<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
GATX CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 36-1124040
(State of incorporation) (IRS Employer Identification No.)
500 W. MONROE STREET, CHICAGO, ILLINOIS 60661
(Address of principal executive offices) (Zip Code)
</TABLE>
GATX LOGISTICS INC.,
401(K) CASH ACCUMULATION PLAN
(Full Title of the Plan)
DAVID B. ANDERSON, ESQ.
GATX CORPORATION
500 W. MONROE STREET, CHICAGO, ILLINOIS 60661
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (312) 621-8472
CALCULATION OF REGISTRATION FEE
<TABLE>
<Captain>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED* REGISTERED* PER SHARE** OFFERING PRICE** FEE
<S> <C> <C> <C> <C>
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Common Stock, $.625 Par Value... 200,000 shs. $46.50 $9,300,300 $3,206.92
- --------------------------------------------------------------------------------------------------
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</TABLE>
* Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered and
sold pursuant to the Plan.
** Estimated solely for purpose of computing the registration fee pursuant to
Rule 457 based on the average of the high and low prices reported on the New
York Stock Exchange composite tape on June 17, 1996.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement covers 200,000 shares of common stock of GATX
Corporation; (the "Company") to be purchased from time to time under the GATX
Logistics Inc., 401(k) Cash Accumulation Plan (the "Plan") with salary deferrals
by participants who may elect to invest in the GATX Common Stock fund.
ITEM 3--INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
(c) The description of the common stock, par value $.625 per share, of
the Company (the "Common Stock") contained in the first paragraph of
"Description of Capital Stock -- Common Stock" from the Company's
Prospectus dated August 3, 1989, included as part of the Company's
Registration Statement on Form S-3 filed with the Commission on August 3,
1989 (No. 33-30165).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and shall be deemed a part hereof from the date
of the filing of such documents.
ITEM 4--DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5--INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6--INDEMNIFICATION OF DIRECTORS AND OFFICERS
Certain provisions of the New York Business Corporation Law and Article II,
Section 11 of the Company's by-laws provide for indemnification of directors and
officers under certain conditions, including the possibility of indemnification
against liabilities under the Securities Act. In addition, the Company has a
directors and officers liability insurance policy.
ITEM 7--EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8--EXHIBITS
See Exhibit Index which is incorporated by reference.
The Company has submitted or will submit the Plan and any amendment thereto
to the Internal Revenue Service ("IRS") in a timely manner, and has made or will
make all changes required by the IRS in order to qualify the Plan.
II-1
<PAGE> 3
ITEM 9--UNDERTAKINGS
The Company hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in the volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Company pursuant to Section
13 or Section 15 of the Exchange act that are incorporated by reference to
the registration statement.
2. That, for purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The Company hereby further undertakes that, for purpose of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where
applicable, each filing of any employee benefit plan's annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 6 or otherwise, the
Company has been advised that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act, and
is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-2
<PAGE> 4
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe 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 Chicago, and the State of Illinois, on this 19th day
of June 1996.
GATX Corporation
By /s/ WILLIAM L. CHAMBERS
-----------------------------------
William L. Chambers
Vice President, Human Resources
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ----------------------------------------------
<C> <S>
* Chairman of the Board and Chief Executive
- --------------------------------------------- Officer (Principal Executive Officer)
Ronald H. Zech
/s/ DAVID M. EDWARDS Vice President and Chief Financial Officer
- --------------------------------------------- (Principal Financial Officer)
David M. Edwards
/s/ RALPH L. O'HARA Controller (Principal Accounting Officer)
- ---------------------------------------------
Ralph L. O'Hara
* Director
- ---------------------------------------------
Franklin A. Cole
* Director
- ---------------------------------------------
James M. Denny
* Director
- ---------------------------------------------
William C. Foote
* Director
- ---------------------------------------------
Deborah M. Fretz
* Director
- ---------------------------------------------
Richard A. Giesen
* Director
- ---------------------------------------------
Miles L. Marsh
* Director
- ---------------------------------------------
Charles Marshall
* Director
- ---------------------------------------------
Michael E. Murphy
*By: /s/ RONALD J. CIANCIO
- ---------------------------------------------
Ronald J. Ciancio
Attorney in Fact
Dated: June 19, 1996
</TABLE>
II-3
<PAGE> 5
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
plan has caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Chicago and the State of
Illinois on this 19th day of June, 1996.
GATX LOGISTICS INC.,
401(k) CASH ACCUMULATION PLAN
by Administrative Committee
(Plan Administrator)
By /s/ RONALD PETERCA
------------------------------------
Ronald Peterca
Authorized Member
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NUMBER
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<C> <S> <C>
4.1 Restated Certificate of Incorporation of GATX Corporation, as amended,
filed as Exhibit 3(a) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1991, and incorporated herein by reference
4.2 By-Laws of GATX Corporation, as amended and restated as of July 29,
1994, filed as Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994, and incorporated herein by
reference
4.3 GATX Logistics Inc., 401(k) Cash Accumulation Plan
23 Consent of Ernst & Young LLP...........................................
24 Powers of Attorney.....................................................
</TABLE>
II-5
<PAGE> 1
Exhibit 4.3
THE GATX LOGISTICS, INC.
401(k) CASH ACCUMULATION PLAN
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I - Definitions .......................................... 1
ARTICLE II - Participation ....................................... 11
A. Admission as a Participant ........................ 11
B. Termination of Participation ...................... 11
C. Rules for Crediting Years of Eligibility........... 11
D. Eligibility for Rollovers.......................... 12
ARTICLE III - Amounts and Payment of Benefits..................... 13
A. Determination of Benefits.......................... 13
B. Form of Benefit.................................... 13
C. Special Rules on Commencement of Benefits.......... 13
D. Age 70 1/2 Benefit Commencement.................... 14
E. Loan Provisions.................................... 15
F. In Service Withdrawals............................. 15
G. Beneficiaries ..................................... 16
H. Special Rules for Participants and Beneficiaries
Who Cannot Be Located.............................. 16
I. Withholding Taxes ................................. 17
J. Federal Withholding Tax on Distributions........... 17
K. Forfeitures ....................................... 18
L. Restoration of Forfeitures......................... 18
ARTICLE IV - Vesting ............................................. 20
A. Vesting Percentage ................................ 20
B. Rules for Crediting Years of Vesting............... 20
ARTICLE V - Contributions......................................... 22
A. Participant Contributions.......................... 22
B. Employer Contributions............................. 22
C. Elective Deferrals ................................ 23
D. Limitations on Elective Deferral Contributions..... 24
E. Limitations on Employer Contributions ............. 29
i
<PAGE> 3
F. Multiple Use of Limitation............................ 32
ARTICLE VI - Accounts and Allocations......................... 34
A. Accounts ............................................. 34
B. Allocation of Contributions........................... 34
C. Allocation of Elective Deferral....................... 35
D. Valuation of Accounts................................. 35
E. Limitations on Allocations............................ 36
ARTICLE VII - Fiduciaries .................................... 38
A. Named Fiduciaries .................................... 38
B. Employment of Advisors................................ 38
C. Multiple Fiduciary Capacities......................... 38
D. Indemnification ...................................... 38
ARTICLE VIII - Plan Administration............................ 39
A. The Administrative Committee.......................... 39
B. Powers, Duties, etc of the Administrative Committee... 39
C. Investment Managers................................... 40
D. The Trustee .......................................... 40
E. Compensation ......................................... 41
F. Delegation of Responsibility.......................... 41
G. Claims Procedure ..................................... 41
ARTICLE IX - Investment Funds and
Investment of Accounts.......................... 43
A. Investment Funds ..................................... 43
B. Investment of Accounts................................ 43
C. Fiduciary Liability .................................. 43
ARTICLE X - Amendment ........................................ 44
ARTICLE XI - Discontinuance of Contributions
and Termination of the Plan...................... 45
A. Right of the Company to Terminate the Plan or
Discontinue Contributions............................. 45
B. Determination of Date of Complete or Partial
Termination or Complete Discontinuance of Contributions 45
C. Effect of Complete or Partial Termination or
Complete Discontinuance of Contributions.............. 45
ii
<PAGE> 4
ARTICLE XII - Miscellaneous Provisions........................... 47
A. Exclusive Benefit of Participants........................ 47
ARTICLE XIII - Top-Heavy Provisions.............................. 50
A. Determination of Top-Heavy Status........................ 50
B. Minimum Benefits ........................................ 51
iii
<PAGE> 5
ARTICLE I
Definitions
1. Account Value: The value of any or all of Participant's Combined Account,
determined as of any Valuation Date.
2. Administrative Committee: The GATX Logistics, Inc. 401(k) Committee
appointed pursuant to the provisions of Section A of Article VIII hereof.
3. Affiliate: Any corporation (other than the Company) which is a member of a
"controlled group of corporations" (as that term is defined in IRC Section
414(b) of which the Company is a member, and any trade or business under
"common control" (as that term is defined in IRC Section 414(c)) with the
Company or any organization which is a member of the same affiliated service
group (as that term is defined in IRC Section 414(m)) with the Company.
4. Amendment Effective Date: Unless otherwise stated herein, April 1, 1989.
5. Annual Addition: For each Participant, for any Limitation Year, the sum
of:
(a) contributions made by any Controlled Group Member allocable with
respect to such Participant under any Defined Contribution Plans;
(b) contributions made by such Participant to any Defined Contribution
Plan; and
(c) forfeitures allocable with respect to such Participant under
any Defined Contribution Plans.
(d) amounts derived from contributions paid after December 31,
1985, which are attributable to post-retirement medical benefits under a
welfare benefit plan which are allocated to the account of Key Employee under a
plan described in Code Section 419A maintained by the Company or an Affiliate.
(e) Contributions made after March 31, 1984 to a plan described in Code
Section 415(l)(2).
A reinstatement of forfeitures upon a Participant's reemployment
shall not be included in the Annual Addition. In addition, Rollover
Contributions shall not be included in the Annual Addition.
6. Beneficiary: Any person designated by a Participant to receive any
payments of benefits due after his death, or in the absence of a valid
designation, the person entitled to receive such payment pursuant to the terms
of the Plan.
<PAGE> 6
7. Board: The Board of Directors of the Company and any person or group
empowered by the Company's certificate of incorporation or bylaws to exercise
the powers of the Board with respect to the Plan.
8. Combined Account: The Participant's Elective Deferral Account,
Employer Contribution Account and Rollover Account.
9. Company. GATX Logistics, Inc. or any successor thereto.
10. Compensation:
(a) All compensation paid by the Company or a Participating Affiliate
to a Participant while an Eligible Employee (excluding automobile allowances,
severance pay, moving expenses and vacation payout) which is reportable as
wages, tips and other compensation in Box 10 of a Participant's Form W-2 (or
any section or box on any successor to Box 10 or Form W-2) or which would be so
reportable but for contributions to this Plan or any other plan subject to IRC
Section 401(k), 403(b) or 125.
(b) In no instance shall the Compensation of any Participant for any
Plan Year considered under this Plan exceed $200,000 (as indexed by the IRS at
the same time and manner as IRC Section 415(d)). For purposes of applying this
$200,000 limitation on Compensation, the Compensation of an Employee who is
either a 5% owner or is both a Highly Compensated Employee and one of the ten
most Highly Compensated Employees shall have his Compensation and the
Compensation of his Family Members treated as a single Employee with one
Compensation. If applicable, the $200,000 limitation shall be prorated among
the Family Members. Each Family Member shall have a share of 415(d)
compensation which is a pro-rata share determined by comparing each Family
Member's Compensation in relation to the total Compensation of all Family
Members. For this purpose, a Family Member is an Employee who is a 5% owner or
one of the ten most Highly Compensated Employees, the Employee's spouse, and
the Employee's lineal descendants who have not attained age 19 before the close
of the year.
(c) In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary, for Plan
Years beginning on or after January 1, 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 IRS Section 401(a) (17) (B). The cost-of-living 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.
2
<PAGE> 7
(d) For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under IRC Section 401(a)(l7) shall mean the OBRA
'93 annual compensation limit set forth in this provision.
(e) If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the Current Plan
Year, the Compensation for that prior determination period is subject to the
OBRA '93 annual compensation limit in effect for that prior determination
period. For this purpose, for determination period beginning before the first
day of the first plan year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
11. Controlled Group Member: Any corporation during the time it is a member of
a "controlled group of corporations" (as that term is defined in IRC Section
414(b) as modified by IRC Section 415(h)) of which the Company is a member,
any trade or business during the time it is under "common control" (as that
term is defined in IRC Section 414(c) as modified by Section 414(h)) with the
Company, and any organization which is a member of the same affiliated service
group (as that term is defined in IRC Section 414(m)) with the Company.
12. Defined Benefit Plan: Any defined benefit plan qualified under IRC
Section 401, maintained at any time by a corporation which is, or at any time
was, a Controlled Group Member (regardless of whether such corporation was a
Controlled Group Member at such time) with the Company.
13. Defined Contribution Plan: Any defined contribution plan, qualified under
IRC Section 401, maintained at any time by a corporation which is, or at any
time was, a Controlled Group Member (regardless of whether such corporation was
a Controlled Group Member at such time).
14. Determination Date: For the First Plan Year, the last day of such Plan
Year, for any other Plan Year, the last day of the preceding Plan Year.
15. Effective Date: April 1, 1986.
16. Elective Deferral Account: Shall mean the separate account maintained for
each Participant established pursuant to Article VI and to which Elective
Deferral Contributions are allocated.
17. Elective Deferral Contribution: Shall mean contributions made to the Plan
during the Plan Year by the Employer pursuant to Section C of Article V, at the
election of the Participant, in lieu of cash compensation and shall include
contributions made pursuant to a salary reduction agreement.
18. Eligible Employee: All Employees of the Company or a Participating
Affiliate excluding:
(a) temporary Employees;
(b) contract Employees; and
(c) Employees represented by a collective bargaining agreement
unless the bargaining agreement and Company or Participating
Affiliate agree that such represented employees shall be eligible
to participate in the Plan; and
3
<PAGE> 8
(d) leased Employees.
19. Employee: Any person employed by the Company or an Affiliate or is a
Leased Employee.
20. Employer: The Company and each Affiliate which elects to adopt the Plan
for its Employees pursuant to Section G of Article XI.
21. Employer Contributions: Contributions to the Plan by an Employer, pursuant
to Section B of Article V.
22. Employer Contributions Account: The account established pursuant to
Article VI to which each Participant's Employer Contributions are
allocated.
23. Employment: The period of time as an Employee.
24. Entry Date: Effective January 1, 1995, the first day of the calendar
month. Prior to January 1, 1995, January 1, April 1, July 1 and October 1.
Prior to January 1, 1991, April 1, August 1 and December 1.
25. ERISA: The Employee Retirement Income Security Act of 1974, as amended.
26. Family Member: An individual described in IRC Section 414(q) (6) (B) who
is the spouse or lineal ascendant or descendant (and spouses of ascendant and
descendants) of any Employee or former Employee shall be included as a Family
Member.
27. Fund: The assets held in the Trust.
28. Highly Compensated Employee:
(a) An Employee described in IRC Section 414(q) who is an Employee and
performs service during the determination year and is described in one or more
of the following groups:
(i) An Employee who is a 5% owner, as defined in IRC Section 416(i)
(1)(A) (iii) at any time during the determination year or the look-back year;
(ii) An Employee who received Compensation in excess of $75,000.00
(indexed in accordance with IRC Section 415(d)) during the look-back year;
(iii) An Employee who received Compensation in excess of $50,000.00
(indexed in accordance with IRC Section 415(d)) during the look-back year and
is a member of the top-paid group for the look-back year;
(iv) An Employee who is an officer within the meaning of IRC Section
416(i)), during the look-back year and receives Compensation in the look-back
year greater than 50% of the
4
<PAGE> 9
dollar limitation in effect under IRC Section 415(b) (1) (A) for the calendar
year in which the look-back begins; and
(v) An Employee who is both described in clause (ii), (iii) or (iv)
above, when the clauses are modified to substitute the determination year for
the look-back year and one of the 100 employees who receives the most
Compensation during the determination year.
(vi) Family Members of either a 5% owner or a Highly Compensated
Employee in the group consisting of the ten highest paid Employees shall be
deemed to be a Highly Compensated Employee and Compensation paid to such Family
Members or contributions made on their behalf shall be treated as if it were
paid to or contributed for the benefit of the 5% owner or Highly Compensated
Employee.
(b) The top-paid group consists of the top 20% of Employees ranked on the
basis of Compensation received during the year. For purposes of determining
the number of Employees in the top-paid group, Employees described in IRC
Section 414 (q) (8) and Q&A 9 (b) of section 1.414 (q)-1T of the regulations
are excluded.
(c) The determination year is the current Plan Year for which the
determination of who is highly compensated is being made. The look-back year
is the 12-month period immediately preceding the determination year, or, if the
Employer elects, the calendar year ending with or within the determination
year.
(d) The number of officers is limited to 50 (or, if lesser, the greater
of 3 Employees or 10% of Employees) excluding those Employees who may be
excluded in determining the top-paid group. When no officer has Compensation in
excess of 50% of the IRC Section 415(b) (1) (A) limit, the highest paid officer
is treated as Highly Compensated Employee.
(e) Compensation is Compensation within the meaning of IRC Section 415
(c) (3) including elective or salary reduction contributions to a 125, 401(k)
or 403(b) plan or plans. Employers aggregated under IRC Sections 414(b), (c),
(m), or (o) are treated as a single employer.
29. Hour of service:
(a) Each hour for which an Employee is paid, or entitled to payment, by
the Company or an Affiliate for the performance of duties for the Company or an
Affiliate;
(b) Each hour which would have been credited if the payment represented
by a back pay award, regardless of mitigation of damages, had been made in the
period to which the award pertains;
(c) Each hour (up to a maximum of 501 hours on account of any single
continuous period) for which an Employee is directly or indirectly paid, or
entitled to such payment, by the Company or an Affiliate for reasons (such as
vacation, sickness or other leave of absence or layoff) other than for the
performance of duties for the Company or an Affiliate, which hours
5
<PAGE> 10
shall be determined and credited pursuant to the rules prescribed by 29 C.F.R.
Section 2530.200b-2(b) and (c).
(d) Each hour for which an Employee is required to be given credit by
applicable Federal law other than ERISA; and
(e) Each hour for which an individual considered an Employee for purposes
of this Plan under IRC Section 414 (n) is considered paid by the Company or an
Affiliate.
(f) Each hour, for any purpose under the Plan, which the Board in a
uniform and nondiscriminatory manner shall determine.
No hour shall be credited under more than one Subparagraph of this
Paragraph. The Administrative Committee may choose, in its sole discretion, to
credit one or more groups of full-time salaried employees for whom records are
not maintained with 190 Hours of Service for each month, or portion thereof,
for which each member of such group would be entitled to credit for one Hour of
Service under Subparagraph (a), (c), (d) or (e) of this Paragraph.
30. Investment Fund: A fund designated by the Administrative Committee
pursuant to Section A of Article IX for investment of Plan accounts.
31. Investment Manager: Any person or entity serving as an investment
manager under appointment by the Administrative Committee.
32. IRC: Internal Revenue Code of 1986, as amended.
33. Key Employee: A "Key Employee" as determined pursuant to IRC Section 416
(i) and the regulations issued thereunder is any Employee or former Employee
who at any time during the Plan Year containing the Determination Date or the
four (4) preceding Plan Years, is or was:
(a) an officer of the Employer having annual Compensation for such Plan
Year which is in excess of 50% of the dollar limit in effect under IRC Section
415 (b) (1) (A) for the calendar year in which such Plan Year ends;
(b) an owner of (or considered as owning within the meaning of IRC Section
318) both more than a one-half percent interest as well as one of the ten
largest interest in the Employer having annual Compensation greater than the
dollar limited in effect under IRC Section 4l5 (c) (1) (A) for the year;
(c) a five percent owner of the Employer; or
(d) a one percent owner of the Employer who has annual compensation of
more than $150,000.00.
6
<PAGE> 11
For purposes of determining 5% and 1% owners, neither the aggregation
rules nor the rules of subsection (b), (c) and (n) of IRC Section 415 apply.
Beneficiaries of an Employee acquire the character of the Employee who
performed service for the Employer. Also, inherited benefits will retain the
character of the benefits who perform services for the Employer.
34. Leased Employees: Any person who is not a common law employee of the
Company or an Affiliate and provides services to the Company or Affiliate if:
(a) such services are provided pursuant to an agreement between the
Company or Affiliate and any other person;
(b) such person has performed such services for the Company on a
substantially full-time basis for a period of at least one year; and
(c) such services are of a type historically performed in the business
field of the Company or Affiliate, by employees.
35. Limitation Compensation:
(a) The Participant's wages, salaries, fees for professional service 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
the Company to the extent that the amounts are includable in gross income
including but not limited to commissions paid salesmen, compensation for
services on the basis of percentages of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, reimbursements or other expense
allowances under a nonaccountable plan, and in the case of a Participant who is
an employee within the meaning of IRC Section 401(c) (1) and the regulations
thereunder, the Participant's earned income paid or accrued during the
Limitation Year;
(b) Limitation Compensation shall exclude contributions made by the
Company to a plan of deferred compensation to the extent that, before the
application of IRC Section 415 limitations to the plan, the contributions are
not includable in the gross income of the Participant for the taxable year in
which contributed;
(c) Contributions made by the Company to a plan of deferred compensation
to the extent that all or a portion of such contributions are recharacterized
as a voluntary employee contribution;
(d) Employer Contributions made on behalf of a Participant to a simplified
employee pension plan to the extent such contributions are excludable from the
Participant's gross income;
(e) Any distributions from a plan of deferred compensation regardless of
whether such amounts are includable in the gross income of the Participant when
distributed except any amounts received by the Participant pursuant to an
unfunded nonqualified plan to the extent such amounts are includable in the
gross income of the Participant;
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<PAGE> 12
(f) Amounts realized from the exercise of an nonqualified stock option or
unrestricted stock held by a Participant either becomes freely transferrable or
is no longer subject to a substantial risk of forfeiture;
(g) Amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option;
(h) 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 Participant) or contributions made by the
employer towards the purchase of an annuity contract described in Section 403
(b) whether or not the contributions are excludable from the gross income of
the Participant.
(i) For purposes of this section, Limitation Compensation shall not
include amounts that would otherwise be excluded from a Participant's gross
income by reason of the application of IRC Sections 125, 402(a)(8),
402(h)(1)(B).
36. Limitation Year: The Plan Year.
37. Matching Compensation: Compensation excluding bonuses, incentive payments,
commissions and frequent flyer miles.
38. Named Fiduciary: A "named fiduciary," as that term is defined in ERISA
Section 402(a)(2).
39. Non-Highly Compensated Employee: Am Employee who is neither a Highly
Compensated Employee nor a Family Member.
40. Normal Retirement: Termination of Employment of a Participant at or after
Normal Retirement Age.
41. Normal Retirement Age: A Participant's 65th birthday.
42. One Year Break in Service:
(a) A Plan Year during which a person has not completed more than 500
Hours of Service as an Employee, by reason of termination of Employment.
(b) For purposes of determining whether a One Year Break in Service has
occurred, a Participant who is absent from work:
(i) by reason of the Participant's pregnancy;
(ii) by reason of the birth of the Participant's child;
(iii) by reason of the placement of a child with the Participant in
connection
8
<PAGE> 13
with the Participant's adoption of that child; or
(iv) for purposes of caring for such child for a period
beginning immediately following such birth or
placement,
shall receive the Hours of Service which otherwise would normally have been
credited to the Participant but for the absence. If the number of Hours of
Service normally credited cannot be determined, eight Hours of Service shall be
credited per day of absence. The total Hours of Service credited for this
purpose shall not exceed 501 hours of any one pregnancy or placement. These
hours of service shall be credited during the Plan Year in which the absence
begins if a Participant would be prevented from incurring a One Year Break in
Service in such Year because of such credit; otherwise, they shall be
credited in the immediately following Plan Year.
(c) Subparagraph (b) shall apply only if the Participant furnishes to
the Administrative Committee the information it decides is needed to establish
both that the absence was for the reasons set forth above and the number of
days for which there was such an absence.
43. Participant: A person who has commenced but not terminated participation
in the Plan pursuant to the provisions of Article II hereof.
44. Participating Affiliate: Any Affiliate which adopts, and has not
terminated participation in or withdrawn from, the Plan in the manner provided
herein.
45. Plan: The GATX Logistics, Inc. 401(k) Cash Accumulation Plan, as it may be
amended from time to time.
46. Plan Year: Effective January 1, 1991, the twelve consecutive month period
ending on December 31 in which the Plan is in effect. The period beginning
April 1, 1990 and ending on December 31, 1990. Prior to April 1, 1990, the
twelve consecutive month period ending on March 31 during any part of which the
Plan is in effect.
47. Rollover Account: The account to which Rollover Contributions are
allocated pursuant to Article VI.
48. Rollover Contribution: A rollover from another qualified plan or a
rollover IRA to this Plan. The Plan shall not accept any rollover which
results in the Plan being a direct or indirect transferee as described in IRC
Section 401 (a) (11) (B) (iii) and (III).
49. Spouse Consent: The consent of the Surviving Spouse as provided in
Section E of Article III.
50. Surviving Spouse: The person married to a Participant on the date of the
Participant's death.
51. Trust: The trust to which contributions are made to fund the Plan.
9
<PAGE> 14
52. Trustee: Any person serving as a trustee under appointment by the
Administrative Committee.
53. Valuation Date: Effective April 1, 1990, March 31, June 30, September 30
and December 31 of each Plan Year and, as the Administrative Committee elects,
any other day of the Plan Year. However, prior to April 1, 1990, Valuation Date
meant March 31 of each Plan Year.
54. Valuation Period: The period of time which begins on the first day after a
Valuation Date and continues until, and includes, the next succeeding Valuation
Date.
55. Year of Eligibility: The period defined in Section C of Article II hereof
for computation of eligibility to become a Participant.
56. Year of Service: The number of Years of Service shall be determined by
taking the total consecutive months in which the Employee has at least one Hour
of Service and dividing by 12. Fractional Years of Service shall not be
counted.
57. Year of Vesting: The period described in Section B of Article IV hereof
for the computation of vesting under the Plan.
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<PAGE> 15
ARTICLE II
Participation
A. Admission as a Participant
1. An Employee who is both a Participant and Eligible Employee on the day
prior to the Amendment Effective Date and is an Eligible Employee on the
Amendment Effective Date shall continue as a Participant on the Amendment
Effective Date.
2. Any other Employee shall become a Participant on the first Entry Date
on which the Employee:
(a) is an Eligible Employee;
(b) has attained age 21; and
(c) has credit for at least one Year of Eligibility.
3. A former Employee who has ceased to be a Participant and who again
becomes an Employee with credit for at least One Year of Eligibility shall
become a Participant on the first day on which the former Employee again
becomes an Eligible Employee.
B. Termination of Participation
A Participant shall cease to be a Participant as of the date his benefits
are determined for distribution to the Participant, or if earlier, on the date
of the Participant's death.
C. Rules for Crediting Years of Eligibility
Years of Eligibility shall be determined under the following rules:
1. An Employee shall be credited with one Year of Eligibility:
(a) on the anniversary of the first day on which he has an Hour of
Service, if he has at least 1,000 Hours of Service in that twelve months; and
(b) on the last day of each Plan Year which begins after the first day
on which he has an Hour of Service, if he has at least 1,000 Hours of Service in
that period.
2. The Years of Eligibility prior to a One Year Break in Service of an
Employee
11
<PAGE> 16
with no vested rights to a benefit derived from contributions by the Employer
shall not be counted if the number of his consecutive One Year Breaks in Service
equals or exceeds the greater of 5 or his number of years of Eligibility (which
number of Years of Service shall not include any years previously disregarded
under this rule) before such period of consecutive One Year Breaks in Service.
3. A former Employee who resumes Employment with no Year of Eligibility to
his credit shall be treated as a new Employee.
D. Eligibility for Rollovers
1. An Eligible Employee may make a Rollover Contribution prior to being
eligible to be a Participant pursuant to Section A of this Article.
2. The rollover contribution shall be allocated to the Employee's Rollover
Account.
3. The Employee shall be considered a participant only with respect to the
Rollover Account until otherwise eligible pursuant to Section A of this
Article.
4. Rollover Contributions shall be made only in cash.
12
<PAGE> 17
ARTICLE III
Amounts and Payment of Benefits
A. Determination of Benefits
1. The benefits of a Participant who terminates Employment (or a
Beneficiary's benefits upon termination of employment of a Participant due to
death) shall be the vested Account Value of the Participant's Combined Account
determined as of the Valuation Date coincident with or next following his
termination of Employment. The benefits shall be paid as soon as practicable
after the date as of which determined.
2. (a) Notwithstanding any provision herein to the contrary, if the
vested portion of the Account Value of the Participant's Combined Account
determined as of the Valuation Date coincident with or next following his
termination of Employment is more than $3,500.00 (or at the time of any prior
distribution was more than $3,500.00), no distribution will be made prior to
the end of the Plan Year in which the Participant attains age 65 or, if
earlier, the end of the Plan Year in which the Plan terminates, unless the
Participant consents to such distribution.
(b) Amounts which are not distributed due to the restrictions of this
paragraph shall not be segregated but shall continue to be held in the Fund and
updated each Valuation Date pursuant to section D of Article VI until
distributed.
3. The benefits payable to the Beneficiary of a Participant who dies after
his termination of Employment shall be determined as follows:
(a) Any portion of benefits which would have been determined, had the
Participant lived, as of a Valuation Date coincident with or preceding the date
of his death, shall be determined as of such Valuation Date and shall be paid
to the Beneficiary as soon as practicable thereafter;
(b) Any other portion of benefits shall be determined as of the first
Valuation Date following the date of death as of which such benefits can be
determined and shall be paid to the Beneficiary as soon as practicable
thereafter.
B. Form of Benefit
Benefits shall be payable in a lump sum.
C. Special Rules on Commencement of Benefits
1. In no event shall a Participant begin to receive his benefits later
than the 60th day after the close of the Plan Year in which the latest of the
following events occurs:
13
<PAGE> 18
(a) The attainment by the Participant of Normal Retirement Age;
(b) The tenth anniversary of the year in which the participant commenced
participation;
(c) The Participant's termination of Employment; or
(d) The date elected, as permitted herein, by the Participant.
If the amount of benefits payable within such 60-day period cannot be
determined within such period, then a payment, retroactive to such 60th day,
shall be made no later than 60 days after the earliest date on which the
amount of such benefits can be determined.
2. If a distribution of benefits has commenced before the Participant's
death, the remaining interest will be distributed at least as rapidly as under
the method of distribution being used as of the date of the Participant's
death.
3. Any distribution which had not begun before the Participant's death
shall comply with the following:
(a) Any portion of the Participant's account balance not payable to a
Beneficiary designated by the Participant will be distributed within five years
after such Participant's death.
(b) Any portion of the Participant's Combined Account balance that is
payable to a Beneficiary designated by the Participant will be distributed over
the life of such Beneficiary, commencing not later than one year after the
Participant's death (or if the Beneficiary is the Participant's Surviving
Spouse, commencing not later than the date on which the Participant would have
attained age 70 1/2).
D. Age 70 1/2 Benefit Commencement
1. Notwithstanding any provision of this Plan to the contrary, a
distribution shall begin to a Participant not later than the first of the
calendar month following the date on which the Participant attains age 70 1/2.
2. The distribution to a participant who remains an Employee shall be
distributed over a period not exceeding the life expectancy of such
Participant or the life expectancy of such participant and a designated
Beneficiary. Life expectancy shall be redetermined each year in accordance
with procedures established by the Administrative Committee.
3. If a Participant who is being paid pursuant to this Section terminates
Employment, his benefits shall be determined for distribution and paid pursuant
to Section A hereof but in no instance less rapidly than required under this
Section.
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<PAGE> 19
E. Loan Provisions
1. The Trustee may, in its sole discretion, effect loans to Participants.
Effective January 1, 1995, loans shall be granted subject to the terms and
conditions of this Section E and the GATX Logistics, Inc. 401(k) Plan Loan
Program (the "Participant Loan Program").
2. All loans shall:
(a) be made available to all Participants and Beneficiaries on a
reasonably equivalent basis;
(b) not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Participants and Beneficiaries;
(c) be at a reasonable rate of interest;
(d) be adequately secured; and
(e) provide for repayment over a reasonable period of time.
3. All loans shall be made pursuant to the Participant Loan Program. The
Trustee shall administer the Participant Loan Program. Such loan program
shall be established by the Trustee in writing and must include, but not be
limited to, the following:
(a) a procedure for applying for loans;
(b) the basis on which loans will be approved or denied;
(c) limitations, if any, on the types and amounts of loans offered;
(d) the procedure under the loan program for determining the reasonable
rate of interest; and
(e) events constituting default and the steps that will be taken to
preserve plan assets.
F. In Service Withdrawals
1. A Participant who has attained age 59 1/2 may elect to withdraw the
entire amount of the Participant's Combined Account during the participant's
period of Employment. Such election may be made only once every 12 months.
2. The benefits of a Participant who elects to withdraw during employment
shall be the Account Value of the Participant's
15
<PAGE> 20
Combined Account determined as of the Valuation Date coincident with or next
following the date the withdrawal election is received by the Administrative
Committee. Amounts credited to the Participant's Combined Account
subsequent to such Valuation Date shall not be distributed as a result of this
particular election.
3. The benefit shall be paid in a lump sum to the participant as
soon as practicable after such valuation Date.
4. Participants making this election shall continue to be eligible to
participate in the Plan on the same basis as any other Employee.
G. Beneficiaries
1. A participant may designate in writing one or more Beneficiaries to
whom amounts due after his death shall be paid. In the event a participant
fails to make such a designation, or in the event that no designated
Beneficiary survives the participant, any amounts due after his death shall be
paid to his Surviving Spouse, or if there is no Surviving Spouse, to
the legal representative of his estate. No Beneficiary shall have any right
to benefits under the Plan unless he shall survive the participant.
2. Any designation of a Beneficiary must be filed with the Administrative
Committee in order to be effective. Any such designation of a Beneficiary may
be revoked by filing a later designation or an instrument of revocation with
the Administrative committee.
3. If a participant has a Surviving Spouse on the date of his death, a
beneficiary designation of someone other than the Surviving Spouse shall be
effective if, and only if, a Spouse Consent is in effect pursuant to paragraph
4 of this Section. If a participant has a Surviving Spouse on his date of
death and no Spouse Consent is in effect, Plan benefits will be paid to the
Surviving Spouse, regardless of any other beneficiary designation.
4. A spouse consent is in effect if the surviving spouse executes and
files with the Administrative Committee a consent to the Participant's
beneficiary designation acknowledging the effect of such designation and the
Surviving Spouse signature is witnessed by a plan representative or a notary
public.
H. Special Rules for Participants and Beneficiaries Who Cannot Be Located
Each participant, or Beneficiary thereof, entitled to benefits under the
Plan has the responsibility to advise the Administrative Committee, in writing,
of his current address. Any communication, statement, or notice addressed to
such person at his latest reported address will be binding on him for all
purposes of the plan and neither the Administrative Committee, the Employees or
Trustees shall be obligated to search for or ascertain his whereabouts.
If the Administrate Committee is unable to locate a Participant or Beneficiary
on or after a One Year Break in Service, such participant or Beneficiary's
Combined Accounts shall be treated as a forfeiture and shall be used to reduce
Employer contributions made pursuant to Section B of
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<PAGE> 21
Article V. However, if the participant or beneficiary claims his benefit at a
later date prior to the Plan termination, the balance of his Combined Accounts
in the amount as of the date forfeited will once again be payable to him.
Employer Contributions shall be used to restore such amounts.
I. Withholding Taxes
The Trustee may withhold from any payment hereunder any taxes required to
be withheld under applicable local, state or federal laws.
J. Federal Withholding Tax on Distributions
1. This Section applies to distributions made on or after January 1, 1993.
2. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Article, a Distributee may
elect, at the time and in the manner prescribed by the Administrate Committee,
to have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement plan specified by the Distributee in a Direct Rollover.
3. For purposes of this Section, the following definitions shall be used.
(a) Eligible Rollover Distribution: An Eligible Rollover
Distribution is any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under IRC Section (a)(9); and the portion of any
distribution that is not includable in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An Eligible Retirement Plan is an
individual retirement account described in IRC Section 408(a), an individual
retirement annuity described in IRC Section 408(b), an annuity plan described
in IRC Section 403(a), or a qualified trust described in IRC Section 401(a),
that accepts the Distributee's Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
(c) Distributee: A Distributes 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 the Alternate
payee under a Qualified Domestic Relations order, as defined in IRC Section
414 (p), are Distributees with regard to the interest of the Spouse or former
Spouse.
(d) Direct Rollover: A Direct Rollover is a payment by the plan to the
Eligible
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<PAGE> 22
Retirement Plan specified by the Distributee.
(e) If a distribution is one to which IRC Sections 401(a) (11) and
417 do not apply, such distribution may commence less than 30 days after the
notice required under Section 1.411(a)-1l(c) of the Income Tax Regulations is
given, provided that:
(i) 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
(ii) the participant, after receiving the notice, affirmatively
elects a distribution.
K. Forfeitures
Upon non-vested termination of Employment, the non-vested portion of the
Employer Contributions Account of a participant who has terminated Employment
snail be forfeited, subject to the provisions of Section L, as of the date of
termination. To the extent not utilized to restore other forfeitures pursuant
to Sections H or L of this Article, such forfeitures together with forfeitures
that arise pursuant to Section H of this Article, shall be allocated pursuant
to Section B of Article VI hereof. A participant who was 0% vested in his
Employer contributions Account shall be deemed to have received a distribution
of his vested portion of such accounts on his date of Employment termination.
L. Restoration of Forfeitures
1. If a participant who has forfeited a portion of his Employer
Contributions Account resumes Employment prior to the last day of the Plan Year
in which he incurs five consecutive One Year breaks in Service, the forfeited
portion shall be restored under the following conditions:
(a) If the vested portion of the Participant's Benefit Accounts has not
been distributed, any forfeitures shall be restored to his Benefit Account
from which forfeited in the same amount as forfeited as soon as possible
following such Reemployment; or
(b) If the vested portion of the Participant's Benefit Account has been
distributed, he shall have the right, while an Employee, to recontribute the
full amount distributed to him. His right to recontribute shall terminate
after Participant has incurred five consecutive One Year Breaks in Service
following the distribution or employed for two years as of his date
of reemployment. In the event of such recontribution as of the Valuation
Date coincident with or next following such recontribution, the Account
Value of his Accounts shall be restored to 100% of their value on the date as
which such Participant's benefits were determined for distribution. All
recontributions must be in one lump sum.
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<PAGE> 23
2. Forfeiture shall be restored from other forfeitures occurring during
the Plan Year of reemployment. To the extent forfeitures are insufficient to
make such restoration, it shall be made from the net income of the Fund or from
a special contribution from the Participant's Employer.
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<PAGE> 24
ARTICLE IV
A. Vesting Percentage
1. A participant shall be fully vested at all times in the Account Value
of his Elective Deferral Account and Rollover Account.
2. The vesting percentage of a Participant in the Account Value of his
Employer Contributions Account shall be 100% if such participant's employment
is terminated:
(a) on or after his 65th birthday; or
(b) due to death.
3. Subject to the provisions of paragraph 4 of this Section, the vesting
percentage of any other participant in the Account value of his Employer
contributions Account shall be the percentage determined under the following
schedule:
<TABLE>
<S> <C>
Year of Vesting
Vesting Percentage
----------------- ----------
less than 2 0%
2 but less than 4 50%
4 or more 100%
</TABLE>
4. An Employee who was employed by the Employer prior to January 1, 1995 shall
be 100% vested in their Employer contribution Account regardless of the
Employee's Years of Vesting.
B. Rules for Crediting Years of Vesting
Years of Vesting shall be determined under the following rules:
1. An Employee shall be credited with one Year of Vesting for:
(a) Any plan year during which an Employee completes at least 1,000
Hours of Service (such Year of Vesting shall be credited as of the last day of
the Plan Year or, if earlier, as of the day on which such Employee terminates
his Employment);
(b) The plan Year in which the Employee becomes a participant if
(i) an Employee's eligibility computation period overlaps two vesting
computation periods,
20
<PAGE> 25
(ii) such Employee completes at least 1,000 Hours of Service during the
eligibility computation period, and
(iii) such Employee fails to complete at least 1,000 Hours of Service
in either of the overlapped vesting computation periods; and
(c) No credit shall be granted under more than one subparagraph of this
Paragraph for the same Year of Vesting.
2. The Years of Vesting prior to a One Year Break in Service of an
Employee with no vested rights to a benefit derived from contributions by the
Company (other than Elective Deferral Contributions) shall not be
counted if the number of his consecutive One Year Breaks in Service equals
or exceeds the greater of five or his number of Years of Vesting (which number
of Years of Vesting shall not include any years previously disregarded under
this rule) before such period of consecutive One Year Breaks in Service.
3. The Years of Vesting subsequent to a One Year Break in Service of an
Employee who has terminated Employment shall not be counted, on and after the
last day of the Plan Year in which he has such five consecutive One Year Breaks
in Service, in computing the vesting percentage applicable to the Account Value
of his Employer Contributions Account derived from Contributions accrued prior
to such One Year Break in Service.
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<PAGE> 26
ARTICLE V
Contributions
A. Participant Contributions
Except as provided in Section C of this Article, Participant contributions
shall not be required or permitted.
B. Employer Contributions
1. Effective January 1, 1995, with respect to each calendar month, the
Employer shall make an Employer Contribution to the Trust which shall be a
matching contribution for each Participant eligible for a contribution (as
determined in paragraph 3 of this Section) of 100% of the Participant's
Elective Deferral Contribution. The Employer shall not make an Employer
Contribution for Elective Deferrals in excess of four percent of a
Participant's Compensation.
2. Prior to January 1, 1995, with respect to each calendar quarter, the
Employer shall make an Employer Contribution to the Trust which will be a
matching contribution for each Participant eligible for a contribution (as
determined in paragraph 3 of this Section) of a percentage of the Participant's
Base Compensation. For purposes of the Employer Contribution, Base Compensation
is Compensation without taking into account amounts paid to the Participant
for bereavement days, severance pay, vacation days, personal days or car
allowance payments. The amount of a Participant's Employer Contribution
shall be determined based on Years of Service as follows:
<TABLE>
<S> <C>
Years of Service % of Members Matching Compensation
---------------- ----------------------------------
less than 1 0%
1 2%
2 3%
3 or more 4%
</TABLE>
3. Effective as of January 1, 1995, a Participant shall receive an
Employer Contribution if they were employed by the Company at any time during
the calendar year. Between June 30, 1992 and January 1, 1995, Participants
shall be eligible for a contribution for a calendar quarter if the Participant
is an Employee on the last working day of that calendar quarter. Prior to
June 30, 1992, a Participant shall be eligible for a contribution for
a calendar quarter if the Participant is an Employee on the last day of that
calendar quarter.
22
<PAGE> 27
4. Employer Contributions shall be made in cash.
5. Employer contributions with respect to each Plan Year shall be made no
later than the time prescribed by law.
C. Elective Deferrals
1. A Participant may elect to defer from 1% to 16% (in whole increments) of
his Compensation as an Elective Deferral Contribution. Such deferred
amount will be contributed to the Plan and allocated to the Elective Deferral
Account. No Participant shall be required to make a deferral.
2. A Participant may elect to make or modify an Elective Deferral contribution
by submitting a request in a form approved by the Committee by the twentieth
day of any calendar month. The effective date of such salary reduction shall
be the first day of the first payroll period of the next calendar month.
3. Except in compliance with loan provisions contained in Section E of Article
III, amounts attributable to Elective Deferral Contributions may not be
distributed to the Participant earlier than upon one of the following events:
(a) the Employee's retirement, death, disability or separation from
Service;
(b) the termination of the Plan without establishment or maintenance of
another Defined Contribution Plan, other than an ESOP or SEP;
(c) the Employee's attainment of age 59 1/2;
(d) the sale or other disposition by a corporation to an unrelated
corporation of substantially all of the assets used in the trade or business,
but only with respect to Employees who continue employment with the
acquiring corporation and the acquiring corporation does not maintain
the Plan after the disposition; and
(e) the sale or other disposition by a corporation of its interest in a
subsidiary to unrelated entity but only with respect to Employees who continue
employment with a subsidiary and the acquiring entity does not maintain the
plan after the disposition.
Paragraphs (d) and (e) apply only if the transferor corporation
continues to maintain the plan.
4. Notwithstanding any other provision of this Plan, the Administrative
Committee, shall at the commencement of each Plan Year determine the maximum
percentage of Compensation a Highly Compensated Employee may contribute to the
Plan as an Elective Deferral Contribution if the Administrative Committee
believes such action will assist in the Plan's compliance with the paragraph 1
of Section D and/or paragraph 1 of Section E of this Article.
23
<PAGE> 28
Article.
D. Limitations on Elective Deferral Contributions
1. Average Actual Deferral Percentage Limitation.
(a) The Average Actual Deferral Percentage for Eligible Employees who are
Highly Compensated Employees for the Plan Year shall not exceed the Average
Actual Deferral Percentage for Eligible Employees who are Non-highly
Compensated Employees for the Plan Year multiplied by 1.25; or
(b) The Average Actual Deferral Percentage for Participants who are
Highly Compensated Employees for the Plan Year shall not exceed the Average
Actual Deferral Percentage for Eligible Employees who are Non highly
Compensated Employees for the Plan Year multiplied by 2, provided that the
Average Actual Deferral Percentage for Eligible Employees who are Highly
Compensated Employees does not exceed the Average Actual Deferral Percentage
for Eligible Employees who are Non highly Compensated Employees by more than
two percentage points. 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 years shall be
treated as a single arrangement.
(c) For purposes of this Article, the following definitions shall be
used:
(i) "Actual Deferral Percentage" shall mean the ratio (expressed as a
percentage), of Elective Deferral Contributions on behalf of the Eligible
Employee for the Plan Year to the Eligible Employee's Compensation for the Plan
Year.
(ii) "Average Actual Deferral Percentage" shall mean the average
(expressed as a percentage) of the individual Actual Deferral
Percentages of the Participants in a group.
(iii) "Excess Contributions" shall mean, with respect to a Plan Year,
the excess of the Elective Deferral Contributions on behalf of eligible Highly
Compensated Employees for the Plan Year over the maximum amount of such
contributions permitted under Subparagraph 1(a) and (b), and reduced as to
a Highly Compensated Employee in the manner described in Subparagraph 2.
(d) Operating rules for Average Actual Deferral Percentage
limitations.
(i) If the Average Actual Deferral Percentage exceeds the limitation of
Subparagraph 1(a) and (b), the Employer shall cause Excess Contributions and
income, gains and losses allocable thereto to be distributed by the close of
the Plan Year following the Plan Year in which Excess Contribution arose. If
such excess amounts are distributed more than two and one-half months after the
last day of the Plan Year in which such excess amounts arose, a ten percent
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<PAGE> 29
(10%) excise tax will be imposed on the Employer. A corrective
distribution of Excess Contributions and income, gains and losses
allocable thereto shall be made without regard to any notice or consent
otherwise required under the Plan. Any distribution under this Subparagraph
1(d) of less than the entire Excess Contribution and income, gains and loss
allocable thereto shall be treated as a pro rata distribution of Excess
Contributions and income, gains and losses allocable thereto. In no event
shall Excess Contributions for a Plan Year remain unallocated or be allocated
to a suspense account for allocation to one or more Employees in any future
Plan Year.
(ii) The Actual Deferral Percentage for any Eligible Employee who is
a Highly Compensated Employee for the Plan Year and who is eligible to have
Elective Deferral Contributions allocated to his account under two more plans
or arrangements described in IRC Section 401(k) that are maintained by the
Participating Employer or an Affiliate shall be determined as if all such
Elective Deferral Contributions were made under a single arrangement.
(iii) For purposes of determining the Actual Deferral Percentage of a
Participant who is a Highly Compensated Employee, the Elective Deferral
Contributions and Compensation of such Participant shall include the Elective
Deferral Contributions and Compensation of Family Members, and such Family
Members shall be disregarded in determining the Actual Deferral Percentage
for Participants who are Non-Highly Compensated Employees.
(iv) In the event that this Plan satisfies the requirements of IRC
Sections 401(k), 401(a)(4) or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of such IRC
sections only if aggregated with this Plan, then this Section shall be applied
by determining the Average Actual Deferral Percentage of Employees 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 IRC Section 401(k) only if
they have the same Plan Year.
(v) For purposes of determining the Actual Deferral Percentage of a
Participant who is a five percent (5%) owner or one of the ten most Highly
Compensated Employees, the Elective Deferral Contributions and Compensation of
such Participant shall include the Elective Deferral Contributions and
Compensation for the Plan Year of Family Members, and such Family Members shall
be disregarded in determining the Actual Deferral Percentage both for
Participants who are Non-Highly Compensated Employees and for Participants who
are Highly Compensated Employees.
(vi) For purposes of determining the Average Actual Deferral Percentage
test, Elective Deferral Contributions must be made before the last day
of the twelve-month period immediately following the Plan Year to which such
contributions relate.
(vii) The Employer shall maintain records sufficient to demonstrate
satisfaction of the Average Actual Deferral Percentage test and the amount
of Elective Deferral Contributions used in such test.
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<PAGE> 30
(viii) The determination and treatment of the Elective Deferral
Contributions and Actual Deferral Percentage of any Participant shall satisfy
such other requirements as may be prescribed by the Secretary of the Treasury.
2. Excess Contributions Limitation
(a) The amount of Excess Contributions for a Highly Compensated Employee
for a Plan Year is to be determined under the following method, under which the
Actual Deferral Percentage of the Highly Compensated Employee with the highest
Actual Deferral Percentage is reduced to the extent required to equal the
lesser of the amount which:
(i) enables the Plan to satisfy the Average Actual Deferral Percentage
described in Subparagraph 1(a) and (b), or
(ii) causes such Highly Compensated Employee's Actual Deferral
Percentage to equal the percentage of the Highly Compensated Employee with the
next highest Actual Deferral Percentage.
This reduction process shall be repeated until the Plan satisfies the Average
Actual Deferral Percentage described in Subparagraph 1(a) or (b). For each
Highly Compensated Employee, the amount of Excess Contributions is equal to
the Elective Deferral Contributions minus the amount determined by
multiplying the Employee's Actual Deferral Percentage (determined after
application of Subparagraph 1(d) by his Compensation used in determining such
percentage. In determining the amount of Excess Contributions under this
method, Actual Deferral Percentages shall be rounded to the nearest 100th of 1%
of the Employee's Compensation. The Actual Deferral Percentage of an Eligible
Employee who makes no Deferral Contribution is zero. In no case shall the
amount of Excess Contributions for a Plan Year with respect to any
Highly Compensated Employee exceed the amount of Elective Deferral
Contributions made on behalf of such Highly Compensated Employee for such Plan
year.
(b) The income, gains and losses allocable to Excess Contributions for
purposes of Subparagraph 1(a) and (b) is equal to the sum of the allocable gain
or loss for the Plan Year described in clause (i) below, and the allocable gain
or loss for the period between the end of the Plan Year and the date of
distribution described in clause (ii) below. Income includes all earnings and
appreciation, including such items as interest, dividends, rent, royalties,
gains from the sale of property, appreciation in the value of stocks, bonds,
annuity and life insurance contracts, and other property, without regard to
whether such appreciation has been realized.
(i) The income, gains and losses allocable to Excess Contributions for
the Plan Year is determined by multiplying the income for the Plan Year
allocable to Elective Deferral Contributions and amounts treated as Elective
Deferral Contributions by a fraction. The numerator of the fraction is the
Excess Contribution by the Employee for the Plan Year. The denominator of the
fraction is the total Account Balance of the Employee attributable to
Elective Deferral Contributions and amounts treated as Elective Deferral
Contributions as of the end of the Plan Year, reduced by the gain allocable to
such total amount for the Plan Year and
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<PAGE> 31
increased by the loss allocable to such total amount for the Plan Year.
(ii) The income, gains and losses allocable to Excess Contributions
for the period between the end of the Plan Year and the distribution date is
equal to 10% of the income allocable to Excess Contributions for the Plan Year
(as calculated under clause (i) above) multiplied by the number of calendar
months that have elapsed since the end of the Plan Year. For purposes of
determining the number of calendar months that have elapsed, a distribution
occurring on or before the fifteenth day of the month will be treated as having
been made on the last day of the preceding month, and a distribution occurring
after such fifteenth day will be treated as having been made on the first day
of the next month.
(c) Coordination of Excess Contributions with Distribution of Excess Deferrals.
(i) The amount of Excess Contributions to be distributed under
Subparagraph 1(d) with respect to a Highly Compensated Employee for a Plan Year
shall be reduced by an Excess Deferrals previously distributed in accordance
with Subparagraph 3(a) to such Participant for the Participant's taxable year
ending with or within such Plan Year.
(ii) The amount of Excess Deferrals that may be distributed under
Subparagraph 3 with respect to an Employee for a taxable year shall be
reduced by any Excess Contributions previously distributed with respect to such
Employee for the Plan Year beginning with or within such taxable year. In the
event of a reduction under this clause (ii), the amount of Excess Deferrals
included in the gross income of the Employee and the amount of Excess Deferrals
reported by the Employer as includable in the gross income of the Employee
shall be reduced by the amount of the reduction under this clause (ii).
(d) The determination and correction of Excess Contributions of
a Highly Compensated Employee and his Family Members shall be calculated
by reducing the Actual Deferral Percentage as required under paragraph (a)
of this section and allocating the Excess Contributions for the Family Members
among the Family Members in proportion to the contribution of each Family
Member that is combined to determine the Actual Deferral Percentage.
3. Excess Deferrals
(a) No Participant shall be permitted to have contributions made
pursuant to Section C in excess of $7,000 (as adjusted for the cost of living
by the Secretary of the Treasury) per calendar year. Notwithstanding any other
provisions of this Plan, the following shall apply:
(i) Excess Deferral Amounts and income allocable thereto shall be
distributed no later than each April 15 to Participants who claim such Excess
Deferral Amounts for the preceding calendar year in accordance with the
procedures of this Subparagraph 3(a).
(ii) "Excess Deferral Amount" shall mean the amount of deferrals under
Section C for a calendar year that the Participant allocates to this Plan
pursuant to the claim
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<PAGE> 32
procedure set forth in clause (iii), below.
(iii) The Participant's claim for a distribution of an Excess Deferral
Amount shall be in writing, shall be submitted to the Administrative Committee
no later than April 15; shall specify the Participant's Excess Deferral
Amount for the preceding Plan Year; and shall be accompanied by the
Participant's written statement that if such amounts are not distributed, such
Excess Deferral Amount, when added to amounts deferred under other plans or
arrangements described in IRC Section 401(k), 408(k) or 403(b), exceeds the
limit imposed on the Participant by IRC Section 402(g) for the year in which
the deferral occurred.
(iv) Income Allocable to Excess Deferrals Amounts.
(A) The Excess Deferral Amounts distributed to a Participant with respect
to a calendar year shall be adjusted for income, gains and losses. The income,
gains and losses allocable to the Excess Deferral Amount is equal to the sum
of the allocable gain or loss for the taxable year of the individual as
described in subclause (B) below and the allocable gain or loss for the period
between the end of the taxable year and the date of distribution as
described in subclause (C) below. Income includes all earnings and
appreciation, including such items as interest, dividends, rents, royalties,
gains from the sale of property, appreciation in the value of stocks,
bonds, annuity and life insurance contracts, and other property without regard
to whether such appreciation has been realized.
(B) The gain or loss allocable to Excess Deferral Amount for the taxable
year of the individual is determined by multiplying the income for the
taxable year of the individual allocable to Elective Deferrals by a fraction.
The numerator of the fraction is the Excess Deferral Amount made by the
Employee for the taxable year. The denominator of the fraction is the total
account balance of the Employee attributable to Elective Deferrals as of the
end of the taxable year, reduced by the gain allocable to such total amount for
the taxable year and increased by the loss allocable to such total amount for
the taxable year.
(C) The gain or loss allocable to the Excess Deferral Amount for the
period between the end of the taxable year and the date of distribution is
equal to 10% of the income allocable to Excess Deferral Amounts for the
taxable year (as calculated under subclause (B) above) multiplied by the
number of calendar months that have elapsed since the end of the taxable year.
For purposes of determining the number of calendar months that have elapsed, a
distribution occurring on or before the 15th day of the month will be treated
as having been made on the last day of the preceding month, and a distribution
occurring after such 15th day will be treated as having been made on the 1st
day of the next subsequent month.
(v) Coordination with Excess Contributions. The Excess Deferral Amount
which may be distributed under Subparagraph 3 with respect to an Employee for a
taxable year shall be reduced by any Excess Contributions previously
distributed with respect to such Employee for the Plan Year beginning with or
within such taxable year. In the event of a reduction under this Subparagraph
3, the amount or Excess Contributions included in the gross income of the
Employee and reported by the Employer as a distribution of Excess Contributions
shall be
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<PAGE> 33
reduced by the amount of the reduction under this Subparagraph 3. In
no case may an Employee receive from the Plan as a corrective
distribution for a taxable year under Subparagraph 3 an amount in excess of the
individual's total Elective Deferrals under the Plan for the taxable year.
E. Limitations on Employer Contributions
1. Average Contribution Percentage Limitation
(a) The Average Contribution Percentage for eligible employees who are
Highly Compensated Employees for the Plan Year shall not exceed the Average
Contribution Percentage for eligible employees who are Non-Highly Compensated
Employees for the Plan Year multiplied by 1.25; or
(b) The Average Contribution Percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the Average
Contribution Percentage for eligible Employees who are Non-Highly
Compensated Employees for the Plan Year multiplied by 2, provided that the
Average Contribution Percentage for eligible Employees who are Highly
Compensated Employees does not exceed the Average Contribution Percentage
for eligible Employees or Non-Highly Compensated Employees by more than two
percentage points. If a Highly Compensated Employee participates in two or
more cash or deferred arrangements that have different Plan Years, all cash or
deferred arrangement ending with or within the same calendar years should be
treated a single arrangement.
(c) For purposes of this Article, the following definitions shall be
used:
(i) Average Contribution Percentage shall mean the ratio (expressed as a
percentage) of Employer Contributions on behalf of the Eligible Employee of the
Plan Year and forfeitures allocated on the basis of Elective Contributions to
the Eligible Employee's Compensation for the Plan Year.
(ii) Average Actual Contribution Percentage shall mean the average
(expressed as a percentage of the individual Average Contribution Percentages)
of the Participants in a group.
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<PAGE> 34
(iii) Excess Employer Contribution shall mean, with respect to a Plan
Year, the excess of the Employer Contributions on behalf of an eligible Highly
Compensated Employee for the Plan Year over the maximum amount of such
contributions permitted under subparagraph 1(a) or (b) and reduced as to
Highly Compensated Employee in the manner described in subparagraph 2.
(d) Operating rules for Average Actual Contribution Percentage limitations:
(i) If the Average Contribution percentage exceeds the limitation of
subparagraph 1(a) or 1(b), the Employer shall cause the Excess Employer
Contribution and income, gains and losses allocable thereto to be forfeited,
if forfeitable and if not forfeitable, distributed by the close of the Plan
Year following the Plan Year in which Excess Employer Contribution arose. If
such excess amounts are distributed more than two and one-half months after the
last date of the Plan Year in which excess amounts arose, a ten percent (10%)
excise tax will be imposed on the Employer. A corrective distribution of
Excess Employer Contribution and income, gains and losses allocable thereto
shall be made without regard to any notice and consent requirements otherwise
required under the Plan. Any distribution under this subparagraph of less than
the entire Excess Employer Contribution and income, gains and losses allocable
thereto shall be treated as a pro rata distribution of Excess Employer
Contribution and income, gains, losses allocable thereto. In no event shall
Excess Employer Contribution remain unallocated or be allocated to a suspense
account for allocation to one or more Employees in any future Plan Year.
(ii) The Average Contribution Percentage for any Eligible Employee who is
a Highly Compensated Employee for the Plan Year and who is eligible to have
Employer contributions allocated to his account under two or more plans or
arrangements described in IRC Section 401(k) that are maintained by the
participating Employer or an Affiliate shall be determined as if such Employer
Contributions were made under a single arrangement.
(iii) For purposes of determining the Average Contribution Percentage of a
Participant who is a Highly Compensated Employee, the Employer Contributions
and Compensation of such Participant shall include the Employer Contribution
and Compensation of Family Members, and such Family Members shall be
disregarded in determining the Average Contribution Percentage for Participants
who are Non-Highly Compensated Employees.
(iv) For purposes of determining the Average Contribution Percentage
of a Participant who is a five percent (5%) owner or one of the ten most Highly
Compensated Employees, the Contribution Percentage amounts and compensation of
such Participants shall include the Contribution Percentage amounts and
Compensation of Family Members, and such Family Member shall be disregarded in
determining the Contribution Percentage for Participants who are Non-Highly
compensated Employees and who are Highly Compensated Employees.
(v) For purposes of determining the Average Contribution Percentage,
Employer contributions will be considered made for Plan Year if they are made
no later than the last day prescribed by the code and Regulations for making
such contributions.
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<PAGE> 35
(vi) The Employer shall maintain records sufficient to demonstrate
satisfaction of the Average Contribution Percentage test and the amount of
Employer contributions used in such test period.
(vii) Determination and treatment of the Average Contribution Percentage
of any Participant shall satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
(viii) In the event that this Plan satisfies the requirements of IRC
Section 401(m), 401(a) and 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of such IRC
sections on if aggregated with this Plan, then this section shall be applied by
determining the Average Contribution Percentages of eligible Participants as if
such plans were a single plan. For Plan Years beginning after December 1,
1989, plans may be aggregated in order to satisfy IRC Section 401(m) and only
if they have the same Plan Year.
2. Excess Employer Contribution Limitation
(a) The amount of Excess Employer Contribution for a Highly Compensated
Employee for a Plan Year is to be determined under the following method, under
which the Average Contribution Percentage of the Highly Compensated Employee
with the highest Average Contribution Percentage is reduced to the extent
required to equal the lesser of the amount which:
(i) enables the Plan to satisfy the Average Actual Contribution percentage
described in subparagraph 1(a) or 1(b); or
(ii) causes such Highly Compensated Employees Average Contribution
Percentage to equal the percentage of the Highly Compensated Employee with the
next highest Average Contribution Percentage.
This reduction process shall be repeated until the Plan satisfies the
Average Actual Contribution Percentage described in subparagraph 1(a) or (b).
For each Highly Compensated Employee, the amount of Excess Employer
Contribution is equal to the Employer Contributions minus the amount
determined by multiplying the Employee's Average Contribution Percentage
(determined after application of subparagraph 1(d)) by his Compensation used
in determining such percentage. In determining the amount of Excess Employer
Contribution under this method, Average Contribution Percentages shall be
rounded to the nearest 100th of 1% of the Employee's compensation. In no case
shall the amount of Excess Employer Contribution for Plan Year with respect to
any Highly Compensated Employee exceed the amount of Employer Contributions
made on behalf of such Highly Compensated Employee.
(b) The income, gains and losses allocable to Excess Employer
Contributions for purposes of subparagraph 1(a) and (b) is equal to the sum of
the allocable gain or loss for the Plan Year described in clause (i) below, and
the allocable gain or loss for the period between the end of the Plan Year and
the date of distribution described in clause (ii) below. Income includes
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<PAGE> 36
all earnings and appreciation, including such items as interest, dividends,
rent, royalties, gains from the sale of property, appreciation in the value of
stocks, bonds, annuity and life insurance contracts, and other property,
without regard to whether such appreciation has been realized.
(i) The income, gains and losses allocable to Excess Employer
Contributions for the Plan Year is determined by multiplying the income for the
Plan Year allocable to Employer Contributions and amounts treated as Employer
Contributions by a fraction. The numerator of the fraction is the Excess
Employer Contribution for the Employee for the Plan Year. The denominator of
the fraction is the total account balance of the Employee attributable to
Employer Contributions and amounts treated as Employer Contributions as of the
end of the Plan Year, reduced by the gain allocable to such total amount for
the Plan Year and increased by the loss allocable to such total amount for the
Plan Year.
(ii) The income, gains and losses allocable to Excess Employer
Contributions for the period between the end of the Plan Year and the
distribution date is equal to 10% of the income allocable to Excess Employer
Contributions for the Plan Year (as calculated under clause (i) above)
multiplied by the number of calendar months that have elapsed since the end of
the Plan Year. For purposes of determining the number of calendar months that
have elapsed, a distribution occurring on or before the fifteenth day of the
month will be treated as having been made on the last day of the preceding
month, and a distribution occurring after such fifteenth day will be treated
as having been made on the first day of the next month.
(a) The determination and correction of Excess Employer Contributions of a
Highly Compensated Employee and his Family Members shall be calculated by
reducing the Average Contribution Percentage as required under paragraph (a) of
this section and allocating the Excess Employer Contribution for the Family
Members among the Family Members in proportion to the Contribution of each
Family Member that is combined to determine the Actual Contribution percentage.
F. Multiple Use of Limitation
1. If one or more Highly Compensated Employees participate in both a cash
or deferred arrangement and a plan subject to the Average Contribution
Percentage test maintained by the Employer and the sum of the Actual Deferral
percentage and the Average Contributions Percentage of those Highly
Compensated Employees subject to either or both tests exceeds the Aggregate
Limit, then the Average Contribution percentage of those Highly Compensated
Employees who are also participating in a cash or deferred arrangement shall
be reduced (beginning with such Highly Compensated Employee whose Average
Contribution Percentage is the highest) so that the limit is not exceeded. The
amount by which each Highly Compensated Employees Average Contribution
Percentage amount is reduced shall be treated as an Excess Aggregate
Contribution. Average Deferral Percentage and the Actual Contribution
percentage of the Highly Compensated Employee shall be determined after any
correction required to meet the Actual Deferral Percentage and the Average
Percentage Contribution test. Multiple use does not occur if either the Average
Actual Deferral Percentage or the Average Actual Contribution Percentage of the
Highly Compensated Employees does not exceed 1.25 multiplied by the
Average Actual Deferral Percentage and the
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<PAGE> 37
Average Actual Contribution percentage of the Non-Highly Compensated Employees.
2. For purposes Article, the following definitions shall be used:
(a) Aggregate Limit shall mean the sum (i) 125 percent of the greater of
the Average Actual Deferral Percentages of the Non-Highly Compensated Employees
for the Plan Year or the Average Actual Contribution percentages of the
Non-Highly Compensated Employees under the Plan subject to IRC Section 401(m)
for the Plan Year beginning with or within the Plan Year of the cash or
deferred arrangement, and (ii) the lesser of 200% or two plus the lesser of
such Average Actual Percentage or Average Actual Contribution Percentage.
"Lesser" shall be substituted for "greater" in (i) above and "greater" shall be
substituted for "lesser" after "two plus the" in (ii) above if it would result
in a larger Aggregate Limit.
(b) Excess Aggregate Contribution shall mean with respect to any Plan
Year, the excess of (i) the aggregate Contribution percentage amounts taken
into account and computing the numerator of the Contribution percentage
actually made on behalf of a Highly Compensated Employee for such Plan Year,
over (ii) the maximum Contribution percentage amounts permitted by the Average
Contribution Percentage test (determined by reducing Contributions made on
behalf of Highly Compensated Employees in order of their Contribution
percentages beginning with the highest of such percentages). Such
determinations shall be made after first determining Excess Contributions
pursuant to subparagraph D.2 and Excess Employer Contributions pursuant to
paragraph E.2.
3. Excess Aggregate Contributions plus any income and minus any loss
allocated thereto shall be forfeited, if forfeitable, or if not forfeitable,
distributed no later than the last day of each Plan Year to the accounts of
those Participants to which such Excess Aggregate Contributions were allocated
for the preceding Plan Year. Excess Aggregate Contributions shall be allocated
to participants who are subject to the Family Member aggregation rules of IRC
Section 4l4(q) (6) in the same manner prescribed by regulations under Code
Section 414(q). If such Excess Aggregate Contributions are distributed more
than two and one-half months after the last day of the Plan Year in which such
amounts arose, a ten percent (10%) excise tax shall be imposed on the Employer
on the maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as annual additions under the Plan.
4. (a) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to Excess
Aggregate Contributions is the sum of: (1) income or loss allocable to the
participant's Employer Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is such participant's Excess Aggregate
Contributions for the year and the denominator is the participant's account
balance(s) attributable to Contribution Percentage Amounts without regard to
any income or loss occurring during such Plan Year; and (2) ten percent of the
amount determined under (1) 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.
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(b) Excess Aggregate Contributions shall be forfeited, if forfeitable or
distributed on a pro-rata basis from the Participant's Employer Contribution
Account.
ARTICLE VI
Accounts and Allocations
A. Accounts
1. Each Participant shall have an Employer Contributions Account to which his
share of Employer Contributions shall be allocated.
2. Each Participant shall have an Elective Deferral Account to which his
Elective Deferrals shall be allocated.
3. Each Participant shall have a Rollover Account to which his Rollover
Contributions are made.
B. Allocation of Contributions
1. As of the last day of each calendar month, the Employer contribution for
such calendar month shall be allocated to the Employer Contributions Accounts
of all Participants eligible for such Contributions pursuant to Section B of
Article V:
2. The Employer Contribution shall be allocated to each Participant eligible
for a contribution as determined pursuant to Section B of Article V.
3. Effective January 1, 1993, or such later year as set forth in final Treasury
regulations, if after the allocation under Paragraph 2 above for the Valuation
Date for the last Valuation Period of the Plan Year the Plan fails to meet the
requirements of IRC Section 410(b) and the regulations thereunder because
Employer contributions have not been allocated to a sufficient number of
Participants who:
(a) are not employed on the last day of the Plan Year, and
(b) were ineligible for a contribution for any portion of the Plan Year
because they failed to meet the requirement of subparagraph 2 of Section B
Article V on any Valuation Date during the Plan Year shall be entitled to
receive a Contribution based upon the following rule. The Participant with the
greatest number of Hours of Service during the Plan Year shall receive an
Employer contribution determined under paragraph 1 of Section B, Article V. If
after this allocation, the Plan still fails to meet IRC Section 410(b) or the
regulations thereunder, the Participant with the second greatest number of
Hours of Service in the Plan Year shall be entitled to an Employer Contribution
determined under paragraph 1 of Section B, Article V, based upon the same rules
outlined for the Participant with the greatest number of Hours of Service.
This process shall continue until the Plan satisfies the requirements of IRC
Section 410(b) and the regulations thereunder.
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C. Allocation of Elective Deferral
The amount by which a Participant's Compensation is reduced and deferred
under Section C of Article V shall be treated as an Elective Deferral
Contribution and allocated to that Participant's Elective Deferral Account.
D. Valuation of Accounts
1. As of each Valuation Date the Trust shall be valued at fair market
value.
2. The Administrative Committee shall allocate earnings and losses to each
Participant's accounts as follows:
(a) First, a determination shall be made of the investment gain or
loss for the Fund for the Valuation Period, considering unrealized, as well as
realized, gains or losses. The investment gain or loss shall be determined by
comparing -
(i) a total of all the Participants' Accounts as of the beginning of
the Valuation Period with
(ii) the fair market value of all of the Fund's assets (except to the
extent attributable to any unallocated suspense account provided for under the
Plan) at the Valuation Date, but after such value has been increased by the
total amount distributed to date during the Valuation Period and reduced by any
contributions which were received during the Valuation Period and reduced by
any contributions which were received during such Valuation Period.
(b) The gain or loss shall be allocated among the Participants' Combined
Accounts of those persons who had an account balance at the Valuation Date, and
such allocation shall be in the proportion that
(i) the Account Value of each such Participant as of the beginning of
the valuation period, less any distribution made from the Combined Account
during the valuation period, plus one-half sum of the total Elective Deferrals
and Employer contributions made to the Accounts during the Valuation Period,
bears to
(ii) the total of the Account Value of all such Participants as of the
beginning of the valuation period, less the sum of any amounts distributed from
such accounts during the Valuation Period plus one-half the sum of the total
Elective Deferrals and Employer contributions made to the accounts during the
Valuation Period.
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E. Limitations on Allocations
1. If a Participant's Annual Additions in any Limitation Year exceeds the
lesser:
(a) $30,000 or, if greater, one-fourth of the defined benefit dollar
limitation set forth in IRC Section 415(b)(1), as in effect for the
Limitation Year; or
(b) 25 percent of the Limitation Compensation of the participant for such
Limitation Year, then such additional shall be reduced to am amount not in
excess of the above limitations by making the adjustments with respect to such
Limitation Year, to the extent necessary.
2. (a) If in any Plan Year, as a result of the allocation of forfeitures,
a reasonable error in estimating a Participant's Compensation or under other
limited facts and circumstances which, in accordance with Regulation Section
1.415-6(b)(6) justify the use of this paragraph, a Participant's Annual
Addition exceeds the limitation determined under paragraph I of this Section,
such excess shall not be allocated to the Participant's accounts in any
Defined Contribution Plan but shall be handled in the following manner and
order until such excess is eliminated--
(i) contributions made pursuant to Article IV, Section C,
shall be distributed to the Participant to the extent that such
distribution will reduce the excess amounts in the Participant's
account. Contributions returned under this provision shall be
disregarded for purposes of inc Section 402(g), 401(k)(3) or 40l(m)(2).
(ii) his portion of the allocation of Employer Contributions,
or any part thereof, shall be placed on a suspense account and allocated
to the Employer Contributions Accounts of other Participants who are
not initially affected by the limitation determined under paragraph 1
above, respectively, until the limitations of this section are reached
with respect to each Participant.
(iii) if, after such allocation, such excess is still not
thereby completely eliminated, the amount of such excess shall be
placed in a suspense account (with earnings on such amount) which shall
be allocated in the next Limitation Year until the limitations of this
section are reached, and in each subsequent Limitation Year until no
amount of such excess remains unallocated; such excess unallocated
amount shall be released from the suspense account on a first-in-
first-out basis.
(iv) allocations from the suspense account in existence from
prior Limitation Years shall be allocated or reallocated to
Participants' accounts, subject to the limitations described in
paragraph 1, before any further Employer contributions or Elective
Deferral Contributions may be made to the Plan;
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<PAGE> 41
(b) All allocations under this paragraph shall be made on the basis
described in this Article either for the current Limitation Year or, if
applicable, for the Limitation Year in which such amount is released from the
suspense account.
(c) The above reductions shall be applied to this Plan first, and
thereafter to any other Defined Contribution Plan.
3. In addition to the limitations of paragraph 1 of this section, if a
Participant has participation in any Defined Benefit Plan at any time and the
sum of the Participant's defined benefit fraction (determined pursuant to IRC
Section 4l5(e)(2)) and defined contribution fraction (determined pursuant to
IRC Section 4l5(e)(3)) would exceed 1.0, then the reductions provided in such
Defined Benefit Plan shall be made. For purposes of this paragraph, "1.0"
shall be substituted for "1.25" in IRC Sections 415(e)(2)(b) and (3)(B)
for purposes of determining the Participant's defined benefit fraction and
defined contribution fraction, respectively.
4. The amount of contributions which may not be allocated to the
Employer Contributions Account, a particular Participant because of the
limitations of this Section, shall be reallocated in accordance with Section B
of this Article, to all other participants eligible for the Employer
Contributions. If all Participant's Annual Additions are in excess of this
Section's limits, the amount of contributions which may not be allocated will
be held in a special account and reallocated the next Plan Year.
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<PAGE> 42
ARTICLE VII
Fiduciaries
A. Named Fiduciaries
The Administrative Committee shall be the Named Fiduciary of the Plan with
authority to control and manage the operation and administration of the Plan,
to manage and control Plan assets and to select the Trustee, the Investment
Funds and the Investment Manager. The Administrative Committee shall also be
the "Administrator" and the "Plan Administrator" with respect to the Plan, as
those terms are defined in ERISA Section 3(16) (A) and in IRC Section 414(g),
respectively. The Board shall be the Named Fiduciary with its sole fiduciary
responsibility to name the members of the Administrative Committee.
B. Employment of Advisors
A Named Fiduciary, and any fiduciary named by a Named Fiduciary, may
employ one or more persons to render advice with regard to any responsibility
of such Named Fiduciary or fiduciary under the Plan.
C. Multiple Fiduciary Capacities
Any Named Fiduciary and any other fiduciary may serve in more than one
fiduciary capacity with respect to the Plan.
D. Indemnification
To the extent not prohibited by state or federal law, the company and
Affiliates shall indemnify and save harmless any Named Fiduciary or any
employee or director of the company or an Affiliate, from all claims for
liability, loss or damage (including payment of expenses in connection with
defense against any such claim) which result from any exercise or failure to
exercise any responsibilities with respect to the Plan, other than willful
misconduct or willful failure to act.
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ARTICLE VIII
Plan Administration
A. The Administrative Committee
1. The Board shall appoint a committee to be known as the "Administrative
Committee" whose members shall serve at the pleasure of the Board.
2. All of the reasonable expenses of the Administrative Committee shall
be paid from the Trust unless paid by an Employer. Directors or
Employees of the Company or an Affiliate shall receive no compensation for
their services rendered to or as members of the Administrative Committee if
such directors or Employees receive compensation as full time Employees or
directors of the Company or an Affiliate. Any other member of the
Administrative Committee may receive compensation for services as a member, to
be paid from the Trust to the extent not paid by the Employers.
3. The Administrative Committee shall act at a meeting by a majority of its
members at the time in office who are eligible to vote on any particular
matter. Alternatively, the Administrative Committee may act by unanimous
written consent. The Administrative Committee may authorize in writing any
person to execute any document or documents on its behalf, and any interested
person, upon receipt of notice of such authorization directed to it, may
thereafter accept and rely upon any document executed by such authorized person
until the Administrative Committee shall deliver to such interested person
a written revocation of such authorization.
4. A member of the Administrative Committee who is also a Participant
shall not vote or act upon any matter relating specifically to himself.
B. Powers, Duties, etc. of the Administrative Committee
1. The Administrative Committee shall have the power and discretion to
construe the Plan, including, but not limited to, determining who is eligible
to participate and the amount of a Participant's benefits, and to determine all
questions of fact that may arise thereunder, and any such construction or
determination shall be conclusively binding upon all persons interested in the
Plan. The Administrative Committee shall establish and carry out a funding
policy and method consistent with the objectives of the Plan and the
requirements of ERISA.
2. Subject to the terms of the Plan, the Administrative Committee shall
determine the time and manner in which all elections authorized by the Plan
shall be made or revoked.
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3. All applications of the Funds for purposes of payment of benefits or
expenses of the Plan shall be made by the Trustee only at the direction of the
Administrative Committee.
4. The Administrative committee shall have power to make and deal with any
investment of the Trust in any manner consistent with the Plan which it deems
advisable.
5. The Administrative Committee shall have all the rights, powers, duties
and obligations granted or imposed upon it elsewhere in the Plan.
6. The Administrative Committee shall exercise all of its responsibilities
hereunder in a uniform and nondiscriminatory manner.
C. Investment Managers
The Administrative Committee may, by an instrument in writing, appoint one
or more persons (each of whom is hereinafter referred to as an "Investment
Manager"), as adviser to the Administrative Committee in respect of
investments and may, subject to any restrictions upon investment imposed
upon the Administrative Committee by any regulation of the Treasury
Department relating to the qualified status of the Trust as tax exempt, or by
ERISA, delegate to an Investment Manager from time to time the power to manage,
acquire and dispose of or to direct the Trustee to manage, acquire and dispose
of any Plan assets. Each person so appointed shall be an Investment adviser
registered under the Investment Advisers Act of 1940, a bank as defined in
that Act, or an insurance company qualified to manage, acquire, or dispose of
any asset of the Plan under the laws of more than one state. Each Investment
Manager shall acknowledge in writing that it is a fiduciary with respect to
the Plan. Such appointment and delegation shall be upon such terms
and conditions as the Administrative Committee shall approve, and the
Administrative Committee may enter into an agreement with each Investment
Manager specifying the duties and compensation of such Investment Manager and
the other terms and conditions under which such Investment Manager shall be
retained. The Administrative committee shall not be liable for any act or
omission of any Investment Manager, and shall not be liable for following the
advice of any Investment Manager, with respect to any duties delegated to any
Investment Manager. The Administrative Committee may, at any time, terminate
the appointment of any Investment Manager.
D. The Trustee
The Administrative Committee shall, by an instrument in writing, appoint one
or more individuals (including members of the Administrative Committee) or
entities (each of whom is hereinafter referred to as a "Trustee") to serve as
trustee of all or a portion of the Trust. Each Trustee shall be subject to
direction by the Administrative Committee or an Investment Manager and shall
have no discretion with respect to management and control of Plan assets,
except to the extent that the instrument appointing such Trustee provides that
such Trustee shall have power to manage and control Plan assets. Each Trustee
shall accept its appointment by an instrument in writing. The
Administrative Committee shall enter into an Agreement with each Trustee
specifying the duties and compensation of such Trustee and the other terms and
conditions under
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<PAGE> 45
which such Trustee shall serve. The Administrative Committee shall not
be liable for any act or omission of any Trustee with respect to any duties
delegated to any Trustee.
E. Compensation
Each Investment Manager and Trustee shall be paid such reasonable
compensation, in addition to their expense, as shall from time to time be
agreed upon by the Administrative Committee and each Investment Manager or
Trustee, as the case may be. No individual who receives compensation as a
full-time employee of the Company or an Affiliate may receive compensation,
other than reimbursement for reasonable expenses, as an Investment Manager or
Trustee.
F. Delegation of Responsibility
The Administrative Committee may designate persons, including persons
other than Named Fiduciaries, to carry out the responsibilities of the
Administrative Committee provided for hereunder. The Administrative Committee
shall not be liable for any act or omission of a person so designated.
G. Claims Procedure
1. If any claim for benefits under the Plan is wholly or partially denied,
the claimant shall be given notice in writing within a reasonable period of
time after receipt of the claim by the Plan (not to exceed 90 days after
receipt of the claim, or if special circumstances require an extension of time,
written notice of the extension shall be furnished to the claimant and an
additional 90 days will be considered reasonable) by registered or certified
mail of such denial, written in a manner calculated to be understood by the
claimant, setting forth the following information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on
which the denial is based;
(c) a description of any additional material or
information necessary for the claimant to perfect the claim
and an explanation of why such material or information is
necessary; and
(d) an explanation of the Plan's claim review
procedure.
2. The claimant also shall be advised that he or his duly authorized
representative may request a review by the Administrative Committee of the
decision denying the claim by filing with the Administrative Committee, within
60 days after such notice has been received by the claimant, a written request
for such review, and that he may review pertinent documents, and submit issues
and comments in writing within the same 60-day period. If such request is so
filed, such review shall be made by the Administrative committee within 60
days after receipt of such request, unless special circumstances require an
extension of time for processing, in which case the claimant shall be so
notified and a decision shall be rendered as soon as possible, but not later
than 120 days after receipt of the request for review.
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<PAGE> 46
3. The claimant shall be given written notice of the decision resulting
from such review, which notice shall include specific reasons for the decision,
written in a manner calculated to be understood by the claimant, and specific
references to the pertinent Plan provisions on which the decision is based.
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<PAGE> 47
ARTICLE IX
Investment Funds and
Investment of Accounts
A. Investment Funds
The Administrative Committee may, in its sole discretion, designate
investment Funds for the investment of all Plan accounts.
B. Investment of Accounts
1. If the Administrative Committee designates Investment Funds:
(a) Each Participant shall elect, according to rules prescribed by
the Administrative Committee, from among the Investment Funds the manner
in which his accounts shall be invested. If a participant fails to make an
investment election, the entire amount of his accounts shall be invested in
accordance with procedures established by the Administrative Committee.
(b) If an investment Fund which was previously available is
discontinued by the Administrative Committee, each Participant who has a part
of his accounts invested in such Investment Fund shall make a new selection,
effective as of such date as the Administrative Committee may prescribe. If a
Participant fails to make such selection, amounts invested in the
discontinued Investment Fund shall be invested in accordance with procedures
established by the Administrative Committee.
2. All election methods and time periods shall be established
pursuant to procedures established by the Administrative Committee in
its sole discretion.
C. Fiduciary Liability
The company, each Affiliate, any Named Fiduciary and any Employee of the
company or an Affiliate shall not be liable for any loss, or for any reason
which results from a Participant's selection of, or failure to select, any
Investment Fund.
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<PAGE> 48
ARTICLE X
Amendment
The Board shall have the right at any time to amend the Plan in whole or
in part, by a Resolution properly executed in accordance with the state law
governing the Plan or by written amendment, effective retroactively or
otherwise, provided, however, that no amendment shall:
1. authorize any part of the Trust to be used for, or diverted to,
purposes other than for the exclusive benefit of Participants or their
Beneficiaries (excepting only such amounts as may revert to or become the
property of the Company or a Participating Affiliate as provided in Section A
of Article XIII hereof);
2. decrease the accrued benefits of any Participant or his Beneficiary
under the Plan (excepting only such amounts as may revert to or become the
property of the Company or a Participating Affiliate as provided in Section A
of Article XIII hereof);
3. reduce the vesting percentage of any Participant;
4. change the vesting schedule, unless each Participant having not less
than three Years of Service is permitted to elect, within a reasonable
period specified by the Administrative Committee after the adoption of such
amendment, to have his vesting percentage computed without regard to such
amendment; or
5. eliminate an optional form of benefit within the meaning of IRC Section
411(d)(6).
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ARTICLE XI
Discontinuance of Contributions
and Termination of the Plan
A. Right of the Company to Terminate the Plan or Discontinue Contributions
The Company has established the Plan as a permanent plan with the bona
fide intention and expectation that from year to year it will be able to and
will deem it advisable to continue it in effect and to make contributions as
herein provided. However, the company, acting through its Board in a
resolution properly executed in accordance with the state law governing the
Plan or by written amendment, reserves the right to terminate the Plan at any
time.
B. Determination of Date of Complete or Partial Termination or Complete
Discontinuance of Contributions
The date of complete or partial termination of the Plan, or complete
discontinuance of contributions under the Plan, shall be established by the
Administrative committee in accordance with the directions of the Board (if
then in existence) and in accordance with applicable law.
C. Effect of Complete or Partial Termination or Complete Discontinuance
of Contributions
1. As of the date of partial termination of the Plan:
(a) The accrued benefit of each affected Participant shall be
nonforfeitable; and
(b) no further contributions or allocations of forfeitures shall be
made after such date with respect to each affected Participant.
2. As of the date of complete termination of the Plan, or the complete
discontinuance of contributions under the Plan:
(a) the accrued benefit of each Participant who is affected on
the date of such complete termination of the Plan or such complete
discontinuance of contributions under the Plan shall be nonforfeitable;
(b) no further contributions or allocations of forfeiture
shall be made after such date; and
(c) no Employee shall become a Participant after such date.
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<PAGE> 50
3. All of the other provisions of the Plan shall remain in effect unless
otherwise amended.
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<PAGE> 51
ARTICLE XII
Miscellaneous Provisions
A. Exclusive Benefit of Participants
All contributions made by an Employer are conditional upon qualification
of the Plan under IRC Section 401 (a) and upon deductibility under IRC Section
404. Notwithstanding anything in the Plan to the contrary, it shall be
prohibited at any time for any part of the 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 the Participants or their
Beneficiaries, except that upon the direction of the Administrative Committee
(a) any contribution made by an Employer by a mistake of fact shall be returned
to an Employer within one year after the payment of the contribution; (b) any
contribution shall be returned to the Employer within one year after the denial
of initial qualification of the Plan under IRC Section 401(a), if the
application for initial qualification determination is filed by the due date of
the Employer's return for the taxable year in which the Plan is adopted; (c)
any contribution shall be returned to the extent disallowed as a deduction
under IRC Section 404 within one year after the disallowance of the deduction;
and (d) any contribution which would otherwise be an excess contribution (as
defined in Code Section 4979(c)) may be returned to the extent necessary
as a correcting distribution to avoid payment of an excise tax on such
excess contributions.
B. Plan Not a Contract of Employment
The Plan is not a contract of employment, and the terms of Employment of
any Employee shall not be affected in any way by the Plan or related
instruments except as specifically provided therein.
C. Source of Benefits
Benefits under the Plan shall be paid or provided for solely from the
Trust, and the Employers assume no liability therefor.
D. Benefits Not Assignable
Benefits provided under the Plan may not be assigned or alienated except
to the extent provided in a qualified domestic relations order under IRC
Section 401(a)(13) or as otherwise provided by regulations or rulings issued
by the Treasury Department (to the extent not inconsistent with IRC Section
401(k) and the regulations issued pursuant thereto).
E. Benefits Payable to Minors, Incompetents and Others
In the event any benefit is payable to a minor or an incompetent or to
a person otherwise under a legal disability, or who, in the sole discretion of
the Administrative Committee, is by reason of advanced age, illness or other
physical or mental incapacity incapable of handling
and disposing or his property, or otherwise is in such position or condition
that the Administrative Committee
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<PAGE> 52
believes that he could not utilize the benefit for his support or welfare, the
Administrative Committee shall have discretion to apply the whole or any
part of such benefit directly to the care, comfort, maintenance, support,
education or use of such person, or pay the whole or any part of such benefit
to the parent of such person, the guardian, committee, conservator or other
legal representative, wherever appointed, of such person, the person with whom
such person is residing, or to any other person having the care and control of
such person. The receipt by any such person to whom any such payment on behalf
of any Participant or Beneficiary is made shall be a sufficient discharge
therefor.
F. Merger
The merger or consolidation of the Company with any other person, or the
transfer of the assets of the Company to any other person, or the merger of the
Plan with any other plan shall not constitute a termination of the Plan.
The Plan may not merge or consolidate with, or transfer any assets or
liabilities to, any other plan, unless each Participant would (if the Plan then
terminated) receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer
(if the Plan had then terminated).
G. Participation in the Plan by an Affiliate
1. By appropriate corporate action, any Affiliate may adopt the Plan.
2. By appropriate corporate action, a Participating Affiliate may
terminate its participation in the Plan.
3. A Participating Affiliate shall have no power with respect to the Plan
except as specifically provided herein.
H. Expenses
All expenses of the Plan and the Trust shall be paid from the Trust unless
paid by an Employer.
I. Benefits Under Other Plans
The benefits of a participant who terminates participation under other
plans shall be determined under the provisions of such plans.
J. No Age Limit
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<PAGE> 53
A Participant will not be excluded from participation under the Plan on
account of the attainment of a specified age, nor will benefit accruals or
allocations to a Participant's account be reduced or discontinued on account of
attainment of a specified age.
J. Controlling Law
The Plan is intended to qualify under IRC Section 401 (a) and comply with
ERISA and its terms shall be interpreted accordingly. Otherwise, the laws
of the State of Florida shall control the interpretation and performance of the
terms of the Plan.
49
<PAGE> 54
Top-Heavy Provisions
This Article shall become effective in any Plan Year in which the Plan is
considered to be a Top-Heavy Plan as determined in Section A of this Article.
A. Determination of Top-Heavy Status
1. The Plan will be considered a Top-Heavy Plan for any Plan Year if as of
the Valuation Date which is on the Determination Date, the aggregate of the
accounts of Key Employees under the Plan exceeds 60 percent of the aggregate of
the accounts for all Participants unless the Plan is part of a required or
permissive aggregation group which is not Top-Heavy. Account balances and
accrued benefits of plans within the aggregation group, whether required or
permissive, shall be considered if such plans have plan year ends falling
within the same calendar year on which the determination date falls.
2. The Plan will be considered a Top-Heavy Plan for the Plan Year if on
the Determination Date the Plan is part of a required aggregation group and the
required aggregation group is Top Heavy.
3. For purposes of this Article, required aggregation group means each
plan of the company and affiliates in which a Key Employee is a Participant and
each other plan of the company and affiliates which enables any plan, in
which a Key Employee participates, to meet the requirements of IRC Sections
401 (a) (4) or 410.
4. For purposes of this Article, permissive aggregation group consists
of plans of the company that are required to be aggregated and one or more
other plans that satisfy the requirements of IRC Sections 401(a) (4) and 410
when considered together with the required aggregate group.
5. For purposes of this Article, if a Participant has not performed any
service for any member of the controlled Group maintaining the Plan at any time
during the five-year period ending on the Determination Date, the account
balance of such Participant shall not be considered.
6. For purposes of this Article, the amount of the account of any
Participant shall be increased by the aggregate distributions made with
respect to such Participant under the Plan during the five-year period ending
on the Determination Date. This shall include distributions under any
terminated plan, which, if it had not been terminated, would have been required
to be included in an aggregation group.
7. 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
account balance shall not be taken into account for purposes of determining
Top-Heavy status under this Article.
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<PAGE> 55
8. Solely for determining if the Plan will be considered a Top-Heavy Plan,
the aggregate of the accounts of the non-key Employees shall be determined
under (a) the method, if any, that uniformly applies for accrual purposes under
all plans maintained by the Company and Affiliates, or (b) if there is not such
method, as if such benefit accrued not more rapidly than the slowest accrual
rate permitted under the functional accrual rate of IRC Section 411(b) (1) (C)
B. Minimum Benefits
1. For each Plan Year in which the Plan is Top Heavy, each non-Key
Employee Participant eligible for a contribution or other non-Key Employees
required to be included pursuant to IRC Section 416(c)(2), shall receive a
minimum contribution (including forfeitures) of the lesser of 3% of
Compensation or the highest percent contributed under the Plan for any Key
Employee for such Plan Year. For the purpose of determining the highest
percent contributed on any Key Employee, amounts contributed pursuant to
section C of Article IV shall be included.
2. Non-Key Employees eligible for a contribution under this section B
shall be determined without regard to the number of Hours of service the
Non-Key Employee has performed, the Non-Key Employee's Level of compensation
and without regard to any contributions made pursuant to Section C of Article
IV.
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<PAGE> 56
WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS OF
GATX LOGISTICS, INC.
The undersigned, being all of the directors of GATX Logistics, Inc., a
Florida corporation, hereby consent and agree to the adoption of the following
resolutions, pursuant to section 607.0821 of the Florida Statutes, without
necessity for a formal meeting:
WHEREAS, under the terms of the GATX Logistics, Inc. 401(k)
Cash Accumulation Plan (the "Plan"), this Board is authorized to
amend the Plan, effective retroactively or otherwise.
RESOLVED, effective as of January 1, 1989, the Plan be and
hereby is amended as provided in Exhibit A, a copy of which is
attached hereto; and
FURTHER RESOLVED, that the Board of Directors ratifies and
confirms all actions taken by the officers of the Board to
effectuate the adoption of this amendment, including a restatement
of the Plan to include this and all preceding amendments to the
Plan; and
FURTHER RESOLVED, that the officers of the Board, be and each
of them hereby is, authorized and directed to take any and all
actions deemed necessary and appropriate with regard to the
furtherance of these resolutions.
IN WITNESS WHEREOF, the undersigned have executed this Written Consent to
Action as of ___________________.
_______________________ _____________________
DAVID B. ANDERSON DAVID M. EDWARDS
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<PAGE> 57
_______________________ _________________________
MICHAEL J. GARDNER DANIEL D. MOORE
_______________________ _________________________
JOSEPH A. NICOSIA RONALD H. ZECH
53
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of our report on the financial statements and schedules included in the Annual
Report on Form 10-K of GATX Corporation for the year ended December 31, 1995.
ERNST & YOUNG LLP
June 18, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
The undersigned officers and directors of GATX CORPORATION, a New York
corporation, do hereby constitute and appoint David B. Anderson and Ronald J.
Ciancio, or either of them, attorneys and agents of the undersigned, with full
power and authority to sign in the name and on behalf of the undersigned, and in
the capacities indicated, its registration statement on Form S-8 under the
Securities Act of 1933 of 200,000 shares of Common Stock to be purchased under
the GATX Logistics Inc., 401(k) Cash Accumulation Plan, together with any
amendments thereto, hereby ratifying and confirming all that said attorneys and
agents and each of them may do by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------ ------------------ ------------------
<C> <S> <C>
________________ Director June 19, 1996
Franklin A. Cole
______________ Director June 19, 1996
James M. Denny
________________ Director June 19, 1996
William C. Foote
_________________ Director June 19, 1996
Deborah M. Fretz
_________________ Director June 19, 1996
Richard A. Giesen
______________ Director June 19, 1996
Miles L. Marsh
_________________ Director June 19, 1996
Charles Marshall
__________________ Director June 19, 1996
Michael E. Murphy
_______________ Chairman of the June 19, 1996
Ronald H. Zech Board and Chief
Executive
Officer
</TABLE>
