<PAGE> 1
As filed with the Securities and Exchange Commission on February 24, 1997
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE LIBERTY CORPORATION
(Exact Name of Registrant as specified in its Charter)
<TABLE>
<S> <C>
South Carolina 57-0507055
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
2000 Wade Hampton Boulevard
Greenville, South Carolina 29615
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
THE LIBERTY CORPORATION RETIREMENT AND SAVINGS PLAN
(Full Title of the Plan)
Martha G. Williams
Vice President, General Counsel and Secretary
The Liberty Corporation
2000 Wade Hampton Boulevard
Greenville, South Carolina 29615
(Name and Address of Agent for Service)
(864) 609-8300
(Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered(1) registered(2) per share(3) price registration fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000 shares
- --------------------------------------------------------- $39.8125 $19,906,250 $6,032
Rights to Purchase Series A 250,000 rights
Participating Cumulative Preferred
Stock, no par value (4)
================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Prior Registration Statements on Form S-8 have previously registered
securities offered under this Plan.
(3) The price is estimated in accordance with Rule 457(h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee, and
represents the average of the high and low sale prices of the Common Stock of
The Liberty Corporation on the New York Stock Exchange on February 20, 1997.
(4) Prior to the occurrence of certain events, purchase rights for shares of
Series A Participating Cumulative Preferred Stock will not be evidenced
separately from the Common Stock.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended, and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by The Liberty Corporation (the
"Company") and The Liberty Corporation Retirement and Savings Plan (the "Plan")
(or a predecessor plan) with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference as of their respective
dates:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) The Annual Report of The Liberty Corporation and Adopting Related
Employers' 401(k) Thrift Plan ("Predecessor Plan")(1) on Form 11-K for the year
ended December 31, 1995, filed as an exhibit to the Company's Annual Report on
Form 10-K for the same period;
(c) The Company's Quarterly Reports on Form 10-Q for the quarters
ending March 31, 1996, June 30, 1996 and September 30, 1996.
________________________
(1)The portion of the Predecessor Plan relating to participants in The
Liberty Corporation Retirement and Savings Plan is merging into this Plan
effective April 1, 1997 following the spin-off and merger of the remaining
portion of the Predecessor Plan into a separate retirement plan maintained by a
subsidiary of the Company. The Predecessor Plan was the only plan of the Company
and its affiliates for which plan interests constituted separate securities
prior to the merger of the respective portions of the Predecessor Plan into the
Plan and the separate retirement plan maintained by another subsidiary of the
Company.
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<PAGE> 3
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 (File No. 1-5846), filed on
December 30, 1968, as updated and restated by certain information contained
under Item 5 of Part II of the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1992 and as updated by subsequently filed periodic
reports, and the description of Rights to Purchase Series A Participating
Cumulative Preferred Stock contained in the Company's Registration Statement on
Form 8-A, filed on August 10, 1990.
All reports filed by the Company or the Plan (or on behalf of the
Predecessor Plan with respect to the year ended December 31, 1996) pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in any of such documents hereby
incorporated by reference will be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein modifies or supersedes such statement. Any such statement so
modified or superseded will not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
South Carolina Business Corporation Act
Section 33-8-510 of the South Carolina Business Corporation Act
("SCBCA") authorizes a South Carolina corporation to indemnify a director
against loss or expense incurred by the director as a result of a civil,
criminal, administrative, or investigative proceeding to which the director is
made a party by virtue of his status as a director, provided that the director
conducted himself in good faith and reasonably believed (1) in the case of
conduct in his official capacity, that his conduct was in the best interest of
the corporation, and (2) in all other cases, that his conduct was at least not
opposed to its best interest, and in the case of any criminal proceeding, that
the director had no reasonable cause to believe his conduct was unlawful.
Section 33-8-510 prohibits a South Carolina corporation from indemnifying a
director in the event of adjudicated liability in connection with a proceeding
by or in the right of the corporation, or in any other proceeding whether or
not in his official capacity, if the director was adjudged liable on the basis
that personal benefit was improperly received by him. Indemnification in
connection with a
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<PAGE> 4
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
This indemnification under the SCBCA may be made by a South Carolina
corporation only upon (1) a determination that the standard of conduct set
forth in Section 33-8-510 has been met, made by the majority vote of a quorum
of non-party directors, or if such a quorum cannot be obtained, by majority
vote of a committee consisting of two or more non-party directors, by special
legal counsel, or by the affirmative vote of shareholders excluding shares
owned, or the voting of which is controlled, by directors who are parties to
the proceeding; and (2) authorization of indemnification, made in the same
manner as the determination that indemnification is permissible, except that,
if the determination is made by special legal counsel, authorization must be
made by majority vote of a quorum of non-party directors or a special committee
consisting of two or more non-party directors, or if such quorum or committee
cannot be obtained, by majority vote of the board of directors.
Section 33-8-520 of the SCBCA also provides for the mandatory
indemnification of a director for reasonable expenses if the director has been
wholly successful (whether or not on the merits) in the defense of any
proceeding to which he was a party because he is or was a director, unless
provided otherwise by the articles of incorporation. In addition, unless
provided otherwise by a corporation's articles of incorporation, Section
33-8-540 of the SCBCA authorizes a director to apply for indemnification by
court order, which may be granted if the court determines that the director is
entitled to mandatory indemnification or is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director met the statutory standard of conduct, or was adjudged liable to the
corporation or improperly derived a personal benefit, but in that event
court-ordered indemnification is limited to reasonable expenses incurred in
connection with the proceeding.
A South Carolina corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if (1) the director furnishes the
corporation with a written affirmation of his good faith belief that he has met
the statutory standard of conduct described in Section 33-8-510, (2) the
director furnishes the corporation with a written promise to repay expenses
advanced if it is ultimately determined that he did not meet the standard of
conduct, and (3) the corporation determines, in the same manner required for
determining the statutory standard of conduct, that the facts as known would
not preclude indemnification under the SCBCA.
Section 33-8-560 of the SCBCA permits a South Carolina corporation to
indemnify an officer, employee or agent who is not a director to the same
extent as to a director. An officer who is not a director is also entitled to
the mandatory indemnification and court-ordered indemnification available to a
director. A South Carolina corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a director to the extent,
consistent with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of directors, or
contract.
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<PAGE> 5
The SCBCA provides that a South Carolina corporation has the power to
purchase and maintain insurance on behalf of any director, officer, employee or
agent of the corporation, or one serving as such for another entity or
enterprise at the request of the corporation, against liability whether or not
the corporation would have the power to indemnify him against such liability
under the SCBCA.
The SCBCA validates provisions in the articles of incorporation or
bylaws of a South Carolina corporation, resolutions of its shareholders or
board of directors, or otherwise, only to the extent such provisions or
resolutions are consistent with the SCBCA, but does not limit a corporation's
power to pay or reimburse expenses incurred by a director in connection with
his appearance as a witness in a proceeding at a time when he is not a
defendant or respondent to the proceeding.
Bylaws
Article Five of the Company's Bylaws permits indemnification to the
fullest extent permitted by the SCBCA. Under Article Five, any present or
former director, officer or employee of the Company, or any person, who, at the
request of the Company, may have served as a director or officer of another
company in which the Company owns shares or of which the Company is a creditor,
is entitled to reimbursement of expenses and other liabilities, including
attorney's fees actually and reasonably incurred by him and any amount owing or
paid by him in connection with a civil, criminal or administrative proceeding
to which he is a party by reason of being or having been a director, officer or
employee of the Company or such other company.
Article Five also authorizes the Company to purchase and maintain
insurance on behalf of any present or former director, officer or employee of
the Company, or any person who, at the request of the Company, may have served
as a director or officer of any company in which the Company owns shares or in
which the Company is a creditor, against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as such
together with all costs, fees, penalties, fines and the like with respect
thereto.
Insurance Policies
The Company currently maintains an insurance policy providing
reimbursement of indemnification payments to officers and directors of the
Company and its subsidiaries and reimbursement of certain liabilities incurred
by directors and officers of the Company and its subsidiaries in their
capacities as such, to the extent that they are not indemnified by the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
4.1 See Articles 4, 5, 7 and 9 of the Company's Restated Articles of
Incorporation (filed as Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1995 and incorporated herein
by reference) and Articles I, II and VI of the Company's bylaws (filed
as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994 and incorporated herein by reference)
4.2 See the Form of Rights Agreement dated as of August 7, 1990 between The
Liberty Corporation and The Bank of New York, as Rights Agent, which
includes as Exhibit B thereto the form of Right Certificate (filed as
Exhibits 1 and 2 to the Company's Form 8-A, dated August 10, 1990, and
incorporated herein by reference) with respect to the Rights to
purchase Series A Participating Cumulative Preferred Stock
4.3 Form of the Liberty Corporation Retirement and Savings Plan
5.1 (a) For the foreseeable future, all shares of the Company's Common
Stock (and related Rights) purchased by the Plan will be acquired in
the market, so no opinion is needed at this time as to any original
issuance securities
(b) The Company will submit, on a timely basis, The Liberty Corporation
Retirement and Savings Plan, as amended and restated, to the Internal
Revenue Service ("IRS") for a determination letter that the Plan, as
amended and restated, is qualified under Section 401 of the Internal
Revenue Code and will make any changes required by the IRS in order to
qualify the Plan, as amended and restated
23.1 Consent of Ernst & Young LLP to incorporation of audited financial
statements of the Company and audited financials of The Liberty
Corporation and Adopting Related Employers' 401(k) Thrift Plan
24.1 Power of Attorney of Rufus C. Barkley, Jr.
24.2 Power of Attorney of Edward E. Crutchfield
24.3 Power of Attorney of Lawrence M. Gressette, Jr.
24.4 Power of Attorney of W. W. Johnson
24.5 Power of Attorney of William O. McCoy
24.6 Power of Attorney of Buck Mickel
24.7 Power of Attorney of John H. Mullin III
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<PAGE> 7
24.8 Power of Attorney of Benjamin F. Payton
24.9 Power of Attorney of Eugene E. Stone, IV
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 and each filing of an annual report of the Plan (or the
Predecessor Plan) pursuant to Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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<PAGE> 8
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
* * *
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Greenville, State of South Carolina, on February 24,
1997.
THE LIBERTY CORPORATION
By:/S/ HAYNE HIPP
---------------------------------------
Hayne Hipp
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ HAYNE HIPP President, Chief Executive February 24, 1997
- -------------------------- Officer and Director
Hayne Hipp
/S/ H. RAY EANES Senior Vice President Finance February 24, 1997
- ---------------------------------- & Treasurer (Chief Financial
H. Ray Eanes Officer)
/S/ JOHN P. SMITH Corporate Controller February 24, 1997
- ----------------------------------
John P. Smith
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ RUFUS C. BARKLEY, JR.* Director February 24, 1997
- ----------------------------------
Rufus C. Barkley, Jr.
/S/ EDWARD E. CRUTCHFIELD* Director February 24, 1997
- --------------------------
Edward E. Crutchfield
Director February ___, 1997
- ----------------------------------
John R. Farmer
/S/ LAWRENCE M. GRESSETTE, JR* Director February 24, 1997
- ------------------------------
Lawrence M. Gressette, Jr.
/S/ W.W. JOHNSON* Director February 24, 1997
- ----------------------------------
W. W. Johnson
/S/ WILLIAM O. MCCOY* Director February 24, 1997
- --------------------------
William O. McCoy
/S/ BUCK MICKEL* Director February 24, 1997
- ----------------------------------
Buck Mickel
/S/ JOHN H. MULLIN III* Director February 24, 1997
- --------------------------
John H. Mullin III
/S/ BENJAMIN F. PAYTON* Director February 24, 1997
- --------------------------
Benjamin F. Payton
Director February ___, 1997
- ----------------------------------
J. Thurston Roach
/S/ EUGENE E. STONE, IV* Director February 24, 1997
- --------------------------
Eugene E. Stone, IV
*By Susan E. Cyr, as attorney-in-fact
/S/ SUSAN E. CYR
- ----------------------------------
Susan E. Cyr, as attorney-in-fact
for the individuals as indicated
</TABLE>
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Greenville, State of
South Carolina, on February 24, 1997.
THE LIBERTY CORPORATION RETIREMENT
AND SAVINGS PLAN
By Plan Administrator
By:/S/ SUSAN E. CYR
----------------------------------------
Susan E. Cyr
Member of Plan Administrator Committee
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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4.1 See Articles 4, 5, 7 and 9 of the Registrant's Restated Articles of
Incorporation (filed as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995 and incorporated herein by
reference) and Articles I, II and VI of the Registrant's bylaws (filed as
Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994 and incorporated herein by reference)
4.2 See the Form of Rights Agreement dated as of August 7, 1990 between The
Liberty Corporation and The Bank of New York, as Rights Agent, which
includes as Exhibit B thereto the form of Right Certificate (filed as
Exhibits 1 and 2 to the Company's Form 8-A, dated August 10, 1990, and
incorporated herein by reference) with respect to the Rights to purchase
Series A Participating Cumulative Preferred Stock
4.3 The Liberty Corporation Retirement and Savings Plan
5.1 (a) For the foreseeable future, all shares of the Company's Common Stock
(and related Rights) purchased by the Plan will be acquired in the market,
so no opinion is needed at this time as to any original issuance
securities.
(b) The Company will submit, on a timely basis, The Liberty Corporation
Retirement and Savings Plan, as amended and restated, to the Internal
Revenue Service ("IRS") for a determination letter that the Plan, as
amended and restated, is qualified under Section 401 of the Internal
Revenue Code and will make any changes required by the IRS in order to
qualify the Plan, as amended and restated
23.1 Consent of Ernst & Young LLP to incorporation of audited financial
statements of the Company and audited financials of The Liberty Corporation
and Adopting Related Employers' 401(k) Thrift Plan
24.1 Power of Attorney of Rufus C. Barkley, Jr.
24.2 Power of Attorney of Edward E. Crutchfield
24.3 Power of Attorney of Lawrence M. Gressette, Jr.
</TABLE>
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<TABLE>
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24.4 Power of Attorney of W. W. Johnson
24.5 Power of Attorney of William O. McCoy
24.6 Power of Attorney of Buck Mickel
24.7 Power of Attorney of John H. Mullin III
24.8 Power of Attorney of Benjamin F. Payton
24.9 Power of Attorney of Eugene E. Stone, IV
</TABLE>
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EXHIBIT 4.3
THE LIBERTY CORPORATION
RETIREMENT AND SAVINGS PLAN
AS AMENDED AND RESTATED
EFFECTIVE APRIL 1, 1997
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE 1 PREFACE 3
Section 1.1. Effective Date 3
Section 1.2. Purpose of Plan 3
Section 1.3. Legal Effect 3
Section 1.4. Form of Plan 4
Section 1.5. Governing Law 4
Section 1.6. Headings 4
Section 1.7. Gender and Number 4
ARTICLE 2 DEFINITIONS 5
Section 2.1. Act 5
Section 2.2. Adjustment Date 5
Section 2.3. Annuity Starting Date 5
Section 2.4. Beneficiary 5
Section 2.5. Board 5
Section 2.6. Break in Service 5
Section 2.7. Code 6
Section 2.8. Committee 6
Section 2.9. Compensation 6
Section 2.10. Date of Employment 7
Section 2.11. Date of Reemployment 7
Section 2.12. Disability 7
Section 2.13. Early Retirement Age 8
Section 2.14. Early Retirement Date 8
Section 2.15. Employee 8
Section 2.16. Employee After-Tax Contribution Account 8
Section 2.17. Employee Deferral Account 8
Section 2.18. Employee Rollover Contribution Account 9
Section 2.19. Employer 9
Section 2.20. Employer Discretionary Contribution Account 9
Section 2.21. Employer Matching Contribution Account 9
Section 2.22. Employer Stock 9
</TABLE>
i
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<TABLE>
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Section 2.23. Entry Date 9
Section 2.24. Excess Compensation 10
Section 2.25. Forfeitures 10
Section 2.26. Fund 10
Section 2.27. Highly Compensated Employee 10
Section 2.28. Hour of Service 11
Section 2.29. Inactive Participant 13
Section 2.30. Leave of Absence 13
Section 2.31. Limitation Year 13
Section 2.32. Non-highly Compensated Employee 13
Section 2.33. Normal Retirement Age 13
Section 2.34. Normal Retirement Date 13
Section 2.35. Participant 14
Section 2.36. Plan 14
Section 2.37. Plan Administrator 14
Section 2.38. Plan Year 14
Section 2.39. Qualified Employee 14
Section 2.40. Qualified Matching Contribution 14
Section 2.41. Qualified Matching Contribution Account 14
Section 2.42. Qualified Nonelective Contributions 15
Section 2.43. Qualified Nonelective Contribution Account 15
Section 2.44. Qualifying Year of Service 15
Section 2.45. Related Employer 15
Section 2.46. Taxable Wage Base 16
Section 2.47. Trust or Trust Fund 16
Section 2.48. Trustee 16
Section 2.49. Year of Service 16
ARTICLE 3 ELIGIBILITY AND PARTICIPATION 18
Section 3.1. Eligibility 18
Section 3.2. Participation 18
Section 3.3. Transfer to or from Eligible Class of Employees. 18
Section 3.4. Service with a Related Employer 19
Section 3.5. Service as a Leased Employee 19
ARTICLE 4 CONTRIBUTIONS 21
</TABLE>
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<TABLE>
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Section 4.1. Employer Contribution of Employee Deferrals 21
Section 4.2. Employee Deferrals 21
Section 4.3. Employer Matching Contributions 23
Section 4.4. Employer Discretionary Contributions 25
Section 4.5. Qualified Nonelective Contributions 26
Section 4.6. Employee After-Tax Contributions 26
Section 4.7. Rollover Contributions 27
Section 4.8. Employee Deferrals and After-Tax Contributions. 27
Section 4.9. Adjustment of Deferrals 28
Section 4.10. Adjustment of Employer Matching Contributions
and Employee After-Tax Contributions 32
Section 4.11. Overall Contribution Limitation 35
Section 4.12. Special Rules Related to Veteran's Reemployment Rights. 36
ARTICLE 5 RETIREMENT BENEFITS 37
Section 5.1. Normal Retirement and Delayed Retirement Date. 37
Section 5.2. Disability Retirement 37
Section 5.3. Early Retirement 37
Section 5.4. Optional Methods of Settlement 37
Section 5.5. Payment of Small Benefits 39
Section 5.6. Election of Option 39
Section 5.7. Election Period 40
Section 5.8. Information to be Given Participants 40
Section 5.9. Waiver Elections 41
Section 5.10. Commencement of Benefits 41
Section 5.11. Consent Requirement 42
Section 5.12. Rollover of Distributions 42
Section 5.13. Transition Rule 43
Section 5.14. Valuation of Accounts for Distributions 44
ARTICLE 6 DEATH BENEFITS 45
Section 6.1. Death Prior to Annuity Starting Date 45
Section 6.2. Death Following the Annuity Starting Date 46
Section 6.3. Designation of Beneficiary 46
Section 6.4. Election Period For Beneficiary Designation 46
Section 6.5. Payment of Small Death Benefits 47
</TABLE>
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<TABLE>
<S> <C>
Section 6.6. Qualified Domestic Relations Order 47
ARTICLE 7 VESTING 48
ARTICLE 8 DISTRIBUTIONS PRIOR TO RETIREMENT 49
Section 8.1. Withdrawal of Employer Contributions 49
Section 8.2. Withdrawal at Age 59 1/2 49
Section 8.3. Withdrawal of Employee After-Tax Contributions
and Employee Rollover Contributions. 49
Section 8.4. Withdrawal after Normal Retirement Age 50
Section 8.5. Termination of Employment Before Retirement 50
Section 8.6. Deemed Distribution 51
Section 8.7. Vesting When a Participant Terminates Employment,
Receives a Distribution and is Rehired
Prior to Five Consecutive One-Year Breaks in Service. 51
Section 8.8. Hardship Distributions 51
Section 8.9. Loans to Participants 53
Section 8.10. Spousal Consent 55
Section 8.11. Plan Administrator Rules 55
ARTICLE 9 ACCOUNTS 57
Section 9.1. Establishment of Accounts 57
Section 9.2. Investment Elections 57
Section 9.3. Account Adjustments 58
Section 9.4. Limitation on Annual Additions 58
Section 9.5. Limitation on Benefits and Contributions 60
Section 9.6. Transition Rule 61
ARTICLE 10 TOP-HEAVY PLAN PROVISIONS 63
Section 10.1. Determination Date 63
Section 10.2. Top-Heavy Plan 63
Section 10.3. Key Employee 64
Section 10.4. Non-Key Employee 65
Section 10.5. Top-Heavy Group 65
Section 10.6. Minimum Contributions and Benefits for Top-Heavy Plans. 66
Section 10.7. Top-Heavy Average Compensation 66
Section 10.8. Top-Heavy Years of Service 67
Section 10.9. Top-Heavy Group Minimum Contribution 67
</TABLE>
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<TABLE>
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Section 10.10. Minimum Vesting Requirements 67
Section 10.11. Adjustments in Section 415 Limits for Top-Heavy Plans. 68
Section 10.12. Transition Fraction 69
ARTICLE 11 ADMINISTRATION OF THE PLAN 70
Section 11.1. Membership of Committee 70
Section 11.2. Committee Officers; Subcommittee 70
Section 11.3. Committee Meetings 70
Section 11.4. Transaction of Business 70
Section 11.5. Committee Records 71
Section 11.6. Establishment of Rules 71
Section 11.7. Conflicts of Interest 71
Section 11.8. Appointment of Plan Administrator 71
Section 11.9. Authority to Interpret 72
Section 11.10. Third Party Advisors 72
Section 11.11. Compensation of Members 72
Section 11.12. Committee Expenses 72
Section 11.13. Indemnification of Committee and Plan Administrator. 73
ARTICLE 12 ALLOCATION OF RESPONSIBILITIES 74
Section 12.1. Allocation of Responsibilities 74
Section 12.2. Co-fiduciary Liability 76
Section 12.3. Fiduciary Duties 76
Section 12.4. Establishment of Trust 77
Section 12.5. Committee Instructions 77
Section 12.6. Right to Amend or Terminate 78
Section 12.7. Discretionary Authority 78
Section 12.8. Limitation on Amendments 78
ARTICLE 13 MISCELLANEOUS 80
Section 13.1. Alienation of Benefits 80
Section 13.2. Payment in Event of Incapacity 80
Section 13.3. Rights of Parties 81
Section 13.4. Communication to Employees 81
Section 13.5. Lost Distributees 81
ARTICLE 14 TERMINATION, MERGER OR CONSOLIDATION 82
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C>
Section 14.1. Termination of Plan and Trust 82
Section 14.2. Merger or Consolidation 82
ARTICLE 15 CLAIMS PROCEDURE 83
Section 15.1. Filing of a Claim for Benefits 83
Section 15.2. Notification to Claimant of Decision 83
Section 15.3. Claims Review Procedure 84
Section 15.4. Decision on Review 84
Section 15.5. Action by Authorized Representative of Claimant. 84
</TABLE>
vi
<PAGE> 8
THE LIBERTY CORPORATION
RETIREMENT AND SAVINGS PLAN
WHEREAS, The Liberty Corporation, a corporation organized under the
laws of the State of South Carolina, herein referred to as "Employer"
established The Liberty Corporation Profit Sharing Plan and Trust (the "Plan")
for the exclusive benefit of its eligible employees effective August 18, 1970;
and
WHEREAS, the Plan was amended on February 27, 1973, amended and restated
on November 10, 1973, amended and restated effective January 1, 1976, amended on
May 18, 1977, amended twice on November 16, 1978, amended on February 14, 1980,
amended on August 27, 1981, amended on December 28, 1982, amended on February
27, 1984, amended on July 12, 1984, amended on December 17, 1985, amended on
November 4, 1986, amended on December 31, 1986, amended and restated effective
January 1, 1989, amended on December 31, 1992, amended on December 31, 1993,
amended on January 1, 1994, and amended on September 13, 1995; and
WHEREAS, the Employer established The Liberty Corporation Thrift and
Investment Plan for the exclusive benefit of its eligible employees effective
May 5, 1981; and
WHEREAS, The Liberty Corporation Thrift and Investment Plan was amended
and restated as a cash or deferred arrangement under Section 401(k) of the
Internal Revenue Code, effective July 1, 1985, at which time it was also merged
with the Cosmos Broadcasting Corporation Thrift Plan and Trust to form The
Liberty Corporation and Adopting Related Employers' 401(k) Thrift Plan (the
"401(k) Thrift Plan"); and
WHEREAS, the 401(k) Thrift Plan was amended on November 8, 1985, amended
on May 6, 1986, amended on August 12, 1986, amended on September 22, 1986,
amended on December 31, 1986, amended on March 27, 1989, amended on December 29,
1989, amended and restated effective January 1, 1989, amended on December 31,
1992, amended on December 15, 1993, and amended on August 22, 1994; and
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<PAGE> 9
WHEREAS, the Employer is now desirous of splitting the 401(k) Thrift Plan
into two (2) separate pieces, one portion covering the employees of the Employer
as well as the employees of adopting related employers - Liberty Life Insurance
Company, Liberty Capital Advisors, Inc., Liberty Properties Group, Inc., Special
Services Corporation, Liberty Investment Group Inc., Liberty Insurance Services
Corporation and Pierce National Life Insurance Company, the other portion
covering employees of Cosmos Broadcasting Corporation and Cable Vantage Inc.;
and
WHEREAS, the Employer is also desirous of merging the portion of the
401(k) Thrift Plan relating to its employees into the Plan, effective April 1,
1997.
NOW, THEREFORE, effective April 1, 1997, in accordance with the provisions
of the Plan pertaining to amendment of the Plan, the Employer hereby amends the
Plan in its entirety and restates the Plan on the terms and conditions described
hereinafter:
2
<PAGE> 10
ARTICLE 1
PREFACE
SECTION 1.1. EFFECTIVE DATE.
Except as otherwise provided herein, the effective date of the Plan, as
amended and restated, is April 1, 1997. To the extent the effective date of a
provision of the Plan precedes April 1, 1997, such provision shall be deemed to
amend the predecessor plans described in Section 1.3 as of such earlier date.
SECTION 1.2. PURPOSE OF PLAN.
The purpose of this Plan is to promote, in the manner set forth
hereinafter, the future economic welfare of the Employees, to develop in those
Employees an increased interest in the Employer's successful operation and to
encourage Employee savings. The intention of the Employer is that the
contributions made by it and Employee deferrals and Employee contributions,
together with the income thereon, shall be accumulated and made available to
such Employees upon their retirement, all as set forth hereinafter. It is
intended that this Plan qualify as a profit sharing plan under Code Section
401(a) and as a qualified cash or deferred arrangement under Code Section
401(k).
SECTION 1.3. LEGAL EFFECT.
As of the effective date, the terms and conditions of this Plan shall
amend and supersede prospectively the terms and conditions of The Liberty
Corporation Profit Sharing Plan and Trust originally effective August 18, 1970,
as amended and restated effective January 1, 1989 and all subsequent amendments
thereto; and the portion of The Liberty Corporation and Adopting Related
Employers' 401(k) Thrift Plan originally effective May 5, 1981, as amended and
restated effective January 1, 1989 and all subsequent amendments thereto,
relating to the Employees of the Employer; provided, however, that the
provisions of such prior plans shall continue to govern the rights of all
Employees who retired or otherwise ceased to work for the Employer prior to the
effective date hereof, except as is otherwise expressly stated herein.
If the provisions of this Plan and the Trust Agreement which is part of
this Plan are found to be contradictory, then the provisions of this Plan
document shall apply.
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<PAGE> 11
SECTION 1.4. FORM OF PLAN.
The Plan shall be a single plan of one or more members of a controlled
group or affiliated service group, as defined in Code Sections 414(b), 414(c),
414(m) and 414(o). The total assets of the Plan shall be available to provide
benefits for any Plan Participant.
SECTION 1.5. GOVERNING LAW.
This Plan shall be regulated, construed and administered under the laws of
the State of South Carolina, except when preempted by the Act or other
applicable federal law.
SECTION 1.6. HEADINGS.
The headings and subheadings in this Plan have been inserted for
convenience and reference only and are to be ignored in any construction of the
provisions hereof.
SECTION 1.7. GENDER AND NUMBER.
The masculine gender shall be deemed to include the feminine, the feminine
gender shall be deemed to include the masculine, and the singular shall include
the plural unless otherwise clearly required by the context.
4
<PAGE> 12
ARTICLE 2
DEFINITIONS
The following words and phrases, when used herein, shall have the meanings
set forth below unless otherwise clearly required by the context:
SECTION 2.1. ACT.
The Employee Retirement Income Security Act of 1974, as amended, or as it
may be amended from time to time.
SECTION 2.2. ADJUSTMENT DATE.
Each day shares are traded on a national stock exchange, except for
regularly scheduled holidays of the Trustee.
SECTION 2.3. ANNUITY STARTING DATE.
Shall mean:
(a) the first day of the first period for which an amount is
payable as an annuity, or
(b) in the case of a benefit not payable in the form of an annuity, the
first day on which all events have occurred which entitle the
Participant to such benefit.
SECTION 2.4. BENEFICIARY.
The person or persons (which person may be an entity) designated by a
Participant or Inactive Participant to receive the balance of his account, if
any, after his death.
SECTION 2.5. BOARD.
The Board of Directors of The Liberty Corporation or its Compensation
Committee acting on its behalf.
SECTION 2.6. BREAK IN SERVICE.
The failure of an Employee to complete more than 500 Hours of Service
during a Plan Year. Solely for purposes of determining whether a Break in
Service has occurred, Hours of Service shall be recognized for Leaves of
Absence.
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<PAGE> 13
SECTION 2.7. CODE.
The Internal Revenue Code of 1986, as amended, or as it may be amended
from time to time.
SECTION 2.8. COMMITTEE.
The committee or committees as described in Article 11.
SECTION 2.9. COMPENSATION.
Except as provided in Section 10.7 of this Plan, Compensation shall be the
total earnings paid to a Participant by the Employer during a Plan Year reported
or reportable on U. S. Treasury Department Wage and Tax Statement, Form W-2 (or
similar form which may be required for such purposes), including bonuses and
incentive compensation, plus amounts deferred under this Plan and salary
reductions under a Code Section 125 arrangement maintained by the Employer, but
excluding directors' fees and amounts allocated (other than deferrals) or
benefits paid under this Plan or any other benefit plan of the Employer.
Notwithstanding the preceding sentence, amounts payable under the Employer's
long-term disability plan, any payments of group medical and hospitalization
benefits, any severance pay, prizes, payments for moving expenses, automobile
expense allowances, expense reimbursements and any amounts considered
compensation by reason of any rights with respect to stock of an Employer or
Related Employer shall not be considered as compensation.
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 $160,000, effective January 1, 1997, as adjusted by the
Commissioner of the Internal Revenue for increases in the cost of living in
accordance with Code Section 401(a)(17)(B). The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12 months, over
which Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months, the
annual compensation limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period, and the denominator
of which is 12.
Any reference in this Plan to the limitation under Code Section 401(a)(17)
shall mean the OBRA '93 annual compensation limit set forth in the preceding
paragraph. If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing
6
<PAGE> 14
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 determination periods beginning before the first day
of the first Plan Year beginning on or after January 1, 1997, the OBRA '93
annual compensation limit is $160,000.
Compensation for the first Plan Year during which an Employee participates
shall include only earnings paid during such Plan Year on or after his Entry
Date.
Notwithstanding the above, Compensation for purposes of Sections 4.9 and
4.10 shall mean any definition of Compensation, as determined by the Committee,
that satisfies the requirements of Code Section 414(s). In addition, such
Compensation shall only include the earnings paid during the portion of a Plan
Year in which an Employee is eligible to participate in the Plan.
SECTION 2.10. DATE OF EMPLOYMENT.
The first date on which an Employee completes an Hour of Service.
SECTION 2.11. DATE OF REEMPLOYMENT.
The first date on which an Employee completes an Hour of Service following
a termination or Break in Service.
SECTION 2.12. DISABILITY.
A physical or mental condition of a Participant resulting from bodily
injury, sickness, disease, or mental disorder which renders him eligible for
long-term disability benefits under the Employer's long-term disability plan.
The Participant will not be deemed to have a Disability unless (a) notice of the
Disability which commenced during employment with the Employer or any Related
Employer is received by the Plan Administrator within 90 days after termination
of the Participant's employment (b) the Disability is certified to the party
responsible for processing claims under the Employer's long-term disability plan
by a duly licensed and practicing physician and (c) the party responsible for
processing claims under the Employer's long-term disability plan determines that
the Participant is entitled to benefits under the Employer's long-term
disability plan. In no event shall Disability result from the Participant's
engagement in a criminal enterprise or from his habitual drunkenness or
addiction to narcotics or from an intentionally self-inflicted
7
<PAGE> 15
injury. The provisions of this Section shall be uniformly and consistently
applied to all Participants.
SECTION 2.13. EARLY RETIREMENT AGE.
The attainment of at least age 55 and the completion of 15 or more Years
of Service.
SECTION 2.14. EARLY RETIREMENT DATE.
The date of termination of Employment with the Employer and all Related
Employers coinciding with or following the Early Retirement Age of the
Participant.
SECTION 2.15. EMPLOYEE.
Any person who is employed by the Employer except (a) any person who is
employed as an independent contractor or in a joint venture with the Employer,
and (b) any person whose customary employment is for less than 1,000 hours in a
Plan Year, provided however, a person who does perform 1,000 Hours of Service in
a consecutive twelve month period after performing his first Hour of Service or
during any Plan Year shall become a Participant from date of hire or for such
applicable Plan Year. Wherever specifically provided herein the term "Employee"
shall also include a person employed as described in the foregoing sentence by
any Related Employer.
SECTION 2.16. EMPLOYEE AFTER-TAX CONTRIBUTION ACCOUNT.
The balance posted to the record of each Participant, Inactive
Participant, or Beneficiary consisting of the Participant's after-tax
contributions and adjustments as of each Adjustment Date, less any payments
therefrom. Each Employee After-Tax Contribution Account shall include, where
appropriate, subaccounts which reflect Employee-directed investments under
Section 9.2.
SECTION 2.17. EMPLOYEE DEFERRAL ACCOUNT.
The balance posted to the record of each Participant, Inactive Participant
or Beneficiary consisting of elective deferrals of the Participant's
Compensation and adjustments as of each Adjustment Date, less any payments
therefrom. Each Employee Deferral Account shall include, where appropriate,
subaccounts which reflect Employee-directed investments under Section 9.2.
8
<PAGE> 16
SECTION 2.18. EMPLOYEE ROLLOVER CONTRIBUTION ACCOUNT.
The balance posted to the record of each Employee, Participant, Inactive
Participant or Beneficiary consisting of the Participant's rollovers, pursuant
to Section 4.7, and adjustments as of each Adjustment Date. Each Employee
Rollover Contribution Account shall include, where appropriate, subaccounts
which reflect Employee-directed investments under Section 9.2.
SECTION 2.19. EMPLOYER.
The Liberty Corporation and adopting Related Employers.
SECTION 2.20. EMPLOYER DISCRETIONARY CONTRIBUTION ACCOUNT.
The balance posted to the record of each Participant, Inactive
Participant, or Beneficiary consisting of his allocated share of Employer
discretionary contributions and adjustments as of each Adjustment Date, less any
distributions therefrom and amounts forfeited. Each Employer Discretionary
Contribution Account shall include, where appropriate, subaccounts which reflect
Employee-directed investments under Section 9.2.
SECTION 2.21. EMPLOYER MATCHING CONTRIBUTION ACCOUNT.
The balance posted to the record of each Participant, Inactive
Participant, or Beneficiary consisting of his allocated share of Employer
matching contributions and adjustments as of each Adjustment Date, less any
distributions therefrom and amounts forfeited. Each Employer Matching
Contribution Account shall include, where appropriate, subaccounts which reflect
Employee-directed investments under Section 9.2.
SECTION 2.22. EMPLOYER STOCK.
Common stock of The Liberty Corporation.
SECTION 2.23. ENTRY DATE.
January 1 and the first day of the first payroll period of each other
calendar month in each Plan Year.
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<PAGE> 17
SECTION 2.24. EXCESS COMPENSATION.
With respect to any Participant, the Participant's Compensation which is
in excess of the Taxable Wage Base for that portion of the Plan Year for which a
contribution is payable under this Plan.
SECTION 2.25. FORFEITURES.
The divested portion of a Participant's or Inactive Participant's Employer
Matching Contribution Account and Employer Discretionary Contribution Account.
SECTION 2.26. FUND.
Any of the funds allowed as an investment election under Section 9.2.
SECTION 2.27. HIGHLY COMPENSATED EMPLOYEE.
The term Highly Compensated Employee includes highly compensated active
Employees and highly compensated former Employees.
Effective January 1, 1997 a highly compensated active Employee includes
any Employee who performs service for the Employer or a Related Employer during
the Determination Year and who: (i) for the Look-Back Year received compensation
from the Employer or a Related Employer in excess of $80,000 (as adjusted
pursuant to Code Section 415(d) but using the calendar quarter ending September
30, 1996 as the base period) and, if the Employer elects to apply this
limitation, was a member of the top-paid group for the Look-Back Year; or (ii)
during the Determination Year or the Look-Back Year was a 5% owner (as defined
in Code Section 416(i)(1), of the Employer or a Related Employer.
For this purpose, the Determination Year shall be the Plan Year. The
Look-Back Year shall be the twelve-month period immediately preceding the
Determination Year. Notwithstanding the two previous sentences, the Employer may
designate the Look-Back Year to be the calendar year ending with or within the
applicable Determination Year, in which case the Determination Year calculation
shall be based on the period by which the Determination Year extends beyond such
calendar year.
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<PAGE> 18
The top-paid group includes all Employees in the top twenty percent (20%)
of Employees when ranked on the basis of compensation.
A highly compensated former Employee includes any individual who separated
from service (or was deemed to have separated) prior to the Determination Year,
performs no service for the Employer or a Related Employer during the
Determination Year, and was a highly compensated active Employee for either the
separation year or any Determination Year ending on or after his 55th birthday.
The determination of who is a Highly Compensated Employee, including the
determination of the number and identity of Employees in the top-paid group and
the compensation that is considered, will be made in accordance with Code
Section 414(q) and the regulations thereunder.
SECTION 2.28. HOUR OF SERVICE.
(a) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the
duties are performed.
(b) Each hour for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or leave of
absence.
Notwithstanding the preceding sentence:
(1) No more than 501 hours are required to be credited under this
paragraph to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or
not such period occurs in a single computation period);
(2) An hour for which an Employee is directly or indirectly paid,
or entitled to payment, on account of a period during which no
duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable workmen's
compensation, or unemployment compensation or disability
insurance laws; and
(3) Hours are not required to be credited for a payment which
solely reimburses an Employee for medical or medically related
expenses incurred by the Employee.
(c) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer. The same hours shall
not be credited both under paragraph (a) or paragraph (b), as the
case may be, and under this paragraph (c). These hours shall be
credited to the Employee for the computation period or periods to
which
11
<PAGE> 19
the award or agreement pertains rather than the computation period in which the
award, agreement or payment is made.
(d) Each hour which is required to be credited to an Employee for
military service under applicable law and regulations and which is
not otherwise credited under this Section. Effective December 12,
1994, notwithstanding any provision of the Plan to the contrary,
hours of service with respect to qualified military service will be
provided in accordance with Code Section 414(u).
(e) Where the Employer maintains the plan of a predecessor employer,
service for such predecessor employer shall be treated as service
with the Employer.
(f) Hours under this Section shall be calculated and credited pursuant to
Section 2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by reference. Each full-time Employee shall be
credited with forty-five (45) Hours of Service for each week during
which the Employee completed one (1) Hour of Service. Each other
Employee shall be credited with his or her actual hours worked or
hours for which the Employee is entitled to be paid. For purposes of
this paragraph, a full-time Employee is an Employee hired on other
than a temporary basis who is scheduled to work at least forty (40)
hours per week.
(g) Solely for purposes of determining whether a Break in Service for
participation and vesting purposes has occurred, an Employee or
former Employee who is absent from work for maternity or paternity
leave shall receive credit either for the Hours of Service, as
described in subsections (a) - (f) above, which would otherwise have
been credited to such Employee or former Employee but for such
absence, or in any case in which such Hours of Service cannot be
determined, eight Hours of Service per day of absence. The total
number of Hours of Service credited under this subsection (g) shall
not exceed 501. Hours of Service pursuant to this paragraph shall be
credited in the computation period during which the absence begins if
doing so would prevent a Participant from incurring a one-year Break
in Service in that computation period. In any other case, these hours
shall be credited in the following computation period. For purposes
of this paragraph, an absence from work for maternity or paternity
leave means an absence (1) by reason of pregnancy of the Employee or
former Employee, (2) by reason of the birth of a child of the
Employee or former Employee, (3) by reason of placement of a child
with the Employee or former Employee in connection with the adoption
of such child by such Employee or former Employee, or (4) for
purposes of caring for such child for a period beginning immediately
following such birth or placement. Notwithstanding the above, no
credit shall be given for Hours of Service pursuant to this
subsection (g) unless the Employee or former Employee furnishes
sufficient information to the Plan Administrator or the Committee to
establish that the absence is due to maternity or paternity leave and
the number of days of such absence.
(h) For purposes of this Section, the term "Employer" shall include any
Related Employer, and the term "Employee" shall include any
individual described in the last sentence of Section 2.15.
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SECTION 2.29. INACTIVE PARTICIPANT.
Any person who terminates employment with the Employer or otherwise ceases
to be a Participant but whose interest in the Trust Fund has not been wholly
distributed. All rights and benefits including elections, provided to an
Inactive Participant under this Plan shall be available to an Alternate Payee
under a qualified domestic relations order as defined in Code Section 414(p).
SECTION 2.30. LEAVE OF ABSENCE.
Any unpaid, temporary absence authorized by the Employer under its
standard personnel practices as applied in a uniform and nondiscriminatory
manner to all persons similarly situated. If active service is not resumed upon
expiration of a Leave of Absence, the Employee shall be deemed to have
terminated his employment when the Employee left the active service of the
Employer, provided that if such Employee suffers Disability or dies during an
authorized Leave of Absence, the benefits, if any, to which he or his
Beneficiary is entitled shall be determined as if such Disability or death
occurred while in the active service of the Employer.
SECTION 2.31. LIMITATION YEAR.
The limitation year shall be the Plan Year.
SECTION 2.32. NON-HIGHLY COMPENSATED EMPLOYEE.
Any Employee of the Employer or a Related Employer who is not a Highly
Compensated Employee.
SECTION 2.33. NORMAL RETIREMENT AGE.
The sixty-fifth birthday of a Participant.
SECTION 2.34. NORMAL RETIREMENT DATE.
The date of termination of employment with the Employer [and all Related
Employers] coincident with or following the Normal Retirement Age of the
Participant.
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<PAGE> 21
SECTION 2.35. PARTICIPANT.
Every Employee who has met the requirements of Article 3 and who is not an
Inactive Participant; provided, however, that for purposes of Sections 5.4
through 5.14, Article 6 and Article 8, the term "Participant" shall include an
Inactive Participant.
SECTION 2.36. PLAN.
The Liberty Corporation Retirement and Savings Plan as herein set out or
as duly amended.
SECTION 2.37. PLAN ADMINISTRATOR.
The person, persons or entity designated by the Board pursuant to Section
11.8 to administer the Plan on behalf of the Board.
SECTION 2.38. PLAN YEAR.
The 12-month period ending on December 31 of each year.
SECTION 2.39. QUALIFIED EMPLOYEE.
Any Employee other than an Employee who is included in a unit of Employees
covered by an agreement which the Secretary of Labor finds to be a collective
bargaining agreement between Employee representatives and the Employer, unless
participation in the Plan is specifically provided for in the bargaining
agreement. In no event shall a "leased employee," as defined in Code Section
414(n)(2), be a Qualified Employee.
SECTION 2.40. QUALIFIED MATCHING CONTRIBUTION.
Employer matching contributions made pursuant to Section 4.3 that are
subject to the distribution and nonforfeitability requirements of Code Section
401(k) when made.
SECTION 2.41. QUALIFIED MATCHING CONTRIBUTION ACCOUNT.
The balance posted to the record of each Participant, Inactive
Participant, or Beneficiary consisting of his allocated share of Qualified
Matching Contributions and adjustments as of each Adjustment Date, less any
distributions therefrom. Each Qualified Matching Contribution Account shall
include, where appropriate, subaccounts which reflect Employee-directed
investments under Section 9.2.
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<PAGE> 22
SECTION 2.42. QUALIFIED NONELECTIVE CONTRIBUTIONS.
Employer contributions (other than discretionary contributions, matching
contributions or Qualified Matching Contributions) made pursuant to Section 4.5
that Participants may not elect to receive in cash; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
requirements of Code Section 401(k).
SECTION 2.43. QUALIFIED NONELECTIVE CONTRIBUTION ACCOUNT.
The balance posted to the record of each Participant, Inactive
Participant, or Beneficiary consisting of his allocated share of Qualified
Nonelective Contributions and adjustments as of each Adjustment Date, less any
distributions therefrom. Each Qualified Nonelective Contribution Account shall
include, where appropriate, subaccounts which reflect Employee-directed
investments under Section 9.2.
SECTION 2.44. QUALIFYING YEAR OF SERVICE.
For the purpose of participation, the 12-consecutive month period
beginning on an Employee's Date of Employment or Date of Reemployment during
which he completes at least 1,000 Hours of Service. After the initial
12-consecutive month period, a Qualifying Year of Service shall mean any Plan
Year beginning with the Plan Year which includes the first anniversary of his
Date of Employment or Date of Reemployment during which he completes at least
1,000 Hours of Service. A Qualifying Year of Service is not considered to have
been completed until the last day of the relevant computation period, regardless
of whether the Employee completes 1,000 Hours of Service as of an earlier date
in the computation period.
SECTION 2.45. RELATED EMPLOYER.
A corporation which is a member of a controlled group of corporations
(within the meaning of Code Sections 1563(a)(1), (a)(2) and (a)(3)) of which the
Employer is also a member. Related Employer shall also mean any other trade or
business, whether or not incorporated, which is under common control, within the
meaning of Code Section 414(c), with the Employer and/or all members of an
Affiliated Service Group within the meaning of Code Section 414(m) and any other
entity required to be aggregated with the Employer pursuant to regulations
prescribed by the Secretary of the Treasury under Code Section 414(o). For
purposes of Sections 9.4 and 9.5 of this
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<PAGE> 23
Plan, however, the phrase "more than 50%" shall be substituted for the phrase
"at least 80%" each place it appears in Code Section 1563(a)(1).
SECTION 2.46. TAXABLE WAGE BASE.
$36,000 for the Plan Year beginning January 1, 1997. The Taxable Wage Base
shall be increased by $1,000 in each subsequent Plan Year but shall in no event
exceed the maximum amount of earnings which may be considered wages for such
year under Code Section 3121(a)(1).
SECTION 2.47. TRUST OR TRUST FUND.
The total of the contributions made pursuant to the Plan by the Employer
and by the Participants and held by the Trustee in a separate Trust, increased
by any profits or income thereto and decreased by any loss or expense incurred
in the administration of the Trust or payments therefrom under the Plan.
SECTION 2.48. TRUSTEE.
The bank, trust company, other financial institution, or individual or
individuals holding and managing the Fund according to the terms of The Liberty
Corporation Retirement and Savings Trust Agreement.
SECTION 2.49. YEAR OF SERVICE.
For the purposes of vesting, a Plan Year during which an Employee has
completed at least 1,000 Hours of Service, subject to the following
qualifications and exceptions:
(a) In the case of a Participant who has no vested interest in his
account (other than his Employee After-Tax Contribution Account or
Employee Rollover Account), Years of Service before any period of
consecutive one-year Breaks in Service shall be disregarded if the
number of consecutive one-year Breaks in Service equals or exceeds
the greater of five or the aggregate number of Years of Service
before such period. Any Years of Service disregarded pursuant to the
previous sentence shall also be disregarded when applying the
provisions of that sentence to a subsequent period of Breaks in
Service.
(b) Service performed prior to a Break in Service shall not be taken into
account until such Participant shall have completed one Year of
Service following such Break in Service.
(c) Service as of January 1, 1976 shall mean the Years of Continuous
Service (as then defined) credited to an Employee under the Plan;
however, no such period shall be considered a Year of Service if it
would have been disregarded under the Plan at that time for vesting
purposes.
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(d) Service prior to January 1, 1976 (unless continuous and ending after
January 1, 1976) shall not be counted.
(e) For purposes of vesting, Years of Service, as determined above, with
a Related Employer, during the period the companies are related,
shall be considered Years of Service with the Employer.
(f) The number of Years of Service for those Employees who transferred
into this Plan pursuant to the merger of the Magnolia Life Insurance
Company Profit Sharing 401(k) Plan into this Plan shall be the number
of Years of Service under the Magnolia Life Insurance Company Profit
Sharing 401(k) Plan as of January 1, 1993 plus service under this
Plan thereafter, except that with respect to the Plan Year ending
December 31, 1993, the number of Hours of Service equivalent to any
fractional part of a Year of Service to his credit as of January 1,
1993 shall be credited based on 190 Hours of Service for each month
or fraction thereof during which the Participant had at least one
Hour of Service.
(g) Where the Employer maintains the plan of a predecessor employer,
Years of Service, as determined above, with such predecessor employer
shall be treated as Years of Service with the Employer.
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ARTICLE 3
ELIGIBILITY AND PARTICIPATION
SECTION 3.1. ELIGIBILITY.
All Qualified Employees who were Participants in this Plan or The Liberty
Corporation and Adopting Related Employers' 401(k) Thrift Plan on March 31, 1997
shall continue to participate in this Plan as of April 1, 1997. Any other
Qualified Employee who has completed one (1) Qualifying Year of Service shall
become a Participant at the time specified in Section 3.2.
SECTION 3.2. PARTICIPATION.
Any Qualified Employee who has satisfied the requirements of Section 3.1
shall become a Participant on the Entry Date coincident with or next following
the date on which such requirements are met unless such Employee separated from
service with the Employer and did not return to employment with the Employer
before his Entry Date.
Once a Qualified Employee becomes a Participant he shall remain a
Participant until he terminates employment with all Employers regardless of the
number of Hours of Service he completes in a Plan Year.
A Qualified Employee who terminates employment with the Employer after
meeting the requirements of Section 3.1 and is rehired shall become a
Participant on his Date of Reemployment by an Employer.
SECTION 3.3. TRANSFER TO OR FROM ELIGIBLE CLASS OF EMPLOYEES.
A Participant who is no longer a Qualified Employee and becomes ineligible
to participate will participate in the Plan immediately upon again becoming a
Qualified Employee.
In the event an Employee who is not a Qualified Employee becomes a
Qualified Employee, such Employee will participate immediately if such Employee
has satisfied the minimum service requirement and would otherwise have
previously become a Participant.
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SECTION 3.4. SERVICE WITH A RELATED EMPLOYER.
Service with a Related Employer not adopting this Plan shall be considered
service with the Employer when determining if a Qualified Employee has completed
a Qualifying Year of Service.
A Participant who transfers employment to a company which is a Related
Employer not adopting this Plan shall remain covered by the Plan but shall
become an Inactive Participant and shall not be eligible to make or receive
contributions under the Plan other than any Employer discretionary contributions
he is entitled to receive under Section 4.4 for his service up to the time he
becomes an Inactive Participant and any Employer matching contributions which
are attributable to his deferrals or contributions while a Participant. For
vesting purposes, such Inactive Participant shall continue to accrue Years of
Service hereunder. If such Inactive Participant is transferred again to the
Employer, he shall participate in the Plan on his date of transfer. If such
individual remains in the employ of a Related Employer not adopting this Plan
until his termination of employment, his benefits shall be calculated based on
the provisions of Articles 5 and 7.
SECTION 3.5. SERVICE AS A LEASED EMPLOYEE.
Each "leased employee" who performs services for the Employer or a Related
Employer shall be considered an Employee or an employee of a Related Employer as
appropriate for purposes of determining if this Plan satisfies the minimum
coverage requirements of Code Section 410(b). Effective January 1, 1997, a
"leased employee" is any individual (other than an Employee of the Employer or a
Related Employer) who, pursuant to an agreement between the Employer or Related
Employer and any other person ("leasing organization"), has performed services
for the Employer or Related Employer on a substantially full-time basis for a
period of at least one year, and such services are performed under primary
direction or control of the recipient Employer or Related Employer.
Contributions or benefits provided to a "leased employee" by the "leasing
organization" which are attributable to services performed for the Employer
shall be treated as provided by the Employer.
A "leased employee" shall not be considered an employee of the recipient
Employer or Related Employer if: (i) such employee is covered by a money
purchase pension plan providing: (1) a nonintegrated Employer contribution rate
of at least 10% of Compensation, but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the employee's
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<PAGE> 27
gross income under Code Section 125, Code Section 402(e)(3), Code Section 402(h)
or Code Section 403(b), (2) immediate participation, and (3) full and immediate
vesting; and (ii) "leased employees" do not constitute more than 20% of the
recipient Employer's or Related Employer's nonhighly compensated workforce.
If a "leased employee" becomes eligible to participate by being hired in a
capacity other than as a "leased employee," service while a "leased employee"
shall be considered when determining such Employee's Qualifying Years of Service
and Years of Service.
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ARTICLE 4
CONTRIBUTIONS
SECTION 4.1. EMPLOYER CONTRIBUTION OF EMPLOYEE DEFERRALS.
The Employer shall contribute to the Trust for each Plan Year an amount
which shall equal the Participant's salary reductions in Section 4.2. The
Employer shall make substantial and recurring contributions to meet the
objectives of the Plan.
SECTION 4.2. EMPLOYEE DEFERRALS.
A Qualified Employee who has met the requirements of Section 3.1 may elect
to defer whole percentages between 1% and 13% of his Compensation during the
Plan Year for which the election is being made. However, in no event shall the
aggregate amount of deferrals made pursuant to this Section and Employee
after-tax contributions made pursuant to Section 4.6 exceed 13% of the
Employee's Compensation for the Plan Year. Such election shall be effective as
of the Entry Date after the election is processed by the Plan Administrator and
shall remain in effect until revised or revoked.
Notwithstanding the preceding paragraph, each Qualified Employee who is
eligible to make a deferral election, but who fails to make any deferral
election including an election not to make elective deferrals shall
automatically be enrolled in the Plan at a deferral rate of 3% of Compensation,
beginning with the later of (a) April 1, 1997 or (b) the first Entry Date after
the Qualified Employee satisfies the eligibility requirements of Section 3.1. A
Participant who has been automatically enrolled in the Plan pursuant to the
preceding sentence may make an affirmative election to cease making further
elective deferrals under the Plan or may change his deferral percentage as
provided below. A Participant who made a prior deferral election that is to be
in effect on April 1, 1997 shall not have any automatic change made in his
deferral percentage effective April 1, 1997 pursuant to the first sentence of
this paragraph.
Each election shall specify the percentage to be deferred and contributed
to the Trust.
A Participant may change his deferral percentage as of any Entry Date.
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A Participant may suspend his deferral election as of the beginning of any
subsequent pay period.
The Plan Administrator shall have the discretion to make such rules as he
desires regarding the form and timing of deferral elections, changes in such
elections and the revocation of such elections.
In no event shall a Participant's deferrals to this Plan and any other
qualified plan maintained by the Employer during any calendar year exceed $9,500
(as adjusted pursuant to Code Section 402(g)(5)).
For purposes of this Section, Compensation used for determining the amount
of any deferral shall be Compensation for the Plan Year for which such election
is made, including any increases in Compensation during the Plan Year.
Deferrals made pursuant to this Section shall be paid to the Trustee and
credited to the Participant's Employee Deferral Account. Any amounts not elected
to be deferred shall be paid to the Participant as current Compensation.
Notwithstanding the above, a Participant who has received a hardship
distribution described in Section 8.8 shall not be eligible to make deferrals
during the twelve consecutive month period beginning on the date of the
distribution. In addition, his overall deferral limitation under Code Section
402(g) for the tax year following the tax year of distribution shall be reduced
by his deferrals during the tax year of distribution.
A Participant may assign to this Plan any deferrals made during a taxable
year that exceed the $9,500 (as adjusted) limitation by notifying the Plan
Administrator in writing on or before April 1 of the year following the year in
which the deferral was made, the amount of such excess deferrals to be assigned
to the Plan.
Any deferrals distributed pursuant to Section 9.4 shall be disregarded in
determining whether the $9,500 (as adjusted) limitation has been exceeded.
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Notwithstanding any other provision of this Plan, the excess deferrals
assigned to this Plan, plus any income and minus any loss allocable thereto,
shall be distributed no later than April 15 to any Participant who assigned such
excess deferrals to this Plan for the preceding year.
The income or loss allocable to excess deferrals shall be calculated under
the same method used in Section 9.3 to allocate income or loss to Participant's
accounts. Alternatively, the Plan Administrator may elect to calculate the
income or loss allocable to excess deferrals by multiplying the income or loss
allocable to the Participant's Employee Deferral Account for the Participant's
taxable year (or up to the date of distribution, as designated by the Plan
Administrator) by a fraction, the numerator of which is the Participant's excess
deferrals for the year and the denominator of which is the balance of the
Participant's Employee Deferral Account at the beginning of the taxable year
plus the Participant's deferrals for the taxable year (or up to the date of
distribution, as designated by the Plan Administrator). Notwithstanding the
preceding sentence, if the date of distribution is after the end of the
Participant's taxable year, the Plan Administrator may elect to calculate the
income or loss attributable to the period between the end of the taxable year
and the date of distribution by using the method described in the preceding
sentence to calculate the income or loss to the end of the Participant's taxable
year and then multiplying 10% of the result of that calculation by the number of
calendar months that elapsed since the end of the taxable year. For purposes of
calculating the number of calendar months that have elapsed since the end of the
taxable year, a corrective distribution that is made on or before the fifteenth
day of the month is treated as made on the last day of the preceding month. A
distribution made after the fifteenth day of the month is treated as made on the
first day of the next month. Whichever method of calculating income or loss on
excess deferrals is used, it must be used consistently for all Participants and
for all corrective distributions under the Plan for the Plan Year.
The amount of a Participant's excess deferrals that must be distributed
for a taxable year pursuant to this Section shall be reduced by any Excess
Contributions previously distributed with respect to the Participant for the
Plan Year beginning with or within such taxable year.
SECTION 4.3. EMPLOYER MATCHING CONTRIBUTIONS.
Each payroll period in each Plan Year, the Employer may contribute to the
Trust an amount which, when added to the current Forfeitures, will equal a
percentage of the Compensation deferred
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<PAGE> 31
by Participants during such payroll period. The amount and any limitations on
any such matching contributions shall be determined by the Board for each Plan
Year.
As of the Adjustment Date on which the contribution is made, the Employer
Matching Contribution Account of each eligible Participant who made deferrals of
Compensation under Section 4.2 during the calendar year shall be credited with
the matching contribution of the Employer on such Participant's behalf.
Forfeitures attributable to Employer matching contributions shall be treated as
Employer matching contributions for allocation purposes.
If Forfeitures exceed the percentage designated for matching
contributions, the excess amount shall be used to reduce subsequent Employer
matching contributions within the Plan Year in which the forfeiture arose.
In addition to the matching contributions described above, the Employer
may contribute Qualified Matching Contributions to the Trust in such amount as
the Board shall determine in order to facilitate compliance with the Actual
Deferral Percentage or the Actual Contribution Percentage tests. The Board shall
also specify the group of Participants who are entitled to receive Qualified
Matching Contributions.
As of each Adjustment Date, any Qualified Matching Contributions not
previously allocated shall be allocated among the group of Participants on whose
behalf such contributions were made.
Qualified Matching Contributions made pursuant to this Section shall be
paid to the Trustee and credited to the Participant's Qualified Matching
Contribution Account. Each Participant shall at all times be fully vested in his
Qualified Matching Contribution Account.
The Plan Administrator may elect to treat all or a portion of the
Qualified Matching Contributions as Employee deferrals for purposes of the
Actual Deferral Percentage test under Section 4.9 or as Employer Matching
Contributions for purposes of the Actual Contribution Percentage test under
Section 4.10, but only if the conditions described in Section 1.401(k)-1(b)(5)
or Section 1.401(m)-1(b)(5) of the Income Tax Regulations, as applicable, are
satisfied.
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SECTION 4.4. EMPLOYER DISCRETIONARY CONTRIBUTIONS.
In addition to the Employer matching contributions, the Employer may
contribute to the Trust for each Plan Year such amount as the Board may
determine for such Plan Year.
If an Employee does not receive an allocation due to clerical error or
other reasonable cause, the Employer may contribute to the Trust such amount as
the Plan Administrator shall determine, as approved by the Board.
As of the last Adjustment Date in each Plan Year, the Employer
discretionary contributions shall be allocated among Participants (a) employed
on the last day of the Plan Year who completed a Year of Service or (b) who
retired on or after Early or Normal Retirement Date pursuant to Article 5, died,
or became Disabled during the Plan Year regardless of the number of Hours of
Service such Participants completed. Any Participants who transferred to a
Related Employer who has not adopted the Plan during the Plan Year shall be
included in the allocation of the Employer discretionary contribution, but only
their Compensation up to the time of the transfer shall be taken into account.
The Employer discretionary contribution shall be allocated among the
Participants described in this paragraph in the following manner:
(1) Each Participant will be credited with one dollar of "Allocation
Compensation" for each dollar of his Compensation and with an
additional dollar of "Allocation Compensation" for each dollar of his
Compensation that exceeds the Taxable Wage Base.
(2) There shall then be allocated to the Employer Discretionary
Contribution Account of each Participant a share of the contribution
(and any applicable Forfeitures) that is the same proportion thereof
as such Participant's Allocation Compensation is of the total
Allocation Compensation of all Participants.
(3) If the allocation made in accordance with paragraph (2) above would
result in Participants receiving allocations that exceed 4.3% of
their Allocation Weighted Compensation (or such lesser or greater
percentage as may be required or allowable under regulations and
other guidance issued by the Internal Revenue Service with respect to
Code Section 401(1)), then such excess above such percentage of
Allocation Compensation shall not be allocated by the formula of
paragraph (2) above, but instead there shall be allocated to the
Employer Discretionary Contribution Account of each Participant a
share of such excess that is the same proportion thereof as such
Participant's Compensation is of the Compensation of all
Participants.
Notwithstanding the foregoing, allocations under the Plan shall in no
event exceed the overall permitted disparity limits of Section
1.401(l)-5 of the Income Tax Regulations. In particular, the Plan
shall satisfy the annual overall permitted disparity limit, and the
Plan shall also satisfy the cumulative overall permitted disparity
limit.
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To satisfy the annual overall disparity limit, no other plan of the
Employer may impute permitted disparity with respect to a Participant
pursuant to Section 1.401(a)(4)-7 of the Income Tax Regulations. If a
Participant is covered by another plan of the Employer that provides
for permitted disparity pursuant to Code Section 401(l) and the
Participant's total annual permitted disparity fraction (as defined
in Section 1.401(l)-5(b)(2) of the Income Tax Regulations) exceeds
one, the benefit under such other plan shall be reduced to the extent
necessary to reduce the Participant's total annual permitted
disparity fraction to one. A Participant's cumulative disparity
fraction (as defined in Section 1.401(l)-5(c)(2) of the Income Tax
Regulations) shall not exceed one.
SECTION 4.5. QUALIFIED NONELECTIVE CONTRIBUTIONS.
In addition to any other contributions under this Plan, the Employer may
elect to contribute to the Trust for a Plan Year Qualified Nonelective
Contributions in such amount as the Board shall determine in order to facilitate
compliance with the Actual Deferral Percentage and Actual Contribution
Percentage tests.
As of the last Adjustment Date in each Plan Year, any Qualified
Nonelective Contributions shall be allocated among a group of Participants
designated by the Board.
Contributions made pursuant to this Section shall be paid to the Trustee
and credited to the Participant's Qualified Nonelective Contribution Account.
Each Participant shall at all times be fully vested in his Qualified Nonelective
Contribution Account.
The Plan Administrator may treat all or any portion of a Qualified
Nonelective Contribution as an Employee deferral or Employer matching
contribution for a Plan Year.
Qualified Nonelective Contributions may be treated as elective deferrals
under the Actual Deferral Percentage test or as Employer matching contributions
under the Actual Contribution Percentage test only if the conditions described
in Section 1.401(k)-1(b)(5) or Section 1.401(m)-1(b)(5) of the Income Tax
Regulations, as applicable, are satisfied.
SECTION 4.6. EMPLOYEE AFTER-TAX CONTRIBUTIONS.
Each Employee who has met the requirements of Section 3.1 may elect as of
an Entry Date to make after-tax contributions to the Plan in whole percentages
between 1% and 13% of his Compensation during the Plan Year for which the
election is made. However, in no event shall the aggregate amount of after-tax
contributions made pursuant to this Section and Employee deferrals made pursuant
to Section 4.2 exceed 13% of the Employee's Compensation for the Plan Year.
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Each Participant shall specify in writing the percentage he desires to
contribute to the Trust. The Contribution specified by the Participant shall be
collected by the Employer through payroll deductions. Contributions made
pursuant to this Section shall be paid to the Trustee and credited to the
Participant's Employee After-Tax Contribution Account. Each Participant shall at
all times be fully vested in his Employee After-Tax Contribution Account.
The Participant may as of any Entry Date change the amount he desires to
contribute by filing another written direction with the Plan Administrator.
A Participant may suspend his election to make after-tax contributions as
of the beginning of any subsequent pay period.
The Plan Administrator shall have the discretion to make such rules as he
desires regarding the form and timing of deferral elections, changes in such
elections and the revocation of such elections.
SECTION 4.7. ROLLOVER CONTRIBUTIONS.
A Qualified Employee who has been a member of another qualified retirement
plan may, with the consent of the Plan Administrator, make a rollover
contribution from said former plan to the Trust Fund for this Plan pursuant to
Code Section 402(c). Such transferred assets will be fully vested at all times.
Only those assets accumulated in another qualified plan may be transferred to
this Plan. Any such transferred assets shall be held in a separate account in
the name of the Qualified Employee and shall reflect the net earnings or net
losses of the Trust Fund. However, such assets may be commingled for investment
purposes and invested in the same manner as other trust assets.
SECTION 4.8. EMPLOYEE DEFERRALS AND AFTER-TAX CONTRIBUTIONS.
Each Participant shall at all times be fully vested in the amount in his
Employee Deferral Account and his Employee After-Tax Contribution Account, but a
Participant or his Beneficiary shall be entitled to payment of the amounts
credited to such accounts only upon the occurrence of an event described in and
in accordance with this Article 4 or Articles 5, 6, or 7.
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SECTION 4.9. ADJUSTMENT OF DEFERRALS.
In order to ensure that the Plan remains qualified under Code Section
401(k), the Plan Administrator shall ensure that the Employee deferrals elected
by Participants satisfy the Actual Deferral Percentage test referred to in the
next paragraph.
The Actual Deferral Percentage test is satisfied only if:
(a) The Actual Deferral Percentage for Eligible Employees who are Highly
Compensated Employees is not more than the Actual Deferral Percentage
for all other Eligible Employees multiplied by 1.25, or
(b) The excess of the Actual Deferral Percentage for Eligible Employees
who are Highly Compensated Employees over the Actual Deferral
Percentage for all other Eligible Employees is not more than two (2)
percentage points, and the Actual Deferral Percentage for Eligible
Employees who are Highly Compensated Employees is not more than the
Actual Deferral Percentage for all other Eligible Employees
multiplied by 2.0.
If one or more Highly Compensated Employees are subject to both the Actual
Contribution Percentage test as described in Section 4.10 and the Actual
Deferral Percentage test as described above, then the excess, if any, of the sum
of the Actual Deferral Percentage and Actual Contribution Percentage of those
Highly Compensated Employees subject to either or both tests over the greater of
(i) the sum of (1) 125% of the greater of the Actual Deferral Percentage of the
Non-highly Compensated Employees or the Actual Contribution Percentage of the
Non-highly Compensated Employees and (2) the lesser of 200% or two plus the
lesser of such Actual Deferral Percentage or Actual Contribution Percentage or
(ii) the sum of (1) 125% of the lesser of the Actual Deferral Percentage of the
Non-highly Compensated Employees or the Actual Contribution Percentage of the
Non-highly Compensated Employees and (2) the lesser of 200% or two plus the
greater of such Actual Deferral Percentage or Actual Contribution Percentage,
shall be treated as an Excess Aggregate Contribution or Excess Contribution, or
both, and corrected in the manner prescribed in this Article for such excesses.
Correction is only required for those Highly Compensated Employees who are
eligible to participate in both an arrangement subject to the Actual Deferral
Percentage test and an arrangement subject to the Actual Contribution Percentage
test maintained by the Employer or any Related Employer. This paragraph shall
not apply, however, if the Actual Contribution Percentage of the Highly
Compensated Employees does not exceed 1.25 multiplied by the Actual Contribution
Percentage of the Non-highly Compensated Employees, or the Actual Deferral
Percentage of the Highly Compensated Employees does not
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exceed 1.25 multiplied by the Actual Deferral Percentage of the Non-highly
Compensated Employees.
For purposes of this Section, the following terms shall have the meanings
hereinafter set forth:
(a) The term "Eligible Employee" shall mean a Qualified Employee who is
directly or indirectly eligible to make an Employee deferral under
the Plan for a Plan Year. It includes a Qualified Employee whose
right to make Employee deferrals has been suspended because of an
election not to participate and a Qualified Employee who cannot make
an Employee deferral because Code Section 415(c)(i) or (e) prevents
the Qualified Employee from receiving additional annual additions.
(b) The term "Actual Deferral Percentage" shall mean, with respect to the
group of Eligible Employees who are Highly Compensated Employees and
with respect to the group of all other Eligible Employees, the
average (expressed as a percentage) of the Actual Deferral Ratios of
the Eligible Employees in each group.
(c) The term "Actual Deferral Ratio" shall mean the ratio (expressed as a
percentage) of the Employee deferrals and Qualified Matching and/or
Qualified Nonelective Contributions taken into account for purposes
of this test pursuant to Sections 4.2, 4.3 and 4.5 under the Plan on
behalf of each Eligible Employee for the Plan Year to the Eligible
Employee's Compensation for the Plan Year. However, if an Eligible
Employee who is a Highly Compensated Employee is eligible to make
Employee deferrals under two or more qualified plans maintained by
the Employer or a Related Employer, his Actual Deferral Ratio shall
be determined as if all such contributions were made under a single
plan. For purposes of determining this ratio, excess deferrals within
the meaning of Section 4.2, of Non-highly Compensated Employees that
arise solely from deferrals made under this Plan or other plans of
the Employer and deferrals taken into account in the Actual
Contribution Percentage test shall be disregarded. In the case of an
Eligible Employee who makes no Employee deferrals for the Plan Year,
his Actual Contribution Ratio shall be zero.
In the event that this Plan satisfies the requirements of Code
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 Code Sections only if aggregated with this Plan,
then this Section shall be applied by determining the Actual Deferral
Percentage of Eligible Employees as if all such plans were a single
plan. Plans may be aggregated in order to satisfy Code Section 401(k)
only if they have the same Plan Year.
An Employee deferral will be taken into account for a Plan Year only
if it relates to Compensation that either would have been received by
the Qualified Employee in the Plan Year (but for the deferral
election) or is attributable to services performed by the Employee in
the Plan Year and would have been received by the Qualified Employee
within 2 1/2 months after the close of the Plan Year (but for the
deferral election). In addition, the Employee deferral will only be
taken into account for a Plan Year if it is allocated to the
Qualified Employee as of a date within that Plan Year. For this
purpose, an Employee deferral is considered allocated as of a date
within a Plan Year if the allocation is not contingent on
participation or performance of services after such date and the
Employee deferral is actually paid to the Trust no later than twelve
months after
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the Plan Year to which the deferral relates. Any deferrals that are distributed
pursuant to Section 9.4 shall be disregarded.
(d) The term "Excess Contributions" means, with respect to any Plan Year,
the excess of the aggregate amount of the Employee deferrals actually
made on behalf of Eligible Employees who are Highly Compensated
Employees for such Plan Year, over the maximum amount which would
satisfy the Actual Deferral Percentage test.
The Excess Contributions of each Highly Compensated Employee for a
Plan Year are determined by a leveling method, under which the Actual
Deferral Ratio of the Highly Compensated Employee with the highest
Actual Deferral Ratio is reduced to the extent required to (1) enable
the Plan to satisfy the Actual Deferral Percentage test, or (2) cause
such Highly Compensated Employee's Actual Deferral Ratio to equal the
ratio of the Highly Compensated Employee with the next highest Actual
Deferral Ratio. This process is repeated until the Plan satisfies the
Actual Deferral Percentage test. For each Highly Compensated
Employee, the amount of Excess Contribution is equal to the total
Employee deferrals made on behalf of the Employee minus the amount
determined by multiplying the Employee's Actual Deferral Ratio (after
the above leveling) by his Compensation for such Plan Year.
Each Highly Compensated Employee's Excess Contributions shall consist
first of unmatched Employee deferrals, and then to the extent
necessary, matched Employee deferrals.
If the Actual Deferral Percentage test is not met currently or
on a projected basis, the Plan Administrator may ask Eligible Employees who are
Highly Compensated Employees if they wish to decrease their deferral elections
and/or may ask all other Participants if they wish to increase their deferral
elections. If the Actual Deferral Percentage test is not satisfied after these
voluntary adjustments are made, the Plan Administrator shall have the right to
reduce the amount of the deferral election of Eligible Employees who are Highly
Compensated Employees in an equitable manner. Any reduction of the amount to be
deferred by Eligible Employees who are Highly Compensated Employees will apply
only to the particular Plan Year or remainder of such Plan Year for which the
deferrals under the Plan fail or may fail to satisfy the Actual Deferral
Percentage test.
If voluntary and involuntary adjustments during the Plan Year do not bring
the Plan into compliance with the Actual Deferral Percentage test, the Plan
Administrator shall distribute the Excess Contributions and income allocable
thereto to the Participants to whose accounts such Excess Contributions were
allocated. Such distribution must take place after the close of the Plan Year in
which the Excess Contribution arose and within twelve months after the close of
such Plan Year.
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The income or loss allocable to Excess Contributions shall be calculated
under the same method used in Section 9.3 to allocate income or loss to
Participants' accounts for the Plan Year in which the Excess Contribution
occurs. Alternatively, the Plan Administrator may calculate the income or loss
allocable to Excess Contributions by multiplying the income or loss allocable to
the Participant's Employee Deferral Account and, if applicable, the Qualified
Nonelective Contribution Account or the Qualified Matching Contribution Account,
or both, for the Plan Year (and for the period between the end of the Plan Year
and the date of distribution (the "gap" period), if designated by the Plan
Administrator ) by a fraction, the numerator of which is the Participant's
Excess Contributions for the Plan Year and the denominator of which is the
Participant's account balance attributable to Employee deferrals and, if
applicable, Qualified Nonelective Contributions or Qualified Matching
Contributions, or both, as of the beginning of the Plan Year, plus the
Participant's deferrals, and, if applicable, his allocable share of Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, for the
Plan Year (and for the gap period, if designated by the Plan Administrator).
Notwithstanding the preceding sentence, the Plan Administrator may elect
to calculate income or loss for the gap period by using the method described in
the preceding sentence to calculate income or loss for the Plan Year and then
multiplying 10% of the result of that calculation by the number of calendar
months that elapsed since the end of the Plan Year. For purposes of calculating
the number of calendar months that have elapsed since the end of the Plan Year,
a corrective distribution that is made on or before the fifteenth day of the
month is treated as made on the last day of the preceding month. A distribution
made after the fifteenth day of the month is treated as made on the first day of
the next month. Whichever method of calculating income or loss on Excess
Contributions is used, it must be used consistently for all Participants and for
all corrective distributions under the Plan for the Plan Year.
The Plan Administrator may elect to treat a portion of the Employee
deferrals as matching contributions for purposes of the Actual Contribution
Percentage test under Section 4.10, so long as the Actual Deferral Percentage
test is met both with and without the use of such Employee deferrals.
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The amount of a Participant's Excess Contributions to be distributed
pursuant to this Section for a Plan Year shall be reduced by any excess
deferrals previously distributed to the Participant for the Participant's
taxable year ending with or within such Plan Year.
SECTION 4.10. ADJUSTMENT OF EMPLOYER MATCHING CONTRIBUTIONS AND
EMPLOYEE AFTER-TAX CONTRIBUTIONS.
In order to ensure that the Plan remains qualified under Code Section
401(m), the Plan Administrator will determine whether the Employer matching
contributions and Employee after-tax contributions satisfy the Actual
Contribution Percentage test referred to in the next paragraph.
The Actual Contribution Percentage test is satisfied only if:
(a) The Actual Contribution Percentage for Eligible Employees who are
Highly Compensated Employees is not more than the Actual Contribution
Percentage for all other Eligible Employees multiplied by 1.25, or
(b) The excess of the Actual Contribution Percentage for Eligible
Employees who are Highly Compensated Employees over the Actual
Contribution Percentage for all other Eligible Employees is not more
than two (2) percentage points, and the Actual Contribution
Percentage for Eligible Employees who are Highly Compensated
Employees is not more than the Actual Contribution Percentage for all
other Eligible Employees multiplied by 2.0.
For purposes of this Section, the following terms shall have the meanings
hereinafter set forth:
(a) The term "Eligible Employee" shall mean a Qualified Employee who is
directly or indirectly eligible to make an Employee after-tax
contribution or to receive an allocation of Employer matching
contributions (including matching contributions derived from
Forfeitures) under the Plan for a Plan Year. It includes a Qualified
Employee who would be a Participant but for the failure to make
required contributions, an Employee whose right to make Employee
after-tax contributions or receive matching contributions has been
suspended because of an election (other than certain one-time
elections) not to participate, and a Qualified Employee who cannot
make an Employee after-tax contribution or receive an Employer
matching contribution because Code Section 415(c)(1) or (e) prevents
the Qualified Employee from receiving additional annual additions.
(b) The term "Actual Contribution Percentage" shall mean, with respect to
the group of Eligible Employees who are Highly Compensated Employees
and with respect to the group of all other Eligible Employees, the
average (expressed as a percentage) of the Actual Contribution Ratios
of the Eligible Employees in each group.
(c) The term "Actual Contribution Ratio" shall mean the ratio (expressed
as a percentage) of the Employer matching contributions (including
matching contributions derived from Forfeitures and Qualified
Nonelective Contributions designated to be matching
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contributions) (to the extent not taken into account for purposes of
the Actual Deferral Percentage test). Employee after-tax
contributions, (including deferrals recharacterized as Employee
after-tax contributions), Qualified Matching Contributions taken into
account for purposes of this test pursuant to Sections 4.3 and
Qualified Nonelective Contributions taken into account for purposes
of this test pursuant to Section 4.5 under the Plan on behalf of each
Eligible Employee for the Plan Year to the Eligible Employee's
Compensation for the Plan Year. However, if an Eligible Employee who
is a Highly Compensated Employee is eligible to make Employee
after-tax contributions, or to receive Employer matching
contributions allocated to his account under two or more qualified
plans maintained by the Employer or a Related Employer, his Actual
Contribution Ratio shall be determined as if all such contributions
were made under a single plan. In the case of an Eligible Employee
who makes no Employee after-tax contribution and receives no matching
contributions for the Plan Year, his Actual Contribution Ratio shall
be zero.
In the event that this Plan satisfies the requirements of Code
Sections 401(m), 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 Code Sections only if aggregated with this Plan,
then this Section shall be applied by determining the Actual
Contribution Percentage of Eligible Employees as if all such plans
were a single plan. Plans may be aggregated in order to satisfy Code
Section 401(m) only if they have the same Plan Year.
In calculating the Actual Contribution Ratio for a Plan Year, an
Employee after-tax contribution is taken into account if it is paid
to the Trust during the Plan Year or paid to an agent of the Plan and
transmitted to the Trust within a reasonable period after the end of
the Plan Year. An Excess Contribution that is recharacterized is
taken into account in the Plan Year in which the Excess Contribution
is includable in the Qualified Employee's gross income. An Employer
matching contribution is taken into account for a Plan Year only if
it is (1) made on account of the Qualified Employee's deferrals or
after-tax contributions for the Plan Year, (2) allocated to the
Qualified Employee's account during that Plan Year, and (3) paid to
the Trust by the end of the twelfth month following the close of that
year. Any Employee after-tax contributions that are distributed
pursuant to Section 9.4 shall be disregarded.
(d) The term "Excess Aggregate Contributions" means, with respect to any
Plan Year, the excess of the aggregate amount of the Employee
after-tax contributions and actual and deemed Employer matching
contributions actually made on behalf of Eligible Employees who are
Highly Compensated Employees for such Plan Year, over the maximum
amount which would satisfy the Actual Contribution Percentage test.
The Excess Aggregate Contributions of each Highly Compensated
Employee for a Plan Year are determined by a leveling method, under
which the Actual Contribution Ratio of the Highly Compensated
Employee with the highest Actual Contribution Ratio is reduced to the
extent required to (1) enable the Plan to satisfy the Actual
Contribution Percentage test, or (2) cause such Highly Compensated
Employee's Actual Contribution Ratio to equal the ratio of the Highly
Compensated Employee with the next highest Actual Contribution Ratio.
This process is repeated until the Plan satisfies the Actual
Contribution Percentage test. For each Highly Compensated Employee,
the amount of Excess Aggregate Contributions is equal to the total
Employee after-tax contributions and actual and deemed Employer
matching contributions made on behalf of the
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Employee minus the amount determined by multiplying the Employee's
Actual Contribution Ratio (after the above leveling) by his
Compensation for such Plan Year.
If the Actual Contribution Percentage test is not met currently or on a
projected basis, the Plan Administrator may ask Eligible Employees who are
Highly Compensated Employees if they wish to decrease their contribution
elections and/or may ask all other Eligible Employees if they wish to increase
their contribution elections. If the Actual Contribution Percentage test is not
satisfied after these voluntary adjustments are made, the Plan Administrator
shall have the right to reduce the amount of the contribution election of
Eligible Employees who are Highly Compensated Employees in an equitable manner.
Any reduction of the amount to be contributed by Eligible Employees who are
Highly Compensated Employees will apply only to the particular Plan Year or
remainder of such Plan Year for which the Plan fails or may fail to satisfy the
Actual Contribution Percentage test.
If voluntary and involuntary adjustments during the Plan Year do not bring
the Plan into compliance with the Actual Contribution Percentage test, the Plan
Administrator shall forfeit, to the extent not vested under the Plan, or
distribute the Excess Aggregate Contributions and income allocable thereto to
the Participants to whose accounts such Excess Aggregate Contributions were
allocated. Such distribution or forfeiture must take place after the close of
the Plan Year in which the Excess Aggregate Contribution arose and within twelve
months after the close of such Plan Year. Any distribution or forfeiture of
Excess Aggregate Contributions for any Plan Year shall be made on the basis of
the respective portions of such amounts attributable to each Highly Compensated
Employee.
The income or loss applicable to Excess Aggregate Contributions shall be
calculated under the same method used in Section 9.3 to allocate income or loss
to Participants' accounts for the Plan Year in which the Excess Aggregate
Contribution occurs. Alternatively, the Plan Administrator may calculate the
income or loss allocable to the Excess Aggregate Contributions by multiplying
the income or loss allocable to the Participant's Employer Matching Contribution
Account and Employee After-Tax Contribution Account, and, if applicable, the
Employee Deferral Account, the Qualified Nonelective Contribution Account and
the Qualified Matching Contribution Account for the Plan Year (and for the
period between the end of the Plan Year and the date of distribution (the gap
period) if designated by the Plan Administrator) by a fraction, the numerator
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of which is the Participant's Excess Aggregate Contributions for the Plan Year
and the denominator of which is the Participant's account balance attributable
to Employer matching contributions, Employee after-tax contributions, Employee
deferrals, Qualified Nonelective Contributions, and Qualified Matching
Contributions, as applicable, as of the beginning of the Plan Year, plus the
Participant's after-tax contributions and deferrals and allocable share of
Employer matching contributions, Qualified Nonelective Contributions, and
Qualified Matching Contributions as applicable, for the Plan Year (and for the
gap period, if designated by the Plan Administrator). Notwithstanding the
preceding sentence, the Plan Administrator may elect to calculate income or loss
for the gap period by using the method described in the preceding sentence to
calculate income or loss for the Plan Year and then multiplying 10% of the
result of that calculation by the number of calendar months that elapsed since
the end of the Plan Year. For purposes of calculating the number of calendar
months that have elapsed since the end of the Plan Year, a corrective
distribution that is made on or before the fifteenth day of the month is treated
as made on the last day of the preceding month. A distribution made after the
fifteenth day of the month is treated as made on the first day of the next
month. Whichever method of calculating income or loss on Excess Aggregate
Contributions is used, it must be used consistently for all Participants and for
all corrective distributions under the Plan for the Plan Year.
Notwithstanding anything in this Plan to the contrary, to the extent a
matched Employee deferral must be distributed in order to comply with the
requirements of Sections 4.2 or 4.9, the Employer matching contribution
attributable to such deferral must be forfeited at the time of such
distribution, unless it is an Excess Contribution or Excess Aggregate
Contribution. If the Employer matching contribution is an Excess Contribution or
Excess Aggregate Contribution, it shall be forfeited or distributed in
accordance with Sections 4.9 and 4.10. Any Employer matching contributions that
are forfeited pursuant to this paragraph shall be disregarded in determining
whether the Actual Contribution Percentage test is satisfied.
SECTION 4.11. OVERALL CONTRIBUTION LIMITATION.
In no event, shall the total contribution for a Plan Year under this
Article (not taking into account Sections 4.6 and 4.7) exceed the maximum amount
deductible by the Employer for such Plan Year for federal income tax purposes,
including any credit carry-over from one or more prior Plan Years.
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SECTION 4.12. SPECIAL RULES RELATED TO VETERAN'S REEMPLOYMENT RIGHTS.
Notwithstanding any provision of the Plan to the contrary, contributions
and benefits with respect to qualified military service will be provided in
accordance with Code Section 414(u).
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ARTICLE 5
RETIREMENT BENEFITS
SECTION 5.1. NORMAL RETIREMENT AND DELAYED RETIREMENT DATE.
A Participant shall be eligible to retire and receive a retirement benefit
effective as of his Normal Retirement Date. If the Participant remains in the
employ of the Employer or any Related Employer after his Normal Retirement Date,
he shall continue to be a Participant in the Plan until his actual retirement.
SECTION 5.2. DISABILITY RETIREMENT.
If a Participant incurs a Disability and terminates employment with the
Employer and all Related Employers, his retirement shall be effective as of the
first day with respect to which he is entitled to receive benefits under the
Employer's long-term disability plan. Such disabled Participant shall be
entitled to receive his account balances under the Plan payable pursuant to
Section 5.4.
SECTION 5.3. EARLY RETIREMENT.
A Participant or Inactive Participant who has not attained his Normal
Retirement Date but has attained his Early Retirement Date may elect early
retirement under this Plan. Such Participant or Inactive Participant shall be
entitled to receive his account balance under the Plan payable pursuant to
Section 5.4 upon termination of employment from the Employer and all Related
Employers.
SECTION 5.4. OPTIONAL METHODS OF SETTLEMENT.
Each Participant entitled to receive a retirement benefit pursuant to this
Article may elect to have his vested account balances distributed under any one
of the following optional methods of settlement at the time and in the manner
described in Section 5.6.
(a) Annuity: An annuity payable over a period not extending beyond either
the life of the Participant (or the lives of the Participant and his
designated Beneficiary) or the life expectancy of the Participant (or
the life expectancy of the Participant and his designated
Beneficiary).
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(b) Lump Sum: Payment of the Participant's interest in the Plan in a
single sum in cash and/or shares of Employer Stock to the extent the
Participant's accounts are made up of investments in Employer Stock.
(c) Installments from Trust Fund: Payment of such amount to him in
approximately equal monthly, quarterly, semi-annual or annual
installments over a period elected by the Participant of not more
than 30 years. The total amount credited to the accounts of the
Inactive Participant shall remain in the Fund and shall be adjusted
as of each Adjustment Date as provided in the Plan, and such
installments shall be modified to reflect such adjustments. If the
Participant dies prior to the exhaustion of his accounts, the
payments shall continue to his Beneficiary in the manner chosen by
the Participant subject to the provisions of Section 5.10.
(d) Combination: A combination of a lump sum payment (in cash and/or in
shares of Employer Stock to the extent the Participant's accounts are
made up of investments in Employer Stock) and an annuity.
Any benefits payable under such optional methods in the form of an annuity
shall be purchased from a legal reserve life insurance company with the total
amount credited to the accounts of the Participant. Such annuity must comply
with the distribution requirements of Code Section 401(a)(9) and the regulations
thereunder.
In no event shall payments under any optional method extend beyond the
later of the lifetime of the Participant, the lifetime of the Participant and
the Participant's Beneficiary, the life expectancy of the Participant or the
joint life expectancies of the Participant and his Beneficiary.
If the Participant's entire interest is to be distributed in a form other
than a lump sum, then the amount to be distributed each year must be at least an
amount equal to the quotient obtained by dividing the Participant's entire
interest by (1) the life expectancy of the Participant, or (2) the joint and
last survivor expectancy of the Participant and designated Beneficiary. Life
expectancy and joint and last survivor expectancy are computed by the use of the
return multiples contained in Section 1.72-9 of the Income Tax Regulations. For
purposes of this computation, a Participant's or a spouse's life expectancy may
be recalculated no more frequently than annually, however, the life expectancy
of a nonspouse Beneficiary may not be recalculated.
Notwithstanding the above, the amount to be distributed each year must not
be less than the quotient obtained by dividing the Participant's benefit by the
lesser of (1) the life expectancy of the Participant or joint and last survivor
expectancy of the Participant and designated Beneficiary; or (2) if the
Participant's spouse is not the designated Beneficiary, the applicable divisor
determined
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from the table set forth in Q&A-4 of Section 1.401(a)(9)-2 of the Proposed
Income Tax Regulations. Distributions after the death of the Participant shall
be calculated using the applicable life expectancy set forth in the preceding
paragraph as the relevant divisor.
SECTION 5.5. PAYMENT OF SMALL BENEFITS.
Notwithstanding the above, if a Participant's vested interest in the Plan
is less than or equal to $3,500 and did not exceed $3,500 at the time of any
prior distribution, then payments shall be made to the Participant in a lump sum
or installments as soon as practicable following termination of employment with
the Employer and all Related Employers.
SECTION 5.6. ELECTION OF OPTION.
A payment option as set forth in Section 5.4 shall be elected, changed or
revoked by the Participant, his guardian, or attorney-in-fact, by written notice
filed with the Plan Administrator during the election period specified below;
provided, however:
(a) A beneficiary under an option with benefits payable for a period
certain may be changed by written notice to the Plan Administrator.
(b) A married Participant shall be deemed to have elected a joint and
one-half life survivor annuity with his spouse as his Beneficiary
unless he makes an affirmative election not to take such an annuity.
A joint and one-half survivor annuity is an annuity that commences
immediately and is equal in value to a single life annuity. Under a
joint and one-half survivor annuity, annuity payments continue to the
Participant's Beneficiary following the Participant's death at a rate
equal to 50% of the rate at which such payments were made to the
Participant. A Participant may elect to receive a smaller lifetime
annuity benefit with continuation of benefit payments to the
Participant's Beneficiary at a rate of 75% or 100% of the rate
payable to the Participant during his or her lifetime. Such
alternative benefit shall be equal in actuarial value to the joint
and one-half survivor annuity.
(c) If the Beneficiary under a joint and one-half survivor option dies
before the commencement of payments, the election shall be
inoperative.
(d) If a timely election shall not have been made, payment shall be made
in a life annuity to an unmarried Participant, unless otherwise
provided herein.
For purposes of this Section 5.6, a former spouse will be treated as
the spouse to the extent provided under a qualified domestic
relations order as described in Code Section 414(p).
Notwithstanding the above, any election by a Participant pursuant to (b)
above not to provide a joint and one-half (or greater) survivor annuity with his
spouse as the named Beneficiary shall
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not take effect unless the Participant's spouse consents in writing to such
election and the consent acknowledges the effect of such election. The spouse's
consent must be witnessed by a Plan representative or a notary public or it must
be established to the satisfaction of a Plan representative that the consent
cannot be obtained because there is no spouse, because the spouse cannot be
located or because of such other circumstances as the Secretary of the Treasury
may prescribe by regulations.
SECTION 5.7. ELECTION PERIOD.
A Participant may elect the method of benefit payment during the 90-day
period ending on his Annuity Starting Date. Any election made during the
election period shall be revocable, and another such election may be made at any
time prior to the close of the election period, at which time the last such
election which shall have been made shall be irrevocable. Any such election, and
any revocation thereof, shall be made by notice in writing to the Plan
Administrator in a form which is satisfactory to the Plan Administrator.
SECTION 5.8. INFORMATION TO BE GIVEN PARTICIPANTS.
Consistent with regulations prescribed by the Secretary of the Treasury
and no less than 30 days and no more than 90 days before a Participant's Annuity
Starting Date, a written statement shall be mailed or personally delivered to
him setting forth a general description of the joint and one-half survivor
annuity, as well as the circumstances under which it shall be provided unless
the Participant shall elect another form of payment, the availability of such
election, and a general explanation of the financial effect of such election.
Such written statement shall also include a statement of the rights of the
Participant's spouse as provided in Section 5.6. It shall further notify the
Participant that he may request in writing at any time during the election
period specified above, an additional written statement of the terms and
conditions of the joint and one-half survivor annuity and the financial effect
of payment in some method other than the joint and one-half survivor annuity.
However, distribution may commence less than 30 days after the notice described
above is given, provided 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 the Participant,
after receiving the notice, affirmatively elects a distribution.
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SECTION 5.9. WAIVER ELECTIONS.
Within a reasonable period of time (consistent with regulations prescribed
by the Secretary of the Treasury) before the date a distribution of a
Participant's interest is to be made, the Plan Administrator shall provide the
Participant a written explanation of the terms and conditions of the joint and
one-half survivor annuity, the Participant's right to make, and the effect of,
an election to waive the joint and one-half survivor form of benefit, the rights
of the Participant's spouse regarding the waiver election and the Participant's
right to make, and the effect of, a revocation of a waiver election. A
Participant's waiver election is not valid unless:
(a) the Participant makes the waiver election within the 90-day period
ending on the date such distribution is to be made, and
(b) the Participant's spouse has consented in writing to the waiver
election, the spouse's consent acknowledges the effect of the
election, and a notary public witnesses the spouse's signature on the
consent.
SECTION 5.10. COMMENCEMENT OF BENEFITS.
(a) In accordance with Code Section 401(a)(14), unless the Participant
elects otherwise, benefits under this Plan must begin no later than
the 60th day after the close of the Plan Year in which the latest of
the following events occurs:
(1) the Participant attains Normal Retirement Age,
(2) the Participant terminates his service with the Employer, or
(3) the tenth anniversary of the year in which the Participant
commences participation in the Plan.
(b) A Participant may elect to receive his benefits under the Plan at any
time following termination of employment with the Employer and all
Related Employers (including at any time following the time for
distribution provided in (a) above), but must begin receiving
benefits no later than the Participant's Required Beginning Date, as
defined in (c) below.
(c) The Required Beginning Date of a Participant is generally the April 1
of the calendar year following the later of the calendar year in
which the Participant (1) attains age 70 1/2 or (2) retires.
The Required Beginning Date of a Participant who is a 5% owner during
any year beginning after December 31, 1979, is the April 1 following
the calendar year in which the Participant attains age 70 1/2.
For purposes of this Section, a Participant is considered a 5% owner
if such Participant is a 5% owner as defined in Section 10.3(c)
without regard to whether the Plan is top-heavy, in any Plan Year
beginning with the Plan Year in which the Participant attains age
66 1/2.
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Once distributions have begun to a 5% owner under this Section, they
must continue to be distributed, even if the Participant ceases to be
a 5% owner in a subsequent year.
(d) A Participant may elect to receive benefits under the Plan as of the
April 1 following the calendar year in which he attains age 70 1/2,
regardless of whether he has terminated employment with the Employer
and all Related Employers.
(e) The provisions of this Section shall be effective with respect to
distributions to be made or begun on or after January 1, 1997.
SECTION 5.11. CONSENT REQUIREMENT.
Notwithstanding anything in this Plan to the contrary, no distribution
shall commence to a Participant prior to age 65, without the written consent of
the Participant and his spouse, unless his total vested account balance does not
exceed $3,500 and did not exceed $3,500 at the time of any prior distribution.
The consent of the Participant shall be obtained in writing within the 90-day
period ending on the Annuity Starting Date. The Plan Administrator shall notify
the Participant of the right to defer any distribution until the date a
distribution is required under Section 5.10, which in no event shall precede the
date on which the Participant attains age 65. Such notification shall include a
general description of the material features, and an explanation of the relative
values of, the optional forms of benefit available under the Plan in a manner
that would satisfy the notice requirements of Code Section 417(a)(3) and shall
be provided no less than 30 days and no more than 90 days prior to the Annuity
Starting Date. However, distribution may commence less than 30 days after the
notice described in the preceding sentence is given, provided 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 the Participant, after receiving the
notice, affirmatively elects a distribution.
Notwithstanding the above, spousal consent is not required if the
distribution is in the form of a joint and one-half (or greater) survivor
annuity.
SECTION 5.12. ROLLOVER OF DISTRIBUTIONS.
Notwithstanding any provision of the Plan to the contrary, a distributee
may elect, at the time and in the manner prescribed by the Plan Administrator,
to have any portion of an eligible rollover distribution paid directly to an
Eligible Retirement Plan specified by the distributee in a direct
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rollover. A direct rollover is a payment by the Plan to the eligible retirement
plan specified by the distributee.
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 Code Section 401(a)(9); and the
portion of any distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).
An Eligible Retirement Plan is an individual retirement account described
in Code Section 408(a), an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code Section 403(a), or a qualified
trust described in Code Section 401(a), that accepts the 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.
A distributee includes an Employee or former Employee. In addition, the
Employee's or former Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p) are distributees
with regard to the interest of the spouse or former spouse.
SECTION 5.13. TRANSITION RULE.
Notwithstanding the above distribution requirements, distribution on
behalf of any Participant or, including a 5% owner, may be made in accordance
with all of the following requirements (regardless of when such distribution
commences):
(a) The distribution by the trust is one which would not have
disqualified such trust under Code Section 401(a)(9) as in effect
prior to amendment by the Deficit Reduction Act of 1984.
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(b) The distribution is in accordance with a method of distribution
designated by the Participant whose interest in the trust is being
distributed or if the Participant is deceased, by a Beneficiary of
such Participant.
(c) Such designation was in writing, was signed by the Participant or the
Beneficiary, and was made before January 1, 1984.
(d) The Participant had accrued a benefit under the Plan as of December
31, 1983.
(e) The method of distribution designated by the Participant or the
Beneficiary specifies the time at which distribution will commence,
the period over which distributions will be made, and, in the case of
any distribution upon the Participant's death, the Beneficiaries of
the Participant listed in order of priority.
Unless paid to a surviving spouse under a qualified joint and survivor
annuity, the method of distribution selected must assure that at least 50% of
the present value of the amount available for distribution is paid within the
life expectancy of the Participant.
A distribution upon death will not be covered by this transition rule
unless the information in the designation contains the required information
described above with respect to the distributions to be made upon the death of
the Participant.
For any distribution which commences before January 1, 1984, but continues
after December 31, 1983, the Participant or Beneficiary to whom such
distribution is being made will be presumed to have designated the method of
distribution under which the distribution is being made if the method of
distribution was specified in writing and the distribution satisfies the
requirements in subsections (a) and (e) above.
If a designation is revoked, any subsequent distribution must satisfy the
requirements of the preceding subsections of this Section. Any changes in the
designation will be considered to be a revocation of the designation. However,
the mere substitution or addition of another Beneficiary (one not named in the
designation) under the designation will not be considered to be a revocation of
the designation, so long as such substitution or addition does not alter the
period over which distributions are to be made under the designation, directly
or indirectly (for example, by altering the relevant measuring life).
SECTION 5.14. VALUATION OF ACCOUNTS FOR DISTRIBUTIONS.
The value of a Participant's account for purposes of any distribution made
pursuant to this Plan shall be determined as of the Adjustment Date such
distribution is actually processed.
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ARTICLE 6
DEATH BENEFITS
SECTION 6.1. DEATH PRIOR TO ANNUITY STARTING DATE.
If a Participant dies prior to his Annuity Starting Date, his Beneficiary
shall be entitled to receive the balance of the Participant's vested accounts,
if any, determined as of the Adjustment Date coincident with or next following
his death. Such amount shall be paid to the Beneficiary or applied for his
benefit in a manner selected by the Beneficiary in accordance with Sections 5.4
and 5.10 and this Article 6.
Any interest to which a designated Beneficiary is entitled under this
Section will be paid (1) over a period not exceeding the longer of the lifetime
or life expectancy of the Beneficiary, provided such payment commences within
one year after the Participant's death, or (2) in its entirety within five years
after the Participant's death.
Notwithstanding the above, if the spouse is the designated Beneficiary,
distributions will not be required to begin under item (1) above earlier than
the date on which the deceased Participant would have attained age 70 1/2. If
the surviving spouse dies before distributions to such spouse are required to
begin, the benefit due shall be paid to the spouse's Beneficiary pursuant to
the preceding paragraph by reference to the spouse's date of death. The spouse
may elect to have distributions commence within the 90-day period following the
date of the Participant's death.
If the Participant's designated Beneficiary or spouse, if any, does not
survive the Participant, or if a single Participant fails to name a Beneficiary,
such payments will be made to the Participant's estate in a lump within five
years after the Participant's death. If a Beneficiary is receiving or is
entitled to receive payments from the Plan and dies before receiving all of the
payments due him, any remaining payments shall be made to the contingent
Beneficiary, if any, in a lump sum. If there is no contingent Beneficiary, the
remaining payments shall be made to the estate of the Beneficiary in a lump sum;
provided, however, that in the case of a spouse Beneficiary, such spouse may
elect a Beneficiary to receive any remaining payments. If payment is being made
to a contingent Beneficiary who dies, the remaining payments shall be made to
the estate of the contingent Beneficiary in a lump sum.
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SECTION 6.2. DEATH FOLLOWING THE ANNUITY STARTING DATE.
If a Participant dies after the Annuity Starting Date, payments (if any
are appropriate) shall be made in accordance with the method of payment elected
by the Participant pursuant to Section 5.6 and shall in all events be payable at
least as rapidly as under the method of payment in effect prior to the
Participant's death.
SECTION 6.3. DESIGNATION OF BENEFICIARY.
Each Participant may name a Beneficiary on a form provided by the Plan
Administrator and delivered to the Plan Administrator. Such designation may
include more than one person with one or more secondary or contingent
Beneficiaries and shall be subject to change upon written request of such
Participant in the same manner as the original designation.
A married Participant shall be deemed to have designated his spouse as his
Beneficiary unless he makes an alternative Beneficiary designation and the
spouse of such Participant consents in writing to another named Beneficiary in
accordance with Section 6.4.
SECTION 6.4. ELECTION PERIOD FOR BENEFICIARY DESIGNATION.
(a) Election Period. The period during which a married Participant may
designate a Beneficiary other than his spouse shall begin on the
first day of the Plan Year in which the married Participant attains
age 35 and shall end on the day of the Participant's death. In the
case of a married Participant who has separated from service, the
election period shall not begin later than the date on which he
separates from service with respect to benefits accrued prior to such
separation. An election made pursuant to this subsection (a) may be
changed or revoked anytime prior to the end of the election period.
Notwithstanding the above, a married Participant may designate a
Beneficiary other than his spouse prior to age 35 if the Participant
has been given the information described in subsection (b); however,
such designation shall become invalid as of the beginning of the Plan
Year in which the Participant attains age 35.
(b) Information to be Given Participants. Consistent with regulations
prescribed by the Secretary of the Treasury and within the period
beginning with the first day of the Plan Year in which a Participant
attains age 32 and ending with the close of the Plan Year preceding
the Plan Year in which a Participant attains age 35, a written
explanation of the preretirement survivor benefit described in this
Article shall be mailed or personally delivered to him. Such written
explanation shall set forth the general description of the
preretirement survivor benefit, as well as the circumstances under
which it will be provided unless the Participant shall designate a
Beneficiary other than his spouse and the availability of such
election. Such statement shall also include a statement of the rights
of the Participant's spouse as provided below. It shall further
notify the Participant that he may make a written request at any time
during the election period specified above, for an additional written
statement of the terms and conditions of the
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<PAGE> 54
preretirement survivor benefit and the financial effect of electing a
Beneficiary other than the spouse. In the event a Participant
separates from service before attaining age 35, the information
described in this paragraph shall be given to a vested Participant
within the period beginning one year before the date on which he
separates from service and ending one year after such date. In the
event an Eligible Employee becomes a Participant after attaining age
35, the information described in this paragraph shall be provided
within one year of the date he becomes a Participant.
(c) Spousal Consent. Any election by a Participant to name a Beneficiary
other than his spouse shall be invalid unless:
(1) (A) the spouse consents in writing to such election,
(B) such election designates a Beneficiary which may
not be changed without the spouse's consent or the spouse
expressly permits a designation by the Participant without
any requirement of further consent of the spouse,
(C) the spouse's consent acknowledges the effect of
such election, and
(D) the spouse's consent is witnessed by a Plan
representative or a notary public, or
(2) It is established to the satisfaction of a Plan
representative that the consent of the spouse cannot be
obtained because the spouse cannot be located, or because
of such other circumstances as the Secretary of the
Treasury may by regulations prescribe.
(3) Any consent by a spouse, or the establishment that the
consent of a spouse may not be obtained, shall be
effective only with respect to such spouse.
SECTION 6.5. PAYMENT OF SMALL DEATH BENEFITS.
Notwithstanding the above, if the Participant's vested interest in the
Plan is less than or equal to $3,500 and did not exceed $3,500 at the time of
any prior distribution, then payments shall be made to the spouse or other named
Beneficiary in a lump sum as soon as administratively practicable after the
Participant's death.
SECTION 6.6. QUALIFIED DOMESTIC RELATIONS ORDER.
For purposes of this Article 6, a former spouse will be treated as the
spouse to the extent provided under a qualified domestic relations order as
described in Code Section 414(p) and Section 13.1.
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ARTICLE 7
VESTING
(a) Each Participant shall have a fully vested interest in his Employee
Deferral Contribution Account, his Employee After-Tax Contribution
Account, his Employee Rollover Contribution Account, his Qualified
Matching Contribution Account and his Qualified Nonelective
Contribution Account at all times.
(b) Service after five consecutive one-year Breaks in Service shall not
be used to increase a Participant's vested interest in his Employer
Matching Contribution Account or his Employer Discretionary
Contribution Account as they existed prior to the five consecutive
one-year Breaks in Service.
(c) Each Participant shall be fully vested in his Employer Matching
Contribution Account and Employer Discretionary Contribution Account
upon the first to occur of the following:
(1) Attainment of his Normal Retirement Age while employed by the
Employer or any Related Employer (whether or not the
Participant actually retires);
(2) Attainment of his Early Retirement Age while employed by the
Employer or any Related Employer (whether or not he actually
elects such early retirement);
(3) The date on which he first qualifies for Disability retirement;
(4) The date of his death while employed by the Employer or
any Related Employer;
(5) The date of completion of six (6) or more Years of Service.
(d) Prior to the dates above a Participant shall be vested in the
applicable percentage of his Employer Matching Contribution Account
and Employer Discretionary Contribution Account as follows:
<TABLE>
<CAPTION>
Number of Years
of Service Percentage
------------------ ----------
<S> <C>
Less than 3 0 %
3 25 %
4 50 %
5 75 %
6 or more 100 %
</TABLE>
(e) Notwithstanding the above, an Employer matching contribution shall
not be treated as forfeitable merely because such contribution is
forfeitable if the contribution to which the matching contribution
relates is treated as an excess deferral under Section 4.2, an Excess
Contribution under Section 4.9, or an Excess Aggregate Contribution
under Section 4.10.
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<PAGE> 56
ARTICLE 8
DISTRIBUTIONS PRIOR TO RETIREMENT
SECTION 8.1. WITHDRAWAL OF EMPLOYER CONTRIBUTIONS.
Twice per calendar year, upon application to the Plan Administrator, a
Participant may withdraw all or any portion of the value of his vested interest
in his Employer Matching Contribution Account but only to the extent of amounts
that have been credited to such account for at least two years prior to the
distribution. The amount of any distribution pursuant to this Section cannot be
less than $500 (or, if less, the entire amount of the account eligible for
withdrawal.) If a Participant makes such a withdrawal, he shall not be allowed
to make Employee deferrals until the Entry Date which is three (3) full calendar
months after the date of withdrawal.
If such a distribution is made at a time when a Participant is less than
100% vested in the Employer Matching Contribution Account, then at any future
date his vested interest in the account from which the distribution was made
will be determined by applying the following formula to that account.
X = P(AB + D) - D
Where: X is the Participant's vested interest at the relevant date.
P is the Participant's vested percentage at the same relevant date.
AB is the Participant's account balance on that relevant date.
D is the amount of the distribution(s) previously made.
SECTION 8.2. WITHDRAWAL AT AGE 59 1/2.
After attaining age 59 1/2, upon application to the Plan Administrator, a
Participant may withdraw all or any part of his Employee Deferral Account,
Qualified Nonelective Contribution Account and Qualified Matching Contribution
Account.
SECTION 8.3. WITHDRAWAL OF EMPLOYEE AFTER-TAX CONTRIBUTIONS AND
EMPLOYEE ROLLOVER CONTRIBUTIONS.
Upon application to the Plan Administrator, a Participant may withdraw all
or any portion of his Employee After-Tax Contribution Account and/or his
Employee Rollover Contribution
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<PAGE> 57
Account. The amount of any distribution pursuant to this Section cannot be less
than $500 (or, if less, the entire amount of the account eligible for
withdrawal.)
SECTION 8.4. WITHDRAWAL AFTER NORMAL RETIREMENT AGE.
A Participant who attains his Normal Retirement Age and continues as an
Employee of the Employer or any Related Employer may, upon written request to
the Plan Administrator, withdraw all or any part of his Employer Discretionary
Contribution Account.
SECTION 8.5. TERMINATION OF EMPLOYMENT BEFORE RETIREMENT.
If a Participant terminates employment with the Employer and all Related
Employers before he is eligible for a retirement benefit under Section 5.1, 5.2
or 5.3, his vested percentage will be determined pursuant to Article 7. If such
Participant's vested interest in all his accounts exceeds (or at the time of any
prior distribution exceeded) $3,500, then his vested interest shall be held in
the Trust until the date the Participant becomes eligible for and elects to
receive (1) a Disability retirement benefit under Section 5.2, (2) an early
retirement benefit under Section 5.3 or (3) a normal retirement benefit under
Section 5.1; provided, however that such a Participant may request a
distribution to be paid as soon as administratively feasible after he terminates
employment or may delay distribution in accordance with Section 5.10. At that
time benefits will be paid as provided in Article 5. If such Participant's
vested interest in all his accounts has not exceeded $3,500 at the time of any
distribution, then his vested interest shall be paid to him as soon as
administratively feasible after he terminates employment.
Any portion of a Participant's Employer Matching Contribution Account and
Employer Discretionary Contribution Account which is not vested under Article 7
shall be forfeited upon the first to occur of five consecutive one-year Breaks
in Service or the distribution of the Participant's entire vested interest in
all of his accounts. Any Forfeitures attributable to the Participant's Employer
Matching Contribution Account shall be used to reinstate any forfeited Employer
Matching and Discretionary Contribution Accounts pursuant to Section 8.7. Any
such remaining Forfeitures will be used as of such Adjustment Date to reduce
Employer matching contributions. Any Forfeitures attributable to the
Participant's Employer Discretionary Contribution Account shall be allocated as
Employer discretionary contributions pursuant to Section 4.4.
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SECTION 8.6. DEEMED DISTRIBUTION.
Any individual whose employment with the Employer and all Related
Employers has terminated prior to that individual obtaining any nonforfeitable
accrued benefit under the Plan shall be treated as having been cashed-out of the
Plan on his termination date, and his status as a Participant in the Plan shall
cease as of that date, subject to his right to again commence participation, as
otherwise provided by the Plan.
SECTION 8.7. VESTING WHEN A PARTICIPANT TERMINATES EMPLOYMENT, RECEIVES A
DISTRIBUTION AND IS REHIRED PRIOR TO FIVE CONSECUTIVE ONE-YEAR BREAKS IN
SERVICE.
If a Participant receives a distribution due to his termination of
participation in the Plan, forfeits his nonvested interest and is rehired prior
to the date on which the number of his consecutive one-year Breaks in Service
equals or exceeds five, he will be given the opportunity to repay all amounts
derived from Employer contributions distributed to him. Following such
repayment, the Employer Matching Contribution Account and Employer Discretionary
Contribution Account of the Participant shall be restored to their values as of
the date of the distribution. All such repayments must be made before the
earlier of (1) the Participant incurs five consecutive one-year Breaks in
Service commencing after such distribution or (2) the fifth anniversary of the
date the Participant is rehired. If a terminated Participant is deemed to have
received a distribution pursuant to Section 8.6 and resumes employment covered
under this Plan before incurring five consecutive one-year Breaks in Service,
the Participant's accounts will be restored to their values as of the date of
the deemed distribution.
Any restoration required will come from the following sources in the order
listed: (1) Forfeitures, (2) income or gain to the Plan, (3) Employer
contributions. Contributions may be made for such reinstatement even if the
Employer has no current or accumulated Net Profits.
SECTION 8.8. HARDSHIP DISTRIBUTIONS.
In case of hardship, any Participant may apply to the Plan Administrator
for distribution of all or a portion of the value of his (1) Employee Deferral
Account as of the later of December 31, 1988 or the end of the last Plan Year
ending before July 1, 1989, plus any subsequent deferrals (not including any
gain on such deferrals), (2) Qualified Nonelective Contribution Account and (3)
Qualified Matching Contribution Account, in such order. As used in this Section,
a "hardship" will be deemed to exist if the distribution is necessary in light
of immediate and heavy financial
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<PAGE> 59
needs of the Participant and if funds to alleviate such financial needs are not
reasonably available from other resources of the Participant.
A distribution will be deemed to be made on account of an immediate and
heavy financial need of the Participant only if the distribution is on account
of:
(1) Expenses for medical care described in Code Section 213(d) incurred
by the Participant, the Participant's spouse, or any dependents of
the Participant (as defined in Code Section 152) or necessary for
these persons to obtain medical care described in Code Section
213(d).
(2) Costs directly related to the purchase of a principal residence for
the Participant (excluding mortgage payments).
(3) Payment of tuition, related educational fees, and room and board
expenses for the next twelve months of post-secondary education for
the Participant, his or her spouse, children, or dependents (as
defined in Code Section 152).
(4) Payments necessary to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(5) Such other needs as may be allowable under Treasury Regulations,
revenue rulings, notices, and other documents of general
applicability.
A distribution deemed to be necessary to satisfy an immediate and heavy
financial need of a Participant is not reasonably available from other resources
of the Participant if all of the following requirements are satisfied:
(1) The distribution is not in excess of the amount of the immediate and
heavy financial need of the Participant. The amount of an immediate
and heavy financial need may include any amounts necessary to pay any
federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution.
(2) The Participant has obtained all distributions, other than hardship
distributions, and all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the Employer.
(3) The Plan, and all other plans maintained by the Employer and Related
Employers, provides that the Participant may not make elective
deferrals for the Participant's taxable year immediately following
the taxable year of the hardship distribution in excess of the
applicable limit under Code Section 402(g) for such next taxable year
less the amount of such Participant's elective deferrals for the
taxable year of the hardship distribution.
(4) The Participant is prohibited, under the terms of the Plan or an
otherwise legally enforceable agreement, from making elective
contributions and Employee contributions to the Plan and all other
qualified and nonqualified plans providing for deferred compensation
maintained by the Employer or any Related Employer for twelve months
after receipt of the hardship distribution.
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If the Plan Administrator, based on the above standards, reasonably
determines a hardship exists or is imminent, he may direct the distribution of
hardship benefits as of the Adjustment Date coincident with or next succeeding
the determination of hardship; provided, that interim payments may be made if
necessary. The hardship distribution shall be made in a lump sum payment and
shall not cause a suspension of Employer contributions, unless otherwise
required as a condition of receiving such distribution.
The Participant may elect to waive the 30-day notice period regarding
distributions under Code Section 417 after being clearly informed that he has
the right to a period of at least 30 days after receiving the notice to consider
whether to elect a distribution.
The amount of any hardship distribution under this Section shall not
exceed the lesser of:
(a) An amount as determined by the Plan Administrator to be sufficient to
alleviate the hardship, or
(b) The value of the Participant's Employee Deferral Account as of
December 31, 1988, plus any Employee deferrals after that date, but
not to exceed the value of his account balance reduced by the value
of any portion of such balance that secures any outstanding loans.
The Plan Administrator shall apply the provisions of this Section on a
uniform and consistent basis to all Participants in similar circumstances, shall
make any rules or regulations as necessary and shall prescribe the use of such
forms or any other powers he deems necessary to properly carry out the provision
and intent of this Section.
SECTION 8.9. LOANS TO PARTICIPANTS.
(a) At the request of a Participant, to whom loans must be made available
under Department of Labor Regulations, the Plan Administrator, in its
sole discretion, may lend such individual an amount which, when added
to the individual's outstanding loans from this Plan and any other
plan maintained by this Employer or a Related Employer, is not in
excess of the lesser of:
(1) $50,000, reduced by the excess (if any) of:
(A) The highest outstanding balance of loans from the Plan
during the one-year period ending on the day before the
date on which such loan was made, over
(B) The outstanding balance of loans from the Plan on the date
on which such loan was made, or
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<PAGE> 61
(2) Fifty percent of his vested interest in his account balances as
of the Adjustment Date coinciding with or immediately preceding
the date of the loan.
In no event, however, shall a loan be made to an individual if the
granting of such loan would cause the Plan to violate the
nondiscrimination requirements of Code Section 401(a)(4).
All decisions by the Plan Administrator on loan applications shall be
made on a reasonably equivalent, uniform and nondiscriminatory basis.
However, the Plan Administrator may apply different terms and
conditions for eligible borrowers who are not actively employed by
the Employer or a Related Employer, or for whom payroll deduction is
not available, and the Plan Administrator may change the terms of an
outstanding loan to the extent required by applicable law.
(b) All loans made pursuant to the above subsection (a) must be in
accordance with the following loan procedures:
(1) Responsible Party. The Plan Administrator shall be responsible
for all loans made under the Plan. The Plan Administrator may,
however, establish a loan committee to assist the Plan
Administrator in administering the loan program.
(2) Loan Application. An application for a loan shall be made
in writing to the Plan Administrator on a form approved by
the Plan Administrator.
(3) Amount of Loan. The minimum loan amount shall be $ 500.
The maximum loan amount shall be governed by this
Section.
(4) Interest Rate. Each loan shall bear interest at a reasonable
rate established by the Plan Administrator as of the date the
loan is made. Such rate must be commensurate with the interest
rates charged by persons in the business of lending money for
loans which would be made under similar circumstances.
(5) Term of Loan. Except as otherwise provided below, the term of
any loan shall be set by mutual agreement between the Plan
Administrator and the borrower, but such term shall in no event
exceed five (5) years. Notwithstanding the above, the term of
any loan used to acquire a principal residence of a Participant
may exceed 5 years.
(6) Collateral. Each loan shall be made against collateral, such
collateral being the assignment of up to 50% of the borrower's
entire right, title and vested interest in and to his accounts
under the Plan supported by the borrower's promissory note for
the amount of the loan, including interest, payable to the
order of the Trustee.
(7) Loan Repayment. Repayment of loans shall be made in equal
quarterly, monthly, semi-monthly or weekly installments by
payroll deduction as specified in the loan agreement.
Notwithstanding the foregoing, while a borrower is on an unpaid
Leave of Absence, he may suspend repayment for a period of up
to one year to the extent such suspension will not cause the
loan to violate the term requirements under item
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<PAGE> 62
(5) above, or he may continue to make loan repayments by cash
or check.. Substantially level amortization (with payments not
less frequently than quarterly) is required over the term of
the loan.
(8) Number of Loans. Only one loan in any 3-month period shall be
made to a borrower. and a borrower may have up to 3 loans
outstanding at any one time.
(9) Effect on Plan Assets. In the event of a loan, the amount of
such loan shall be removed from the Participant's Employee
After-Tax Contribution Account, Employee Deferral Account,
Employee Rollover Contribution Account and his Employer
Matching Contribution Account on a pro-rata basis and
transferred to a special loan account in the name of the
borrower. As of each Adjustment Date following the making of
the loan and until the loan is repaid, all payments on the
loan, including interest, shall be reallocated from the
Participant's loan account to the accounts specified in the
preceding sentence in accordance with the borrower's investment
election currently in effect.
(10) Default. In the event payments of principal and interest are
not made on a timely basis, the Plan Administrator may either
call the loan in full or charge a late penalty fee at such rate
as the Plan Administrator shall establish from time to time. If
a loan is called due to a default in payment of principal and
interest, the outstanding balance of the loan plus interest
will be deducted from the borrower's loan account at the time
the borrower or his Beneficiary receives a distribution from
the Plan.
(11) Loan Acceleration. All loans which a borrower has outstanding
will be immediately due and payable if the borrower terminates
employment. At that time, the current outstanding balance of
such loans, including interest, will be deducted from his loan
account.
(12) Loan Origination Fee. Each borrower shall be assessed a loan
origination fee in such amount as the Plan Administrator shall
determine which shall be collected at the time the loan is
made.
(13) Modification of Loan Procedures. The Plan Administrator may
from time to time add to, delete, or otherwise modify these
loan procedures in such manner as the Plan Administrator deems
appropriate.
SECTION 8.10. SPOUSAL CONSENT.
All withdrawals made pursuant to this Article 8 shall be subject to the
spousal consent requirements of Section 5.6.
SECTION 8.11 PLAN ADMINISTRATOR RULES
The Plan Administrator shall have the discretion to make such uniform
nondiscriminatory rules as he deems necessary or desirable to handle
distributions and loans under this Article 8,
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including, but not limited to, rules regarding the manner and timing of
distribution and loan requests.
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ARTICLE 9
ACCOUNTS
SECTION 9.1. ESTABLISHMENT OF ACCOUNTS.
The Plan Administrator shall determine the Participants, Inactive
Participants, and Beneficiaries who are entitled to one or more of the
allocations hereinafter described, and he shall, as of each Adjustment Date,
prepare a statement showing the information necessary to make the proper
allocation. This information shall include the full names of all Participants,
Inactive Participants, and Beneficiaries, the amount of Employer matching and
discretionary contributions, the amount of each Participant's deferral and
after-tax contributions and rollover contributions and the names of the Inactive
Participants whose employment has terminated, along with the dollar amounts any
of these Inactive Participants will forfeit and the date the Forfeitures will be
effective.
The Plan Administrator shall maintain for each Participant a separate
Employee Deferral Account to record his interest in the Trust Fund which is
attributable to his deferrals, a separate Employer Matching Contribution Account
to record his interest in the Trust Fund which is attributable to Employer
matching contributions, a separate Employer Discretionary Contribution Account
to record his interest in the Trust Fund which is attributable to Employer
discretionary contributions, a separate Employee After-Tax Contribution Account
to record his interest in the Trust Fund which is attributable to Employee
after-tax contributions, a separate Employee Rollover Contribution Account to
record his interest in the Trust Fund which is attributable to Employee rollover
contributions, a separate Qualified Matching Contribution Account to record his
interest in the Trust Fund which is attributable to Qualified Matching
Contributions, and a separate Qualified Nonelective Contribution Account to
record his interest in the Trust Fund which is attributable to Qualified
Nonelective Contributions.
The accounts of each Participant shall be made up of subaccounts
reflecting the Participant's investment elections. Each subaccount shall be
adjusted as provided in Section 9.3 of this Plan.
SECTION 9.2. INVESTMENT ELECTIONS.
Each Participant shall elect the manner in which his Employee after-tax
contributions, if any, deferral amounts, rollover contributions, Employer
matching and discretionary contributions and
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Qualified Matching and Nonelective Contributions are to be invested. Investment
elections must be made in 1% increments. In accordance with procedures
established by the Plan Administrator, any such election shall specify how any
present balance, as of the day before the effective date of the election, and/or
any additional contributions, shall be invested. The Committee shall, from time
to time, designate the investment funds available for Participant-directed
investments pursuant to this Section. Any accounts for which an investment
election has not been made shall be invested in the most conservative investment
option available under the Plan. The Plan Administrator shall have the
discretion to make any rules related to investments as he deems desirable,
including, but not limited to, rules related to the form and timing of
investment elections.
SECTION 9.3. ACCOUNT ADJUSTMENTS.
The accounts of each Participant, Inactive Participant, and Beneficiary
shall be valued based on the number of units or shares of each Fund comprising
such accounts. The fair market value of each Fund shall be determined as of each
Adjustment Date. When a Participant's accounts are credited with an allocation
of any Employee deferrals and/or contributions and/or Employer contributions,
direct transfers from other qualified plans, rollover contributions, principal
and interest payments on any loans made to the Participant, and/or distribution
repayments pursuant to the buyback provisions of Article 8 and/or reallocated
Forfeitures, all in accordance with the terms of the Plan, the value of such
allocation shall be used to purchase units or shares and added to such
Participant's accounts. When any distributions, loans, withdrawals, Forfeitures,
transfers between Funds, and/or administrative fees are charged against the
accounts of a Participant, Inactive Participant, or Beneficiary in accordance
with the terms of the Plan, the number of units or shares equal in value to the
amount paid from such accounts shall be deducted from the outstanding units or
shares.
SECTION 9.4. LIMITATION ON ANNUAL ADDITIONS.
Notwithstanding the foregoing, annual additions to each Participant's
accounts under all defined contribution plans sponsored by the Employer or any
Related Employer for any Limitation Year shall not exceed the lesser of $30,000
(or if greater, 25% of the defined benefit limitation) or 25% of the
Participant's Compensation (excluding deferrals) for such Limitation Year.
Compensation, for purposes of this Section 9.4 and Sections 9.5 and 9.6,
shall mean a Participant's wages within the meaning of Code Section 3401(a) and
all other payments of
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compensation to the Participant by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to furnish the Participant
a written statement under Code Sections 6041(d), 6051(a)(3) and 6052.
Compensation shall not, however, include amounts paid or reimbursed by the
Employer for moving expenses incurred by the Participant to the extent that at
the time of payment it is reasonable to believe that these amounts are
deductible by the Employee under Code Section 217.
For Limitation Years beginning after December 31, 1991, Compensation for
any Limitation Year is the compensation actually paid or includable in gross
income during such year.
Annual additions shall mean the aggregate of Employer contributions,
Employee deferrals, Forfeitures, and the Participant's after-tax contributions
allocated to each Participant's accounts during the Limitation Year in question.
Annual additions shall also include amounts allocated, after March 31, 1984, to
an individual medical account, as defined in Code Section 415(l)(2), which is
part of a pension or annuity plan maintained by the Employer or a Related
Employer and amounts derived from contributions paid or accrued after December
31, 1985, in taxable years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account of a Key
Employee, as defined in Code Section 419A(d)(3), under a welfare benefit fund,
as defined in Code Section 419(e), maintained by the Employer or a Related
Employer.
Excess deferrals that are distributed in accordance with Section 4.2 are
not annual additions.
If, due to the allocation of Forfeitures, a reasonable error in estimating
compensation, or a reasonable error in determining the amount of deferrals that
would be made for a Participant, the annual additions made to this Plan on
behalf of any Participant exceed the maximum, the Employer shall treat the
excess amount of such annual additions as follows:
(a) So much of the Participant's after-tax contributions (and earnings
thereon) and deferrals (and earnings thereon) which cause the
Participant's accounts to exceed the maximum annual additions shall
be returned to the Participant.
(b) The Employer will deposit to an individual suspense account the
excess amounts in the Participant's Employer Discretionary
Contribution Account and Employer Matching Contribution Account in
that order.
(c) The amount in the individual suspense account will be used to reduce
the Employer discretionary contributions and the Employer matching
contributions in that order for
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that Participant for the next Limitation Year and any
succeeding Limitation Years as long as the Participant is
covered by the Plan at the end of the Limitation Year.
(d) If such Participant is not covered by the Plan at the end of the
Limitation Year, then such amounts must be held unallocated in a
suspense account for the Limitation Year and shall be allocated and
reallocated in the next Limitation Year (and succeeding Limitation
Years, as necessary) to all of the remaining Participants. Such
amounts must be used to reduce Employer contributions in the
Limitation Year (and succeeding Limitation Years, as necessary).
(e) Notwithstanding any other provision contained in this Plan, the
Employer shall not contribute any amount that would cause an
allocation to a suspense account as of the date the contribution is
allocated. If the contribution is made prior to the date as of which
it is to be allocated, then such contribution shall not exceed an
amount that would cause an allocation to the suspense account if the
date of contribution were an Adjustment Date.
(f) If a suspense account is in existence at any time during a Limitation
Year pursuant to this Section, it will not participate in the
allocation of Trust investment gains and losses pursuant to Section
9.3.
The $30,000 maximum annual addition shall be adjusted to reflect any cost
of living increases pursuant to Code Section 415(d) and Regulations thereunder.
The provisions of this Section shall be effective with respect to
Limitation Years beginning on or after January 1, 1987.
SECTION 9.5. LIMITATION ON BENEFITS AND CONTRIBUTIONS.
(a) If an Employee is or was a Participant in one or more defined
benefit plans and one or more defined contribution plans ever
maintained by the Employer or a Related Employer (whether or
not terminated), the sum of the defined benefit plan fraction
and the defined contribution plan fraction shall not exceed 1.0
for any Limitation Year. If the sum of the defined benefit plan
fraction and the defined contribution plan fraction shall
exceed 1.0 in any Limitation Year for any Participant in this
Plan, the Employer shall adjust the numerator of the defined
benefit plan fraction so that the sum of the defined benefit
plan fraction and the defined contribution plan fraction shall
not be in excess of 1.0 in any Limitation Year for such
Participant in accordance with the provisions set forth in the
defined benefit plan.
(b) For the purpose of this Section, the term "defined benefit plan
fraction" for any year shall mean a fraction, the numerator of which
is the projected annual benefit payable to a Participant as of the
close of the then current year under all plans maintained by this
Employer or a Related Employer and the denominator of which is the
lesser of:
(1) The product of 1.25 multiplied by the maximum dollar limitation
for the Plan Year concerned as provided under Code Section 415,
or
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(2) The product of 1.4 multiplied by the applicable amount to be
taken into account according to the percentage of compensation
limit as defined for this purpose under Code Section 415.
(c) The term "defined contribution plan fraction" for any year shall mean
a fraction the numerator of which is the aggregate amount of annual
additions, as defined in Section 9.4, made to a Participant's
accounts under all plans maintained by this Employer or a Related
Employer as of the close of the then current year and the denominator
of which is the sum of the lesser of the following amounts determined
for such Limitation Year and for each prior year of service with the
Employer or a Related Employer.
(1) The product of 1.25 multiplied by the maximum dollar limitation
for the Plan Year concerned as provided under Code Section 415,
or
(2) The product of 1.4 multiplied by the applicable amount to be
taken into account according to the percentage of compensation
limit as defined for this purpose under Code Section 415.
For purposes of this Section 9.5, amounts allocated after March 31,
1984 to an individual medical account, as defined in Code Section
415(l)(2), which is part of a pension or annuity plan maintained by
the Employer are treated as annual additions to a defined
contribution plan. Also, amounts derived from contributions paid or
accrued after December 31, 1985, which are attributable to
post-retirement medical benefits allocated to the separate account of
a Key Employee, as defined in Code Section 419A(d)(3), under a
welfare benefit fund, as defined in Code Section 419(e), maintained
by the Employer, are treated as annual additions to a defined
contribution plan.
The annual additions for any Limitation Year beginning before January 1,
1987, shall not be recomputed to treat all Employee after-tax contributions as
annual additions.
The provisions of this Section shall not be effective for Limitation Years
beginning after December 31, 1999.
SECTION 9.6. TRANSITION RULE.
At the election of the Plan Administrator, with respect to any year ending
after December 31, 1982, the amount taken into account in determining the
denominator of the defined contribution plan fraction with respect to each
Participant for all years ending before January 1, 1983, shall be an amount
equal to the product of (a) and (b), where
(a) is the denominator of the defined contribution plan fraction for the
Limitation Year ending in 1982, and
(b) is the Transition Fraction.
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Transition Fraction means a fraction, the numerator of which is the lesser
of $51,875, or 1.4 multiplied by 25% of the Compensation of the Participant for
the Limitation Year ending in 1981, and the denominator of which is the lesser
of $41,500 or 25% of the Compensation of the Participant for the Limitation Year
ending in 1981.
If the Employee was a Participant as of the end of the first day of the
first Limitation Year beginning after December 31, 1986, in one or more defined
contribution plans maintained by the Employer which were in existence on May 6,
1986, the numerator of this fraction shall be adjusted if the sum of this
fraction and the defined benefit fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the product of (A)
multiplied by (B), where (A) is the excess of the sum of the fractions over 1.0,
and (B) is the denominator of this fraction, will be permanently subtracted from
the numerator of this fraction. The adjustment is calculated using the fractions
as they would be computed as of the end of the last Limitation Year beginning
before January 1, 1987, and disregarding any changes in the terms and conditions
of the Plan made after May 5, 1986, but using the Code Section 415 limitation
applicable to the first Limitation Year beginning on or after January 1, 1987.
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ARTICLE 10
TOP-HEAVY PLAN PROVISIONS
SECTION 10.1. DETERMINATION DATE.
If, as of the Determination Date, the Plan is a Top-Heavy Plan, as defined
in Section 10.2, the provisions of this Article 10 shall apply.
The Determination Date with respect to any Plan Year shall be the
last day of the preceding Plan Year, which shall also serve as the valuation
date for testing purposes.
SECTION 10.2. TOP-HEAVY PLAN.
(a) The Plan shall be considered a Top-Heavy Plan, if, as of the
Determination Date, either
(1) the aggregate of all account balances of Key Employees under
the Plan exceeds 60% of the sum of all accounts of all
Employees under the Plan excluding former Key Employees, or
(2) the Plan is part of a Top-Heavy Group, as defined in Section
10.5.
Notwithstanding anything in this subsection (a), if this Plan is part
of an aggregation group, as defined in Section 10.5, that is found
not to be Top-Heavy, then this Plan shall not be a Top-Heavy Plan.
(b) When determining whether the Top-Heavy rules apply for any Plan Year:
(1) Rollover contributions initiated by an Qualified Employee and
accepted by this Plan after December 31, 1983 will not be
recognized with respect to this Plan if the rollover
contributions came from a plan not maintained by an Employer or
a Related Employer.
(2) Any account balances for an Employee who is not currently a Key
Employee, but at one time was a Key Employee, shall not be
recognized for the Plan Year ending on the Determination Date.
(3) The account balances for an Employee shall include aggregate
distributions made with respect to such Employee under the Plan
during the five-year period ending on the Determination Date,
except for the distributions made to former Key Employees
excluded above, and distributions rolled over to a plan
maintained by the Employer or a Related Employer.
(4) Effective for Plan Years beginning after December 31, 1984, if
an individual has not performed any service for the Employer at
any time during the five-year period ending on the
Determination Date, any accrued benefit or account balance for
such individual shall not be taken into account.
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SECTION 10.3. KEY EMPLOYEE
Key Employee shall mean any Employee or former Employee who, at any time
during the Plan Year or any of the four preceding Plan Years, is:
(a) an officer of the Employer having an annual Compensation greater than
50% of the defined benefit dollar limitation under Code Section
415(b)(1)(A) (as it may be increased by the Secretary of the Treasury
for any applicable cost of living increases); however, the maximum
number of officers considered Key Employees may not exceed (i) three
if there are less than 30 Employees, (ii) 10% of all Employees if
there are between 30 and 500 Employees, or (iii) 50 if there are more
than 500 Employees. Officers shall include only those administrative
executives who regularly and continuously serve as such. Title alone
shall not be determinative of officer status;
(b) one of the ten Employees earning an annual Compensation of at least
the maximum defined contribution annual additions dollar limit under
Code Section 415 and owning (or considered as owning within the
meaning of Code Section 318) more than both 1/2 percent interest and
the largest interests in the Employer;
(c) a 5% owner of the Employer, meaning any person who owns (or is
considered as owning within the meaning of Code Section 318) more
than 5% of the outstanding stock of the Employer; or
(d) a 1% owner of the Employer having an annual Compensation from the
Employer of more than $150,000, meaning any person who owns (or is
considered as owning within the meaning of Code Section 318) more
than 1% of the outstanding stock of the Employer.
For purposes of this Section 10.3, Employee shall mean any Employee of the
Employer or any employee of a Related Employer if the Plan is part of a
Top-Heavy Group with the plan of a Related Employer. Key Employee shall include
any beneficiary of a Key Employee, and former Key Employee shall include any
beneficiary of a former Key Employee.
For purposes of subsections (b), (c), and (d) above, constructive
ownership rules of Code Section 318 shall be applied by substituting "five
percent" for "50 percent" in Code Section 318(a)(2).
For purposes of determining 1% and 5% ownership, the aggregation rules of
Code Section 414(b), (c), and (m) shall not apply.
Notwithstanding anything above, the criteria used in the determination of
Key Employees shall be consistent with Code Section 416, which is incorporated
herein by reference.
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SECTION 10.4. NON-KEY EMPLOYEE
Non-Key Employee shall mean any Employee who is not a Key Employee.
SECTION 10.5. TOP-HEAVY GROUP.
(a) Top-Heavy Group shall mean an aggregation group where the sum, as of
the Determination Date, of:
(1) the present value of the cumulative accrued benefits for Key
Employees under any defined benefit plan included in the group
and
(2) the sum of the account balances of Key Employees under any
defined contribution plan included in the group
exceeds 60% of the same amount determined for all Employees,
excluding former Key Employees, under all plans included in the
group. If the Determination Date for each plan in the aggregation
group is not the same, then the top-heavy status of the group will be
determined by adding the results for each separate plan that fall
within the same calendar year. All plans maintained by the Employer
(including plans that have terminated) during the 5-year period
ending on a Determination Date must be considered in determining the
Top-Heavy Group as of that Determination Date.
(b) The aggregation group must include:
(1) any plan of the Employer or a Related Employer in which a Key
Employee is a participant, and
(2) any plan of the Employer or a Related Employer on which a plan
covering a Key Employee depends for qualification under the
requirements of Code Section 401(a)(4) or 410.
(3) The aggregation group may also include, at the election of the
Employer, any plan of the Employer or a Related Employer not
required to be included in an aggregation group if such group
would continue to meet the qualification requirements of Code
Sections 401(a)(4) and 410. If such an aggregation group is
found not to be Top-Heavy, then no plan shall be considered
Top-Heavy. If the aggregation group is found to be Top-Heavy,
then all plans in the group, except the plan which was not
required to be included, would be considered Top-Heavy Plans.
(c) The accrued benefit of a Participant other than a Key Employee shall
be determined under (1) the method, if any, that uniformly applies
for accrual purposes under all defined benefit plans maintained by
the Employer, or (2) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional rule of Code Section 411(b)(1)(C).
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SECTION 10.6. MINIMUM CONTRIBUTIONS AND BENEFITS FOR TOP-HEAVY PLANS.
If the Plan is or becomes a Top-Heavy Plan, then, notwithstanding the
provisions of Articles 4 and 9 and except as provided in the next paragraph of
this Section 10.6, the minimum Employer contribution for each Plan Year during
which the Plan is a Top-Heavy Plan to each Participant employed on the last day
of the Plan Year who is a Non-Key Employee shall be 3% of such Non-Key
Employee's Compensation. The minimum Employer contribution shall be provided to
each of these Participants regardless of the number of Hours of Service during
the Plan Year.
This minimum Employer contribution shall not exceed the percentage of
contribution made, or required to be made, for such Plan Year on behalf of the
Key Employee for whom such percentage is the highest. Such highest percentage
shall be determined for each Key Employee by dividing the Employer contribution
for such Key Employee by his Compensation.
For the purposes of this Section, Forfeitures shall be counted as Employer
contributions. Amounts contributed as a result of a salary reduction agreement
shall also be counted as Employer contributions when determining contributions
made on behalf of Key Employees; however, neither elective deferrals nor
Employer matching contributions will be taken into account for purposes of
satisfying the minimum contribution requirements.
Notwithstanding the above, if an Employee is included in a unit of
Employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between Employee representatives and the
Employer and there is evidence that the retirement benefits of these Employees
were the subject of good faith bargaining between such Employees and the
Employer, then the provisions of this Article 10 shall not apply to that
Employee.
SECTION 10.7. TOP-HEAVY AVERAGE COMPENSATION.
Top-Heavy Average Compensation shall mean the average compensation paid
during the consecutive Top-Heavy Years of Service, not to exceed five years,
which produce the highest average compensation. For purposes of this Article,
Compensation shall mean compensation as defined in Code Section 415(c)(3), but
including amounts contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the Employee's gross income under Code
Sections 125, 402(a)(8), 402(h) or 403(b).
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SECTION 10.8. TOP-HEAVY YEARS OF SERVICE.
Top-Heavy Years of Service shall mean Years of Service excluding Years of
Service completed in Plan Years in which the Plan was not a Top-Heavy Plan and
further excluding Years of Service completed in a Plan Year beginning before
January 1, 1984.
SECTION 10.9. TOP-HEAVY GROUP MINIMUM CONTRIBUTION.
In the case of a Top-Heavy Group consisting of both defined benefit and
defined contribution plans, the required minimum Employer contribution for each
Top-Heavy Plan Year shall be satisfied by the minimum benefit under the defined
benefit plan of the Employer.
The required minimum accrued benefit or Employer contribution for each
Top-Heavy Year of Service for Employees who do not participate in this Plan but
who participate in another plan of the Top-Heavy Group shall be satisfied by
providing the minimum accrued benefit or contribution under that plan.
If the Employer maintains another qualified plan which provides a minimum
benefit or contribution, then the minimum benefit or contribution provided under
this Plan shall not, when combined with the benefit or contribution provided by
the other plan, exceed the amount required by Code Section 416(c).
SECTION 10.10. MINIMUM VESTING REQUIREMENTS.
If the Plan is or becomes a Top-Heavy Plan as defined in Section 10.2,
then, notwithstanding the provisions of Article 7, a Participant's account
balance shall be 100% vested upon the completion of six Years of Service, and
shall be vested in the applicable percentage of his account balance under the
Plan as follows:
<TABLE>
<CAPTION>
Number of Years
of Service Percentage
----------------- ----------
<S> <C>
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
</TABLE>
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<PAGE> 75
Years of Service for the purposes of vesting in a Top-Heavy Plan shall
include all Years of Service, including years prior to January 1, 1984, as well
as years during which the Plan is not considered to be a Top-Heavy Plan. Vesting
pursuant to this Section 10.10 shall apply to each Participant's entire account
balance. When the Plan becomes a Top-Heavy Plan, however, the account balance of
any Employee who does not complete one Hour of Service after the Plan becomes
Top-Heavy is not required to be subject to the minimum vesting schedule for
Top-Heavy Plans.
When the Plan ceases to be a Top-Heavy Plan, the vesting schedule shall
revert to the schedule defined in Article 7 if the Boards of all Employers
adopting this Plan so agree. However, each Participant with at least three Years
of Service may elect to have his nonforfeitable percentage computed under the
Plan according to the Top-Heavy vesting schedule.
For purposes of the above paragraph, a Participant shall be considered to
have completed three Years of Service if he has completed 1,000 Hours of Service
in each of three Plan Years, whether or not consecutive, ending with or prior to
the last day of the election period described below.
The election period shall begin no later than the date following the
Determination Date on which the Plan is found not to be Top-Heavy and shall end
no earlier than the later of the following dates:
(a) the date which is 60 days after such Determination Date, or
(b) the date which is 60 days after the day the Participant is issued
written notice of the change by the Employer or the Plan
Administrator.
If the vesting schedule of this Plan is changed, the nonforfeitable
percentage of any Participant's accounts derived from Employer contributions
determined as of the later of the date the change is effective or the date the
change is adopted shall not be less than the nonforfeitable percentage computed
under the Plan without regard to such change.
SECTION 10.11. ADJUSTMENTS IN SECTION 415 LIMITS FOR TOP-HEAVY PLANS.
If this Plan is a Top-Heavy Plan or if the Plan and one or more other
plans maintained by the Employer or any Related Employer in the aggregate are or
become a Top-Heavy Group, then the defined benefit plan fraction, as defined in
Section 9.5(b) shall be applied by substituting 1.0 for
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1.25 and the defined contribution plan fraction, as defined in Section 9.5(c),
shall be applied by substituting 1.0 for 1.25.
The above paragraph shall not apply if (a) and (b) below are met:
(a) In the case of a Top-Heavy Group consisting of both defined
contribution and defined benefit plans, a minimum benefit shall be
provided in the defined benefit plan for each Non-Key Employee who
participates in a defined benefit plan equal to the lesser of 3% of
Top-Heavy Average Compensation, as defined in Section 10.7, per
Top-Heavy Year of Service after January 1, 1984, or 30% of Top-Heavy
Average Compensation, as defined in Section 10.7. Notwithstanding the
foregoing, a minimum contribution of 4% of Top-Heavy Average
Compensation shall be provided for each Non-Key Employee covered only
by a defined contribution plan in the Top-Heavy Group.
(b) The present value of the cumulative accrued benefits (accounts) of
all Key Employees under this Plan and any other plan in an
aggregation group, as determined under Section 10.5(b), does not
exceed 90% of the present value of the cumulative accrued benefits
(accounts) of all Employees in this Plan or in the aggregation group.
SECTION 10.12. TRANSITION FRACTION.
If this Plan is a Top-Heavy Plan to which the above Section 10.11 applies,
then $41,500 shall be substituted for $51,875 in the Transition Fraction defined
in Section 9.6.
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ARTICLE 11
ADMINISTRATION OF THE PLAN
SECTION 11.1. MEMBERSHIP OF COMMITTEE.
The Board shall appoint one or more Committees (referred to collectively
herein as the "Committee") to be responsible for the general administration and
interpretation of the Plan and for carrying out its provisions, except to the
extent all or any of such obligations are specifically imposed on the Trustee,
Board or the Plan Administrator. The Committee shall constitute a named
fiduciary under the Plan. The Board may rename any and all members or members of
the Committee at any time, without cause, by written notice from the Board, or
its authorized delegate. Any member of the Committee may resign by giving
written notice to the Board, or its authorized delegate or the Trustee and the
Committee, and his successor, if any, shall be appointed by the Board.
SECTION 11.2. COMMITTEE OFFICERS; SUBCOMMITTEE.
The members of each Committee shall elect a Chairman and may elect an
acting Chairman. They shall also elect a Secretary and may elect an acting
Secretary, either of whom may be, but need not be, a member of the Committee.
The Committee may appoint from its membership such subcommittees with such
powers as the Committee shall determine and may authorize one or more of its
members, or any agent, to take any action, including but not limited to,
executing or delivering any instruments or making any payment in behalf of the
Committee.
SECTION 11.3. COMMITTEE MEETINGS.
The Committee shall hold such meetings upon such notice at such places and
at such intervals as it may from time to time determine. Notice of meetings
shall not be required if notice is waived in writing by all of the members of
the Committee in office at the time or if all such members are present at the
meeting.
SECTION 11.4. TRANSACTION OF BUSINESS.
A majority of the members of the Committee in office at the time shall
constitute a quorum for the transaction of business. All resolutions or other
actions taken by the Committee at any meeting
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shall be by vote of a majority of those present at any such meeting and entitled
to vote. Resolutions may be adopted or other actions taken without a meeting
upon written consent thereto signed by all of the members of the Committee.
SECTION 11.5. COMMITTEE RECORDS.
The Committee shall maintain full and complete records of its
deliberations and decisions. Its records shall contain all relevant data
pertaining to individual Participants and their rights under the Plan and in the
Trust Fund.
SECTION 11.6. ESTABLISHMENT OF RULES.
Subject to the limitations of the Plan and of the Act, the Committee may
from time to time establish rules or by-laws for the administration of the Plan
and the transaction of its business.
SECTION 11.7. CONFLICTS OF INTEREST.
No individual member of the Committee shall have any right to vote or
decide upon any matter relating solely to himself or to any of his rights or
benefits under the Plan (except that such member may sign a unanimous written
consent to resolutions adopted or other actions taken without a meeting).
SECTION 11.8. APPOINTMENT OF PLAN ADMINISTRATOR.
The Board, or its authorized delegate, shall appoint one or more Plan
Administrators. Any person, including, but not limited to, the Employees of the
Employer or a Related Employer, a Participant in the Plan, a member of the
Committee, or a person serving as a Plan Fiduciary shall be eligible to serve as
Plan Administrator. The Plan Administrator shall have the authority, subject to
review by the Board in its discretion, to delegate in writing any of his duties
hereunder. Written Notice of such delegation shall be given to the Board. The
Plan Administrator shall remain in office at the will of the Board, or its
authorized delegate, and may be removed from office at any time, with or without
cause, by written notice from the Board, or its authorized delegate. The Plan
Administrator may resign at any time upon giving written notice to the Board, or
its authorized delegate, the Trustee, and the Committee. Such resignation shall
be effective upon receipt, or at such later date as may be designated in the
notice.
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Upon the resignation or removal of a Plan Administrator, the Board, or its
authorized delegate, shall promptly designate in writing a successor to this
position. If the Board, or its authorized delegate, does not appoint a Plan
Administrator, the Committee will function as Plan Administrator.
SECTION 11.9. AUTHORITY TO INTERPRET.
Subject to the claims procedure set forth in Article 15, the Committee and
the Plan Administrator shall have the duty and discretionary authority to
interpret and construe the provisions and intent of the Plan and to decide any
dispute that may arise regarding the rights of Participants hereunder, including
the discretionary authority to make determinations as to eligibility for
participation and benefits under the Plan. Interpretations, constructions and
determinations by the Committee and Plan Administrator shall apply uniformly to
all persons similarly situated and shall be binding and conclusive on all
interested persons. Such interpretations, constructions and determinations shall
be set aside only if the Committee and Plan Administrator are found by a court
of competent jurisdiction to have acted arbitrarily and capriciously in
interpreting and construing the provisions of the Plan.
SECTION 11.10. THIRD PARTY ADVISORS.
The Committee and the Plan Administrator may engage an attorney, actuary,
accountant or any other technical or professional advisor to perform such other
duties as shall be required in connection with the admin operation of the Plan
and may employ such clerical and related personnel as the Committee and Plan
Administrator shall deem requisite or desirable in carrying out the provisions
of the Plan.
SECTION 11.11. COMPENSATION OF MEMBERS.
No fee or compensation shall be paid to any member of the Committee or the
Plan Administrator for his services as such.
SECTION 11.12. COMMITTEE EXPENSES.
The Committee and Plan Administrator shall be entitled to reimbursement
out of the Trust Fund for their reasonable expenses properly and actually
incurred in the performance of their duties in the administration of the Plan.
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SECTION 11.13. INDEMNIFICATION OF COMMITTEE AND PLAN ADMINISTRATOR.
To the maximum extent permitted by the Act, no member of the Committee or
Plan Administrator shall be personally liable by reason of any contract or the
instrument executed by him or on his behalf as a member of the Committee or Plan
Administrator nor for any mistake of judgment made in good faith, and the
Employer shall indemnify and hold harmless, directly from its own assets
(including the proceeds of any insurance policy the premiums for which are paid
from the Employer's own assets), each member of the Committee, the Plan
Administrator and each other officer, employee, or director of the Employer to
whom any duty or power relating to the administration or interpretation of the
Plan may be delegated or allocated, against any unreimbursed or uninsured cost
or expense (including any sum paid in settlement of a claim with the prior
written approval of the Board) arising out of any act or omission to act in
connection with the Plan, unless arising out of such person's own fraud, bad
faith, willful misconduct, or gross negligence.
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ARTICLE 12
ALLOCATION OF RESPONSIBILITIES
SECTION 12.1. ALLOCATION OF RESPONSIBILITIES.
The responsibilities allocated to the named fiduciaries are as follows:
(a) Board:
(1) to amend the Plan,
(2) to appoint and remove members of the Committee,
(3) to appoint and remove Trustees under the Plan,
(4) to appoint and remove the Plan Administrator,
(5) to determine the amount to be contributed to the Plan by the
Employer, and
(6) to terminate the Plan.
(b) Committee:
(1) to establish in writing, and from time to time review and
modify, as necessary, a funding policy which shall inform the
Trustee or the Investment Manager, if any, of the short and
long-term financial needs of the Plan, including liquidation
requirements;
(2) to review, at reasonable intervals, the investment performance
of the Trustee and the Investment Manager, if any, in light of
the then effective funding policy of the Plan, and to report to
the Employer at least annually on the investment and other
performance of the Trustee and the Investment Manager, if any;
(3) to appoint, if deemed desirable, an Investment Manager, or more
than one Investment Manager, to manage, acquire and dispose of
all or a designated part of the assets of the Plan. Only
persons or entities registered as an investment adviser under
the Investment Advisers Act of 1940, or a bank, or an insurance
company may be appointed as Investment Manager. Any such
Investment Manager shall acknowledge his appointment in
writing, assuming thereby sole responsibility for the
investment management of the assets made subject to his
authority. The Investment Manager may be removed at any time,
with or without cause, by the Committee. The Investment Manager
may resign at any time upon giving written notice to the
Trustee, the Committee and the Plan Administrator. Such
resignation shall be effective upon receipt, or at such later
date as may be designated in the notice. The Committee shall
notify the Trustee and the Plan Administrator in writing of
every appointment of an Investment Manager and shall provide
such parties with a copy of the Investment Manager's acceptance
of the appointment. If
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an Investment Manager has been appointed, the Trustee shall
not be liable for the acts or omissions of that Investment
Manager or be under any obligation to invest or otherwise
manage any asset of the Plan which has been made subject to
the management of the Investment Manager, unless the Trustee
participates knowingly in, or knowingly undertakes to conceal,
an act or omission of such Investment Manager, knowing such
act or omission is a breach;
(4) to review all claim denials by the Plan Administrator, as
provided in Article 15; and
(5) to review any interpretation or construction of any provision
of the Plan made by the Plan Administrator that is appealed.
(c) Plan Administrator:
(1) to file or cause to be filed all reports to governmental
agencies (including those with respect to the Trust forming a
part of this Plan), and for supplying all Participants (and,
where appropriate, Beneficiaries) with all reports and
information required to be provided to them;
(2) to maintain all records necessary for the administration of the
Plan, except such records which are specifically maintained by
the Committee or the Trustee or the Investment Manager, if any,
and for supplying all information and reports to the Internal
Revenue Service, Department of Labor, Participants,
Beneficiaries and others as required by law;
(3) subject to review by the Committee, to determine all questions
relating to the eligibility of Employees to participate or
remain Participants under the Plan;
(4) subject to review by the Committee, to interpret and construe
the provisions and intent of the Plan, to decide any disputes
arising with regard to the rights of Employees, Participants,
Beneficiaries, legal representatives of such persons, and
parties claiming as such under the Plan, including, without
limitation, the determination of benefits and the distribution
of such benefits;
(5) to make and publish rules for regulation of the Plan which are
consistent with the terms of the Plan;
(6) to prepare and distribute to Employees a procedure for
notifying Participants and Beneficiaries of their rights to
elect joint and survivor annuities as required by the Act and
Regulations thereunder;
(7) to assist any Participant regarding his rights, benefits or
elections available under the Plan; and
(8) to carry out all other responsibilities imposed on him by the
Plan or delegated to him by the Employer or the Committee.
(d) Trustees:
(1) to invest and reinvest Trust assets,
75
<PAGE> 83
(2) to make distributions to Plan Participants as directed by the
Plan Administrator or Committee,
(3) to render annual accountings to the Employer as provided in
the Trust Agreement, and
(4) otherwise to hold, administer and control the assets of the
Trust as provided in the Plan and Trust Agreement.
SECTION 12.2. CO-FIDUCIARY LIABILITY.
Except as otherwise provided in the Act, a named fiduciary shall not be
responsible or liable for acts or omissions of another named fiduciary with
respect to fiduciary responsibilities allocated to such other named fiduciary,
and a named fiduciary of the Plan shall be responsible and liable only for its
own acts or omissions with respect to fiduciary duties specifically allocated to
it and designated as its responsibility.
SECTION 12.3. FIDUCIARY DUTIES.
All assets of the Plan shall be held in a Trust forming part of the Plan
which shall be administered as a Trust Fund to provide for the payment of
benefits as provided in the Plan to the Participants, or their successors in
interest, out of the income and principal of the Trust. All fiduciaries (as
defined in the Act) with respect to the Plan shall discharge their duties as
such solely in the interest of the Participants and their successors in interest
and (a) for the exclusive purposes of providing benefits to Participants and
their successors in interest and of defraying reasonable expenses of
administering the Plan, including the Trust which is a part of the Plan, (b)
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of like character and with
like aims, and (c) in accordance with the Plan and Trust Agreement, except to
the extent such documents may be inconsistent with the Act. The assets of the
Plan shall never inure to the benefit of the Employer, provided that Forfeitures
can be used to reduce Employer contributions.
At no time shall it be possible for the Plan assets to be used for, or
diverted to, any purpose other than for the exclusive benefit of the
Participants and Inactive Participants and their Beneficiaries. Notwithstanding
the foregoing, contributions made by the Employer may be returned to the
Employer in accordance with the following:
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<PAGE> 84
(a) If the Plan receives an adverse determination with respect to the
initial qualification of the Plan under Code Section 401(a), on
written request of the Employer, all assets of the Plan attributable
to Employer contributions shall be returned to the Employer within
one year after the date the qualification of the Plan is denied;
provided that the application for the determination is made by the
time prescribed by law for filing the Employer's federal income tax
return for the taxable year in which the Plan is adopted or such
later date as the Secretary of Treasury may prescribe; or
(b) If the contribution was made due to a mistake of fact, on written
request of the Employer, the contribution shall be returned to the
Employer within one year of the mistaken payment of the contribution;
provided, that the return satisfies the requirements of paragraph (d)
below; or
(c) If the deduction of a contribution is disallowed under Code Section
404, upon written request of the Employer, such contribution (to the
extent disallowed) shall be returned to the Employer within one year
after the date the deduction is disallowed; provided, that the return
satisfies the requirements of paragraph (d) below.
(d) The return of a Plan contribution to the Employer satisfies the
requirements of this paragraph if the amount so returned does not
exceed the amount contributed over (1) the amount that would have
been contributed had there been no mistake of fact or (2) the amount
that would have been contributed had the contribution been limited to
the amount that is deductible after any disallowance by the Internal
Revenue Service. Earnings attributable to such contributions may not
be returned. However, a return will not satisfy the requirements of
this paragraph unless the amount of the contribution so returned is
reduced by any losses attributable to the contribution.
SECTION 12.4. ESTABLISHMENT OF TRUST.
The Employer and the Trustee shall enter into an appropriate Trust
Agreement, which shall be a part of the Plan, for the administration of the
Trust under the Plan. Such Agreement shall contain such powers and reservations
as to investment, reinvestment, control and disbursement of the funds of the
Trust, and such other provisions as shall be agreed upon and set forth therein
which are not inconsistent with the provisions of this Plan, its nature and
purposes, and of the Act. Said Trust Agreement shall provide that the Board may
remove the Trustee at any time upon reasonable notice, that the Trustee may
resign at any time upon reasonable notice, and that upon such removal or
resignation of any Trustee, the Board shall designate a successor Trustee.
SECTION 12.5. COMMITTEE INSTRUCTIONS.
All requests, directions, requisitions and instructions of the Committee
to the Trustee shall be in writing and signed by the Secretary of the Committee
or by any one member of the Committee authorized by the majority to sign.
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<PAGE> 85
SECTION 12.6. RIGHT TO AMEND OR TERMINATE.
The Employer hereby reserves the right, by action of the Board, to amend
or terminate the Plan and Trust or Trust Agreement at any time, provided that no
such amendment or termination shall have the effect of diverting the Trust Funds
to purposes other than for the exclusive benefit of the Participants.
SECTION 12.7. DISCRETIONARY AUTHORITY.
In discharging the duties assigned to it under the Plan, the Trustee, Plan
Administrator, the Committee, and any other fiduciary shall have the discretion
to interpret the terms and intent of the Plan; to adopt, amend, and rescind
rules and regulations pertaining to their duties under the Plan; and to make all
other determinations necessary or advisable for the discharge of their duties
under the Plan. Such discretionary authority shall be absolute and exclusive if
exercised in a uniform and nondiscriminatory manner with respect to all
similarly situated individuals. The express grant in the Plan of any specific
power to a fiduciary with respect to any duty assigned to it under the Plan
shall not be construed as limiting any power or authority of the fiduciary to
discharge its duties.
SECTION 12.8. LIMITATION ON AMENDMENTS.
No amendment to the Plan shall be effective to the extent that it has the
effect of decreasing a Participant's or Inactive Participant's account balances.
For purposes of this paragraph, a plan amendment which has the effect of (1)
eliminating or reducing an early retirement benefit or a retirement-type
subsidy, or (2) eliminating an optional form of benefit, with respect to
benefits attributable to service before the amendment shall be treated as
reducing account balances. In the case of a retirement-type subsidy, the
preceding sentence shall apply only with respect to a Participant or Inactive
Participant who satisfies (either before or after the amendment) the
preamendment conditions for the subsidy. In general, a retirement-type subsidy
is a subsidy that continues after retirement, but does not include a qualified
disability benefit, a medical benefit, a social security supplement, a death
benefit (including life insurance), or a plant shutdown benefit (that does not
continue after retirement age). Furthermore, if the vesting schedule of the Plan
is amended, in the case of an Employee who is a Participant as of the later of
the date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such Employee's
account balances will not be less than the percentage computed under the Plan
without regard to such amendment.
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<PAGE> 86
If the vesting schedule under the Plan is amended and the vesting under
the new schedule is at any point not as rapid as under the prior schedule, each
Participant with at least three Years of Service may elect to have his
nonforfeitable percentage computed under the Plan according to the prior
schedule.
For purposes of the above paragraph, a Participant shall be considered to
have completed three Years of Service if he has completed 1,000 Hours of Service
in each of three Plan Years, whether or not consecutive, ending with or prior to
the last day of the election period described below.
The election period shall begin no later than the date the amendment is
adopted and shall end no earlier than the later of the following dates:
(a) the date which is 60 days after the date the amendment is adopted,
(b) the date which is 60 days after the amendment becomes effective; or
(c) the date which is 60 days after the day the Participant is issued
written notice of the change by the Employer or the Plan
Administrator.
If the vesting schedule of this Plan is changed, the nonforfeitable
percentage of any Participant's account balances determined as of the later of
the date the change is effective or the date the change is adopted shall not be
less than the nonforfeitable percentage computed under the Plan without regard
to such change.
79
<PAGE> 87
ARTICLE 13
MISCELLANEOUS
SECTION 13.1. ALIENATION OF BENEFITS.
No portion of the account balance with respect to any Participant shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge except in the case of a qualified domestic
relations order as described in Code Section 414(p). Any attempt to so
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same shall be void except in the case of a qualified domestic relations order as
described in Code Section 414(p). No portion of such account balance shall in
any manner be payable to any assignee, receiver or trustee in bankruptcy, or be
liable for the Participant's debts, contracts, liabilities, engagements or
torts, or be subject to any legal process of attachment except in the case of a
qualified domestic relations order as described in Code Section 414(p). No
qualified domestic relations order shall permit the payment of any benefit in
any amount, form of benefit, time of payment, or any option not otherwise
provided under the Plan; provided, however, that, to the extent provided in Code
Section 414(p), benefits may be paid to an alternate payee in any form in which
benefits may be paid to the Participant (even though the Participant has not
separated from service) as if he had retired on the date payment is to begin
under such order. The account of any alternate payee shall be paid to such
alternate payee immediately if the qualified domestic relations order so states.
SECTION 13.2. PAYMENT IN EVENT OF INCAPACITY.
If any person entitled to any payment under the Plan shall be physically,
mentally or legally incapable of receiving or acknowledging receipt of such
payment, the Plan Administrator, upon receipt of satisfactory evidence of his
incapacity and satisfactory evidence that another person or institution is
maintaining him and that no guardian or committee has been appointed for him,
may cause any payment otherwise payable to him to be made to such person or
institution so maintaining him.
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<PAGE> 88
SECTION 13.3. RIGHTS OF PARTIES.
The establishment of the Plan shall not be construed as conferring any
legal or other rights upon any Employee or any person for continuation of
employment, nor shall it interfere with the right of the Employer to discharge
any Employee or to deal with him without regard to the effect thereof under the
Plan.
SECTION 13.4. COMMUNICATION TO EMPLOYEES.
The Plan Administrator shall communicate the terms of the Plan to the
Employees as required by law.
SECTION 13.5. LOST DISTRIBUTEES.
If a benefit is payable to a Participant or Beneficiary who cannot be
located after a reasonable period of time, as determined by the Plan
Administrator, such benefit may be forfeited under such rules as shall be
established by the Committee or Plan Administrator; however, a benefit that has
been forfeited pursuant to this Section shall be restored from current
Forfeitures, or additional Employer contributions if current Forfeitures are
insufficient to restore the forfeited benefit, if a valid claim is later made by
or on behalf of the Participant or Beneficiary.
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<PAGE> 89
ARTICLE 14
TERMINATION, MERGER OR CONSOLIDATION
SECTION 14.1. TERMINATION OF PLAN AND TRUST.
In the event there is a termination, partial termination, or complete
discontinuance of contributions to this Plan, all affected Participant's
accounts shall be fully vested and thereafter not subject to forfeiture. The
assets shall remain in trust and shall be paid to the Participants, Inactive
Participants, Beneficiaries or other successors in interest upon the earliest
event providing for distribution in this Plan. Distributions shall be made in
the manner allowed in this Plan for that particular event.
SECTION 14.2. MERGER OR CONSOLIDATION.
In the event of any merger or consolidation of the plan with any other
Plan or a transfer of assets or liabilities of the Plan to any other plan, the
amount which each Participant in the Plan would receive if the Plan were
terminated immediately after the merger, consolidation, or transfer shall be
equal to or greater than the amount he would have been entitled to receive
immediately preceding the merger, consolidation, or transfer if the Plan had
then terminated.
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<PAGE> 90
ARTICLE 15
CLAIMS PROCEDURE
SECTION 15.1. FILING OF A CLAIM FOR BENEFITS.
A Participant or Beneficiary (the "claimant") shall make a claim for the
benefits provided under the Plan by filing a written claim with the Plan
Administrator (or any member of the Committee) upon a form approved by the
Committee. In the event the Plan Administrator or a member of the Committee
shall be the claimant, all actions which are required to be taken by the Plan
Administrator or Committee pursuant to this Article shall be taken instead by
another member of the Committee as designated by the Employer.
SECTION 15.2. NOTIFICATION TO CLAIMANT OF DECISION.
The Plan Administrator shall make the initial decision on all claims for
benefits, and unless the Plan Administrator's initial decision is reviewed by
the Committee, the Plan Administrator's initial decision shall be binding upon
all persons. Notice of a decision by the Plan Administrator with respect to a
claim shall be furnished to the claimant within 90 days following the receipt of
the claim by the Plan Administrator or by any member of the Committee (or within
90 days following the expiration of the initial 90-day period in a case where
there are special circumstances requiring extension of time for processing the
claim). If special circumstances require an extension of time for processing the
claim, written notice of the extension shall be furnished by the Plan
Administrator to the claimant prior to the expiration of the initial 90-day
period. The notice of extension shall indicate the special circumstances
requiring the extension and the date by which the notice of decision with
respect to the claim shall be furnished. Commencement of benefit payments shall
constitute notice of approval of a claim to the extent of the amount of the
approved benefit. If such claim shall be wholly or partially denied, such notice
shall be in writing and worded in a manner calculated to be understood by the
claimant and shall set forth: (a) the specific reason or reasons for the denial,
(b) specific reference to pertinent provisions of the Plan 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 claims review
procedure. If the Plan Administrator fails to notify the claimant of the
decision regarding his claim in accordance with this Article, the claim shall be
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<PAGE> 91
deemed denied, and the claimant shall then be permitted to proceed with the
claims review procedure provided in Section 15.3.
SECTION 15.3. CLAIMS REVIEW PROCEDURE.
Within 60 days following receipt by the claimant of notice of the claim
denial, or within 60 days following the close of the 90-day period referred to
in Section 15.2, if the Plan Administrator fails to notify the claimant of the
decision within such 90-day period, the claimant may appeal denial of the claim
by filing a written application for review with the Committee. Following such
request for review, the Committee shall fully and fairly review the decision
denying the claim. Prior to the decision of the Committee pursuant to Section
15.4, the claimant shall be given an opportunity to review pertinent documents
and to submit issues and comments in writing.
SECTION 15.4. DECISION ON REVIEW.
The decision on review of a denied claim shall be made in the following
manner.
(a) The Committee shall make its decision regarding the merits of the
denied claim promptly and within 60 days following receipt by the
Committee of the request for review (or within 120 days after such
receipt in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim) shall deliver
the decision to the claimant in writing. If an extension of time for
reviewing the appealed claim is required because of special
circumstances, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension. If the
decision on review is not furnished within the prescribed time, the
claim shall be deemed denied on review.
(b) The decision on review shall set forth specific reasons for the
decision, shall be written in a manner calculated to be understood by
the claimant and shall cite specific references to the pertinent Plan
provisions on which the decision is based.
(c) The decision of the Committee shall be final and conclusive.
SECTION 15.5. ACTION BY AUTHORIZED REPRESENTATIVE OF CLAIMANT.
All actions set forth in this Article to be taken by the claimant may
likewise be taken by a representative of the claimant duly authorized by him to
act in his behalf on such matters. The Plan Administrator or the Committee may
require such evidence as either may reasonably deem necessary or advisable of
the authority to act of any such representative.
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<PAGE> 92
IN WITNESS WHEREOF, The Liberty Corporation by the authority of the Board
of Directors of the Employer, executed on behalf of the Employer the _________
day of ______________________________, 1997.
THE LIBERTY CORPORATION
By:
------------------------
Authorized Officer
ATTEST
Secretary
(CORPORATE SEAL)
ADOPTING RELATED EMPLOYERS
--------------------------
LIBERTY LIFE INSURANCE COMPANY
Authorized Officer
LIBERTY CAPITAL ADVISORS, INC.
By:
------------------------
Authorized Officer
LIBERTY PROPERTIES GROUP, INC.
By:
------------------------
Authorized Officer
SPECIAL SERVICES CORPORATION
By:
------------------------
Authorized Officer
85
<PAGE> 93
PIERCE NATIONAL LIFE INSURANCE
COMPANY
By:
------------------------
Authorized Officer
LIBERTY INVESTMENT GROUP, INC.
By:
------------------------
Authorized Officer
LIBERTY INSURANCE SERVICES
CORPORATION
By:
------------------------
Authorized Officer
STATE NATIONAL FIRE COMPANY
By:
------------------------
Authorized Officer
86
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to The Liberty Corporation Retirement and Savings Plan
of our reports dated February 9, 1996, with respect to the consolidated
financial statements of The Liberty Corporation incorporated by reference in
its Annual Report (Form 10-K), dated March 29, 1996 with respect to the
schedules included in its Annual Report (Form 10-K), and dated March 8, 1996,
with respect to the financial statements and schedules of The Liberty
Corporation and Adopting Related Employers' 401(k) Thrift Plan included in the
Plan's Annual Report (Form 11-K), each for the year ended December 31, 1995,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Greenville, South Carolina
February 24, 1997
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, RUFUS C. BARKLEY, JR., Director
of The Liberty Corporation, do hereby constitute and appoint Martha G. Williams
and Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for me and in my
name, place and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 and any amendments thereto (including any post-effective
amendments) for The Liberty Corporation Retirement and Savings Plan (the "Plan")
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, with respect to the registration in early 1997 of shares
of The Liberty Corporation common stock, Related Rights to Purchase Series A
Participating Cumulative Preferred Stock, and interests in the Plan, which
securities are to be offered to employees of The Liberty Corporation and its
adopting affiliates in accordance with and pursuant to the Plan, granting unto
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th day
of February, 1997.
/s/ Rufus C. Barkley, Jr. (Seal)
---------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Rebecca G. Saruis (Seal)
- -------------------------------------
Notary Public for South Carolina
My Commission Expires: 6-16-2003
---------
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, EDWARD E. CRUTCHFIELD,
Director of The Liberty Corporation, do hereby constitute and appoint Martha G.
Williams and Susan E. Cyr and each of them, my true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for me and in my
name, place and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 and any amendments thereto (including any post-effective
amendments) for The Liberty Corporation Retirement and Savings Plan (the "Plan")
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, with respect to the registration in early 1997 of shares
of The Liberty Corporation common stock, Related Rights to Purchase Series A
Participating Cumulative Preferred Stock, and interests in the Plan, which
securities are to be offered to employees of The Liberty Corporation and its
adopting affiliates in accordance with and pursuant to the Plan, granting unto
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 18th day
of February, 1997.
/s/ Edward E. Crutchfield (Seal)
--------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Nancy Ann Skidmore (Seal)
- -------------------------------------
Notary Public for North Carolina
My Commission Expires: 5-30-1999
---------
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, LAWRENCE M. GRESSETTE, JR.,
Director of The Liberty Corporation, do hereby constitute and appoint Martha G.
Williams and Susan E. Cyr and each of them, my true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for me and in my
name, place and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 and any amendments thereto (including any post-effective
amendments) for The Liberty Corporation Retirement and Savings Plan (the "Plan")
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, with respect to the registration in early 1997 of shares
of The Liberty Corporation common stock, Related Rights to Purchase Series A
Participating Cumulative Preferred Stock, and interests in the Plan, which
securities are to be offered to employees of The Liberty Corporation and its
adopting affiliates in accordance with and pursuant to the Plan, granting unto
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th day
of February, 1997.
/s/ Lawrence M. Gressette, Jr. (Seal)
--------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Lynn M. Williams (Seal)
- -------------------------------------
Notary Public for South Carolina
My Commission Expires: 6-20-1998
---------
<PAGE> 1
EXHIBIT 24.4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, W. W. JOHNSON, Director of The
Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 19th day
of February, 1997.
/s/ W. W. Johnson (Seal)
--------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Lynn S. Boylston (Seal)
- -------------------------------------
Notary Public for South Carolina
My Commission Expires: 3-19-2006
---------
<PAGE> 1
EXHIBIT 24.5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, WILLIAM O. MCCOY, Director of
The Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th day
of February, 1997.
/s/ William O. McCoy (Seal)
--------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
Beck S. Spaugh (Seal)
- -------------------------------------
Notary Public for North Carolina
My Commission Expires: 6-01-1997
---------
<PAGE> 1
EXHIBIT 24.6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, BUCK MICKEL, Director of The
Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 18th day
of February, 1997.
/s/ Buck Mickel (Seal)
-------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Dorothy F. King (Seal)
Notary Public for South Carolina
My Commission Expires: 2-13-2000
---------
<PAGE> 1
EXHIBIT 24.7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, JOHN H. MULLIN III, Director of
The Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of February, 1997.
/s/ John H. Mullin III (Seal)
-----------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Jan M. Gesghegan (Seal)
- ----------------------------------------
Notary Public for Virginia
My Commission Expires: 3-31-1998
---------
<PAGE> 1
EXHIBIT 24.8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, BENJAMIN F. PAYTON, Director of
The Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 18th day
of February, 1997.
/s/ Benjamin F. Payton (Seal)
------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Charlotte P. Morris (Seal)
- --------------------------------------
Notary Public for Alabama
My Commission Expires: 11-08-2000
----------
<PAGE> 1
EXHIBIT 24.9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, EUGENE E. STONE, IV, Director of
The Liberty Corporation, do hereby constitute and appoint Martha G. Williams and
Susan E. Cyr and each of them, my true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for me and in my name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8 and any amendments thereto (including any post-effective amendments) for The
Liberty Corporation Retirement and Savings Plan (the "Plan") and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
with respect to the registration in early 1997 of shares of The Liberty
Corporation common stock, Related Rights to Purchase Series A Participating
Cumulative Preferred Stock, and interests in the Plan, which securities are to
be offered to employees of The Liberty Corporation and its adopting affiliates
in accordance with and pursuant to the Plan, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as I might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by my physical disability
or mental incompetence which renders me incapable of managing by own estate
except as provided by applicable statute.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 19th day
of February, 1997.
/s/ Eugene E. Stone, IV (Seal)
------------------------------------------
Director, The Liberty Corporation
A South Carolina Corporation
/s/ Vickie L. Rasmussen (Seal)
- ------------------------------------
Notary Public for South Carolina
My Commission Expires: 10-04-2003
----------
