers to the full extent authorized or permitted
by law. They cover any and all expenses incurred in connection with,
as well as any and all judgments, fines, penalties, and amounts paid
in settlement resulting from, investigating, defending, being a
witness, or participating in (or preparing to defend, be a witness in
or participate in) any threatened, pending, or completed action, suit,
or proceeding, or any inquiry or investigation, whether civil,
criminal, administrative, or otherwise (a "proceeding"), related to
the fact that such director or officer is or was a director or officer
of the Company or is or was serving at the request of the Company as a
director, officer, or trustee of another corporation, trust, or other
enterprise, or by reason of anything done or not done by such director
or officer in any such capacity. The Indemnification Agreements also
provide for the prompt advancement of all expenses incurred in
connection with any proceeding and obligate the director or officer to
reimburse the Company for all amounts so advanced if it is
subsequently determined, as provided in the Indemnification
Agreements, that the director or officer is not entitled to
indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-2
<PAGE> 4
Item 8. Exhibits.
Exhibit
Number
-------
4(a) - Restated Certificate of Incorporation of Actava (incorporated
by reference to Exhibit 3(a)(i) of Annual Report on Form 10-K
for the year ended December 31, 1993).
4(b) - Bylaws of Actava (incorporated by reference to Exhibit 3(b)(i)
of Annual Report on Form 10-K for the year ended December 31,
1993).
4(c) - The Actava Group Inc. Employees Stock Purchase Plan, as
amended and restated.
4(d) - The Actava Group Employees Stock Purchase Trust, as amended.
5 - Internal Revenue Service determination letter dated March 13,
1981 (Incorporated by reference in Post Effective Amendment
No. 1 to Registration Statement No. 2-72579 on Form S-8).*
23 - Consent of Ernst & Young LLP.
Exhibits listed above which have heretofore been filed with the
Securities and Exchange Commission and which were incorporated as
noted above are hereby incorporated herein by reference and made a
part hereof with the same effect as if filed herewith.
* The registrant hereby undertakes that it filed in a timely manner on
March 29, 1995 the Plan, as amended and restated, with the Internal Revenue
Service ("IRS") in order to receive a subsequent favorable IRS determination
letter. The registrant further undertakes to make any changes required by the
IRS in order to qualify the Plan under Section 401 of the Internal Revenue
Code.
No opinion of counsel is required regarding the legality of securities
being registered because the securities being registered are not original
issuance securities.
Item 9. Undertakings.
(a) Rule 415 offerings. The undersigned registrant hereby
undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
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
II-3
<PAGE> 5
amendment by those paragraphs is contained in
periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and each filing of the Plan's annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. 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 Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia, on July
26, 1995.
THE ACTAVA GROUP INC.
By: /s/ John D. Phillips
-------------------------------------
John D. Phillips
President and Chief Executive Officer
Each director and/or officer of the registrant whose signature appears
below hereby constitutes and appoints Walter M. Grant and Frederick B.
Beilstein, III and each of them severally, as his true and lawful
attorney-in-fact to sign in his name and behalf, in any and all capacities
stated below, and to file with the Commission, any and all amendments,
including post-effective amendments, to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John D. Phillips (Chief Executive Officer) July 26, 1995
- ----------------------------------------------
John D. Phillips
/s/ Frederick B. Beilstein, III Senior Vice President, July 26, 1995
- ---------------------------------------------- Treasurer and CFO
Frederick B. Beilstein, III (Principal Accounting Officer)
/s/ John E. Aderhold Director July 26, 1995
- ----------------------------------------------
John E. Aderhold
/s/ Michael E. Cahr Director July 26, 1995
- ----------------------------------------------
Michael E. Cahr
/s/ John P. Imlay, Jr. Director July 26, 1995
- ----------------------------------------------
John P. Imlay, Jr.
</TABLE>
[Signatures continued on next page]
II-5
<PAGE> 7
[Signatures continued from preceding page]
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Clark A. Johnson Director July 26, 1995
- ----------------------------------------------
Clark A. Johnson
/s/ Richard Nevins Director July 26, 1995
- ----------------------------------------------
Richard Nevins
/s/ Carl E. Sanders Director July 26, 1995
- ----------------------------------------------
Carl E. Sanders
</TABLE>
II-6
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on July 26, 1995.
THE ACTAVA GROUP INC. EMPLOYEES STOCK
PURCHASE PLAN
By: /s/ Frederick B. Beilstein, III
---------------------------------
Trustee
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4(c) The Actava Group Inc. Employees Stock Purchase Plan, as amended and restated.
4(d) The Actava Group Employees Stock Purchase Trust, as amended and restated.
23 Consent of Ernst & Young LLP.
</TABLE>
<PAGE> 1
EXHIBIT 4(c)
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
Prepared by:
TROUTMAN SANDERS
600 Peachtree Street
Suite 5200
Atlanta, Georgia 30308-2216
(404) 885-3000
<PAGE> 2
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.2 Participation upon Reemployment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.3 Rights of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
VOLUNTARY EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 Voluntary Employee Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.2 Collection of Voluntary Employee Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.3 Separate Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.4 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IV
EMPLOYER MATCHING CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 Employer Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V
IN-SERVICE WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 In Service Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.2 Form of Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VI
LIMITATIONS ON EMPLOYER MATCHING CONTRIBUTIONS AND VOLUNTARY EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . 23
6.1 Effective Date and Special Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Limitations on Employer Matching and Voluntary
Employee Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.3 Special Rules for Employer Matching and Voluntary Employee Contributions . . . . . . . . . . . . . . 25
6.4 Distribution of Excess Aggregate Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII
ROLLOVER CONTRIBUTIONS AND DIRECT TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.1 Rollovers and Transfers from Other Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VIII
OVERALL LIMITATIONS ON CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Section 415 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Special Rules for Plans Subject to Overall Limitations
Under Code Section 415(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.3 Correction of Contributions in Excess of Section 415 Limits . . . . . . . . . . . . . . . . . . . . 36
8.4 Combination of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IX
PROVISIONS PERTAINING TO THE FROZEN PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.1 Eligibility and Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.3 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.4 Accounts of Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.5 Vesting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.6 Distribution of Frozen Plan Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE X
VOTING COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.1 Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE XI
ALLOCATIONS AND ACCOUNTS OF PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.1 Investment of Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.2 Valuations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.3 Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.4 Determinations of Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XII
RETIREMENT, DEATH, DISABILITY AND TERMINATION OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.1 100% Vesting in All Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.2 Normal Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.3 Late Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.4 Death Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.5 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
12.6 Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XIII
DISTRIBUTION OF BENEFITS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.1 Form of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.2 Commencement of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.3 Earnings for Deferred Accounts or Installment
Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
13.4 Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
13.5 Account Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
13.6 Cash-Out Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
13.7 Buy-Back Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
13.8 TEFRA 242(b)(2) Transitional Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
13.9 Requirement for Direct Rollovers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
13.10 Consent and Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XIV
CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.1 Filing of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.2 Denial of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.3 Review of Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.4 Decision upon Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14.5 Extension of Claim Procedure Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE XV
THE PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
15.1 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
15.2 Responsibilities in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
15.3 Payment Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
15.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
15.5 No Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
15.6 Requests by Trustee for Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
15.7 Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XVI
THE TRUST FUND AND TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
16.1 Existence of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
16.2 Exclusive Benefit Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
16.3 Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
16.4 Powers of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
16.5 Integration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XVII
AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
17.1 Right to Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
17.2 Right to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
17.3 Distributions upon Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XVIII
TOP HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
18.1 Top Heavy Provisions and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
18.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
18.3 Determination of Top Heavy Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.4 Special Provisions Required by Top Heavy Plan Status . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
- iv -
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE XIX
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.1 Prohibition Against Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.2 Prudent Man Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.3 Responsibilities of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.4 Reports Furnished Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.5 Reports Available to Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
19.6 Reports Upon Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
19.7 Merger or Consolidation of Plan Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
19.8 Non-Alienation or Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
19.9 Plan Continuance Voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
19.10 Suspension of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
19.11 Payments to Minors and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
19.12 Unclaimed Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
19.13 Merger or Consolidation of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
19.14 Amendment of Former Vesting Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
19.15 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
19.16 Agreement Not An Employment Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
19.17 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
19.18 Headings Not Part of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
- v -
<PAGE> 7
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
WHEREAS, Fuqua Industries, Inc., a corporation organized and existing
under the laws of the State of Delaware, established the Fuqua Industries, Inc.
Employees Stock Purchase Plan, effective as of July 1, 1970; and
WHEREAS, the Fuqua Industries, Inc. Employees Stock Purchase Plan was
subsequently amended and restated effective as of November 11, 1987, to comply
with the Tax Equity and Fiscal Responsibility Act of 1984 ("TEFRA"), the Tax
Reform Act of 1984 ("TRA '84") and the Retirement Equity Act of 1984 ("REA");
and
WHEREAS, effective July 19, 1993, Fuqua Industries, Inc. changed its
name to The Actava Group Inc. ("Employer" or "Plan Sponsor") and changed the
name of the plan to The Actava Group Inc. Employees Stock Purchase Plan
("Plan"); and
WHEREAS, the Employer has determined that it is in the best interest
of Plan Participants and Beneficiaries to again amend and restate the Plan to
comply with the provisions of the Tax Reform Act of 1986 and subsequent
legislation ("TRA '86") and to make certain other modifications.
NOW THEREFORE, in order to accomplish these purposes, the Board of
Directors of the Employer has, by appropriate resolutions, adopted an amendment
and restatement of the Plan, as hereinafter stated to be effective as of
January 1, 1989, except as otherwise specifically provided herein.
It is intended that the Plan, as amended and restated, together with
the Trust Agreement, meet all the requirements of the Internal Revenue Code of
1986 ("Code"), and the Plan shall be interpreted, wherever possible, to comply
with the terms of the Code and the Employee Retirement Income Security Act of
1974 ("ERISA") and all formal regulations and rulings issued under the Code and
ERISA.
All contributions made by the Employer to this Plan are expressly
conditioned upon the qualification of the Plan under Section 401(a) of the
Code, and upon the deductibility of such contributions under Section 404 of the
Code.
<PAGE> 8
ARTICLE I
DEFINITIONS
As used in this Plan and the accompanying Trust Agreement the
following terms shall have the meanings set forth below unless a different
meaning is plainly required by the context:
1.1 The term "Accounts" shall mean, collectively, the accounts
established and maintained under the Plan for a Participant. In addition to
such other Accounts as the Plan Administrator may deem necessary, the Plan
Administrator shall establish and maintain separate Accounts for each
Participant to be designated as follows:
(a) "Employer Matching Contribution Account" which shall reflect a
Participant's interest in the Plan resulting from any Employer Matching
Contributions made by the Employer pursuant to Section 4.1 hereof, and
allocated to a Participant's Account by reason of the Voluntary Employee
Contributions made on his behalf, as adjusted to reflect income, gains, losses
and other credits or charges attributable thereto. There may also be
established under a Participant's Employer Matching Contribution Account, a
sub-account to separately reflect the Participant's interest in the Plan
resulting from any Employer contributions deemed "Qualified Nonelective
Matching Contributions" under Section 401(m) of the Code made pursuant to
Section 6.1(d) hereof.
(b) "Frozen Plan Account" which shall reflect a Participant's
interest in the Plan resulting from any Employer contributions made by the
Employer pursuant to Article IX hereof and allocated to a Participant's
Account, as adjusted to reflect dividends attributable thereto.
(c) "Rollover Account" which shall reflect a Participant's
interest in the Plan resulting from any direct transfers made on his behalf or
any "rollover contributions" the Participant may make from the TRASOP pursuant
to Section 7.1 hereof, as adjusted pursuant to the Plan to reflect income,
gains, losses and other credits or charges attributable thereto.
(d) "Voluntary Employee Contribution Account" which shall reflect
a Participant's interest in the Plan resulting from any Voluntary Employee
Contributions made pursuant to Section 3.1 hereof, as adjusted pursuant to the
Plan to reflect income, gains, losses and other credits or charges attributable
thereto.
1.2 The term "Average Market Value" shall mean the average of the
closing prices of a share of Common Stock on The New York Stock Exchange
composite transactions, as published in The Wall Street Journal, for the 20
trading days preceding the date on which such average is determined.
1.3 The term "Basic Compensation" shall mean the actual compensation
for services rendered paid by the Employer to the Employee during the Plan
Year, which compensation is currently includable in the Employee's gross
income, as reported on the Employee's Federal Income Tax Withholding Statement
(Form W-2). However, Basic Compensation shall exclude the following amounts:
2
<PAGE> 9
(1) any other Employer contributions to this Plan
or to any other retirement or welfare plan established by the
Employer; or
(2) any amounts paid on an irregular or
discretionary basis as incentive awards.
Notwithstanding the above provisions, for purposes of defining the
terms "Highly Compensated Employee" and "Family Member", "compensation" shall
mean compensation within the meaning of Code Section 415(c)(3) without regard
to Code Sections 125, 402(a)(8), 402(h)(1)(B) and, in the case of Employer
contributions made pursuant to a salary reduction agreement, Section 403(b) of
the Code. Therefore, compensation includes elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement or tax
sheltered annuity.
Effective for Plan Years beginning after December 31, 1988 and before
January 1, 1994, the Basic Compensation of each Participant taken into account
for purposes of determining all benefits provided under the Plan for a Plan
Year shall not exceed $200,000 (as such amount may be adjusted by the Secretary
of the Treasury).
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, 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 for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. 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 OBRA `93 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 Section 401(a)(17) of the Code shall mean the
OBRA `93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an Employee's allocations 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 on or after January 1, 1994,
the OBRA `93 annual compensation limit is $150,000.
For purposes of applying the annual compensation limit under Section
401(a)(17) of the Code, the rules of Section 414(q)(6) of the Code shall apply
whereby the family unit of an Employee who is a five percent owner or is both a
Highly Compensated Employee and one of the 10 most Highly Compensated Employees
will be treated as a single Employee with one Basic Compensation and the
applicable dollar limitation shall be allocated among the members of the family
unit in proportion to each such member's Basic Compensation. For purposes of
this Section 1.3, a "family unit" is an Employee who is a five percent owner or
one of the 10 most
3
<PAGE> 10
Highly Compensated Employees, the Employee's spouse and the Employee's lineal
descendants who have not reached age 19 before the close of the Plan Year.
For purposes of applying the nondiscrimination test of Section 401(m)
of the Code, the period used to determine an Employee's Basic Compensation for
a Plan Year must be either the Plan Year or the calendar year ending within the
Plan Year, as selected by the Employer. Whichever period is selected shall be
applied uniformly to determine the Basic Compensation of every eligible
Employee under the Plan for that Plan Year for purposes of such
non-discrimination testing. The Employer may, however, limit the period taken
into account under either method to that portion of the Plan Year or calendar
year in which the Employee was eligible to participate in the Plan, provided,
however, that such limited period shall be applied uniformly to all eligible
Employees under the Plan for the Plan Year.
1.4 The term "Beneficiary" shall mean the spouse of the Participant
living at the Participant's death, unless such spouse has previously consented
to the designation of another person, estate, trust or organization as
Beneficiary in the manner required under Article XII hereof. The Beneficiary
of an unmarried Participant, and of a married Participant with a consenting
spouse, shall be the person, trust, estate or organization designated by the
Participant to receive his benefit under the Plan upon his death. If neither
the Beneficiary nor Contingent Beneficiary survives the Participant or if no
Beneficiary or Contingent Beneficiary has been effectively named, the
distribution of benefits will be determined in accordance with Section 13.4
below.
1.5 The term "Board of Directors" shall mean the Board of Directors
of Fuqua Industries, Inc. Effective July 19, 1993, the term "Board of
Directors" shall mean the Board of Directors of The Actava Group Inc.
1.6 The term "Break in Service" shall mean a Plan Year or an
Eligibility Computation Period during which the Participant has not completed
more than 500 Hours of Service.
A Break in Service shall not be deemed to have occurred in the case of
any Employee who is absent from work for any period by reason of (a) pregnancy
of the Employee; (b) the birth of a child of the Employee; (c) placement of a
child with the Employee in connection with the adoption of a child by the
Employee; or (d) caring for such child for a period beginning immediately
following such birth or adoption. An Employee who is absent from work for
maternity or paternity reasons shall receive, solely for purposes of
determining whether a Break in Service has occurred, credit for the Hours of
Service which would otherwise have been credited to such individual, or, in any
case in which such Hours of Service cannot be determined, eight Hours of
Service per day for such absence. Notwithstanding the above, no more than 501
Hours of Service are required to be credited to an Employee on account of any
single continuous period during which the Employee performs no duties. Any
hours credited pursuant to this paragraph shall be credited as Hours of Service
only (a) in the Plan Year or Eligibility Computation Period in which the
absence from work begins for one of the permitted reasons if the crediting is
necessary to prevent a Break in Service in that period, or (b) in the
immediately following Plan Year or Eligibility Computation Period in any other
case.
4
<PAGE> 11
No credit will be given pursuant to the preceding paragraph unless the
Employee furnishes the Plan Administrator such timely information as may be
required to establish that the absence from work is for the reasons described
in the above paragraph and the number of days for which there was such an
absence.
1.7 The term "Common Stock" shall mean shares of common stock, $1 par
value, of Fuqua Industries, Inc. Effective July 19, 1993, the term "Common
Stock" shall mean shares of common stock, $1 par value, of The Actava Group
Inc.
1.8 The term "Contingent Beneficiary" shall mean the person, estate,
trust, or organization duly designated by the Participant to receive any death
benefit from the Plan in the event the designated Beneficiary does not survive
the Participant.
1.9 The term "Defined Benefit Plan" shall mean any plan which is not
a Defined Contribution Plan.
1.10 The term "Defined Contribution Plan" shall mean a plan which
provides for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's account, and any income,
expenses, gains, losses, and any forfeitures of accounts of other participants
which may be allocated to such participant's account.
1.11 The term "Determination Year" shall mean the Plan Year that is
being tested.
1.12 The term "Effective Date" shall mean the original effective date
of the Plan, July 1, 1970. The effective date of this amendment and
restatement is January 1, 1989, unless otherwise specifically provided herein.
1.13 The term "Eligibility Computation Period" shall initially mean
the 12-consecutive month period commencing with the date on which an Employee
first performs an Hour of Service for the Employer. The succeeding
12-consecutive month periods shall commence with the first and succeeding
anniversaries of the Employee's employment commencement date. Years of Service
and Breaks in Service shall be measured on the same Eligibility Computation
Period.
1.14 The term "Eligible Participant" shall mean any Employee of the
Employer who is otherwise authorized under the terms of the Plan to have
Voluntary Employee Contributions or Employer Matching Contributions allocated
to his Accounts for the Plan Year.
The Plan shall take into account the actual contribution ratios of all
Eligible Participants for purposes of the Actual Contribution Percentage test
set forth in Section 401(m) of the Code. For this purpose, the term Eligible
Participant shall mean any Employee who is directly or indirectly eligible to
receive an allocation of Employer Matching Contributions or to make Voluntary
Employee Contributions and includes: (a) an Employee who would be a Plan
Participant but for the failure to make required contributions; (b) an Employee
whose right to make Voluntary Employee Contributions or receive Employer
Matching Contributions has been suspended because of an election (other than
certain one-time elections) not to participate; and (c) an Employee who cannot
make a Voluntary Employee Contribution or receive a Matching Employer
Contribution because Code Sections 415(c)(1) or 415(e) prevent the Employee
from
5
<PAGE> 12
receiving additional Annual Additions. In the case of an Eligible Participant
who makes no Voluntary Employee Contributions and who receives no Matching
Employer Contributions, the contribution ratio that is to be included in
determining the Actual Contribution Percentage is zero.
1.15 The term "Employee" shall mean each individual employed by the
Employer maintaining the Plan or any other employer required to be aggregated
with the Employer under Sections 414(b), (c), (m) or (o) of the Code. The term
Employee shall not, however, include leased employees within the meaning of
Section 414(n)(2) of the Code.
1.16 The term "Employer" shall mean the Plan Sponsor, its successors
and assigns, and, subject to the provisions of Section 19.13, any company into
which the Plan Sponsor may be merged or consolidated or to which all or
substantially all of its assets may be transferred. The term Employer shall
also include any other corporation, partnership or sole proprietorship which
has adopted or hereafter adopts the Plan by action of its board of directors
with the approval of the Plan Sponsor. In addition, for purposes of
determining an Employee's Hours of Service, the term "Employer" shall include:
(a) any corporation or trade or business which is or was a member
of a controlled group of corporations, a group of businesses under common
control or an affiliated service group (within the meaning of Section 414(b),
(c) and (m) of the Code, respectively) of which an Employer adopting the Plan
is a member, but only for such period as the corporation or trade or business
and the adopting Employer are or were considered members of the group;
(b) any corporation or trade or business for which a "leased
employee" (within the meaning of Section 414(n) of the Code) performs services,
but only for such period as the leased employee performs such services; and
(c) any corporation or trade or business which has been acquired
directly or indirectly by the Plan Sponsor, provided that such corporation or
trade or business shall be treated as an Employer under this Plan only during
such Plan Years as are designated by the Board of Directors of the Plan
Sponsor, and only with respect to those persons employed by such corporation or
trade or business on the date it was acquired by the Plan Sponsor.
For purposes of the defined terms "Highly Compensated Employee",
"Non-Highly Compensated Employee" and "Family Member", an "Employer" shall mean
the corporation, partnership or sole proprietorship which has adopted this Plan
and shall include any corporation or trade or business which is or was a member
of a controlled group of corporations, a group of businesses under common
control, or an affiliated service group (within the meaning of Sections 414(b),
(c), and (m) of the Code, respectively) of which the entity identified above is
a member. Any employer so aggregated with the Plan Sponsor under this Section
1.16 shall be referred to under the Plan as an "Affiliated Employer."
1.17 The term "Employer Matching Contributions" shall mean the
contributions made by the Employer during the Plan Year by reason of the
Participant's election to make Voluntary Employee Contributions to the Plan.
6
<PAGE> 13
1.18 The term "Family Member" shall mean the spouse and the lineal
ascendants and descendants (and the spouse of such ascendants and descendants)
of an Employee or former Employee as described in Section 414(q)(6)(B) of the
Code.
1.19 The term "Fiduciary" shall mean and include the Trustee, Plan
Administrator, Plan Sponsor or other adopting Employer, Investment Manager, and
any other person who:
(a) exercises any discretionary authority or discretionary control
respecting management of the Plan or exercises any authority or control
respecting management or disposition of its assets;
(b) renders investment advice for a fee or other compensation,
direct or indirect, with respect to any moneys or other property of the Plan,
or has any authority or responsibility to do so;
(c) has any discretionary authority or discretionary
responsibility in the administration of the Plan; or
(d) is described as a "fiduciary" in Section 3(14) or (21) of
ERISA or is designated to carry out fiduciary responsibilities pursuant to this
Plan and the Trust Agreement to the extent permitted by Section 405(c)(1)(B) of
ERISA.
1.20 The term "Frozen Plan" shall mean the portion of the Plan
prior to this amendment and restatement that was known as the "Automatic Plan,"
effective January 1, 1983, under which Employer contributions were made for the
purchase of Common Stock of the Employer on behalf of Participants, the terms
of which are described in Article IX hereto. The provisions of the Plan apply
to the Frozen Plan except as otherwise provided in Article IX.
1.21 The term "Highly Compensated Employee" shall mean Highly
Compensated active Employees and Highly Compensated former Employees as
hereinafter described. A Highly Compensated active Employee includes any
Employee who performs service for the Employer during the Determination Year
and who, during the look-back year: (a) was at any time a five percent owner,
as defined in Section 416(i)(l)(B)(i) of the Code, (b) received compensation
from the Employer in excess of $75,000 (as adjusted pursuant to Section 415(d)
of the Code); (c) received compensation from the Employer in excess of $50,000
(as adjusted pursuant to section 415(d) of the Code) and was a member of the
top-paid group for such year; or (d) was an officer of the Employer and
received compensation during such year that is greater than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code. The term Highly
Compensated Employee also includes Employees who are described in Subclauses
(b), (c) and (d) of the preceding sentence if the term "Determination Year" is
substituted for the term "look-back year" and who are one of the 100 Employees
who received the most compensation from the Employer during the Determination
Year.
The top-paid group for a Determination Year or look-back year consists
of the top 20 percent of Employees ranked on the basis of compensation received
during such year.
7
<PAGE> 14
For purposes of subclause (d) above, no more than 50 Employees (or, if
lesser, the greater of three Employees or 10 percent of the Employees) shall be
treated as officers. If no officer has satisfied the compensation requirement
of subclause (d) above during either a Determination Year or look-back year,
the highest paid officer for such year shall be treated as a Highly Compensated
Employee.
In determining who is a Highly Compensated Employee during the
Determination Year or the look-back year, the following Employees shall be
excluded:
(a) Employees who have not completed six months of service by the
end of the year;
(b) Employees who normally work less than 17-1/2 hours per week;
(c) Employees who normally work less than six months during any
year;
(d) Employees who have not had their 21st birthday by the end of
the year;
(e) Employees who were included in a unit of employees covered by
a collective bargaining agreement if 90% or more of the Employer's Employees
were covered by collective bargaining agreements and the Plan covered only
those Employees who were not covered by such agreement; or
(f) Employees who are non-resident aliens and who receive no
earned income (within the meaning of Code Section 911(d)(2)) from the Employer
that constitutes income from services within the United States.
For purposes of this Section, the Determination Year shall be the Plan
Year for which the determination of who is Highly Compensated is being made.
The look-back year shall be the 12-month period immediately preceding the
Determination Year.
A Highly Compensated former Employee includes any Employee who
separated from service (or was deemed to have separated from service) prior to
the Determination Year, performs no service for the Employer during the
Determination Year, and was a Highly Compensated active Employee for either the
separation year or any Determination Year ending on or after the Employee's
55th birthday.
If an Employee is, during a Determination Year or look-back year, a
Family Member of either a five percent owner who is an active or former
Employee, or a Highly Compensated Employee who is one of the 10 most Highly
Compensated Employees ranked on the basis of compensation paid by the Employer
during such year, then the Family Member and the five percent owner or top-10
Highly Compensated Employee shall be aggregated. In such case, the Family
Member and five percent owner or top-10 Highly Compensated Employee shall be
treated as a single Employee receiving compensation and Plan contributions or
benefits equal to the sum of such compensation and contributions or benefits of
the Family Member and five percent owner or top-10 Highly Compensated Employee.
For purposes of this Section, Family Member includes the spouse, lineal
ascendants and descendants of the Employee or former Employee and the spouses
of such lineal ascendants and descendants.
8
<PAGE> 15
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the top-paid
group, the top 100 Employees, the number of Employees treated as officers and
the compensation that is considered, will be made in accordance with Section
414(q) of the Code and the regulations thereunder.
For purposes of defining the terms "Highly Compensated Employee",
"Non-Highly Compensated Employee" and "Family Member", any employer required to
be aggregated under Code Sections 414(b), (c), (m), or (o) shall be treated as
a single employer.
1.22 The term "Hour of Service" shall mean:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer during a Plan Year.
(b) Except as otherwise provided in this Subsection (b), each hour
for which an Employee is paid, or entitled to payment from the Employer on
account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence. Hours of Service shall be calculated and
credited pursuant to Section 2530.200b-2 of the United States Department of
Labor Regulations, under which:
(1) No more than 501 Hours of Service will be credited
under this Subsection (b) to an Employee on account of any
single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single Plan
Year).
(2) Hours of Service shall not be credited on account of
a period during which an Employee is paid or entitled to
payment and with respect to which no duties are performed, if
such payment is made or due under a plan maintained solely for
the purpose of complying with applicable worker's
compensation, unemployment compensation or disability service
laws, or if the payment merely reimburses the Employee for
medical or medically related expenses incurred by the
Employee.
(3) For purposes of this Subsection (b), a payment shall
be deemed to be made by or due from the Employer regardless of
whether such payment is made by or due from the Employer
directly, or indirectly through, among others, a trust fund or
insurer, to which the Employer pays premiums and regardless of
whether contributions made or due to the trust fund, insurer
or other entity are for the benefit of a particular Employee
or are on behalf of a group of Employees in the aggregate.
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited under Subsection (a) or Subsection (b) and under
this Subsection (c). The crediting of Hours of Service for back pay awarded or
agreed to with respect to periods described in Subsection (b) shall be subject
to the limitations described in Paragraphs (1), (2) and (3) of Subsection (b).
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The crediting of Hours of Service shall be subject to all the rules
contained in Paragraphs (b) and (c) of the United States Department of Labor
Regulations Section 2530.200b-2. For purposes of this Section 1.22, service
for any employer required to be aggregated with the Employer under Code Section
414(b), (c), (m) or (o) shall be treated as service for the Employer.
The Hours of Service for an Employee who is compensated for the Plan
Year solely on the basis of commissions, as opposed to salary or hourly pay,
shall be deemed to equal the quotient of such Employee's Basic Compensation
divided by the lowest minimum wage under the Fair Labor Standards Act of 1938,
as amended, in effect at any time during the Plan Year.
1.23 The term "Inactive Participant" shall mean any Employee or
former Employee who has ceased to be a Participant and on whose behalf an
Account is maintained under the Plan.
1.24 The term "Investment Manager" shall mean any Fiduciary (other
than a trustee or named fiduciary) who:
(a) has the power to manage, acquire, or dispose of any asset of
the Plan;
(b) is a bank, insurance company, or an investment advisor
registered under the Investment Advisers Act of 1940; and
(c) has acknowledged in writing that he is a fiduciary with
respect to the Plan.
1.25 The term "Market Value" shall mean the average of the high and
low sale prices of a share of Common Stock as reported on the composite tape
and published in The Wall Street Journal on the day on which such value is to
be determined (or if there are no sale prices of a share of Common Stock
reported on the composite tape on such day, then the next preceding day on
which sale prices were so reported).
1.26 The term "Net Profits" shall mean the net operating profits of
the Employer for any Plan Year or Plan Years computed according to the
Employer's normal accounting practices, excluding any extraordinary gains or
losses from nonoperational activities.
(a) The term "Current Net Profits" refers to the Net Profits for a
particular Plan Year, which Net Profits shall be determined prior to taking
into account either the income taxes for such Plan Year or the contributions
for such Plan Year to this or any other plan qualified under the Code. Unless
the context clearly requires to the contrary, all references to "Net Profits"
in this Plan shall be references only to "Current Net Profits."
(b) The term "Accumulated Net Profits" refers to the Net Profits
for all Plan Years prior to the particular Plan Year and does take into account
both income taxes and qualified plan contributions for all such prior Plan
Years.
1.27 The term "Non-Highly Compensated Employee" shall mean any
Employee of the Employer who is neither a Highly Compensated Employee nor a
Family Member.
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1.28 The term "Normal Retirement Date" shall mean the Employee's 65th
birthday.
1.29 The term "Participant" shall mean an Employee who has met the
requirements of Article II for participation hereunder. An Employee who has a
Frozen Plan Account or who has deposited or caused to be transferred a
"rollover contribution" pursuant to Section 7.1 hereof shall also be deemed a
Participant for purposes of the Plan to the extent that the provisions of the
Plan apply to the Frozen Plan Account or Rollover Account of such Employee.
1.30 The term "Participation Date" shall mean the first day of each
calendar month.
1.31 The term "Payroll Period" shall mean the customary period of
service of an eligible Employee for which the Employer makes regular payments
of a portion of an eligible Employee's Basic Compensation.
1.32 The term "Plan" shall mean the Fuqua Industries, Inc. Employees
Stock Purchase Plan. Effective July 19, 1993, the term "Plan" shall mean The
Actava Group Inc. Employees Stock Purchase Plan.
1.33 The term "Plan Administrator" shall mean the committee so named
as provided in Article XV hereof.
1.34 The term "Plan Anniversary Date" shall mean the last day of the
Plan Year.
1.35 The term "Plan Sponsor" shall mean Fuqua Industries, Inc.
Effective July 19, 1993, the term "Plan Sponsor" shall mean The Actava Group
Inc.
1.36 The term "Plan Year" shall mean the calendar year. For all
purposes of this Plan, the Plan Year shall also constitute the "limitation
year" for purposes of Section 415 of the Code.
1.37 The term "Service in the Armed Forces" shall mean service in the
armed forces of the United States for a period during which the Employee's
employment rights are guaranteed by law, provided that the Employee returns to
work for the Employer prior to the expiration of his employment rights.
1.38 The term "Top Heavy Plan" or "Top Heavy" shall mean this Plan
when it meets the description set forth in Section 18.3 hereof during any Plan
Year beginning after December 31, 1983.
1.39 The term "Total and Permanent Disability" or "Totally and
Permanently Disabled" shall mean a physical or mental condition arising after
an Employee has become a Participant which totally and permanently prevents the
Participant from performing the normal duties for which he is employed. The
determination as to whether a Participant is totally and permanently disabled
shall be made on medical evidence by a licensed physician designated by the
Plan Administrator. Total and Permanent Disability shall exclude disabilities
arising from:
(a) chronic or excessive use of intoxicants, drugs, or narcotics;
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(b) intentionally self-inflicted injury or intentionally
self-induced sickness;
(c) a felonious act or enterprise on the part of the Participant;
or
(d) Service in the Armed Forces where the Participant is eligible
to receive a government-sponsored military disability pension.
1.40 The term "TRASOP" shall mean the Fuqua Industries, Inc.
Employees Stock Ownership Plan, as such plan may be amended from time to time.
1.41 The term "Trust Agreement" shall mean the Trust Agreement
entered into between the Employer and the Trustee contemporaneously with the
execution of this Plan, as it may subsequently be amended from time to time.
1.42 The term "Trustee" shall mean the Trustee or Trustees named in
the Trust Agreement.
1.43 The term "Trust Fund" or "Trust" shall mean all cash,
securities, life insurance, real estate, and any other property held by the
Trustee pursuant to the terms of the Trust Agreement, together with income
therefrom.
1.44 The term "Valuation Date" shall mean the Plan Anniversary Date
and such other date or dates on which the assets of the Plan are valued in
accordance with Article XI hereof.
1.45 The term "Voluntary Employee Contribution" shall mean a
contribution by a Participant to the Plan pursuant to Article III hereof.
1.46 The term "Year of Service" shall mean, for the purpose of
determining eligibility to participate herein, an Eligibility Computation
Period during which the Employee completes at least 1,000 Hours of Service. If
an individual who is not initially eligible for the Plan should become an
eligible Employee under this Plan, all Years of Service with the Employer
before the individual entered the Plan, including Years of Service in any
non-covered employment shall be counted for purposes of eligibility.
Any words herein used in the masculine shall be read and be construed
in the feminine where they would so apply. Words in the singular shall be read
and construed as though used in the plural in all cases where they would so
apply.
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ARTICLE II
PARTICIPATION
2.1 Eligibility Requirements.
(a) Any Employee who has qualified as a Participant under the Plan
in effect immediately prior to the effective date of this amendment and
restatement shall remain a Participant.
(b) Subsequent to the effective date of this amendment and
restatement, any Employee of the Employer who has completed a Year of Service
and who is not in a collective bargaining unit (unless there is a written
agreement providing for his right to elect to participate under the Plan) shall
be eligible to participate in the Plan and may elect to do so by authorizing
regular payroll deductions for Voluntary Employee Contributions under the Plan
on a form prescribed by the Plan Administrator and filed with the Plan
Administrator at least 30 days prior to a Participation Date. Participation
shall then commence with the first Payroll Period coincident with or
immediately following such Participation Date.
(c) Effective April 1, 1992, any Employee of the Employer who has
completed 90 days of full-time service with the Employer and who is not in a
collective bargaining unit (unless there is a written agreement providing for
his right to elect to participate under The Plan) is eligible to participate in
the Plan and may elect to do so by authorizing regular payroll deductions for
Voluntary Employee Contributions under the Plan on a form prescribed by the
Plan Administrator and filed with the Plan Administrator at least 30 days prior
to a Participation Date. Participation shall then commence with the first
Payroll Period coincident with or immediately following such Participation
Date.
(d) Notwithstanding anything to the contrary above or elsewhere in
this Plan, effective December 31, 1986, no additional Employees shall become
eligible to participate in the Frozen Plan.
2.2 Participation upon Reemployment. For purposes of Section 2.1
above, if a Participant terminates employment and is thereafter reemployed by
the Employer, the Participant may again participate in the Plan upon the
commencement of the first Payroll Period following the Participation Date after
his date of reemployment.
2.3 Rights of Participants. All Participants shall be bound by
the terms of the Plan, including all amendments hereto made in the manner
authorized herein. Participants shall also be entitled to all of the rights
and privileges afforded thereby, including those granted specifically by the
Code and ERISA, which are hereby adopted by reference as a part of this Plan.
The provisions of this Plan, as amended and restated, shall apply only to
persons employed by the Employer on and after the effective date of the
restated Plan. The rights and benefits, if any, of persons who were employed
by the Employer prior to the effective date of the amendment and restatement,
but who were not employed on or after such effective date, shall be determined
in accordance with the provisions of the Plan in effect on the date their
employment terminated.
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ARTICLE III
VOLUNTARY EMPLOYEE CONTRIBUTIONS
3.1 Voluntary Employee Contributions.
(a) Eligibility. An Employee may make Voluntary Employee
Contributions as long as he is a Participant in the Plan and is actively
employed by the Employer. A Participant may discontinue Voluntary Employee
Contributions made by payroll deduction by giving written notice to the Plan
Administrator in accordance with uniform rules prescribed by the Plan
Administrator. Any Participant who discontinues making Voluntary Employee
Contributions shall not be eligible to again make Voluntary Employee
Contributions until a Participation Date not less than three months subsequent
to the effective date of the suspension.
(b) Amount of Voluntary Employee Contributions. Subject to the
limitations of Articles VI and VIII hereof, a Participant may contribute to the
Plan as a Voluntary Employee Contribution, through regular payroll deduction,
an amount up to but not exceeding the lesser of (1) a monetary amount per
Payroll Period which, when multiplied by the number of Payroll Periods in a
Plan Year equals $2,000 or (2) 5% of his Basic Compensation for the related
Payroll Period. Effective April 1, 1992, a Participant may contribute to the
Plan such amounts as he shall determine by his written election to the Plan
Administrator; provided, however, that the amount contributed by him to this
Plan shall not exceed the lesser of (1) 10% of his Basic Compensation for the
Plan Year or (2) twenty-two thousand dollars ($22,000.00). A Participant may
change the amount of his Voluntary Employee Contributions made by payroll
deduction once during any six month period by giving the Plan Administrator
written notice of the change, in accordance with uniform rules prescribed by
the Plan Administrator.
(c) Change or Suspension of Contributions. Notwithstanding
anything to the contrary above, a Participant may change or suspend his
Voluntary Employee Contributions during any period in which Employer Matching
Contributions are not made by the Employer and may suspend his Voluntary
Employee Contributions during the time he is on approved sick leave or
authorized leave of absence, which in either case shall not be for a period of
more than three years. If a Participant ceases to receive Basic Compensation
during an approved sick leave or authorized leave of absence, his payroll
deductions shall be automatically suspended.
(d) Minimum Deduction. All payroll deductions shall be in whole
dollar amounts within the percentage or dollar limitation and the minimum
payroll deduction that may be authorized by a Participant shall be $2 per week
(if paid weekly), $5 per two weeks (if paid once every two weeks or
semi-monthly) or $10 per month (if paid monthly). Alternatively, a Participant
may request that his Voluntary Employee Contribution be such regular whole
dollar amount within the percentage or dollar limitation as will as nearly as
possible equal, but not exceed, the maximum amount with respect to which
Employer Matching Contributions will be made pursuant to Section 4.1.
3.2 Collection of Voluntary Employee Contributions. All Voluntary
Employee Contributions made through payroll deduction shall be deposited into
the Trust on the earliest
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date on which such contributions can reasonably be segregated from the
Employer's general assets, but, in any event, within 90 days after they have
been deducted from the Participant's pay. All Voluntary Employee Contributions
will be held and administered in the Trust established under this Plan.
3.3 Separate Administration. Participants' Voluntary Employee
Contributions shall be accounted for separately from those of the Employer and
shall be credited to the Participant's Voluntary Employee Contribution Account.
3.4 Vesting. Voluntary Employee Contributions by Participants,
together with all earnings allocated thereto, shall at all times be fully
vested in such Participant.
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<PAGE> 22
ARTICLE IV
EMPLOYER MATCHING CONTRIBUTIONS
4.1 Employer Matching Contributions.
(a) For each Plan Year, the Employer shall contribute out of
its Current or Accumulated Net Profits as an Employer Matching Contribution, an
amount equal to at least 20% but not more than 50% of the Voluntary Employee
Contributions during each month. The percentage contribution for each Plan
Year and the maximum aggregate Employer Matching Contribution per Participant
each month of each Plan Year, if any, shall be determined by the Board of
Directors prior to the beginning of each Plan Year.
(b) Effective April 1, 1992, for each Plan Year, the
Employer shall contribute out of its Current or Accumulated Net Profits as an
Employer Matching Contribution on behalf of each Participant, an amount equal
to 50% of the first $10,000 of Voluntary Employee Contributions made by a
Participant during the Plan Year, plus an amount equal to 25% of the Voluntary
Employee Contributions made by a Participant during the Plan Year in excess of
$10,000.
(c) The Employer may, at its option, in lieu of cash,
deliver to the Trustee on account of all or any part of its Employer Matching
Contribution, shares of Common Stock held in its treasury or authorized and
unissued shares of Common Stock, such shares to be applied against such
Employer Matching Contribution at an amount equal to their Market Value on the
date of delivery. This option shall not be available if the Market Value of a
share of Common Stock is less than its par value.
(d) The Employer shall not make any Employer Matching
Contributions with respect to shares of Common Stock transferred from the
TRASOP to a Participant's Rollover Account.
(e) Employer Matching Contributions for a given Plan Year
shall be deposited to the Trust not later than the time prescribed by law for
the filing of the federal income tax return of the Employer including any
extensions which have been granted for the filing of such return.
(f) Employer Matching Contributions allocated to
Participant's Accounts, together with all earnings allocated thereto, shall at
all times be fully vested in such Participant.
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ARTICLE V
IN-SERVICE WITHDRAWALS
5.1 In Service Withdrawals.
(a) Voluntary Employee Contribution Account. A Participant may,
upon 30 days written notice to the Plan Administrator, elect to withdraw
amounts from his Voluntary Employee Contribution Account in the order listed
below.
(1) First, a Participant shall be entitled to withdraw a
portion or all of the value of his Account attributable to Voluntary
Employee Contributions (not including any earnings or appreciation
thereon) made prior to January 1, 1987.
(2) Next, if a Participant desires to withdraw an amount
greater than that determined under subclause (1) above, he may then
withdraw a portion or all of the value of his Account attributable to
Voluntary Employee Contributions made after January 1, 1987, but he
must also withdraw a ratable portion of all of the earnings and/or
appreciation thereon.
(b) Rollover Account. A Participant may, upon 30 days written
notice to the Plan Administrator, elect to withdraw a portion or all of the
value of his Rollover Account.
(c) Employer Matching Contribution Account. A Participant may,
upon 30 days written notice to the Plan Administrator, elect to withdraw
amounts credited to his Employer Matching Contribution Account; provided,
however, that no Common Stock allocated to a Participant's Employer Matching
Contribution Account shall be distributable until it has been held in such
Account for a period of at least two years following such allocation. If a
Participant has participated in the Plan for at least 60 consecutive months,
however, Common Stock allocated to his Employer Matching Contribution Account
may be withdrawn regardless of when it was allocated to such Account.
(d) Suspension of Contributions Following Withdrawal From
Voluntary Employee Contribution Account. Any Participant who makes a
withdrawal under the provisions of subparagraph (a) of this Section 5.1 shall
be suspended from making Voluntary Employee Contributions under the Plan for a
period of six months for each such withdrawal, each such suspension to run from
the end of the latest of any suspensions to which the Participant is subject at
the time of the effectiveness of the withdrawal.
(e) Suspension of Contributions Following Withdrawal From Rollover
or Employer Matching Contribution Account. Any Participant who makes a
withdrawal under the provisions of paragraphs (b) or (c) of this Section 5.1
shall be suspended from making Voluntary Employee Contributions under the Plan
for a period of 12 months. No part of any Employer Matching Contributions
shall be allocated to such Participant's Employer Matching Contribution Account
unless and until the Participant resumes Voluntary Employee Contributions under
the
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<PAGE> 24
Plan. Any Participant who makes a withdrawal under the provisions of this
Article V may resume Voluntary Employee Contributions under the Plan on the
commencement of the first Payroll Period coincident with or following a
Participation Date occurring after the period of the Participant's suspension
expires.
(f) No Restoration. No Participant may repay any amount or
restore any Common Stock withdrawn by him.
5.2 Form of Distribution.
(a) Withdrawals of Voluntary Employee Contributions. Except with
respect to fractional shares, a Participant may make withdrawals from his
Voluntary Employee Contribution Account only in the form of Common Stock.
(b) Other Withdrawals. Except with respect to fractional shares,
withdrawals from a Participant's Rollover Account or Employee Matching
Contribution Account shall be made in the form of Common Stock unless the
Participant requests that the Plan distribute cash instead by selling a
specified number of shares of Common Stock and delivering to him the net
proceeds of the sale.
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ARTICLE VI
LIMITATIONS ON EMPLOYER MATCHING
CONTRIBUTIONS AND VOLUNTARY EMPLOYEE CONTRIBUTIONS
6.1 Effective Date and Special Definitions. This Article VI is
effective for Plan Years beginning after December 31, 1986. For purposes of
this Article VI, the following definitions shall apply:
(a) The term "Actual Contribution Percentage" shall mean the ratio
(expressed as a percentage), of the sum of the Voluntary Employee
Contributions, Employer Matching Contributions and Qualified Nonelective
Matching Contributions, if any, under the Plan, on behalf of the Eligible
Participant for the Plan Year to the Participant's Basic Compensation for the
Plan Year.
(b) The term "Average Actual Contribution Percentage" shall mean
the average (expressed as a percentage) of the Actual Contribution Percentages
of the Participants in a group.
(c) The term "Excess Aggregate Contributions" shall mean the
amount described in Section 401(m)(6)(B) of the Code.
(d) The term "Qualified Nonelective Matching Contributions" shall
mean supplemental contributions made by the Employer and allocated to a
Participant's Qualified Nonelective Matching Contribution Sub-account under the
Plan that the Participant may not elect to receive in cash until distributed
from the Plan, that are nonforfeitable when made, that are distributable only
in accordance with the distribution provisions of this Plan that are applicable
to Participants' Accounts and that meet each of those conditions described in
Treasury Regulations Section 1.401(m)-1(b)(5). Qualified Nonelective Matching
Contributions may be made, in the sole discretion of the Employer, in the event
that the limitations imposed by Section 6.2 below are not satisfied. Such
contributions shall be made on behalf of each Non-Highly Compensated Employee
Participant in the amount necessary to satisfy the limitations of Section 6.2
and shall be allocated among the Qualified Nonelective Matching Contribution
Sub-accounts of such Participants in the proportion that each Non-Highly
Compensated Employee Participant's Basic Compensation bears to the Basic
Compensation of all such Non-Highly Compensated Employee Participants.
Notwithstanding the foregoing, if Employer Matching Contributions satisfy all
conditions applicable to Qualified Nonelective Matching Contributions, separate
accounting for Employer Matching Contributions and Qualified Nonelective
Matching Contributions shall not be necessary.
6.2 Limitations on Employer Matching and Voluntary Employee
Contributions. Notwithstanding Sections 3.1 and 4.1 hereof, effective for Plan
Years beginning after December 31, 1986, the Plan shall satisfy the
nondiscrimination test of Section 401(m) of the Code, under which the Average
Actual Contribution Percentage for Participants shall not exceed (a) or (b) as
follows:
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(a) The Average Actual Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Contribution Percentage for Eligible Participants who
are Non-Highly Compensated Employees for the Plan Year multiplied by 1.25; or
(b) The Average Actual Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Contribution Percentage for Eligible Participants who
are Non-Highly Compensated Employees for the Plan Year multiplied by two
provided that the Average Actual Contribution Percentage for Eligible
Participants who are Highly Compensated Employees does not exceed the Average
Actual Contribution Percentage for Eligible Participants who are Non-Highly
Compensated Employees by more than two percentage points.
(c) Multiple Use Limitation. Notwithstanding the foregoing, if
this Plan does not satisfy both the 1.25% test set forth in subsection (a)
above and the 1.25% test set forth in Section 401(k)(3)(A)(ii)(I) of the Code,
and if one or more Highly Compensated Employees makes elective deferral
contributions under a cash or deferred arrangement subject to Code Section
401(k) sponsored by the Employer and makes Voluntary Employee Contributions
under this Plan or receives Employer Matching Contributions subject to Section
401(m) of the Code and the sum of the actual deferral percentage under the Code
Section 401(k) Plan (the "Actual Deferral Percentage") and the Average
Contribution Percentage under this Plan of those Highly Compensated Employees
subject to either or both tests exceeds the "aggregate limit" as defined below,
then the Contribution Percentage of those Highly Compensated Employees who also
participate in the cash or deferred arrangement will be reduced (beginning with
such Highly Compensated Employee whose Contribution Percentage is the highest)
so that the aggregate limit is not exceeded.
The amount by which each Highly Compensated Employee's Contribution
Percentage amount is reduced shall be treated as an Excess Aggregate
Contribution. For purposes of determining if the aggregate limit has been
exceeded, the Actual Deferral Percentage under the Code Section 401(k) Plan and
the Contribution Percentage of the Highly Compensated Employees shall be
determined after any corrections are made that were required to meet the Actual
Deferral Percentage test and the Actual Contribution Percentage test. Multiple
use does not occur if either the Actual Deferral Percentage or the Contribution
Percentage of the Highly Compensated Employees does not exceed 1.25 multiplied
by the Actual Deferral Percentage and the Contribution Percentage of the
Non-Highly Compensated Employees.
For purposes of this Section the term "aggregate limit" shall mean the
sum of (a) 1.25 percent of the greater of the Actual Deferral Percentage of the
Non-Highly Compensated Employees for the Plan Year or the Average Contribution
Percentage for the Plan Year of Non-Highly Compensated Employees under the Plan
subject to Code Section 401(m) for the Plan Year beginning with or within the
Plan Year of the cash or deferred arrangement and (b) the lesser of 200% or two
plus the lesser of such Actual Deferral Percentage or Average Contribution
Percentage. "Lesser" is substituted for "greater" in (a) above, and "greater"
is substituted for "lesser" after "two plus the" in (b) if it would result in a
larger aggregate limit.
6.3 Special Rules for Employer Matching and Voluntary Employee
Contributions.
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(a) For purposes of Section 6.2, the Actual Contribution
Percentage for any Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to make Voluntary Employee Contributions
or to have Employer Matching Contributions allocated to his accounts under two
or more plans described in Section 401(a) of the Code or arrangements described
in Section 401(k) of the Code that are maintained by the Employer or an
Affiliated Employer shall be determined as if all such contributions were made
under a single plan. If a Highly Compensated Employee participates in two or
more cash or deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement. Notwithstanding the foregoing, certain plans
shall be treated as separate if mandatorily disaggregated under the regulations
under Section 401(m) of the Code.
(b) In the event that this Plan satisfies the requirements of
Sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of
such Sections only if aggregated with this Plan, then Section 6.2 shall be
applied by determining the Actual Contribution Percentages of Eligible
Participants as if all such plans were a single plan. For Plan Years beginning
after December 31, 1989, plans may be aggregated in order to satisfy Section
401(m) of the Code only if they have the same Plan Year.
(c) For purposes of determining the Actual Contribution Percentage
of an Eligible Participant who is either a five percent owner or one of the 10
most highly paid Highly Compensated Employees, the Voluntary Employee
Contributions, Employer Matching Contributions and Basic Compensation of such
Participant shall include the Voluntary Employee Contributions, Employer
Matching Contributions and Basic Compensation of Family Members, and such
Family Members shall be disregarded in determining the Actual Contribution
Percentage for Eligible Participants who are Non-Highly Compensated Employees.
(d) For purposes of determining the Contribution Percentage test,
Voluntary Employee Contributions are considered to have been made in the Plan
Year in which contributed to the Trust. Employer Matching Contributions and
Qualified Nonelective Matching Contributions will be considered made for a Plan
Year if made no later than the end of the 12-month period beginning on the day
after the close of the Plan Year.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the Contribution Percentage test and the amount of Qualified
Nonelective Matching Employer Contributions used in such test.
(f) The determination and treatment of the Actual Contribution
Percentage of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
6.4 Distribution of Excess Aggregate Contributions.
(a) In General: Notwithstanding any other provision of this Plan,
Excess Aggregate Contributions, plus any income and minus any loss allocable
thereto, shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to
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Participants whose Accounts such Excess Aggregate Contributions were allocated
for the preceding Plan Year. Excess Aggregate Contributions of Participants
who are subject to the Family Member aggregation rules shall be allocated among
the Family Members in proportion to the Employer Matching Contributions,
Qualified Nonelective Matching Contributions and Voluntary Employee
Contributions of each Family Member that is combined to determine the Average
Contribution Percentage. If such Excess Aggregate Contributions are
distributed more than 2-1/2 months after the last day of the Plan Year in which
such excess amounts arose, a 10% excise tax will be imposed on the Employer
maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as annual additions under the Plan.
(b) Determination of Income or Loss: Excess Aggregate
Contributions shall be adjusted for any income or loss up to the last day of
the Plan Year or the date of distribution, as elected by the Plan
Administrator. The income or loss allocable to Excess Aggregate Contributions
is the sum of:
(1) income or loss allocable to the Participant's
Voluntary Employee Contribution Account or Employer Matching
Contribution Account for the Plan Year multiplied by a fraction, the
numerator of which is the Participant's Excess Aggregate Contributions
for the year and the denominator is the Participant's Account balance
attributable to the Participant's Voluntary Employee Contributions or
Employer Matching Contributions minus the income or plus the loss
allocable to such account balance during such Plan Year; and
(2) if the Plan Administrator shall determine, 10% of the
amount determined under subclause (1) above multiplied by the number
of whole calendar months between the end of the Plan Year and the date
of distribution, counting the month of distribution if distribution
occurs after the 15th of such month.
Notwithstanding the foregoing, the Plan Administrator may use any
reasonable method for computing the income or loss allocable to Excess
Aggregate Contributions, provided that the method does not violate Section
401(a)(4) of the Code, is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used by the
Plan for allocating income or loss to Participants' Accounts.
(c) Accounting for Excess Aggregate Contributions: Excess
Aggregate Contributions shall be distributed first from the Participant's
Voluntary Employee Contribution Account, and then forfeited, if otherwise
forfeitable, or distributed from the Participant's Employer Matching
Contribution Account. Forfeitures of Excess Employer Matching Contributions
shall be applied to reduce future Employer contributions.
(d) Amount of Excess Aggregate Contributions. The amount of
Excess Aggregate Contributions for a Highly Compensated Employee for a Plan
Year is to be determined by the leveling method described in Treasury
Regulation Section 1.401(m)-1(e)(2), under which the Contribution Percentage of
the Highly Compensated Employee with the highest Contribution Percentage shall
be reduced to the extent required to:
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(1) enable the Plan to satisfy the Average Contribution
Percentage Test described in Subsections (a) and (b) of Section 6.2,
or
(2) cause such Highly Compensated Employee's Contribution
Percentage to equal the ratio of the Highly Compensated Employee with
the next highest Contribution Percentage.
This process must be repeated until the Plan satisfies the Average
Contribution Percentage test. The amount of Excess Aggregate Contributions for
a Plan Year for a Highly Compensated Employee is equal to the total Voluntary
Employee Contributions and Employer Matching Contributions taken into account
for the Average Contribution Percentage test minus the amount determined by
multiplying the Employee's Contribution Percentage, as determined above, by his
compensation.
(e) Correction for Family Members. The determination and
correction of the amount of Excess Aggregate Contributions of a Highly
Compensated Employee whose Contribution Percentage is determined under the
family aggregation rules described in Regulation Section 1.401(m)-1(e)(2)(iii),
is accompanied by reducing the actual contribution ratio as required under
Subsection (d) above and allocating the Excess Aggregate Contributions for the
family group among the family members in proportion to the Voluntary Employee
and Matching Contributions of each Family Member combined to determine the
Actual Contribution Ratio.
(1) For Plan Years beginning after December 31, 1986, if
a Highly Compensated Employee is subject to the family aggregation
rules of Section 414(q)(6) because that Employee is either a
five-percent owner or one of the 10 most Highly Compensated Employees,
the combined Actual Contribution Ratio for the family group (treated
as one Highly Compensated Employee) must be determined by combining
the Voluntary Employee Contributions, Matching Contributions, amounts
treated as Matching Contributions, and compensation of all the
eligible Family Members.
(2) The Employee and Matching Contributions, amounts
treated as Matching Contributions, and compensation of all family
members are disregarded for purposes of determining the Actual
Contribution Percentage for the group of Highly Compensated Employees,
and the group of Nonhighly Compensated Employees.
(3) If an Employee is required to be aggregated as a
member of more than one family group in a plan, all eligible Employees
who are members of those family groups that include that Employee are
aggregated as one family group.
(f) Coordination with Correction of Excess Contributions. The
amount of Excess Aggregate Contributions with respect to a Participant for a
Plan Year shall be recalculated after determining the Excess Contributions to
be recharacterized as Voluntary Employee Contributions for the Plan Year.
(g) Method of Distributing Excess Aggregate Contributions. The
distribution (or forfeiture, if applicable) of Excess Aggregate Contributions
shall be made on the basis of the respective portions of such amounts
attributable to each such Highly Compensated Employee.
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ARTICLE VII
ROLLOVER CONTRIBUTIONS AND DIRECT TRANSFERS
7.1 Rollovers and Transfers from Other Plans. An Employee who is
a participant in the TRASOP may elect to create a Rollover Account under the
Plan for the purpose of having such Rollover Account receive the transfer of
shares distributed from the TRASOP to such participant either directly from the
TRASOP or from the participant after distribution of such shares to him by the
TRASOP. The Plan Administrator shall establish rules and procedures to
implement this Section 7.1, including without limitation, such procedures as
may be appropriate to permit the Plan Administrator to verify the tax qualified
status of the TRASOP and compliance with any applicable provisions of the Code
relating to such contributions and transfers. The amount contributed or
transferred to the Trustee pursuant to this Section 7.1 shall be placed in the
Employee's Rollover Account for the benefit of the Employee. The Employee
shall have a fully vested interest in the balance of his Rollover Account at
all times and such Account shall share in the earnings, gains and losses of the
Trust Fund as set forth in Section 11.3 of the Plan. An Employee shall be
entitled to a distribution of his Rollover Account at the same time and in the
manner as he is entitled to his other Accounts pursuant to the applicable
provisions of Article XII hereof. The Employer shall not make any Employer
Matching Contributions with respect to shares of Common Stock transferred as a
rollover to the Plan from the TRASOP.
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ARTICLE VIII
OVERALL LIMITATIONS ON CONTRIBUTIONS
8.1 Section 415 Limitations.
(a) Definition of Annual Additions. For all purposes of this
Plan, effective for Plan Years beginning after December 31, 1986, the term
"Annual Additions" shall mean the amount allocated to a Participant's Accounts
during the Limitation Year that constitutes:
(1) Employer contributions;
(2) Voluntary Employee Contributions;
(3) Forfeitures; and
(4) Amounts described in Sections 415(l)(1) and
419A(d)(2) of the Code.
(b) Maximum Annual Additions. The maximum Annual Additions that
may be contributed or allocated to a Participant's Accounts under the Plan for
any Limitation Year shall not exceed the lesser of:
(1) the Defined Contribution Dollar Limitation, or
(2) 25% of the Participant's "Compensation", as defined
in Section 8.1(d)(4) below, for the Limitation Year.
(c) Special Rules. The Compensation limitation referred to in
Section 8.1(b)(2) above shall not apply to any contribution for medical
benefits (within the meaning of Sections 401(h) or 419A(f)(2) of the Code)
which is otherwise treated as Annual Additions under Sections 415(l)(1) or
419A(d)(2) of the Code.
If a short Limitation Year is created because of an amendment changing
the Limitation Year to a different 12- consecutive month period, the maximum
permissible amount will not exceed the Defined Contribution Dollar Limitation
multiplied by the following fraction:
Number of Months in the Short Limitation Year
---------------------------------------------
12
(d) Section 415 Definitions.
(1) The term "Defined Contribution Dollar Limitation"
shall mean $30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1) of the Code as in
effect for the Limitation Year. The term "Limitation Year" shall mean
the Plan Year as defined in Section 1.36 hereof.
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(2) The term "Defined Benefit Plan Fraction" for any Plan
Year, with respect to a particular Participant, shall mean a fraction:
(A) The numerator of which is the sum of the
Participant's projected annual benefits under all Defined
Benefit Plans (whether or not terminated) maintained by the
Employer (determined as of the close of the Plan Year), and
(B) The denominator of which is the lesser of (1)
the product of 1.25 times the dollar limitation in effect for
the Plan Year under Code Section 415(b)(1)(A) or (d), or (2)
the product of 1.4 times 100% of such Participant's average
Compensation for his highest three consecutive Plan Years of
participation.
Notwithstanding the above, if the Participant was a participant in one
or more Defined Benefit Plans maintained by the Employer which were in
existence on July 1, 1982, the denominator of this fraction shall not
be less than 1.25 percent of the sum of the annual benefits under such
plans which the Participant had accrued as of the later of September
30, 1983, or the end of the last Limitation Year beginning before
January 1, 1983. The preceding sentence applies only if the Defined
Benefit Plans individually, and in the aggregate, satisfied the
requirements of Section 415 of the Code as in effect at the end of the
1982 Limitation Year.
(3) The term "Defined Contribution Plan Fraction" with
respect to a particular Participant for any Plan Year shall mean a
fraction:
(A) The numerator of which is the sum of the
Annual Additions to the Participant's account under all
Defined Contribution Plans (whether or not terminated)
maintained by the Employer for the current and prior
Limitation Years, as of the close of such Plan Year, and
(B) The denominator of which is the sum of the
lesser of the following amounts determined for the Plan Year
and for each prior Plan Year of Service with the Employer:
(1) The product of 1.25 times the dollar
limitation in effect under Code Section 415(c)(1)(A)
for the Plan Year (determined without regard to Code
Section 415(c)(6)); or
(2) The product of 1.4 times the amount
which may be taken into account under Code Section
415(c)(1)(B) (or subsection 415(c)(7), if applicable)
with respect to the Participant for the Plan Year.
Notwithstanding the above, if the Participant was a participant in one
or more Defined Contribution Plans maintained by the Employer which
were in existence on July 1, 1982, the numerator of this fraction
shall be adjusted if the sum of this fraction and the Defined Benefit
Plan Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of (1) the excess
of the sum of the
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<PAGE> 33
fractions over 1.0 times (2) the denominator of this fraction, will be
permanently subtracted from the numerator of this fraction. The
adjustment is calculated using the fractions as they would be computed
as of the later of September 30, 1983, or the end of the last
Limitation Year beginning before January 1, 1983. This adjustment
also will be made if at the end of the last Limitation Year beginning
before January 1, 1984, the sum of the fractions exceeds 1.0 because
of accruals or additions that were made before the limitations of this
Section 8.1 became effective to any plans of the Employer in existence
on July 1, 1982.
(4) The term "Compensation" shall mean all amounts paid
or made available to an Employee which are treated as compensation
under Treasury Regulation Section 1.415-2(d)(2) and are not excluded
from compensation under Treasury Regulation Section 1.415-2(d)(3).
(A) Items Includable as Compensation. For
purposes of applying the limitations of Section 415 of the
Code, the term "Compensation" includes:
(1) the Participant's wages, salaries
and fees for professional services and other amounts
received (without regard to whether or not an amount
is paid in cash) for personal services actually
rendered in the course of employment with an Employer
maintaining the Plan to the extent that the amounts
are includable in gross income (including, but not
limited to, commissions paid to salesmen,
compensation for services on the basis of a
percentage of profits, commissions on insurance
premiums, tips and bonuses, fringe benefits and
reimbursements or other expense allowances under a
nonaccountable plan as described in Treasury
Regulation Section 1.62-2(c)).
(2) in the case of a Participant who is
an employee within the meaning of Section 401(c)(1)
of the Code and the regulations thereunder, the
Participant's earned income (as described in Section
401(c)(2) of the Code and the regulations
thereunder).
(3) amounts described in Sections
104(a)(3), 105(a) and 105(h) of the Code, but only to
the extent that these amounts are includable in the
gross income of the Employee.
(4) amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee,
but only to the extent that at the time of the
payment it is reasonable to believe that these
amounts are not deductible by the Employee under
Section 217 of the Code.
(5) the value of a non-qualified stock
option granted to an Employee by the Employer, but
only to the extent that the value of the option is
includable in the gross income of the Employee for
the taxable year in which granted.
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<PAGE> 34
(6) the amount includable in the gross
income of an Employee upon making the election
described in Section 83(b) of the Code.
(B) Items Not Includable as Compensation. The
term "Compensation" does not include items such as:
(1) contributions made by the Employer
to a plan of deferred compensation to the extent
that, before the application of the Code Section 415
limitations to that plan, the contributions are not
includable in the gross income of the Employee for
the taxable year in which contributed. In addition,
Employer contributions made on behalf of an Employee
to a simplified employee pension described in Section
408(k) of the Code are not considered as Compensation
for the taxable year in which contributed.
Additionally, any distributions from a plan of
deferred compensation are not considered as
Compensation for Code Section 415 purposes,
regardless of whether such amounts are includable in
the gross income of the Employee when distributed.
However, any amounts received by an Employee pursuant
to an unfunded non- qualified plan are permitted to
be considered as Compensation for Code Section 415
purposes in the year such amounts are includable in
the gross income of the Employee.
(2) amounts realized from the exercise
of a non-qualified stock option, or when restricted
stock (or property) held by an Employee either
becomes freely transferable or is no longer subject
to a substantial risk of forfeiture under Section 83
of the Code and the regulations thereunder.
(3) amounts realized from the sale,
exchange or other disposition of stock acquired under
a qualified stock option.
(4) other amounts which receive special
tax benefits, such as premiums for group term life
insurance (but only to the extent that the premiums
are not includable in the gross income of the
Employee) or contributions made by an Employer
(whether or not under a salary reduction agreement)
toward the purchase of an annuity contract described
in Section 403(b) of the Code (whether or not the
contributions are excludable from the gross income of
the Employee).
Except as otherwise provided in this Plan, Compensation for
purposes of Section 415 of the Code shall be determined on the basis
of the Plan Year.
(e) Combined Plan Limits. If an Employee is a Participant in this
Plan and in one or more Defined Benefit Plans maintained by the Employer then,
in addition to the limitations contained in Subparagraph (b) above, the sum of
his Defined Benefit Plan Fraction and his Defined Contribution Plan Fraction
shall not exceed 1.0 for any Plan Year.
8.2 Special Rules for Plans Subject to Overall Limitations Under
Code Section 415(e).
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<PAGE> 35
(a) Recomputation Not Required. The Annual Additions for any
Limitation Year beginning before January 1, 1987 shall not be recomputed to
treat all Voluntary Employee Contributions as Annual Additions.
(b) Adjustment of Defined Contribution Plan Fraction. If the Plan
satisfied the applicable requirements of Section 415 of the Code as in effect
for all Limitation Years beginning before January 1, 1987, an amount shall be
subtracted from the numerator of the Defined Contribution Plan Fraction (not
exceeding such numerator) as prescribed by the Secretary of the Treasury so
that the sum of the Defined Benefit Plan Fraction and the Defined Contribution
Plan Fraction computed under Section 415(e)(1) of the Code does not exceed 1.0
for such Limitation Year.
8.3 Correction of Contributions in Excess of Section 415 Limits.
If, the Annual Additions for a Participant exceed the limits of Section 8.1 as
a result of the allocation of forfeitures, a reasonable error in estimating a
Participant's annual compensation for purposes of the Plan, or under other
limited facts and circumstances that the Commissioner finds justify the
availability of the rules set forth in this Section 8.3, the excess amounts
shall not be deemed Annual Additions if they are treated in accordance with any
one or more of the following:
(a) return to the Participant that portion, or all, of his
Voluntary Employee Contributions as is necessary to ensure compliance with
Section 9.01; and
(b) forfeiture of that portion, or all, of the Employer Matching
Contributions that were allocated to the Participant's Accounts, as is
necessary to ensure compliance with Section 8.1.
Any amounts distributed or returned to the Participant under
Subsections (a) or (b) above shall be disregarded for purposes of the actual
contribution percentage test of Section 401(m)(2) of the Code.
Any amounts forfeited under Subsection (b) above shall be held in a
suspense account and shall be applied toward funding the Employer Matching
Contributions for the next succeeding Plan Year. No income or investment gains
and losses shall be allocated to the suspense account provided for under this
Section 8.3. If any amount remains in a suspense account provided for under
this Section 8.3 upon termination of this Plan, such amount will revert to the
Employer notwithstanding any other provision of this Plan.
8.4 Combination of Plans. Notwithstanding any provisions
contained herein to the contrary, in the event that the Employer maintains any
other Defined Contribution Plan and the sum of the Annual Additions with
respect to a Participant exceeds the limitations contained in Section 8.1,
corrective adjustments shall be made in said Participant's Accounts under this
Plan unless such other Defined Contribution Plan provides for corrective
adjustments that will prevent a violation of the limitations contained in
Section 8.1.
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ARTICLE IX
PROVISIONS PERTAINING TO THE FROZEN PLAN
9.1 Eligibility and Participation. Participants in the Frozen
Plan in effect immediately prior to the effective date of the amendment and
restatement of the Plan shall continue to be Participants in the Frozen Plan
until their participation in the Frozen Plan is terminated as provided in
Section 9.2 below, however, no additional Participants shall be added to the
Frozen Plan subsequent to December 31, 1986.
9.2 Termination of Participation. A Participant's participation
in the Frozen Plan shall terminate upon (a) the termination of his employment
with the Employer for any reason; (b) his death, or (c) his Total and Permanent
Disability.
9.3 Contributions.
(a) No contributions shall be made by Participants under the
Frozen Plan.
(b) The Employer shall not make any contributions to the Frozen
Plan for periods subsequent to December 31, 1986.
9.4 Accounts of Participants.
(a) There shall be established for each Participant in the Frozen
Plan a separate Account under the Plan known as the Participant's Frozen Plan
Account which shall reflect the allocation thereto of shares of Common Stock on
behalf of the Participant pursuant to the Frozen Plan.
(b) Allocations of cash dividends, stock dividends and other
investment earnings or losses to the Frozen Plan Accounts of Participants in
the Frozen Plan shall be made in accordance with the provisions of Section 11.3
below.
9.5 Vesting. The balance in each Participant's Frozen Plan
Account shall be fully vested at all times.
9.6 Distribution of Frozen Plan Account.
(a) Time of Distribution. Upon a Frozen Plan Participant's (1)
termination of employment with the Company for any reason, (2) death, (3) Total
and Permanent Disability, or (4) in the discretion of the Plan Administrator in
the event of (i) a transfer of the Participant to the employment of an
acquiring employer from the employment of the Employer in the case of a sale to
such acquiring corporation of substantially all of the assets used by the
Employer in a trade or business conducted by the Employer, or (ii) the
disposition by the Employer of its interest in a subsidiary thereof when the
Participant continues employment with such subsidiary, the Participant (or in
the case of his death, his Beneficiary) shall receive a distribution of his
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<PAGE> 37
Frozen Plan Account at the time and manner specified in Article XII hereunder
unless otherwise provided in this Article IX.
(b) Age 59 1/2 Withdrawal. No shares of Common Stock may be
withdrawn by a Participant from his Frozen Plan Account prior to his
termination of employment, death or Total and Permanent Disability, except that
a Participant who has attained age 59-1/2 may request the distribution of all
shares of Common Stock held in his Frozen Plan Account, provided he has also
requested the distribution of all shares of Common Stock held in all his
Accounts, if any, under the Plan, and such distribution shall be made not later
than the time the shares in the other Accounts are distributed.
(c) Form of Distribution. In connection with a distribution of
his Frozen Plan Account, the Participant, or in case of his death, his
Beneficiary, may by written notice to the Plan Administrator, elect either (1)
to have the number of full shares credited to his Frozen Plan Account
distributed in the form of Common Stock with fractional shares paid in cash or
(2) to have the fair value of such shares distributed in cash. If no such
election is made by the Participant or his Beneficiary, the Plan Administrator
shall make the distribution in Common Stock. The fair value shall be the
Market Value of such Common Stock on the day prior to the day on which such
distribution is made.
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ARTICLE X
VOTING COMPANY STOCK
10.1 Voting Rights.
(a) A Participant is entitled to direct the Trustee as to the
manner in which any Company Stock allocated to his Accounts is to be voted.
The Trustee will notify Participants of each occasion for the exercise of
voting rights and will forward copies of any proxy material within a reasonable
time after it is secured from the Employer. A Participant shall elect to
exercise such right by filing written voting instructions with the Trustee at
such time and in such form as the Trustee may reasonably specify. The Trustee
shall vote all unallocated shares and shares of Company Stock in Accounts of
all Participants from whom no such instructions have been received in
proportion to the aggregate vote of all shares voted pursuant to instructions
received from Participants with respect to the Common Stock held in their
Accounts.
(b) Participants will be allowed to direct the voting of
fractional shares or fractional rights to shares. This requirement will be
satisfied if the Trustee, or such other person or persons as the Trustee may
designate, votes the combined fractional shares or rights to shares to the
extent possible to reflect the instructions of the Participants holding
fractional shares or rights of shares.
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ARTICLE XI
ALLOCATIONS AND ACCOUNTS OF PARTICIPANTS
11.1 Investment of Contributions. Except as provided in Section
11.3(h) below and except for cash needed in the administration of the Plan, as
promptly as possible after receipt of any cash contribution, the Trustee shall
apply the same to the purchase of shares of Common Stock (a) in the open
market, (b) from the Employer at the Market Value (except if the Market Value
of a share of Common Stock is less than its par value), (c) from others, at not
more than the Market Value on the day preceding the purchase, or (d) from the
Accounts of Participants to whom cash distributions are made. Notwithstanding
the foregoing, any portion of the Trust may, pending its permanent investment
or distribution, be invested in short-term securities issued or guaranteed by
the United States of America or any agency or instrumentality thereof or any
other investments of a short-term nature, including corporate obligations or
participations therein, even though the same may not be legal investments for
the Trustee under the laws of any jurisdiction.
11.2 Valuations. As of each annual Valuation Date and at such
other date or dates as elected by the Plan Administrator, the Trustee shall
determine the fair market value of the Trust Fund and the Plan Administrator
shall determine the fair market value of the Accounts of each Participant. The
value of the Accounts of Participants as of any Valuation Date shall be equal
to the value of such Accounts as of the last Valuation Date, plus or minus the
applicable adjustments contained in Section 11.3.
11.3 Allocations. As of each Valuation Date, the Accounts of each
Participant shall be adjusted in the manner provided in this Section.
(a) Determining Earnings or Losses. The investment earnings (or
losses, if the computation specified in this sentence results in a negative
figure) of the Trust Fund shall be equal to (1) the fair market value of the
Trust Fund, (excluding amounts held in separate accounts pursuant to Section
13.3 and the value of any insurance contracts) as of the current Valuation
Date; less (2) the fair market value of the Trust Fund (excluding amounts held
in separate accounts pursuant to Section 13.3 and the value of any insurance
contracts) as of the immediately preceding Valuation Date; plus (3) benefit
payments to Participants (excluding payments from separate accounts established
under Section 13.3 and any other disbursements from an Account on behalf of a
particular Participant since the last preceding Valuation Date; less (4) any
Employer Matching Contributions, Voluntary Employee or Rollover Contributions
made to the Trust Fund during the Plan Year.
(1) Allocating Earnings or Losses. Investment earnings
or losses shall be allocated to each Participant, other than
Participants for whom separate accounts have been established under
Section 13.3 prior to the Valuation Date in question, in the ratio
that the value of each Account of each such Participant as of the last
preceding Valuation Date, minus any amount paid, segregated, or
disbursed to or on behalf of the Participant under Subsection (a)
above since the last preceding Valuation Date, bears to the total
value of the Accounts of all such Participants as of the last
preceding Valuation Date, minus the amounts paid, segregated, or
disbursed to or on behalf of all such Participants
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<PAGE> 40
under Subsection (a) above since the last preceding Valuation Date.
For the purposes of this subparagraph, the value of any insurance
contract shall be excluded in determining the value of any Account.
(b) Employer Matching Contributions. At least quarterly, the
Employer Matching Contribution Account of each Participant who has made
Voluntary Employee Contributions during the valuation period shall be increased
by an allocation (on the basis of the weighted average cost per share thereof)
of Employer Matching Contributions in the amount determined under Section 4.1
hereof.
(c) Rollover Accounts. At least quarterly, the Rollover Account
of each Participant shall be increased by the amount of his Rollover
Contributions or direct transfers, if any, made pursuant to Section 7.1 since
the immediately preceding allocation Date.
(d) Voluntary Employer Contribution Accounts. At least quarterly,
the Voluntary Employee Contribution Account of each Participant shall be
increased by the allocation (on the basis of the weighted average cost per
share thereof) of his Voluntary Employee Contributions, if any, made pursuant
to Section 3.1 since the immediately preceding Valuation Date.
(e) Cash Dividends. Cash dividends received by the Trustee with
respect to Common Stock or otherwise shall be used to purchase Common Stock in
the manner permitted under Section 11.1 which Common Stock shall then be
allocated among the Participants' Accounts in the Plan in the same proportion
as the Common Stock in the Trust Fund on the applicable record date is
allocated or allocable to such respective Accounts.
(f) Stock Dividends. Stock dividends in the form of Common Stock
and Common Stock resulting from stock splits, received by the Trustee for the
Plan shall be allocated in the same manner as cash dividends. Any fractional
shares received may, in the Trustee's discretion, either be sold or converted
to a whole share.
(g) Other Property. Stock (other than Common Stock) and
securities and other property received by the Trustee as a dividend or
distribution with respect to Common Stock in Participants' Accounts shall be
sold and the proceeds applied in the same manner as a cash dividend.
(h) Stock Exchanges. In the event of a merger, reorganization or
recapitalization in which Common Stock is exchanged for other stock or
securities, the Trustee shall effect such exchange with respect to all Common
Stock in Participants' Accounts and the Plan Administrator shall allocate the
stock and securities received in such exchange among the Participants' Accounts
in proportion to the number of shares and fractions of a share of Common Stock
allocated or allocable to said respective Accounts at the time of such
exchange. Thereafter, such stock or securities shall be deemed to be Common
Stock for all purposes of the Plan, except as the Board of Directors may
otherwise determine. Any fractional share or fractional unit received in such
exchange shall be handled in the same manner as a fractional share in a stock
dividend.
11.4 Determinations of Value. In determining the value of the
Trust Fund, and the Accounts of Participants, the Trustee and the Plan
Administrator shall exercise their best
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<PAGE> 41
judgment, and all such determinations of value shall be binding upon all
Participants and their Beneficiaries.
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ARTICLE XII
RETIREMENT, DEATH, DISABILITY AND TERMINATION OF EMPLOYMENT
12.1 100% Vesting in All Accounts. A Participant's Voluntary
Employee Contribution Account, Employer Matching Contribution Account, Frozen
Plan Account and Rollover Account shall at all times be 100% vested and
nonforfeitable.
For purposes of this Article XII, any Voluntary Employee Contributions
or Rollover Contributions made by a Participant, or any payments or
distributions made to or for him during the Plan Year of his termination for
any reason shall be credited to or subtracted from the appropriate Account of
the Participant prior to final determination of the Participant's distributable
interest in the Plan.
12.2 Normal Retirement. After both reaching his Normal Retirement
Date and retiring, a Participant shall become entitled to payment of the full
value of his Accounts as of the Valuation Date immediately following his Normal
Retirement Date. The Participant shall elect a form of benefit payment and a
time for commencement of benefits pursuant to Article XIII hereof. The actual
payment of benefits under this Section 12.2 shall satisfy all obligations of
the Trust to such Participant and such Participant shall be ineligible to
receive further allocations of Employer contributions or earnings or losses of
the Trust Fund unless he is subsequently reemployed by the Employer.
12.3 Late Retirement. In the event that a Participant continues as
an Employee of the Employer following his Normal Retirement Date in accordance
with the Employer's employment practices or in accordance with applicable law,
such Participant shall continue to be an active Participant under the Plan,
subject to the provisions of Section 13.2(c), until his retirement, and, upon
his retirement, he shall become entitled to the full value of his Accounts,
subject to the provisions of Section 13.2(c), as of the Valuation Date
immediately following his date of retirement. The Participant shall elect a
form of benefit payment and a time for commencement of benefits pursuant to
Article XIII hereof. The actual payment of benefits under this Section 12.3
shall satisfy all obligations of the Trust to such Participant and such
Participant shall be ineligible to receive further allocations of Employer
contributions or earnings or losses of the Trust Fund unless he is subsequently
reemployed by the Employer.
12.4 Death Benefits.
(a) If a Participant dies while an active Participant under the
Plan, his Beneficiary or Beneficiaries shall be entitled to the full value of
his Accounts, subject to the provisions of Section 13.2(c), as of the Valuation
Date immediately following his date of death. The Beneficiary or Beneficiaries
shall elect a form of benefit payment and time for commencement of benefits
pursuant to Article XIII hereof. The actual payment of benefits hereunder
shall satisfy all obligations of the Trust to such Beneficiary or Beneficiaries
and the Participant's Accounts shall be ineligible to receive further
allocations of Employer contributions or earnings or losses of the Trust Fund.
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(b) Except as provided in this Subsection (b), the balance of the
Participant's Accounts shall be payable in full to the Participant's surviving
spouse.
If there is no surviving spouse, or if the spouse of the Participant
consents in writing, the balance of the Participant's Accounts may be paid in
full to a designated Beneficiary. Any consent by a spouse that the balance of
the Participant's Accounts may be payable to a designated Beneficiary must be
in writing, must acknowledge the effect of such consent and must be witnessed
by the Plan Administrator or a notary public. Further, the consent must
acknowledge the specific nonspouse Beneficiary so named and provide (1) that
the Participant may not subsequently change the nonspouse Beneficiary without
again obtaining his or her spouse's consent or (2) that the spouse expressly
permits changes in the designation without any requirement of further consent
by the spouse. The Plan Administrator may, in its sole discretion, require
information or documentation necessary to establish to its satisfaction that
the spouse's consent described above may not be obtained because there is no
spouse, because the spouse cannot be located, or because of such other
circumstances as the Secretary of the Treasury may by regulations prescribe.
For purposes of this Subsection (b), any consent by a spouse (or establishment
that the consent of a spouse may not be obtained) shall be effective only with
respect to such spouse.
If there is no surviving spouse, or if a Participant's spouse has
consented in the manner described in the immediately preceding paragraph, each
Participant shall have the right to designate, by giving a written designation
to the Plan Administrator, a person or persons or entity other than his or her
spouse as his designated Beneficiary to receive the death benefit provided
under this Section 12.4. Successive designations may be made, and the last
designation received by the Plan Administrator prior to the death of the
Participant shall be effective and shall revoke all prior designations,
provided that appropriate spousal consent has been obtained. If a designated
Beneficiary shall die before the Participant, his interest shall terminate,
and, unless otherwise provided in the Participant's designation, if the
designation included more than one Beneficiary, such interest shall be paid in
equal shares to those Beneficiaries, if any, who survive the Participant. A
Participant shall have the right to designate the method of payment of benefits
to his Beneficiary or Beneficiaries in the Participant's Accounts under the
Plan. The Participant shall have the right to revoke the designation of any
Beneficiary without the consent of the Beneficiary.
If a Participant shall fail to designate a Beneficiary, if such
designation shall for any reason be illegal or ineffective, or if no
Beneficiary shall survive the Participant, his death benefits shall be paid in
accordance with the provisions of Section 13.4 of this Plan.
12.5 Disability. When it is determined that a Participant is
Totally and Permanently Disabled, the Plan Administrator shall certify such
fact to the Trustee, and such Disabled Participant shall be entitled to receive
the full value of his Accounts, subject to the provisions of Section 13.2(c),
as of the Valuation Date immediately following the date the Participant
separates from service due to his Total and Permanent Disability. The
Participant shall request a manner and a time for commencement of benefits
pursuant to Article XIII hereof. The actual payment of benefits under this
Section 12.5 shall satisfy all obligations of the Trust to such Participant and
such Participant shall be ineligible to receive further allocations of Employer
contributions and earnings or losses of the Trust Fund unless he is
subsequently reemployed by the Employer.
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12.6 Termination of Employment. Whenever the employment of a
Participant is terminated for reasons other than his actual retirement on his
Normal, Early or Late Retirement Date, death or Total and Permanent Disability,
the Participant shall become subject to the following provisions:
(a) Filing of Claim. Upon termination of employment, the
Participant may file a written claim for benefits with the Plan Administrator
requesting distribution of 100% of his Accounts determined as of the Valuation
Date coincident with or immediately following his termination of employment and
paid as soon as possible after such Valuation Date. Alternatively, such
Participant may elect to defer receipt of his distributable balance to a time
not later than that set forth in Section 13.2(c) hereof.
(b) Mandatory Cash-Out. Notwithstanding that the Participant may
not have incurred a Break in Service, and irrespective of whether the
Participant files a written claim for benefits or elects to defer receipt of
benefits under Subsection (a), the Plan Administrator shall direct payment in a
single sum to such Participant if the vested portion of his Accounts
(attributable to both Employer and Employee contributions) does not exceed
$3,500 determined as of the Valuation Date immediately following his
termination of employment. The distribution shall be made as soon as possible
after such Valuation Date. The Plan Administrator shall not cash-out any
Participant whose vested benefits exceed $3,500 without the written consent of
the Participant. Any Participant who receives a mandatory distribution under
this Section 12.6(b) and is subsequently reemployed by the Employer shall be
eligible to buy back into the Plan pursuant to the terms and conditions of
Section 13.7 hereof.
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ARTICLE XIII
DISTRIBUTION OF BENEFITS TO PARTICIPANTS
13.1 Form of Distribution. Subject to the provisions of Section
13.2(b) and 13.2(c), a Participant separating from service for any reason, or
his Beneficiary in the event of the Participant's death, shall elect a time for
commencement of distribution of any benefits under the Plan as provided
hereinafter. The election by the Participant or the Beneficiary shall be in
writing and shall be filed with the Plan Administrator at least 30 days before
distribution is to be made. Except as provided in Sections 9.6(c) and
13.2(a)(iii), all distributions made from the Plan shall be made in a lump sum
distribution in shares of Common Stock and an amount of cash equal to the
Market Value of any fractional shares of Common Stock and the fair value of any
other property allocated to a Participant's Accounts; provided, however, that
the Plan Administrator and Trustees, may, but shall not be required to accept
written instructions from a Participant that shares of Common Stock be sold by
the Plan on behalf of such Participant and the net proceeds of the sale, after
any related expenses, be delivered to the Participant.
Distributions of Common Stock hereunder shall be deemed to have been
made on the day the Trustee mails or otherwise makes delivery of shares of
Common Stock to the Employer's transfer agent with instructions to transfer
such shares to the Participant. Distributions of cash hereunder shall be
deemed to have been made on the day the Trustee issues its check for delivery
to the Participant. Distributions of other property hereunder shall be deemed
to have been made when the Trustee mails or otherwise makes delivery of such
property to the Participant.
13.2 Commencement of Benefits. Subject to a Participant's consent,
distribution of a Participant's Accounts under this Section shall be made or
commence as follows:
(a) Earliest Date.
(i) Retirement. In the case of a Participant whose
employment terminates due to retirement, as soon as practicable after
the allocation of all shares of Common Stock purchased on behalf of
such Participant during the Plan Year in which the Participant's
employment terminates due to such event, but no later than 60 days
after the close of the Plan Year in which the Participant's employment
terminates.
(ii) Disability. In the case of a Participant whose
employment terminates due to Total and Permanent Disability, as soon
as practicable after the Participant separates from service due to
such Total and Permanent Disability, but no later than 60 days after
the close of the Plan Year in which the Participant terminates his
employment due to such event.
(iii) Death. In the case of a Participant who dies: (a)
while actively employed; or (b) after his termination of employment
due to retirement or Total and Permanent Disability, but before
distribution of his Accounts, as soon as practicable after such death,
in a lump sum or in such periodic annual installments (not to exceed
five) as may be directed by the Plan Administrator.
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(iv) Other Terminations. In the case of a Participant whose
employment terminates for any reason other than death, Total and
Permanent Disability or retirement, as soon as practicable after the
Participant's termination of employment, but no later than 60 days
after the close of the Plan Year in which the Participant's employment
terminates.
(v) Limited Deferral Option. Notwithstanding the provisions
of Subsections (i) through (iv) above and subject to the approval of
the Plan Administrator, a Participant may elect that the payment to
him of any benefit under the Plan will commence at a date up to two
years after his termination of employment. The election referred to
in this Section 13.2(a)(v) must be made, if at all, by the Participant
submitting such election to the Plan Administrator prior to
termination of his employment, on a form prescribed by the Plan
Administrator, stating the date when such payments shall commence.
Any election to defer payment pursuant to this Section 13.2(a)(v)
shall be irrevocable; provided, however, that in the case of the death
of the Participant, his Beneficiary may request earlier termination of
the deferral period.
(b) Required Distribution. Notwithstanding the provisions of
Section 13.2(a), unless the Participant or his Beneficiary elects to have
payment begin at a later date, payment of benefits to the Participant shall
begin not later than 60 days after the last day of the Plan Year in which the
latest of the following events occur:
(1) the Participant's Normal Retirement Date;
(2) the 10th anniversary of the date the Employee became
a Participant; or
(3) the Participant's separation from service.
(c) Required Minimum Distributions On and After January 1, 1989.
Notwithstanding anything to the contrary contained elsewhere in the Plan and
subject to the transitional rules described in Subsection (d) below, effective
for taxable years beginning after December 31, 1988, the entire interest of a
Participant shall be distributed no later than April 1 of the calendar year
following the calendar year in which the Participant attains age 70-1/2
("required beginning date"), without regard to the actual date of separation
from service, or shall be distributed beginning not later than the required
beginning date, in accordance with Treasury Regulations over the life of such
Participant or over the lives of such Participant and a designated beneficiary
(or over a period not extending beyond the life expectancy of such Participant
and a designated beneficiary).
(d) Transitional Rule. Any Participant who is not a five percent
owner and who has attained age 70-1/2 by January 1, 1988 may defer the
commencement of benefit payments under Subsection (c) above until he actually
separates from service with the Employer. This transitional rule shall only
apply if the Participant is not a five percent owner at any time during the
Plan Year ending with or within the calendar year in which such owner attains
age 66-1/2 and in any subsequent Plan Year.
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(e) Determining Required Minimum Distributions. All distributions
required pursuant to Subsections (c) and (d) above shall be made in accordance
with Proposed Treasury Regulations 1.401(a)(9)-2.
13.3 Earnings for Deferred Accounts or Installment Payments. If
the distribution of benefits to a Participant or to the Beneficiary of a
Participant will either be paid in installments or be delayed beyond one or
more Valuation Dates if payable in a lump sum, his Accounts shall remain in the
Trust Fund and shall continue to participate in the allocation of earnings or
losses as provided in Section 11.3 hereof until fully distributed.
Alternatively, the Plan Administrator may direct that the
Participant's Accounts be segregated from the other Trust Fund assets and
invested in a separate account. The investment of such separate account shall
be in such federally insured accounts as determined by the Trustee, with all
interest earned on such investments credited to such accounts and all
disbursements charged thereto. Such accounts may be held in cash, but only for
a limited period between investments or as a reserve to meet installment
distributions.
13.4 Beneficiaries. If, at the time of a Participant's death,
benefits are still outstanding and his named Beneficiary does not survive him,
the benefits shall be paid to the Participant's named Contingent Beneficiary.
If a deceased Participant is not survived by either a named Beneficiary or
Contingent Beneficiary (or if no Beneficiary or Contingent Beneficiary was
effectively named), the benefits shall be paid, in either a lump sum or in
periodic installments (not to exceed five annual installments), in the
discretion of the Plan Administrator, as provided in Section 12.5, to the
person or persons in the first of the following classes of beneficiaries with
one or more members of such class then surviving: the Participant's (a)
surviving spouse; (b) children; or (c) executors and administrators. If the
Beneficiary or Contingent Beneficiary is living at the death of the
Participant, but such person dies prior to receiving the entire death benefit,
the remaining portion of such death benefit shall be paid in a single sum to
the estate of such deceased Beneficiary or Contingent Beneficiary.
13.5 Account Adjustments.
(a) The distributable value of a Participant's Accounts shall be
appropriately adjusted to take into account any payments or distributions to or
for the Participant as the result of his attaining age 70-1/2 prior to his
actual retirement, death or disability.
(b) The receipt by a Participant of any payments or distributions
as the result of his attaining age 70-1/2 prior to his actual retirement, death
or disability shall in no way affect the entitlement of an otherwise eligible
Participant or his Beneficiaries to receive further allocations of Employer
Contributions and earnings or losses on the remaining balance of his Accounts.
13.6 Cash-Out Procedure. If the Participant, on or before the date
of his termination of employment by reason of discharge or resignation or
within a reasonable period of time thereafter (but not later than the Valuation
Date for the Plan Year during which such termination occurs), requests in
writing that the Plan Administrator distribute to him the vested portion of his
Accounts, the Plan Administrator shall direct the Trustee to pay such amount to
the Participant within 60 days following his request, notwithstanding that the
Participant shall not then have
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incurred a Break in Service. The Participant's Accounts shall be determined as
of the Valuation Date immediately preceding the date of his termination
(appropriately adjusted to take into account any Voluntary Employee
Contributions or Rollover Contributions made by or on behalf of the Participant
or any payments or distributions made to or for him since such Valuation Date).
Once the Plan Administrator issues the directive for the Trustee to pay the
Participant, the cash-out shall be deemed to be in process or pending. Absent
a buy-back by the Participant under Section 13.7, the actual payment of
benefits under this Section 13.6 shall satisfy all obligations of the Trust to
such Participant, and such Participant shall be entitled to no allocations of
Employer contributions or earnings or losses as of the Valuation Date
coincident with or immediately following his termination of employment.
13.7 Buy-Back Procedure. A terminated Participant who has
voluntarily elected to receive a cash-out of benefits pursuant to Section 13.6
(or who receives a mandatory cash-out of the Plan pursuant to Section 12.6(b))
and who returns to the employ of the Employer before incurring five consecutive
Breaks in Service shall be permitted to repay the cash-out amount to the Trust
Fund and thereby be entitled to a restoration of his benefits under the Plan in
an amount not less than that amount determined as of the Valuation Date
immediately preceding the actual payment of the cash-out, unadjusted by any
subsequent gains or losses. The Participant must repay the full amount
distributed to him before the earlier of (a) five years from the first date on
which the Participant is subsequently reemployed by the Employer or (b) the
close of a period of five consecutive Breaks in Service commencing after the
withdrawal. The permissible sources for restoration of accrued benefits are
subsequent (a) income or gain to the Plan; or (b) Employer contributions.
Restoration of accrued benefits to which an Employee is entitled under this
Section shall be made, as deemed necessary and proper by the Plan
Administrator, from one or more of the permissible sources named above prior to
the normal allocation of such funds under this Plan. A terminated Participant
who is deemed to be cashed-out of the Plan pursuant to Subsection 13.6 above
and who returns to the employ of the Employer before incurring five consecutive
Breaks in Service shall be deemed to have bought back into the Plan and shall
also be entitled to a restoration of his benefits as provided under this
Section 13.7.
13.8 TEFRA 242(b)(2) Transitional Rules. Any distribution made
pursuant to a TEFRA transitional rule distribution election shall meet the
requirements of Code Section 401(a)(9) as in effect on December 31, 1983, and
shall also satisfy Code Sections 401(a)(11) and 417.
13.9 Requirement for Direct Rollovers. This Section applies to
distributions made on or after January 1, 1993. Notwithstanding any provision
of the Plan to the contrary that would otherwise limit a Distributee's election
under this Article XIII, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover.
(a) Definitions.
(1) Eligible Rollover Distribution: An Eligible Rollover
Distribution is any distribution of all or any portion of the balance
to the credit of the Distributee, except that an Eligible Rollover
Distribution does not include: (A) any distribution that is one of a
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series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary, or for a
specified period of 10 years or more; (B) any distribution to the
extent such distribution is required under Section 401(a)(9) of the
Code; and (C) the portion of any distribution that is not includible
in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(2) Eligible Retirement Plan: An Eligible Retirement Plan is
an individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Section 408(b) of
the Code an annuity plan described in Section 403(a) of the Code or a
qualified trust described in Section 401(a) of the Code that accepts
the Distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to a surviving spouse, an
Eligible Retirement Plan is an individual retirement account or
individual retirement annuity.
(3) Distributee: A Distributee includes an Employee or
former Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse or
former spouse who is an alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
Distributees with regard to the interest of the spouse or former
spouse.
(4) Direct Rollover: A Direct Rollover is a payment by
the Plan to the Eligible Retirement Plan specified by the Distributee.
13.10 Consent and Notice Requirements. If the value of the vested
portion of a Participant's Accounts derived from Employer and Employee
contributions exceeds (or at the time of any prior distribution exceeded)
$3,500, and the vested account balance is immediately distributable, the
Participant must consent to any distribution of such vested account balance.
The consent of the Participant shall be obtained in writing within the 90-day
period ending on the annuity starting date. The term annuity starting date
shall mean the first day of the first period for which an amount is paid as an
annuity or in any other form. A vested account balance is immediately
distributable if any part of the vested account balance could be distributed to
the Participant before the Participant attains the later of his Normal
Retirement Date or age 62.
The Plan Administrator shall notify the Participant of the right to
defer any distribution until the Participant's vested account balance is no
longer immediately distributable. Such notification shall include a general
description of the material features, and an explanation of the relative values
of the optional forms of benefit available under the Plan in a manner that
would satisfy the notice requirements of Section 417(a)(3) of the Code; such
notification shall be provided no less than 30 days and no more than 90 days
prior to the annuity starting date.
If a distribution is one to which Sections 401(a)(11) and 417 of the
Code do not apply, such distribution may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Income Tax Regulations is
given, provided that:
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(a) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and
(b) the Participant, after receiving the notice, affirmatively
elects a distribution.
For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first Plan Year
beginning after December 31, 1988, the Participant's vested account balance
shall not include amounts attributable to accumulated deductible employee
contributions within the meaning of Section 72(o)(5)(B) of the Code.
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ARTICLE XIV
CLAIMS PROCEDURE
14.1 Filing of Claim. A Participant or Beneficiary shall make a
claim for Plan benefits by filing a written request with the Plan Administrator
upon a form to be furnished to the Participant or Beneficiary for such purpose.
14.2 Denial of Claim. If a claim is wholly or partially denied,
the Plan Administrator shall furnish the Participant or Beneficiary with
written notice of the denial within 60 days of the date the original claim was
filed. This notice of denial shall provide: (a) the reason for denial; (b)
specific reference to pertinent Plan provisions on which the denial is based;
(c) a description of any additional information needed to perfect the claim and
an explanation of why such information is necessary; and (d) an explanation of
the Plan's claim procedure.
14.3 Review of Denial. The Participant or Beneficiary shall have
60 days from receipt of the denial notice in which to make written application
for review by the Plan Administrator. The Participant or Beneficiary may
request that the review be in the nature of a hearing. The Participant or
Beneficiary shall have the right to: (a) engage representation to assist the
Participant or Beneficiary in any manner; (b) review pertinent documents; and
(c) submit comments in writing.
14.4 Decision upon Review. The Plan Administrator shall issue a
decision on such review within 60 days after receipt of an application for
review as provided in Section 14.3 above.
14.5 Extension of Claim Procedure Time Periods. Notwithstanding
any provision in this Article XIV to the contrary, the Plan Administrator may
extend any time period described herein as he may deem necessary, provided,
however, that any such extension shall meet the requirements of Department of
Labor Regulations Section 2560.503-1.
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ARTICLE XV
THE PLAN ADMINISTRATOR
15.1 Designation. The Plan Sponsor shall be the Named Fiduciary of
the Plan with authority to control and manage the operation and administration
of the Plan. The powers of the Named Fiduciary shall include, but are not
limited to, designating persons other than the Named Fiduciary to carry out
such fiduciary responsibilities (other than Trustee responsibilities) as it may
specify; consulting with and advising the Trustee as to investment matters
relating to the purposes of the Plan; and employing one or more persons to
render advice with regard to any responsibility the Named Fiduciary, or any
fiduciary designated by the Named Fiduciary, may have under the Plan.
The Named Fiduciary shall appoint persons to serve as members of the
Stock Purchase Plan Committee who shall then serve as the Plan Administrator
and have such authority and powers as are provided herein or as are designated
in writing by the Named Fiduciary. If the Committee has been delegated any
specific functions in the Plan, those functions shall be exercised subject to
the control of the Named Fiduciary.
The Named Fiduciary and the Stock Purchase Plan Committee shall each
act through its officers, members or agents. Any member of the Stock Purchase
Plan Committee may resign or be removed by the Named Fiduciary at any time.
The Stock Purchase Plan Committee shall maintain a permanent record of
its actions with respect to the Plan which shall be available for inspection by
appropriate parties as provided in the Code and ERISA.
15.2 Responsibilities in General. Subject to the limitations of
the Plan, the Plan Administrator shall from time to time establish rules for
the administration of the Plan and transaction of its business. The records of
the Employer, as certified to the Plan Administrator, shall be conclusive with
respect to any and all factual matters dealing with the employment of a
Participant. The Plan Administrator shall have the specific and discretionary
authority to interpret the Plan and shall determine all questions of fact
arising in the administration, interpretation, and application of the Plan, and
all such determinations by the Plan Administrator shall be conclusive and
binding on all persons, subject, however, to the provisions of the Code and
ERISA.
15.3 Payment Orders. The Plan Administrator shall direct the
Trustee in writing to make payments from the Trust Fund to Participants who
qualify for such payments hereunder. Such written order to the Trustee shall
specify the name of the Participant, his Social Security number, his address,
and the amount and frequency of such payments.
15.4 Expenses. All expenses of administration of the Plan,
including, but not limited to, legal fees, Trustee's fees, transfer taxes on
distributions, other costs of operation, and all commissions, transfer taxes,
charges and other costs directly involved in the purchase by the Trustee of
shares of Common Stock shall be borne by the Employer.
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15.5 No Discrimination. The Plan Administrator shall not take
action or direct the Trustees to take any action with respect to any of the
benefits provided hereunder or otherwise in pursuance of the powers conferred
herein upon the Plan Administrator which would be discriminatory in favor of
Participants who are officers, shareholders, or Highly Compensated Employees,
or which would result in benefiting one Participant or group of Participants at
the expense of another, or result in discrimination between Participants
similarly situated, or in the application of different rules to substantially
similar sets of facts.
15.6 Requests by Trustee for Instructions. The Trustee may request
instructions in writing from the Plan Administrator on any matters affecting
the Trust and may rely and act thereon.
15.7 Allocations. The Plan Administrator shall be responsible for
the determination of the Accounts of each Participant. The Trustee need not
segregate the assets representing the various Accounts of Participants for
investment purposes, except as indicated in Section 13.3.
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ARTICLE XVI
THE TRUST FUND AND TRUSTEE
16.1 Existence of Trust. The Plan Sponsor has entered into a Trust
Agreement with the Trustee to hold the funds necessary to provide the benefits
set forth in this Plan.
16.2 Exclusive Benefit Rule. The Trust Fund shall be received,
held in trust, and disbursed by the Trustee in accordance with the provisions
of the Trust Agreement and this Plan. No part of the Trust Fund shall be used
for or diverted to purposes other than for the exclusive benefit of
Participants, retired Participants, disabled Participants, their Beneficiaries,
or Contingent Beneficiaries under this Plan, or the payment of reasonable
administrative expenses. No person shall have any interest in, or right to,
the Trust Fund or any part thereof, except as specifically provided for in this
Plan or the Trust Agreement or both.
16.3 Removal of Trustee. The Board of Directors of the Plan
Sponsor may remove the Trustee at any time upon the notice required by the
terms of the Trust Agreement, and upon such removal or upon the resignation of
a Trustee, the Board of Directors shall appoint a successor Trustee(s).
16.4 Powers of Trustee. The Trustee shall have such powers to
hold, invest, reinvest, or to control and disburse the funds as at that time
shall be set forth in the Trust Agreement or this Plan.
16.5 Integration of Trust. The Trust Agreement shall be deemed to
be a part of this Plan, and all rights of Participants or others under this
Plan shall be subject to the provisions of the Trust Agreement.
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ARTICLE XVII
AMENDMENT AND TERMINATION
17.1 Right to Amend. The Plan Sponsor reserves the right at any
time, by action of its Board of Directors, to modify or amend, in whole or in
part, any or all of the provisions of the Plan, including specifically the
right to make such amendments effective retroactively, if necessary, to bring
the Plan into conformity with regulations promulgated under the Code or ERISA
which must be complied with so that the Plan and Trust Fund may continue to
remain qualified and to preserve the tax exempt status of the Trust. No
modification or amendment shall make it possible for Trust assets to be used
for, or diverted to, purposes other than the exclusive benefit of Participants
and their Beneficiaries.
If the vesting schedule of the Plan is amended, in the case of an
Employee who is a Participant as of the later of the date such amendment is
adopted or the date it becomes effective, the nonforfeitable percentage
(determined as of such date) of such Employee's right to his Employer-derived
accrued benefit will not be less than his percentage computed under the Plan
without regard to such amendment.
An amendment (including the adoption of this Plan as a restatement of
an existing plan) may not decrease a Participant's accrued benefit, except to
the extent permitted under Section 412(c)(8) of the Code, and may not reduce or
eliminate Code Section 411(d)(6) protected benefits determined immediately
prior to the adoption date (or, if later, the effective date) of the amendment.
An amendment shall be deemed to reduce or eliminate Code Section 411(d)(6)
protected benefits if the amendment has the effect of either (a) eliminating or
reducing an early retirement benefit or a retirement-type subsidy (as defined
in Treasury regulations) or (b) except as provided by Treasury regulations,
eliminating an optional form of benefit. The Plan Administrator must disregard
any amendment to the extent that application of the amendment would fail to
satisfy this paragraph. If the Plan Administrator disregards an amendment
because the amendment would violate clause (a) or clause (b), the Plan
Administrator must maintain a schedule of the early retirement option or other
optional forms of benefit the Plan must continue for the affected Participants.
The Plan Sponsor may amend the Plan by adding overriding plan language
where such language is necessary to satisfy Sections 415 or 416 of the Code
because of the required aggregation of multiple plans under those Sections.
17.2 Right to Terminate. The Plan Sponsor may, by action of its
Board of Directors, terminate the Plan and the Trust either in its entirety or
in its application to any subsidiary, division, office or other employing unit.
17.3 Distributions upon Termination. If the Plan is terminated and
if the Employer does not establish a successor plan, the interest of each
Participant shall either be distributed in a lump sum or in periodic
installments, in cash or in kind, or shall continue to be held in Trust at the
discretion of the Plan Administrator until such time as the amount otherwise
becomes distributable to the Participant upon death, retirement, disability or
separation from service.
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ARTICLE XVIII
TOP HEAVY PROVISIONS
18.1 Top Heavy Provisions and Definitions. The following
definitions and provisions shall automatically become effective for any Plan
Year commencing after December 31, 1983 in which the Plan is determined to be a
Top Heavy Plan as described in Section 18.3 below.
18.2 Definitions.
(a) The term "Aggregate Account" shall mean for each Participant
as of the Determination Date, the sum of:
(1) The balance of his Account as of the most recent
valuation occurring within a 12 month period ending on the
Determination Date;
(2) An adjustment for any Employer contributions due as
of the Determination Date. Such adjustment shall be the amount of any
Employer Contributions actually made after the Valuation Date but
before the Determination Date, except for the first Plan Year when
such adjustments shall also reflect the amount of any Employer
contributions made after the Determination Date that are allocated as
of a date in that first Plan Year;
(3) Any Plan distributions made within the Plan Year that
includes the Determination Date or within the four preceding Plan
Years. However, in the case of distributions made after the Valuation
Date and prior to the Determination Date, such distributions are not
included as distributions for Top Heavy purposes to the extent that
such distributions are already included in the Participant's Aggregate
Account balance as of the Valuation Date. Notwithstanding anything
herein to the contrary, all distributions, including distributions
made prior to January 1, 1984, will be counted;
(4) Any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to qualified tax deductible
Employee contributions shall not be considered to be a part of the
Participant's Aggregate Account balance;
(5) With respect to unrelated rollovers and plan to plan
transfers (which are both initiated by the Employee and made from a
plan maintained by one employer to a plan maintained by another
employer), if this Plan provides for rollovers or plan to plan
transfers, it shall always consider such rollover or plan to plan
transfers as a distribution for purposes of this Section. If this
Plan is the plan accepting such rollovers or plan to plan transfers,
it shall not consider such rollovers or plan to plan transfers
accepted after December 31, 1983 as part of the Participant's
Aggregate Account balance. However, rollovers or plan to plan
transfers accepted prior to January 1, 1984 shall be considered as
part of the Participant's Aggregate Account balance;
(6) With respect to related rollovers and plan to plan
transfers (ones either not initiated by the Employee or made to a Plan
maintained by the Employer), if this Plan
50
<PAGE> 57
provides for the rollover or plan to plan transfer, it shall not be
counted as a distribution for purposes of this Section. If this Plan
is the plan accepting such rollover or plan to plan transfer, it shall
consider such rollover or plan to plan transfer as part of the
Participant's Aggregate Account balance irrespective of the date on
which such rollover or plan to plan transfer is accepted;
(7) Notwithstanding the foregoing, effective for Plan
Years beginning after December 31, 1984, the Account balance of any
Employee who has not performed any Hours of Service for the Employer
maintaining the Plan at any time during the five year period ending on
the Determination Date shall be excluded from the calculations in
determining whether the Plan is Top Heavy.
(b) The term "Aggregation Group" shall mean either a Required
Aggregation Group or a Permissive Aggregation Group as determined below.
(1) Required Aggregation Group. In determining a
Required Aggregation Group hereunder, each plan of the Employer in
which a Key Employee is a Participant, and each other plan of the
Employer which enables any plan in which a Key Employee participates
to meet the requirements of Code Section 401(a)(4) or 410, will be
required to be aggregated. Such group shall be known as a Required
Aggregation Group.
In the case of a Required Aggregation Group, each plan in the
group will be considered a Top Heavy Plan if the Required Aggregation
Group is a Top Heavy Group. No plan in the Required Aggregation Group
will be considered a Top Heavy Plan if the Required Aggregation Group
is not a Top Heavy Group.
(2) Permissive Aggregation Group. The Employer may also
include any other plan not required to be included in the Required
Aggregation Group, provided the resulting group, taken as a whole,
would continue to satisfy the provisions of Code Sections 401(a)(4) or
410. Such group shall be known as a Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan
that is part of the Required Aggregation Group shall be considered a
Top Heavy Plan if the Permissive Aggregation Group is a Top Heavy
Group. No plan in the Permissive Aggregation Group will be considered
a Top Heavy Plan if the Permissive Aggregation Group is not a Top
Heavy Group.
(3) Only those plans of the Employer in which the
Determination Dates fall within the same calendar year shall be
aggregated in order to determine whether such Plans are Top Heavy
Plans.
(c) The term "Determination Date" shall mean (1) the last day of
the preceding Plan Year, or (2) in the case of the first Plan Year, the last
day of such Plan Year.
(d) The term "Key Employee" shall mean any Employee, former
Employee, beneficiary of an Employee or former Employee who, at any time during
the Plan Year or any of
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<PAGE> 58
the four preceding Plan Years, is (1) an officer of the Employer having an
annual compensation greater than 50% of the amount in effect under Code Section
415(b)(1)(A) for any Plan Year; (2) one of the 10 employees having annual
compensation from the Employer of more than the limitation in effect under Code
Section 415(c)(1)(A) and owning (or considered as owning within the meaning of
Code Section 318) the largest interests in the Employer; (3) the owner of five
percent of the outstanding stock of the Employer or of stock possessing more
than five percent of the total combined voting power of all of the stock of the
Employer (taking into account attribution pursuant to Code Section 318); or (4)
the owner of one percent of the outstanding stock of the Employer or of stock
possessing more than one percent of the total combined voting power of all of
the stock of the Employer (taking into account attribution pursuant to Code
Section 318) who has an annual compensation from the Employer of more than
$150,000.00. For purposes of determining whether an Employee is a Key
Employee, with respect to Plan Years beginning on or after January 1, 1989, the
compensation to be considered shall be all compensation as defined in Code
Section 415(c)(3), but including Employer contributions made pursuant to a
salary reduction agreement.
(e) The term "Non-Key Employee" shall mean any Employee other than
a Key Employee as defined above.
(f) The term "Present Value of Accrued Benefit" shall mean, in the
case of a Defined Benefit Plan, a Participant's present value of accrued
benefits as determined under the provisions of the applicable Defined Benefit
Plan.
(g) The term "Top Heavy Group" shall mean an Aggregation Group in
which, as of the Determination Date, the sum of:
(1) the Present Value of the Accrued Benefits of Key
Employees under all Defined Benefit Plans included in the group, and
(2) the Aggregate Accounts of Key Employees under all
Defined Contribution Plans included in the group, exceeds 60% of a
similar sum determined for all Employees.
(h) The term "Top Heavy Plan Year" shall mean that, for a
particular Plan Year commencing after December 31, 1983, the Plan is a Top
Heavy Plan.
18.3 Determination of Top Heavy Status.
(a) This Plan shall be a Top Heavy Plan for any Plan Year in
which, as of the Determination Date: (1) the Present Value of Accrued Benefits
of Key Employees; or (2) the sum of the Aggregate Accounts of Key Employees
under this Plan and any Plan of an Aggregation Group, exceeds 60% of the
Present Value of Accrued Benefits or the Aggregate Accounts of all Participants
under this Plan and any plan of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but such
Participant was a Key Employee for any prior Plan Year, such Participant's
Present Value of Accrued Benefit
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<PAGE> 59
and/or Aggregate Account balance shall not be taken into account for purposes
of determining whether this Plan is a Top Heavy Plan (or whether any
Aggregation Group which includes this Plan is a Top Heavy Plan).
(b) This Plan shall be a super Top Heavy Plan for any Plan Year in
which, as of the Determination Date: (1) the Present Value of Accrued Benefits
of Key Employees; or (2) the sum of the Aggregate Accounts of Key Employees
under this Plan and any Plan of an Aggregation Group, exceeds 90% of the
Present Value of Accrued Benefits or the Aggregate Accounts of all Participants
under this Plan and any plan of an Aggregation Group.
18.4 Special Provisions Required by Top Heavy Plan Status. For all
Plan Years in which this Plan is a Top Heavy Plan, and to the extent necessary
to maintain the qualified status of the Plan under Code Section 401(a) for all
Plan Years in which the Plan is not a Top Heavy Plan, the following special
provisions shall apply, notwithstanding any other provisions of this Plan to
the contrary:
(a) Minimum Allocations. For any Top Heavy Plan Year, the sum of
the Employer contributions and forfeitures allocated to the Employer
contribution Account of each Non-Key Employee shall be equal to at least three
percent of such Non-Key Employee's compensation. However, should the sum of
the Employer contributions and forfeitures allocated to the Accounts of each
Key Employee for such Top Heavy Plan Year be less than three percent of each
Key Employee's compensation, the sum of the Employer contributions and
forfeitures allocated to the Accounts of each Non-Key Employee shall be equal
to the largest percentage allocated to the Account of each Key Employee. For
purposes of the minimum allocation, "compensation" shall mean Compensation as
defined in Section 8.1(d)(4) hereof. However, Employer Matching Contributions
may not be used to satisfy the minimum allocation requirement under this
Subsection (a). Notwithstanding the foregoing, qualified nonelective
contributions described in Section 401(m)(4)(C) of the Code may be treated as
Employer contributions for purposes of the minimum allocation requirement under
this Subsection (a).
If a Key Employee is a Participant in both a Defined Contribution Plan
and a Defined Benefit Plan that are both part of a Top Heavy Group (but neither
of such plans is a Super Top Heavy Plan), the Defined Contribution Fraction and
the Defined Benefit Fraction set forth in Sections 8.1(d)(3) and 8.1(d)(2)
shall remain unchanged, provided the Account of each Non-Key Employee who is a
Participant receives an extra allocation (in addition to the minimum allocation
set forth above) equal to not less than one percent of such Non-Key Employee's
compensation.
For purposes of the minimum allocations set forth above, the
percentage allocated to the Account of any Key Employee shall be equal to the
ratio of the sum of the Employer contributions and forfeitures allocated on
behalf of such Key Employee divided by the compensation of such Key Employee.
For any Top Heavy Plan Year, the minimum allocation set forth above
shall be allocated to the Accounts of all Non-Key Employees who are
Participants and who are employed by the Employer on the Plan Anniversary Date,
including Non-Key Employees who have (1) failed to complete a Year of Service
and (2) declined to make a mandatory contribution, if any such contributions
are required by the Plan.
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<PAGE> 60
Notwithstanding anything herein to the contrary, in any Plan Year in
which a Non-Key Employee is a Participant in both this Plan and a Defined
Benefit Plan maintained by the Employer, and both such plans are Top Heavy
Plans, the Employer shall not be required to provide a Non-Key Employee with
both the full separate minimum Defined Benefit Plan benefit and the full
separate minimum Defined Contribution Plan allocations. Instead, each Non-Key
Employee covered under both Top Heavy Plans shall receive a defined benefit
minimum equal to the lesser of 2% of compensation multiplied by the
Participant's Years of Service after 1984 during which years the Plan is a
Top-Heavy Plan or 20% of his compensation.
Solely for the purpose of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a part, is
Top-Heavy (within the meaning of Section 416(g) of the Code), effective for
Plan Years beginning after December 31, 1986, the accrued benefit of an
Employee other than a Key Employee shall be determined under (1) the method, if
any, that uniformly applies for accrual purposes under all plans maintained by
the affiliated Employers, or (2) 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 Section 411(b)(1)(C) of the Code.
(b) Minimum Vesting. If a Participant's termination of employment
occurs while the Plan is a Top-Heavy Plan, the Plan's vesting schedule shall
continue to apply.
(c) Basic Compensation. The term "Basic Compensation" for any Top
Heavy Plan Year shall disregard compensation in excess of $200,000 (or such
other amount as the Secretary of Treasury may designate).
(d) Impact on Maximum Benefits. Subject to the provisions of
Subsection (a) above for any Plan Year in which the Plan is a Top Heavy Plan,
Sections 8.1(d)(2)(B) and 8.1(d)(3)(B)(1) shall be read by substituting the
number "1.0" for the number "1.25" wherever it appears therein.
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ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Prohibition Against Diversion. There shall be no diversion of
any portion of the assets of the Trust Fund other than for the exclusive
benefit of Participants and their Beneficiaries.
19.2 Prudent Man Rule. For purposes of Part 4 of Title I of ERISA,
the Employer, the Trustee, and the Plan Administrator shall each be Fiduciaries
and shall each discharge their respective duties hereunder 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.
Without limiting the generality of the above, it is specifically provided that
the appointment and retention of any parties pursuant to Article XV of the Plan
are "duties" of the Employer for purposes of this Section.
19.3 Responsibilities of Parties. The Employer shall be
responsible for the administration and management of the Plan except for those
duties specifically allocated to the Trustee or Plan Administrator. The
Trustee shall have exclusive responsibility for the management and control of
the assets of the Plan, except for the investment of assets directed by Plan
Participants pursuant to the terms of the Trust Agreement. The Plan
Administrator shall have exclusive responsibility for all matters specifically
delegated to it by the Employer in the Plan.
19.4 Reports Furnished Participants. The Plan Administrator shall
furnish to each Plan Participant, and to each Beneficiary receiving benefits
under the Plan, within the time limits specified in the Code and ERISA, each of
the following:
(a) a summary plan description and periodic revisions;
(b) notification of amendments to the Plan; and
(c) a summary annual report which summarizes the annual report
filed with the Department of Labor.
19.5 Reports Available to Participants. The Plan Administrator
shall make copies of the following documents available at the principal office
of the Employer for examination by any Plan Participant or Beneficiary:
(a) the Plan document and Trust Agreement; and
(b) the latest annual report.
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<PAGE> 62
19.6 Reports Upon Request. The Plan Administrator shall furnish to
any Plan Participant or Beneficiary who so requests in writing, once during any
twelve-month period, a statement indicating, on the basis of the latest
available information:
(a) his total benefits accrued, and
(b) the nonforfeitable benefits, if any, which have accrued, or
the earliest date on which benefits will become nonforfeitable.
The Plan Administrator shall also furnish to any Plan Participant or
Beneficiary who so requests in writing, at a reasonable charge to be prescribed
by regulation of the Secretary of Labor, any document referred to in Section
19.5.
19.7 Merger or Consolidation of Plan Sponsor. In the event of the
dissolution, merger, consolidation or reorganization of the Plan Sponsor,
provision may be made by which the Plan and Trust will be continued by the
successor, and, in that event, such successor shall be substituted for the Plan
Sponsor under the Plan. The substitution of the successor shall constitute an
assumption of Plan liabilities by the successor and the successor shall have
all of the powers, duties and responsibilities of the Plan Sponsor under this
Plan.
19.8 Non-Alienation or Assignment. Except as may be otherwise
permitted or required by law, none of the benefits under the Plan are subject
to the claims of creditors of Participants or their Beneficiaries, and will not
be subject to attachment, garnishment, or any other legal process whatsoever.
Neither a Participant nor his Beneficiaries may assign, sell, borrow on, or
otherwise encumber any of his beneficial interest in the Plan and Trust Fund,
nor shall any such benefits be in any manner subject to the deeds, contracts,
liabilities, engagements, or torts of any Participant or Beneficiary. If any
Participant or Beneficiary shall become bankrupt or attempt to anticipate,
sell, alienate, transfer, pledge, assign, encumber, or change any benefit
specifically provided for herein, or if a court of competent jurisdiction
enters an order purporting to subject such interest to the claim of any
creditor, then such benefit shall be terminated and the Trustee shall hold or
apply such benefit to or for the benefit of such Participant or Beneficiary in
such manner as the Plan Administrator, in its sole discretion, may deem proper
under the circumstances.
Notwithstanding the above, the Plan Administrator and Trustee shall
comply with any "domestic relations order" (as defined in Section 414(p)(1)(B)
of the Code) which is a "qualified domestic relations order" satisfying the
requirements of Section 414(p) of the Code. The Plan Administrator shall
establish procedures for (a) notifying Participants and alternate payees who
have or may have an interest in benefits which are the subject of domestic
relations orders, (b) determining whether such domestic relations orders are
qualified domestic relations orders under Section 414(p) of the Code, and (c)
distributing benefits which are subject to qualified domestic relations orders.
19.9 Plan Continuance Voluntary. Although it is the intention of
the Plan Sponsor that this Plan shall be continued and its contributions made
regularly, this Plan is entirely voluntary on the part of the Plan Sponsor, and
the continuance of the Plan and the payments thereunder are not to be assumed
as a contractual obligation of the Plan Sponsor.
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<PAGE> 63
19.10 Suspension of Contributions. The Plan Sponsor specifically
reserves the right, in its sole and uncontrolled discretion, to modify or
suspend contributions to the Plan (in whole or in part) at any time or from
time to time and for any period or periods, or to discontinue at any time the
contributions under this Plan.
19.11 Payments to Minors and Others. In making any distribution to
or for the benefit of any minor or incompetent Participant or Beneficiary, or
any other Participant or Beneficiary who, in the opinion of the Plan
Administrator, is incapable of properly using, expending, investing, or
otherwise disposing of such distribution, then the Plan Administrator, in his
sole, absolute, and uncontrolled discretion may, but need not, order the
Trustee to make such distribution to a legal or natural guardian or other
relative of such minor or court appointed committee of any incompetent, or to
any adult with whom such person temporarily or permanently resides; and any
such guardian, committee, relative, or other person shall have full authority
and discretion to expend such distribution for the use and benefit of such
person; and the receipt by such guardian, committee, relative, or other person
shall be a complete discharge to the Trustee, without any responsibility on its
part or on the part of the Plan Administrator to see to the application
thereof.
19.12 Unclaimed Benefits. If any benefits payable to, or on behalf
of, a Participant are not claimed within a reasonable period of time from the
date of entitlement, as determined by the Plan Administrator, and following a
diligent effort to locate such person, the Plan Administrator shall file a Form
SSA or any successor form with the annual report for the appropriate Plan Year
with respect to such Participant. If the Participant or his Beneficiary or
Contingent Beneficiary does not file a claim for benefits prior to the
Valuation Date of the Plan Year during which such Participant's 72nd birthday
occurs, such Participant shall be presumed dead and the post-death benefits, if
any, under this Plan shall be paid to his Beneficiary if he is then living and
can be located following a diligent search, or to the person or persons
specified under Section 13.4 if the Beneficiary is not then living or cannot be
located.
19.13 Merger or Consolidation of Plan. This Plan and Trust shall
not be merged or consolidated with, nor shall any assets or liabilities be
transferred to, any other plan, unless the benefits payable to each Participant
if the Plan was terminated immediately after such action would be equal to or
greater than the benefits to which such Participant would have been entitled if
this Plan had been terminated immediately before such action.
19.14 Amendment of Former Vesting Schedule.
(a) Election of Former Vesting Schedule. If the Plan's vesting
schedule is amended, or the Plan is amended in any way that directly or
indirectly affects the computation of the Participant's vested interest under
the Plan or if the Plan is deemed amended by an automatic change to or from a
Top-Heavy vesting schedule, each Participant with at least three Years of
Service with the Employer may elect, within a reasonable period after the
adoption of the amendment or change, to have the nonforfeitable percentage of
his Accounts computed under the Plan without regard to such amendment or
change. For Participants who do not have at least one Hour of Service in any
Plan Year beginning after December 31, 1988, the preceding sentence shall be
applied by substituting "five Years of Service" for "three Years of Service"
where such
57
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language appears. The election period shall begin on the date such amendment
is adopted and shall end no earlier than the latest of the following date:
(1) the date which is 60 days after the date the
amendment is adopted;
(2) the date which is 60 days after the day the Plan
amendment becomes effective; or
(3) the date which is 60 days after the day the
Participant is issued written notice of the amendment by the Employer
or Plan Administrator.
Such election shall be available only to an individual who is a Participant at
the time such election is made, and such election shall be irrevocable.
(b) No Divestiture By Reason of Amendment. If the vesting
schedule of this Plan is amended or the vesting schedule of any preceding plan
is amended by adoption of this amendment and restatement, the nonforfeitable
percentage of a Participant's Accounts not attributable to Voluntary Employee
Contributions (determined as of the later of the date such amendment is adopted
or becomes effective) shall be at least the nonforfeitable percentage computed
under the Plan as of the later of such dates without regard to the amendment.
19.15 Indemnification. The Employer hereby agrees to indemnify any
current or former Employee or member of the Board of Directors to the full
extent of any expenses, penalties, damages, or other pecuniary loss which such
current or former Employee or member of the Board of Directors may suffer as a
result of his responsibilities, obligations, or duties in connection with the
Plan or fiduciary activities actually performed in connection with the Plan.
Such indemnification shall be paid by the Employer to the current or former
Employee or member of the Board of Directors to the extent that fiduciary
liability insurance is not available to cover the payment of such items, but
in no event shall such items be paid out of Plan assets.
Notwithstanding the foregoing, this indemnification agreement shall
not relieve any current or former Employee or member of the Board of Directors
serving in a fiduciary capacity of his fiduciary responsibilities and
liabilities to the Plan for breaches of fiduciary obligations, nor shall this
agreement violate any provision of Part 4 of Title I of ERISA as it may be
interpreted from time to time by the United States Department of Labor and any
court of competent jurisdiction.
19.16 Agreement Not An Employment Contract. This Plan shall not be
deemed to constitute a contract between the Plan Sponsor (or any other
Employer) and any Participant or to be a consideration or an inducement for the
employment of any Participant or Employee. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the right to be retained in
the service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect
which such discharge shall have upon such individual as a Participant in the
Plan.
19.17 Governing Law. This Plan shall be administered in the United
States of America, and its validity, construction, and all rights hereunder
shall be governed by the laws of the
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United States under ERISA. To the extent that ERISA shall not be held to have
preempted local law, the Plan shall be administered under the laws of the State
of Georgia. If any provision of the Plan shall be held invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective.
19.18 Headings Not Part of Agreement. Headings of sections and
subsections of the Plan are inserted for convenience of reference. They
constitute no part of the Plan and are not to be considered in the construction
thereof.
IN WITNESS WHEREOF, the Plan Sponsor has caused this Amendment and
Restatement to be executed this the 28th day of December, 1994, to be effective
as of January 1, 1989, except as otherwise specifically provided herein.
PLAN SPONSOR:
(CORPORATE SEAL)
ATTEST:
By: /s/ Walter M. Grant By: /s/ Frederick B. Beilstein, III
---------------------------------- ----------------------------------
Title: Secretary Title: Senior Vice President
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<PAGE> 66
DELEGATION OF RESPONSIBILITIES PURSUANT TO ERISA
The following fiduciaries have accepted the duties and
responsibilities delegated to them under the Plan pursuant to ERISA until their
successors are duly appointed and qualified, this 28th day of December, 1994.
PLAN SPONSOR:
(CORPORATE SEAL)
ATTEST:
By: /s/ Walter M. Grant By: /s/ Frederick B. Beilstein, III
---------------------------------- ----------------------------------
Title: Secretary Title: Senior Vice President
STOCK PURCHASE PLAN COMMITTEE:
/s/ Frederick B. Beilstein, III
--------------------------------------
/s/ Walter M. Grant
--------------------------------------
/s/ Victor E. Goetz
--------------------------------------
60
<PAGE> 1
EXHIBIT 4(d)
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
Prepared by:
TROUTMAN SANDERS
600 Peachtree Street
Suite 5200
Atlanta, Georgia 30308-2216
(404) 885-3000
<PAGE> 2
INDEX TO THE
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
ARTICLE I
ESTABLISHMENT OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.01 Manner of Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
GENERAL DUTIES OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.01 Duties of Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.02 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.03 Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.04 Foreign Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
POWER AND SPECIFIC DUTIES OF THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.01 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.02 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.03 Dealings with Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.04 Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.05 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.06 Restriction on Exercise of Powers; Prudent Man Rule . . . . . . . . . . . . . . . . . . . . . . . . 7
3.07 Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.08 Co-Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.09 Liabilities of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
SETTLEMENT OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
4.01 General Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.02 Annual Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.03 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
DURATION AND TERMINATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.01 Duration and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.02 Continuation of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.01 Right to Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
RESIGNATION OR REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.01 Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
TAXES AND EXPENSES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.02 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX
IMPOSSIBILITY OF DIVERSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.01 Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE X
GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.01 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE XI
SPENDTHRIFT PROVISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.01 Spendthrift Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE XII
QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
ii
<PAGE> 4
AMENDMENT AND RESTATEMENT
OF THE
FUQUA INDUSTRIES, INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
AS
THE ACTAVA GROUP INC.
EMPLOYEES STOCK PURCHASE PLAN
TRUST AGREEMENT
INTRODUCTION
AGREEMENT made as of the 28th day of December, 1994, by and between
THE ACTAVA GROUP INC., a corporation organized and existing under the laws of
the State of Delaware ("Plan Sponsor" or "Employer"), and Frederick B.
Beilstein, III, Victor E. Goetz and Walter M. Grant (collectively referred to
herein as "Trustee"),
W I T N E S S E T H:
WHEREAS, effective July 1, 1977, the Plan Sponsor established the
prior Fuqua Industries, Inc. Employees Stock Purchase Plan Trust Agreement and
amendments thereto were adopted on October 19, 1982 and June 1, 1989 ("Prior
Trust Agreement"); and
WHEREAS, pursuant to the terms of the Prior Trust Agreement, authority
rests in the Board of Directors of the Plan Sponsor to amend said Trust
Agreement; and
WHEREAS, the Plan Sponsor has adopted an amendment and restatement of
the Fuqua Industries, Inc. Employees Stock Purchase Plan as The Actava Group
Inc. Employees Stock Purchase Plan ("Plan") to bring it into compliance with
the Tax Reform Act of 1986 and desires to amend and restate the Prior Trust
Agreement as The Actava Group Inc. Employees Stock Purchase Plan Trust
Agreement to reflect certain changes made in the Plan;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, it is agreed by and between the Plan Sponsor and
the Trustee as follows:
<PAGE> 5
ARTICLE I
ESTABLISHMENT OF TRUST
1.01 Manner of Establishment: Plan Sponsor has adopted a qualified
stock bonus plan for the exclusive benefit of certain of its Employees and
their Beneficiaries, and intends to make regular and continuing contributions
as provided in the Plan. The funds and other assets that will, from time to
time, be contributed to the Trustee by Employer are to be administered as a
Trust and that Trust is hereby created. All assets held in Trust by the
Trustee shall be held in Trust and controlled and managed exclusively by the
Trustee, except as herein expressly provided or as provided in ERISA Section
403(a). Plan Sponsor intends that the Trust shall constitute a part of the
Plan, the provisions of which are incorporated herein by reference, which will
meet the requirements of the Employee Retirement Income Security Act of 1974
("ERISA") and qualify under Section 401(a) of the Internal Revenue Code of
1986, as amended ("Code"), and thereby obtain a tax exempt status under Section
501(a) of the Code.
3
<PAGE> 6
ARTICLE II
GENERAL DUTIES OF THE PARTIES
2.01 Duties of Employer: Employer shall make contributions to the
Trust Fund in cash or property acceptable to the Trustee. Such contributions
shall be valued at fair market value at the time of contribution. The Trustee
shall notify Employer in writing if a contribution is unacceptable within three
days after receipt by the Trustee. Employer shall keep accurate books and
records with respect to its Employees, their service with the Employer and
their compensation for purposes of the Plan.
2.02 Duties of Trustee: The Trustee shall hold all acceptable
property received by it. Such property, together with the income therefrom,
shall constitute the Trust Fund. The Trustee shall manage and administer the
Trust pursuant to the terms of this Trust Agreement without distinction between
principal and income and without liability for the payment of interest thereon.
The Trustee shall have no duty or authority to compute any amount to be paid to
it by the Employer. The Trustee shall not be responsible for the collection of
any contributions to the Trust Fund.
2.03 Fiduciaries: The Plan Sponsor identifies the Trustee and the
Plan Administrator as "Fiduciaries." The Plan Administrator shall have sole
and exclusive responsibility (other than that herein specifically conferred
upon the Trustee) for establishing and carrying out the funding policy and the
methods of funding as set forth in the Plan, this Trust Agreement, and the
rules and regulations, if any, adopted by the Plan Administrator, all of which
shall be consistent with ERISA and all regulations promulgated thereunder. The
Plan Administrator shall have sole discretion to allocate and to delegate, by
written communications directed to the Employer, the Trustee, and each
Participant and Beneficiary of the Plan, any or all of his fiduciary
responsibilities, to persons designated by him. An Investment Manager may be
named by the Plan Administrator as provided in ERISA Section 402(c)(3) without
necessity of an amendment to the Trust Agreement and after prior written notice
to the Employer, to the Participants and Beneficiaries of the Plan, and to all
Fiduciaries of the Plan. Any person designated as a Fiduciary herein may serve
in more than one fiduciary capacity with respect to the Plan and may employ
persons to render advice with regard to any responsibility such Fiduciary has
under the Plan.
2.04 Foreign Assets: Except as otherwise authorized by regulations
promulgated by the Secretary of Labor, the Trustee may not maintain any indicia
of ownership of any asset outside the jurisdiction of the District Courts of
the United States.
4
<PAGE> 7
ARTICLE III
POWER AND SPECIFIC DUTIES OF THE TRUSTEE
3.01 Powers: The Trust Fund shall be invested by the Trustees solely
in Common Stock, $1 par value, of the Employer. Such Common Stock shall be
acquired in the open market or from private sources by the Trustees as rapidly
as is feasible in the judgment of the Trustees so as to avoid disturbing the
market therefor and comply with applicable law and regulations. The Trustees
may purchase authorized but unissued shares of Common Stock or shares held in
the treasury of the Employer; provided, however, that in no event shall the
Trustees purchase any Common Stock from the Employer at a price less than the
par value of such stock. Notwithstanding the foregoing, any portion of the
Trust Fund may, pending its permanent investment or distribution, be invested
in short-term securities issued or guaranteed by the United States of America
or any agency or instrumentality thereof or any other investments of a
short-term nature, including corporate obligations or participations therein,
even though the same may not be legal investments for trustees under the laws
applicable hereto.
The Trustee shall have the following powers and authority subject to
the provisoins above:
(a) To purchase, receive or subscribe for any securities and to
retain in trust such securities;
(b) To sell for cash any securities other than Common Stock held
by them and to sell such number of shares of Common Stock held by them as may
be necessary to pay expenses of the Trust or avoid the distribution of
odd-lots;
(c) To settle, compromise or submit to arbitration any claims,
debts, or damages, due or owing to or from the Trust, to commence or defend
suits or legal proceedings and to represent the Trust in all suits or legal
proceedings in any court of law or before any other body or tribunal;
(d) To exercise any conversion privilege and/or subscription right
available in connection with any securities at any time held by them; upon
written instructions from the respective Participants, to tender all or a
portion of the Common Stock or any other security held in the Trust Fund
pursuant to a tender offer; upon the written instructions from the respective
Participants, to oppose or to consent to any reorganization, consolidation,
merger, or readjustment of the finances of the Employer;
(e) To exercise, personally or by general or by limited power of
attorney, any right, including the right to vote, appurtenant to the Common
Stock held by them at any time, but only in accordance with written
instructions received from the respective Participants, either directly or
through the Plan Administrator;
(f) To hold part or all of the Trust Fund uninvested, to the
extent necessary or appropriate;
(g) To employ suitable agents and counsel and to pay, or cause the
Employer to pay, their reasonable expenses;
5
<PAGE> 8
(h) To register any securities held by them hereunder in the name
of the Trust or in the name of a nominee with or without the addition of words
indicating that such securities are held in a fiduciary capacity and to hold
any securities in bearer form;
(i) To make, execute and deliver, as Trustees, any and all
instruments in writing necessary or desirable for the accomplishment of any of
the foregoing powers; and
(j) Generally to do all acts, whether or not expressly authorized,
which the Trustee may deem necessary or desirable for the protection of the
Trust Fund.
3.02 Voting. The powers listed in Section 3.01 of this Trust
Agreement shall be exercised by the Trustees in their uncontrolled discretion
except that the Trustees shall vote the shares of Common Stock held in the
Trust for the respective Accounts of the Participants only in accordance with
the written directions of such Participants, which directions may be certified
to the Trustees by the Plan Administrator or any agent designated thereby,
provided such directions are received by the Trustees within such reasonable
period of time before the date set for the meeting as may be specified by the
Plan Administrator. If and to the extent any Participant does not give the
Trustees direction as to such voting, the Trustees shall vote the shares of
Common Stock held in the Accounts of all such Participants in proportion to the
aggregate vote of all shares for which instructions are received from
Participants.
3.03 Dealings with Plan Administrator: The Trustee shall from time
to time, on the written directions of the Plan Administrator, make distribution
from the Trust to such persons, in such manner, in such amounts and for such
purposes as may be specified in such directions. The Trustee shall be under no
liability for any distribution made by it pursuant to the directions of the
Plan Administrator and shall be under no duty to make inquiry as to whether any
distribution directed by the Plan Administrator is made pursuant to the
provisions of the related Plan and this Section, except to the extent required
of a prudent Co-fiduciary under ERISA. If the Trustee shall deem it necessary
to withhold any distribution pending compliance with any legal requirements,
including the probate of a will, the appointment of a personal representative,
the payment of, or provision for, estate or inheritance taxes, or for death
duties or otherwise, the Trustee shall notify the Plan Administrator and shall
thereafter take no action pending the delivery of (a) the Plan Administrator's
instructions to distribute notwithstanding such requirement and (b) the
Employer's agreement in a form satisfactory to the Trustee which protects the
Trustee from any liability arising out of noncompliance with such requirements.
The Trustee shall not be liable for the proper application of any part of the
Trust if distributions are made in accordance with the written directions of
the Plan Administrator as herein provided, nor shall the Trustee be responsible
for the adequacy of the Trust to meet and discharge any and all payments and
liabilities under the related Plan.
The Employer shall certify to the Trustee the appointment or removal
of any member of the Plan Administrative Committee and of successors to such
members together with specimens of their signatures. The Trustee shall be
entitled to rely conclusively upon such certifications and signatures as
evidence of the identity of the members of the Plan Administrative Committee
and shall not be charged with notice of any change until the Employer has
furnished the Trustee with such certifications relative to the change.
6
<PAGE> 9
3.04 Prohibited Transactions: The Trustee shall not accept or act
upon direction from the Plan Administrator or any other person to engage in a
transaction known by the Trustee to be a "prohibited transaction" under ERISA.
In the event of any uncertainty or dispute regarding any such proposed
transaction, the Trustee shall not be required to act or be liable to any
person for failing so to act on such direction unless and until a final
administrative or judicial determination shall be obtained by any person
interested in such transaction and duly served upon the Trustee and the Trustee
shall thereafter have had a reasonable opportunity to comply with such
direction if it is determined to be lawful under the terms of the Plan and
ERISA in the opinion of legal counsel.
3.05 Manner of Payment: The Trustee may make any payment required to
be made by it hereunder, by mailing to the person or entity a check or
delivering the property directed to be distributed by the Plan Administrator,
to the last known address as may have been furnished the Trustee.
3.06 Restriction on Exercise of Powers; Prudent Man Rule: The
Trustee, the Plan Administrator, and all other Fiduciaries with respect to the
Plan are required to discharge their duties solely in the interests of
Participants and Beneficiaries and for the exclusive purpose of providing
benefits to Participants and Beneficiaries and defraying reasonable expenses of
administration; 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 like
character and with like aims; by diversifying the investments so as to minimize
the risk of large losses unless under the circumstances it is clearly prudent
not to do so; and in accordance with the Plan, this Trust Agreement, the rules
and directions of the Plan Administrator and the provisions of Title I of
ERISA.
3.07 Third Parties: All persons dealing with the Trustee are
released from inquiring into the decision or authority of the Trustee and from
seeing to the application of any monies, securities or other property paid or
delivered to the Trustee.
3.08 Co-Fiduciaries: Anything in the Trust Agreement or the Plan to
the contrary notwithstanding, each Fiduciary with respect to the Plan
acknowledges, by participating in the execution of this Trust Agreement or by
consenting directly or indirectly, orally or in writing, to act as a Fiduciary
with respect to the Plan, that he is responsible for carrying out his own
duties in accordance with the standards set forth under ERISA and all
regulations promulgated thereunder. Each Fiduciary shall be responsible for
the actions or failure to act of all other Fiduciaries with respect to the Plan
if he knowingly participates, approves, acquiesces in or conceals a breach
committed by another such Fiduciary; or if his failure to exercise reasonable
care in the administration of his own duties enables the breach to be
committed. Each Fiduciary is required to act prudently in the delegation or
allocation of responsibilities to other persons. In the event that there are
Co-Trustees acting hereunder, each Trustee will be responsible for
participating in the administration of the Plan and for exercising reasonable
care to prevent the other from committing a breach. If the Plan or the Trust
Agreement or any written rule or direction of the Plan Administrator shall by
agreement allocate responsibilities among Co-Trustees, only the Trustee to whom
the responsibilities are delegated will be responsible for the breach unless
the other Trustee or Trustees knowingly participate therein. In the event that
an Investment Manager other than the Trustee is appointed, pursuant to this
Trust, no Trustee shall be liable for the acts or omissions of such Investment
Manager, or be under any obligation to invest or manage the assets of the Plan
7
<PAGE> 10
which are subject to management by an Investment Manager as such term is
defined in ERISA Section 3(38). Nothing in the Plan or the Trust Agreement
shall be deemed to enlarge the responsibilities or liabilities of any Trustee
or Co-Trustee or any other Fiduciary with respect to the Plan beyond those
imposed by ERISA and all regulations promulgated thereunder.
3.09 Liabilities of the Trustee: The Trustee shall not be liable for
any losses incurred by the Trust by reason of any lawful direction to invest
communicated to the Trustee by the Plan Administrator, except with respect to
any transaction entered into by the Trustee which is prohibited by ERISA and as
to which the Trustee is a Fiduciary, party-in-interest or disqualified person
as defined by ERISA. Nothing herein shall exculpate or relieve the Trustee
from liability for any losses to the Trust incurred by his negligence, bad
faith or knowing participation in a breach of trust. The Trustee warrants and
represents that he is not prohibited from serving as Trustee hereof because of
certain disabilities provided in ERISA Section 411.
8
<PAGE> 11
ARTICLE IV
SETTLEMENT OF ACCOUNTS
4.01 General Records: The Trustee shall maintain accurate records
and detailed accounts of all investments, receipts, disbursements, and other
transactions hereunder. Such records shall be available at all reasonable
times for inspection by the Plan Administrator, the Employer, or any Fiduciary
of the Plan, any Participant or Beneficiary or authorized representative of
such persons; provided, however, that Participants and Beneficiaries shall be
entitled to inspect only those records relating to their own Accounts. The
Trustee shall submit or cause to be submitted in a timely manner to the Plan
Administrator such information as the Plan Administrator may reasonably require
in connection with the preparation of the various reports required to be made
by ERISA to various regulatory agencies and to Plan Participants and
Beneficiaries. In the absence of fraud or bad faith, the valuation of the
Trust by the Trustee shall be conclusive on all parties affected by this Trust.
4.02 Annual Accounting: Within sixty (60) days following the close
of each Plan Year, the Trustee shall file with the Plan Administrator a written
accounting setting forth a description of all property purchased and sold and
all receipts, disbursements, and other transactions effected by it during such
period. Further, the Trustee shall list property held by it at the end of such
period and such list shall include a valuation of each asset at its fair market
value as determined at the close of the Plan Year. The Plan Administrator may
approve such accounting by written notice of approval delivered to the Trustee
or by failure to object in writing to the Trustee within sixty (60) days from
the date upon which the account was delivered to the Plan Administrator. Upon
receipt of written approval of the account, or upon the passage of said period
of time without written objections having been delivered to the Trustee, such
accounting shall be deemed to be approved, and the Trustee shall be released
and discharged as to all items, matters and things set forth in such accounting
as if such accounting had been settled and allowed by a decree of a court of
competent jurisdiction.
4.03 Agents: The Employer or the Plan Administrator, or both, at any
time may employ any person or entity as an agent to perform any act, keep any
records or accounts, or make computations which are required of them under the
Code or ERISA. Such employment shall not be deemed to be contrary to or
inconsistent with the provisions of this Trust Agreement. Nothing done by such
person or corporation as agent for the Employer or the Plan Administrator shall
change or increase in any manner the responsibility or liability of the Trustee
hereunder, unless such agent shall be deemed to be a Fiduciary with respect to
the Plan, and the Trustee shall have failed to meet the standards imposed by
Sections 3.06 and 3.08 hereof.
The Trustee from time to time may request the advice of counsel, which
may be counsel to the Employer, on any legal matter, including interpretation
of this Trust Agreement, and it shall be indemnified and held harmless by the
Employer from any cost, expense, losses, liabilities or assessments incurred in
any action or proceeding which arises from acting in accordance with advice
from such counsel.
9
<PAGE> 12
ARTICLE V
DURATION AND TERMINATION OF TRUST
5.01 Duration and Termination: It is the intention of Plan Sponsor
that this Trust and the Plan to which it relates shall be a permanent plan of
benefits administered for the exclusive benefit of Employer's participating
Employees and their Beneficiaries. However, the Plan Sponsor retains complete
discretion to terminate the Plan and Trust and, upon such termination, the
Trust shall be distributed by the Trustee as and when directed by the Plan
Administrator, in accordance with the provisions of the Plan, this Trust
Agreement, the Code and Section 403(d)(1) of ERISA. From and after the date of
termination of the Trust, and until the final distribution of the Trust, the
Trustee shall continue to have all the powers provided under this Trust
Agreement necessary and expedient for the orderly liquidation and distribution
of the Trust.
5.02 Continuation of Plan: If the related Plan is terminated or
discontinued, the Plan Sponsor may elect not to terminate the Trust. In that
event, the Trust shall be administered as though the related Plan was in full
force and effect throughout the entire period of its existence. If the Trust
is subsequently terminated pursuant to Section 5.01, the Trust Fund shall be
distributed as directed by the Plan Administrator in accordance with the
provisions of the Plan, this Trust Agreement, the Code and Section 403(d)(1) of
ERISA.
10
<PAGE> 13
ARTICLE VI
AMENDMENTS
6.01 Right to Amend: This Trust Agreement may be amended at any time
by a written agreement executed by the Plan Sponsor and delivered to the
Trustee, provided, however, that no such amendment shall increase the duties of
the Trustees without their consent. Such amendment shall not operate to cause
any part of the Trust Fund, other than such part as is required to pay taxes
and administration expenses, to be used for, or diverted to, purposes other
than for the exclusive benefit of Employer's participating Employees and their
Beneficiaries.
11
<PAGE> 14
ARTICLE VII
RESIGNATION OR REMOVAL OF TRUSTEE
7.01 Method: The Trustee may resign at any time by giving at least
ten days' written notice to the Plan Sponsor. The Plan Sponsor may remove any
Trustee at any time by giving written notice to the Trustee. Upon such
resignation or removal, the Plan Sponsor shall appoint a Successor Trustee to
whom the resigning or removed Trustee shall transfer all of the assets of the
Trust Fund then held by it as expeditiously as possible. Such Successor
Trustee shall thereupon succeed to all of the powers and duties given to the
Trustee by this Trust Agreement. Within 60 days of such transfer of the Trust
assets, the resigning or removed Trustee shall render to the Plan Sponsor an
accounting in the form and manner prescribed in Section 4.02. Unless Plan
Sponsor shall, within 60 days after the receipt of such accounting, file with
the resigning or removed Trustee written objections thereto, the accounting
shall be deemed to have been approved, and the resigning or removed Trustee
shall be released and discharged as to all items, matters and things set forth
in such accounting, as if such accounting had been settled and allowed by a
decree of a court of competent jurisdiction.
Any Successor Trustee appointed hereunder shall have no responsibility
except to receive such money and property from the resigning or removed Trustee
and to hold and administer the same in accordance with the Plan and this Trust
Agreement. It shall not be responsible for any act or omission of the
resigning or removed Trustee and shall not be required to make any claim or
demand against the resigning or removed Trustee unless the Plan Administrator
shall request the Successor Trustee, in writing, to make a claim against such
resigning or removed Trustee within the time limit prescribed above for making
a claim after the filing of the Trustee's final report in the manner prescribed
in Section 4.02.
12
<PAGE> 15
ARTICLE VIII
TAXES AND EXPENSES OF TRUSTEE
8.01 Taxes: The Trustee shall deduct from and charge against the
Trust Fund any taxes paid by it which may be imposed upon the Trust Fund or
income thereon which the Trustee is required to pay with respect to the
interest of any person therein. The Trustee is not authorized to pay any
excise or other tax levied upon any disqualified person imposed by reason of
such person's engagement in any prohibited transaction. The Trustee is
permitted to purchase any errors and omissions insurance for Fiduciaries
subject to the provisions of Section 410(b) of ERISA.
8.02 Expenses: The Trustees shall be paid all expenses of
administration of the Trust, including counsel fees, which shall be withdrawn
by the Trustees from the Trust Fund unless paid by the Plan Sponsor.
13
<PAGE> 16
ARTICLE IX
IMPOSSIBILITY OF DIVERSION
9.01 Diversion: No part of the corpus or income of the Trust Fund
shall be used for, or diverted to, purposes other than for the exclusive
benefit of Participants or their Beneficiaries.
14
<PAGE> 17
ARTICLE X
GOVERNING LAW
10.01 Governing Law: This Trust shall be administered in the United
States of America, and its validity, construction and all rights hereunder
shall be governed by the laws of the United States under ERISA. To the extent
that ERISA shall not be held to have preempted local law, the Trust shall be
administered under the laws of the State of Georgia. If any provision of this
Agreement shall be held invalid or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
15
<PAGE> 18
ARTICLE XI
SPENDTHRIFT PROVISION
11.01 Spendthrift Provision: No Participant or Beneficiary entitled
to any benefits under this Trust Agreement shall have any right to assign,
pledge, transfer, hypothecate, encumber, commute or anticipate his interest in
any benefits under this Trust. Except for those procedures specifically set
forth in the Plan providing for the treatment of Qualified Domestic Relations
Orders, such benefits shall not in any way be subject to any legal process or
levy of execution or attachment or garnishment proceedings in connection with
the payment of any claim against any such person.
16
<PAGE> 19
ARTICLE XII
QUALIFICATION
Notwithstanding any contrary provisions of this Trust, it is intended
that this Trust and the related Plan shall qualify for tax exemption and
qualification under the Internal Revenue Code of 1986, as amended. However, if
the Trust or said Plan fails to qualify, the Employer shall have the right to
amend this Trust pursuant to Article VI hereof, or the Plan pursuant to its
terms.
17
<PAGE> 20
IN WITNESS WHEREOF, the Plan Sponsor, Trustees and Plan Administrator
have caused this Amendment and Restatement to be executed by their duly
authorized officers and their seals to be hereunto affixed, this 28th day of
December, 1994.
PLAN SPONSOR:
By: /s/ Frederick B. Beilstein, III
--------------------------------
Title: Senior Vice President
(CORPORATE SEAL)
ATTEST:
By:/s/ Walter M. Grant
------------------------------------
Title: Secretary
TRUSTEES:
/s/ Frederick B. Beilstein, III
------------------------------------
/s/ Walter M. Grant
------------------------------------
/s/ Victor E. Goetz
------------------------------------
PLAN ADMINISTRATOR:
/s/ Frederick B. Beilstein, III
------------------------------------
/s/ Walter M. Grant
------------------------------------
/s/ Victor E. Goetz
------------------------------------
18
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to The Actava Group Inc. Employees Stock Purchase Plan of
our reports (a) dated March 10, 1995, with respect to the consolidated
financial statements and schedule of The Actava Group Inc. included in its
Annual Report (Form 10-K) and (b) dated June 6, 1995 with respect to the
financial statements and schedules of The Actava Group Inc. Employees Stock
Purchase Plan included in the Plan's Annual Report (Form 11-K), both for the
year ended December 31, 1994.
Ernst & Young LLP
Atlanta, Georgia
July 26, 1995
