Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1993
ALLTEL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 34-0868285
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Allied Drive, Little Rock, Arkansas 72203 (501) 661-8000
(Address, including zip code, of
principal executive offices)
_____________________________________
COMPUTER POWER, INC. RETIREMENT SAVINGS PLAN
(Full title of the plan)
______________________________________
FRANCIS X. FRANTZ
Senior Vice President - External Affairs, General Counsel and Secretary
One Allied Drive, Little Rock, Arkansas 72203
(501) 661-8000
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
________________________________________
CALCULATION OF REGISTRATION FEE
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
Common Stock,
$1.00 Par Value(2) 500,000 $25.9375 $12,968,750 $4,471.98
______________________________________________________________________________
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the reported
high and low sales prices of a share of Common Stock on July
25, 1994, as reported on the New York Stock Exchange Composite Tape.
(2) 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by
reference as of their respective dates of filing:
(a) ALLTEL Corporation's ("ALLTEL") Annual
Report on Form 10-K for the year ended December 31, 1993;
(b) Computer Power, Inc. Retirement Savings Plan's
(the "Plan") Annual Report on Form 11-K for the year ended
December 31, 1993; and
(c) ALLTEL's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1994;
(d) The description of ALLTEL's Common Stock
and the related Series A Preferred Stock Purchase Rights
contained in the registration statements filed pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by ALLTEL and the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all shares
of Common Stock offered hereunder have been sold or which deregisters
all shares of Common Stock then remaining unsold hereunder shall be
deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Article VII of ALLTEL's Amended and Restated Certificate of
Incorporation (the "Certificate") provides for the indemnification of
directors, officers, agents and employees for expenses incurred by them
and judgments rendered against them in actions, suits or proceedings in
relation to certain matters brought against them as such directors,
officers, agents and employees, respectively. The Certificate provides
for indemnification to the fullest extent permitted by the Delaware law.
Any expansion of the protection afforded directors, officers, employees
or agents by the Delaware General Corporation Law automatically is
extended to ALLTEL's directors, officers, employees or agents, as the
case may be. The Certificate also permits ALLTEL to advance expenses
incurred by a director or officer in a legal proceeding prior to final
disposition of the proceeding.
In addition, as permitted under the Delaware General
Corporation Law, ALLTEL has entered into indemnity agreements with
its directors and officers. Under these indemnity agreements, ALLTEL
will indemnify its directors and officers to the fullest extent permitted or
authorized by the Delaware General Corporation Law, as it from time to
time may be amended, or by any other statutory provisions authorizing
or permitting such indemnification. Under the terms of ALLTEL's
directors' and officers' liability and company reimbursement insurance
policy, directors and officers of ALLTEL are insured against certain
liabilities, including liabilities arising under the Securities Act of 1933
(the "Securities Act"). ALLTEL will indemnify such officers and
directors under the indemnity agreements from all losses arising out of
claims made against them except those based upon illegal personal
profit, recovery of short-swing profits or dishonesty, provided, however,
that ALLTEL's obligations will be satisfied to the extent of any
reimbursement under such insurance.
The Delaware General Corporation Law permits a Delaware
corporation to indemnify directors, officers, employees and agents under
some circumstances and mandates indemnification under certain limited
circumstances. The Delaware General Corporation Law permits a
corporation to indemnify an officer, director, employee or agent for
fines, judgments or settlements, as well as expenses in the context of
actions other than derivative actions, if such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. Indemnification against expenses
incurred by a director, officer, employee or agent in connection with a
proceeding against such person for actions in such capacity is mandatory
to the extent that such person has been successful on the merits. If a
director, officer, employee or agent is determined to be liable to the
corporation, indemnification for expenses is not allowable, subject to
limited exceptions where a court deems the award of expenses
appropriate. The Delaware General Corporation Law grants express
power to a Delaware corporation to purchase liability insurance for its
directors, officers, employees and agents, regardless whether any such
person is otherwise eligible for indemnification by the corporation.
Advancement of expenses is permitted, but a person receiving such
advances must repay those expenses if it is ultimately determined that he
is not entitled to indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits following signature pages.
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ALLTEL has submitted or will submit, the Plan and any
amendments thereto to the Internal Revenue Service in a timely manner,
and has made or will make, all changes required by the Internal Revenue
Service to qualify the Plan.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a post-
effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this registration statement; and
(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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby further undertakes
that, for purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at the time shall be deemed to be the initial bona fide
offering thereof.
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(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Little Rock,
State of Arkansas, on July 29, 1994.
ALLTEL CORPORATION
By: /s/ Francis X. Frantz
Name: Francis X. Frantz,
Title: Attorney-in-Fact
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.
Title and Signature Date
Joe T. Ford, Chairman and Chief Executive Officer (principal
executive officer) and Director; Max E. Bobbitt, President and
Chief Operating Officer and Director; Tom T. Orsini, Senior
Vice President - Finance and Corporate Development and
Assistant Secretary (principal financial officer); Dennis J.
Ferra, Senior Vice President - Accounting and Administration
(principal accounting officer); Ben W. Agee, Director; W.W.
Johnson, Director; Emon A. Mahony, Jr., Director; George C.
McConnaughey, Director; John P. McConnell, Director; Philip
F. Searle, Director; John E. Steuri, Director; Carl H. Tiedemann,
Director; Ronald Townsend, Director; and William H. Zimmer,
Jr., Director. July 29, 1994
By: /s/ Francis X. Frantz
Name: Francis X. Frantz,
Title: Attorney-in-Fact
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The Plan. Pursuant to the requirements of the Securities Act
of 1933, the Computer Power, Inc. Retirement Savings Plan has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Little Rock, State
of Arkansas, on July 29, 1994.
COMPUTER POWER, INC.
RETIREMENT SAVINGS PLAN
BY CPI ACQUISITION, INC.
d/b/a COMPUTER POWER, INC.
By: /s/ Bruce P. Andrews
Name: Bruce P. Andrew
Title: Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit
(4) INSTRUMENTS DEFINING THE RIGHTS
OF SECURITY HOLDERS, INCLUDING
INDENTURES:
4.1 Amended and Restated
Certificate of
Incorporation of
ALLTEL Corporation Incorporated herein by
reference to Exhibit B
to ALLTEL's Proxy Statement
dated March 9, 1990
4.2 Bylaws of ALLTEL Corporation Incorporated herein by
reference to Exhibit C
to ALLTEL's Proxy Statement
dated March 9, 1990
4.3 Amended and Restated
Rights Agreement,
dated as of April 26,
1989, between ALLTEL
Corporation and
Ameritrust Company, N.A. Incorporated herein by
reference to ALLTEL's Form 8
dated April 26, 1989, filed
with the Commission on
April 28, 1989
4.4 First Amendment to Amended
and Restated Rights
Agreement, dated as of
April 16, 1990, between
ALLTEL Corporation and
Ameritrust Company, N.A. Incorporated herein by
reference to ALLTEL's Form SE
filed with the Commission on
April 23, 1990
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4.5 CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Amended and Restated
Retirement Savings Plan Trust Agreement
dated as of September 29, 1989, as amended
by an Amendment dated February 24, 1992,
a Second Amendment dated December 23,
1992, a Third Amendment dated December 24,
1992, a Fourth Amendment dated July 22, 1994,
and a Fifth Amendment dated July 22, 1994 Attached hereto as
Exhibit 4.5
4.6 Restated Trust Agreement for
Computer Power, Inc. Retirement
Savings Plan dated as of January 1, 1993 Attached hereto as
Exhibit 4.6
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Arthur Andersen & Co. Attached hereto as
Exhibit 23.1
(24) POWERS OF ATTORNEY:
24.1 Powers of attorney of each person whose
signature on this Registration Statement
was signed pursuant to a power of attorney Attached hereto as
Exhibit 24.1
24.2 Resolutions of ALLTEL's Board of
Directors authorizing execution of this
Registration Statement pursuant to a
power of attorney Attached hereto as
Exhibit 24.2
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EXHIBIT 4.5
CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC.
AMENDED AND RESTATED
RETIREMENT SAVINGS PLAN TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT,
made and executed as of the 29th day of September, 1989, by and
between CPI Acquisition, Inc. d/b/a Computer Power, Inc., a Delaware
corporation with principal offices in Jacksonville, Duval County, Florida,
hereinafter referred to as the Employer; and W. Robinson Frazier, III,
David M. Hicks and K. C. Houston, hereinafter collectively referred to as
the Trustee.
(In the construction of this Amended and Restated Trust
Agreement, the masculine gender shall include the feminine and neuter
genders, and the plural shall include the singular, and the singular the
plural, in such cases where such meaning would be appropriate.)
WITNESSETH
WHEREAS, Computer Power, Inc., a Florida corporation, and the
Trustee did on August 1, 1984, execute the Computer Power, Inc.
Deferred Savings Plan Trust Agreement ("the Plan"); and
WHEREAS, by Adoption Agreement dated September l7, 1986,
the Employer did adopt the Computer Power, Inc. Deferred Savings Plan
Trust Agreement effective as of said date with respect to all of its eligible
employees; and
WHEREAS, the Employer and the Trustee are desirous of
amending and restating the Plan in order to meet the requirements of
Sections 401(a) and 501(a) of the Internal Revenue Code of 1986, and the
Employee Retirement Income Security Act of 1974, as amended, so that
the Plan may continue to qualify as a profit-sharing Plan and as a cash or
deferred arrangement as described in Section 401(k) of the Internal
Revenue Code of 1986; and
WHEREAS, the proper officers of the Employer have been
authorized and directed by its Board of Directors to execute this amended
and Restated Trust Agreement.
NOW, THEREFORE, effective as of January 1, 1989 ("the
Effective Date"), for Plan Participants who terminate employment with the
Employer on or after the Effective Date (it being understood that the
rights and benefits, if any, of all other former Participants shall be
determined in accordance with the applicable provisions of the Plan in
effect on the date that his or her employment terminated and it being
further understood that the provisions of Section 4.4(b) hereof shall be
effective from and after October 1, 1989), the Employer hereby amends
and restates the Plan and Trust Agreement for the purpose of carrying out
the Plan on the following terms and conditions.
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ARTICLE I - DEFINITIONS
1.1 The following terms appearing in this Plan (whether
capitalized or not) shall be defined as follows:
"Accrued Benefit" means the balance of the Participant's
account.
"Act" means Public Law No. 93-406, Employee Retirement
Income Security Act of 1974, as may be amended from
time to time.
"Anniversary Date" means the last day of any Plan Year.
"Beneficiary" means any person or persons (natural or
otherwise) designated by a Participant to receive any death
benefit which shall be payable under this Plan.
"Board of Directors" means the present and any succeeding
board of directors of the Employer.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Compensation" means a Participant's earned income,
wages, salaries, and fees for professional services and other
amounts received for personal services actually rendered in
the course of employment with the Employer (including, but
not limited to, commissions paid salesmen, compensation
for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses), and
excluding the following:
(a) Employer contributions to a Plan of deferred
compensation which are not includible in the
Participant's gross income for the Plan Year in
which contributed, or Employer contributions under
a simplified employee pension Plan to the extent
such contributions are deductible by the Participant,
or any distributions from a Plan or deferred
compensation;
(b) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock
(or property) held by the Participant either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
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(d) Other amounts which received special tax benefits,
such as premiums for group term life insurance (but
only to the extent that the premiums are not
includible in the gross income of the Participant), or
contributions made by the Employer towards the
purchase of an annuity contract described in Section
403(b) of the Code.
For purposes of applying the provisions of Section 3.4 hereof,
compensation for a Plan Year is the compensation actually paid or
includible in gross income during such year.
The annual compensation of each Participant taken into account
under the Plan for any year shall not exceed $200,000, as adjusted by the
Secretary at the same time and in the same manner as under Section
415(d) of the Code. In determining the compensation of a Participant for
purposes of this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall include only
the spouse of the Participant and any lineal descendants of the Participant
who have not attained age 19 before the close of the year. If, as a result
of the application of such rules the adjusted $200,000 limitation is
exceeded, then (except for purposes of determining the portion of
compensation up to the integration level if this Plan provides for permitted
disparity), the limitation shall be prorated among the affected individuals
in proportion to each such individual's compensation as determined
pursuant to this definition prior to the application of this limitation.
"Earned Income" means the net earnings from self-
employment in the trade or business of the self-employed
individual(s) with respect to which the Plan is established (if
any), for which personal services of such individual(s) are a
material income-producing factor. Net earnings will be
determined without regard to items not included in gross
income and the deductions allocable to such items. Net
earnings are reduced by contributions by the Employer to a
qualified Plan to the extent deductible under Section 404 of
the Code. Net earnings shall be determined with regard to
the deduction allowed to the Employer by Section 164(f) of
the Code for taxable years beginning after December 31,
1989.
"Eligibility Computation Period" means any 12-consecutive
month period following the initial eligibility computation
period.
"Eligible Employee" means any employee and any leased
employee (as hereinafter defined) of the Employer
maintaining the Plan or any other employer required to be
aggregated with such Employer under Sections 414(b), (c),
(m) or (o) of the Code, except the following:
(i) Directors, unless otherwise employed by the
Employer; and
(ii) Employees covered by a collective bargaining
agreement between
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employee representatives and the Employer in which
retirement benefits were the subject of good faith
bargaining between such employee representations
and the Employer.
"Employment Commencement Date" means the date on
which an eligible employee first performs an hour of service
for the Employer.
"Excused or Approved Absence" means any of the
following:
(i) Any absence authorized by the Employer under the
Employer's standard personnel practices; provided
that all persons under similar circumstances shall be
treated alike in the granting of such authorized
leaves of absence and provided further that the
Participant returns to the service of the Employer
within the period of authorized absence; or
(ii) Any absence due to service in the Armed Forces of
the United States shall be considered as an excused
or approved leave of absence, provided that the
absence is caused by war or other emergency, or
provided that the employee is required to serve
under the laws of conscription in time of peace;
provided, however, that the employee returns to the
service of the Employer within the period provided
by law.
"Fiduciary" means any person who:
(i) Exercises any discretionary authority or discretionary
control respecting management of the Plan or
exercises any authority or control respecting
management or disposing of its assets;
(ii) Has any discretionary authority or discretionary
responsibility in the administration of the Plan,
including, but not limited to the Trustee, the
Employer and its Board of Directors and the Plan
Administrator.
"Former Participant" means a Participant who ceases to
participate in the Plan as a result of one or more 1-year
breaks in service which occur prior to his retirement for
reasons other than death or total and permanent disability.
"Fund" or "Trust Fund" means all of the assets of the Plan
held by the Trustee (or any nominee thereof) at any time
under the terms of this Plan and trust Agreement.
"Highly-Compensated Employee" The term highly
compensated employee includes highly-compensated eligible
employees ("highly compensated active
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employees") and highly-compensated former eligible
employees ("highly compensated former employees").
A highly compensated active employee includes any
employee who performs service for the employer during the
determination year and who, during the look-back year: (i)
received compensation from the employer in excess of
$75,000 (as adjusted pursuant to Section 415(d) of the
Code); (ii) received compensation from the employer in
excess of $50,000 (as adjusted pursuant to Section 415(d) of
the Code) and was a member of the top-paid group for such
year; or (iii) was an officer of the employer and received
compensation during such year that is greater than 50
percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code. The term highly-compensated
employee also includes: (i) employees who are both
described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 100 employees who
received the most compensation from the employer during
the determination year; and (ii) employees who are 5
percent owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation requirement of (iii)
above during either a determination year or look-back year, the highest
paid officer for such year shall be treated as a highly-compensated
employee.
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.
A highly-compensated former employee includes any employee
who separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the employer during the
determination year, and was a highly-compensated active employee for
either the separation year or any determination year ending on or after the
employee's 55th birthday.
If an employee is, during a determination year or look-back year, a
family member of either a 5 percent owner who is an active or former
employee or a highly-compensated employee who is one of the 10 most
highly-compensated employees ranked on the basis of compensation paid
by the employer during such year, then the family member and the 5
percent owner or top-ten highly-compensated employee shall be
aggregated. In such case, the family member and 5 percent owner or
top-ten highly-compensated employee shall be treated as a single employee
receiving compensation and Plan contributions or benefits equal to the sum
of such compensation and contributions or benefits of the family member
and 5 percent owner or top-ten highly-compensated employee. For
purposes of this section, family member includes the spouse, lineal
ascendants and descendants of the employee or former employee and the
spouses of such lineal ascendants and descendants.
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The determination of who is a highly-compensated employee,
including the determination of the number and identity of employees in the
top-paid group, the top 100 employees, the number of employees treated
as officers and the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations
thereunder.
"Hour of Service" means:
(I) Each hour for which an employee is paid, or entitled
to payment, for the performance of duties for the
employer. These hours will be credited to the
employee for the computation period in which the
duties are performed; and
(2) 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. No more than
501 hours of service will be credited under this
paragraph for any single continuous period (whether
or not such period occurs in a single computation
period). Hours under this paragraph will be
calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Relations
which is incorporated herein by this reference; and
(3) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed
to by the employer. The same hours of service will
not be credited both under paragraph (1) or
paragraph (2), as the case may be, and under this
paragraph (3). These hours will be credited to the
employee for the computation period or periods to
which the award or agreement pertains rather than
the computation period in which the award,
agreement or payment is made.
Hours of service will be credited for employment
with other members of an affiliated service group
(under Section 414(m)), a controlled group of
corporations (under Section 414(b)), or a group of
trades or businesses under common control (under
Section 414(c)) of which the adopting employer is a
member, and any other entity required to be
aggregated with the employer pursuant to Section
414(o) and the regulations thereunder.
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Hours of service will also be credited for any
individual considered an employee for purposes of
this Plan under Section 414(n) or Section 414(o) and
the regulations thereunder.
Solely for purposes of determining whether a one
year (1-year) break in service, as defined in Section
1.1, for participation and vesting purposes has
occurred in a computation period, an individual who
is absent from work for maternity or paternity
reasons shall receive credit for the hours of service
which would otherwise have been credited to such
individual but for such absence, or in any case in
which such hours cannot be determined, 8 hours of
service per day of such absence. For purposes of
this paragraph, an absence from work for maternity
or paternity reasons means an absence (1) by reason
of the pregnancy of the individual, (2) by reason of a
birth of a child of the individual, (3) by reason of
the placement of a child with the individual in
connection with the adoption of such child by such
individual, or (4) for purposes of caring for such
child for a period beginning immediately following
such birth or placement. The hours of service
credited under this paragraph shall be credited (1) in
the computation period in which the absence begins
if the crediting is necessary to prevent a break in
service in that period, or (2) in all other cases,in the
following computation period.
"Initial Eligibility Computation Period" means the
12-consecutive month period beginning on the employment
commencement date.
"Investment Manager" means any person, firm or
corporation who:
(i) Has the power to manage, acquire or dispose of Plan
assets;
(ii) Is a registered investment adviser under the
Investment Adviser's Act of 1940, a bank or an
insurance company; and
(iii) Acknowledges in writing his fiduciary responsibility
to the Plan.
"Leased Employee" means any person (other than an
employee of the recipient) who pursuant to an agreement
between the recipient and any other person ("leasing
organization") has performed services for the recipient (or
for the recipient and related persons determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full time basis for a period of at least one year,
and such services are of a type historically performed by
employees in the business field of the recipient employer.
Contributions or benefits provided a leased employee by the
leasing organization which are attributable to services
performed for the recipient employer shall be treated as
provided by the
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recipient employer.
A leased employee shall not be considered an employee of
the recipient if: (i) such employee is covered by a money
purchase pension Plan providing: (1) a nonintegrated
employer contribution rate of at least 10 percent of
compensation, as defined in Section 415(c)(3) of the Code,
but including amounts contributed pursuant to a salary
reduction agreement which are excludable from the
employee's gross income under Section 125, Section
402(a)(8), Section 402(h) or Section 403(b) of the Code, (2)
immediate participation, and (3) full and immediate vesting;
and (ii) leased employees do not constitute more than 20
percent of the recipient's nonhighly compensated work
force.
"Net Income" means the current and accumulated earnings
of the Employer with respect to the Plan Year determined
upon the basis of Employer's books and records in
accordance with generally accepted accounting principles,
but without any reduction for taxes based upon income, or
for contributions made by the Employer to the Plan or to
any other deferred compensation retirement or pension Plan.
"One-Year (1-Year) Break in Service" means any Plan Year
in which a Participant fails to complete more than 500 hours
of service as a result of a separation from service, other
than an excused or approved absence.
"Owner Employee" means an individual who is a sole
proprietor, or who is a partner owning more than 10
percent of either the capital or profits interest of the
partnership.
"Participant" means any person who is an eligible employee
and who has been admitted to participation in this Plan
pursuant to the provisions of Article II hereto.
"Plan Administrator" means the person or persons
designated by the Employer's Board of Directors pursuant
to Section 6.1 to administer the Plan on behalf of the
Employer. In the absence of any such designation, the
Employer shall be deemed Plan Administrator.
"Retired Participant" means a Participant who ceases to
participate in the Plan occasioned by his retirement, or a
former Participant who is receiving a deferred vested
benefit.
"Self-Employed Individual" means an individual who has
earned income for the taxable year from the trade or
business for which the Plan is established; also, an
individual who would have had earned income but for the
fact that the trade
- 8 -
16
or business had no net profits for the taxable year.
"Subsequent Eligibility Computation Period" means any
Plan Year beginning with the Plan Year which includes the
first anniversary of an eligible employee's employment
commencement date (without regard to whether the
employee is entitled to be credited with 1,000 hours of
service during such period), provided that an employee who
is credited with 1,000 hours of service both in the initial
eligibility computation period and the Plan Year which
includes the first anniversary of the employee's employment
commencement date is credited with two years of service
for purposes of eligibility to participate.
"Total and Permanent Disability" means the inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months. The permanence and degree of such
impairment shall be supported by medical evidence.
"Trustee" means the person or persons named in the first
paragraph herein as Trustee and his, their or its successors.
"Valuation Date" means the annual valuation date, being the
last day of each Plan Year, and each interim date on which
a valuation of the trust fund is made.
"Vested" means the portion of a Participant's accrued
benefit that is nonforfeitable.
"Year of Service" means (i) the initial eligibility
computation period in which an eligible employee completes
1,000 hours of service, and (ii) any subsequent eligibility
computation period in which an eligible employee completes
at least 1,000 hours of service.
1.2 The following additional terms appearing in this Plan (whether
capitalized or not) shall be defined as follows:
"Account" means the entire interest of a Participant in the
trust fund as of any date of reference. A Participant's
account shall consist of his Employer Contribution Account,
his Employee Contribution Account and his Salary
Reduction Contribution Account.
"Date of Eligibility" means with respect to each eligible
employee the later of the following dates:
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17
(i) The date on which such employee attains the age of
twenty-one (21) years; or
(ii) The date on which such employee completes at least
one year of service.
Each eligible employee shall be required to furnish the
Employer a birth certificate issued by the proper public
authority, or other evidence of age satisfactory to the
Employer. Notwithstanding the fact that an employee may
have been excluded from coverage of this Plan as a result of
clause (ii) of the definition of "Eligible Employee" found in
Article I, Section 1.1, for purposes of this definition, years
of service for such an employee shall be determined as
though such employee were an eligible employee at all
times that he has been in the service of the employer.
"Effective Date" means January 1, 1989.
"Employee Contribution Account" means the account
maintained for a Participant to record his contributions and
earnings and accretions of the trust fund generated by such
employee contributions.
"Employer" means CPI Acquisition, Inc. d/b/a Computer
Power, Inc., a Delaware corporation, and any successor
entity thereto which adopts this Plan and joins in this Trust
Agreement. The term "Employer" shall also mean any
other entity which, with the consent of the Board of
Directors, adopts this Plan and joins in the Trust
Agreement. Where a group of Employers has adopted and
joined in this Plan and Trust Agreement and such group
constitutes a controlled group of corporations within the
meaning of Section 1563(a) of the Code, such group shall
be treated as one Employer for purposes of crediting years
of service completed by eligible employees under Article II
and Section 5.4.
"Employer Contribution Account" means so much of a
Participant's account as is attributable to Employer
contributions, reallocated forfeitures, and earnings and
accretions of the trust fund generated by such Employer
contributions and reallocated forfeitures.
"Employer Stock" means the $0.01 par value common stock
of the Employer.
"Later Retirement Date" means the anniversary date
subsequent to normal retirement date when the Employer
and a Participant, who desires to work beyond his normal
retirement date and who is allowed to do under standard
Employer practices consistently applied, mutually agree that
such Participant shall retire. Notwithstanding the foregoing,
such date shall not be later than the
- 10 -
18
anniversary date which occurs within the calendar year in
which a Participant reaches age 70-1/2.
"Normal Retirement Age" means the anniversary date
occurring in the Plan Year in which a Participant attains age
sixty-five (65).
"Normal Retirement Date" means the anniversary date
occurring in the Plan Year in which the Participants attain
age sixty-five (65).
"Plan" means "Computer Power, Inc. Retirement Savings
Plan Trust Agreement" as set forth herein, and as the same
may from time to time hereafter be amended.
"Plan Year" means the accounting period of twelve months
commencing on January 1 of each calendar year and ending
on December 31 of the same calendar year.
"Salary Reduction Contribution Account" means the account
maintained for a Participant to record contributions made on
his behalf by the Employer pursuant to a salary reduction
agreement described in Section 3.2 and adjustments relating
thereto.
ARTICLE II - PARTICIPATION
2.1 Participation Commencement Date. Any eligible employee
shall become a Participant in the Plan on the January 1, April 1, July 1 or
October 1 coincident with or next following his date of eligibility, unless
such employee separates from the service of the Employer before such
January 1, April 1, July 1 or October 1 and has not returned before
whichever date is applicable, or unless such employee elects in writing not
to participate. In the event that a former eligible employee who failed to
commence participation hereunder because of separation from service
prior to his applicable participation commencement date, returns to service
without incurring a 1-year break in service, such employee shall
commence participation immediately upon his return. By becoming a
Participant under this Plan, each eligible employee shall for all purposes
be deemed conclusively to have assented to the provisions of the Plan
embodied in this agreement and to any amendments thereof which may be
made under the provisions hereof pertaining to amendments.
(b) In the event a Participant ceases being an eligible employee,
and therefore becomes ineligible to participate, but has not
incurred a break in service, such employee will participate
immediately upon becoming an eligible employee. If such
Participant incurs a break in service, eligibility will be
determined under the break in service rules of the Plan. In
the event an employee who is not an eligible employee
becomes an eligible employee, such employee will
participate
- 11 -
19
immediately if such employee has satisfied the minimum age
and service requirements and would have otherwise
previously become a Participant.
2.2 Continued Participation. Subsequent to a Participant's entry
into the Plan, he shall continue to be a Participant until the first day of the
Plan Year in which occurs a one-year break in service; provided,
however, if the Participant performs one or more hours of service in the
Plan Year in which occurs the one-year break in service, then such
Participant shall continue to participate until the date on which he
separates from the service of the Employer.
2.3 Participation Subsequent to Break in Service.
(a) A former Participant shall become a Participant
immediately upon his return to the service of the Employer
if such former Participant had a nonforfeitable right to all or
a portion of his accrued benefit derived from employer
contributions at the time of his separation from service.
(b) A former Participant who did not have a
nonforfeitable right to any portion of his accrued benefit
derived from employer contributions at the time of his
separation shall be considered a new employee, for
eligibility purposes, if the number of consecutive 1-year
breaks in service equals or exceeds the greater of five (5) or
the aggregate number of years of service before such break.
If such former Participant's years of service before his
separation exceeds the number of consecutive one-year
breaks in service after such separation or if the number of
consecutive one-year breaks in service is less than five (5),
such Participant shall participate immediately upon return to
service.
(c) For purposes of this Article II, in the case of a
Participant who was absent from work for any period by
reason of the pregnancy of the Participant, by reason of the
birth of a child of the Participant, by reason of the
placement of a child with the Participant in connection with
the adoption of such child by such Participant, or for
purposes of caring for such child for a period beginning
immediately following such birth or placement, hours of
service shall include hours of service which otherwise
would normally have been credited to such Participant but
for such absence, or in the case in which the Plan
Administrator is unable to determine the hours of service
which otherwise would normally have been credited, eight
(8) hours of service per day of such absence up to a
maximum of 501 hours. Such hours of service shall be
treated as hours of service only in the Plan Year in which
the absence from work begins, if such Participant would be
prevented from incurring a one-year break in service in
such year solely because the period of absence is treated as
hours of service as provided in the preceding sentence; or in
any other case in the immediately following year.
- 12 -
20
ARTICLE III - CONTRIBUTIONS TO PLAN
3.1 Employer Contributions. For each Plan Year, the Employer
shall contribute an amount equal to the total amount of contributions
agreed to be made by it pursuant to salary reduction agreements under
Section 3.2 entered into between the Employer and Participants for such
Plan Year. Contributions made by the Employer for a given Plan Year
pursuant to salary reduction agreements under Section 3.2 shall be
delivered or transmitted to the Trustee as soon as reasonably practicable.
In addition, for each Plan Year, the Employer shall contribute such
additional amount as its Board of Directors may determine in the sole
discretion of the Board of Directors. Such additional contribution shall be
deemed made on account of a Plan Year if either (a) the Board of
Directors determines the amount of such contribution by appropriate board
action, (b) the Employer designates such amount in writing to the Trustee
as payment on account of such Plan Year or (c) the Employer claims such
amount as a deduction on its federal tax return for such Plan Year. All
additional contributions of the Employer shall be paid to Trustee and
payment shall be made not later than the time prescribed by law for filing
the federal income tax return of the Employer for the Plan Year in
question, including any extensions which have been granted for the filing
of such tax return.
In no event shall the Employer contributions for any Plan Year
(whether made pursuant to Section 3.2 or otherwise) exceed the amount
deductible for such Plan Year for income tax purposes as a contribution to
the Trust under the applicable provisions of the Internal Revenue Code.
3.2 Participant Salarv Reduction. Each Plan Year, a Participant
may elect to enter into a written salary reduction agreement with the
Employer which will be applicable to all payroll periods within such Plan
Year. The terms of any such salary reduction agreement shall provide
that the Participant agrees to accept a reduction in salary from the
Employer equal to any whole percentage of his Compensation from time
to time or per payroll period during such Plan Year, not to exceed the
lesser of: (1) 10% of such Compensation or (2) $7,000 as indexed under
Section 402 (g) (5) of the Code. In consideration of such agreement, the
Employer will make a salary reduction contribution to the Participant's
Salary Reduction Contribution Account on behalf of the Participant for
such Plan Year in an amount equal to the total amount by which the
Participant's Compensation from the Employer was reduced during the
Plan Year in question pursuant to the salary reduction agreement. For
purposes of this Section 3.2, the term "Compensation" shall include all
amounts paid by the Employer to the Participant which are currently
includible in the Participant's gross income, for the Plan Year in question.
Amounts credited to a Participant's Salary Reduction Contribution
Account shall be 100 percent vested and non-forfeitable at all times. If a
Participant enters into a salary reduction agreement with the Employer for
a given Plan Year, his Compensation for such Plan
- 13 -
21
Year for all purposes of this Plan, shall be equal to his Compensation
before application of the salary reduction agreement.
Further, and notwithstanding any provision hereof to the contrary,
salary reduction agreements shall be governed by the following terms and
conditions:
(a) A salary reduction agreement shall apply to each payroll or
bonus period during which an effective salary reduction
agreement is on file with the Employer, and shall be
effective initially as of the January 1 or July 1 next
following the filing of the salary reduction agreement with
the Plan Administrator provided that the date of such filing
is on or before the fifteenth day of the calendar month
immediately preceding such effective date.
(b) A salary reduction agreement may be amended by a
Participant effective as of any January 1 or July 1 next
following the filing of an amended salary reduction
agreement with the Plan Administration provided that the
date, of such filing is on or before the fifteenth day of the
calendar month immediately preceding such effective date.
In addition, during such Plan Year a salary reduction
agreement may be amended one additional time effective as
of the beginning of any calendar month within the Plan
Year provided that the Participant in question shall file an
amended salary reduction agreement with the Plan
Administrator on or before the fifteenth day of the calendar
month immediately preceding such effective date.
(c) A Participant may terminate his salary reduction agreement
by filing with the Plan Administrator the appropriate form
for such purpose as promulgated by the Plan Administrator.
Such termination shall become effective as soon as
practicable, but in no event later than the pay period next
following the pay period in which the election is filed with
the Plan Administrator. A Participant who terminates his
salary reduction agreement shall be ineligible to resume
making salary reduction contributions until the first January
I or July 1 next following the date on which his termination
election is filed with the Plan Administrator. A new salary
reduction agreement may be entered into thereafter in
accordance with the provisions of subparagraph 3.2(a)
hereinabove.
(d) The Employer may amend or revoke its salary reduction
agreement with any Participant at any time, if the Employer
determines that such revocation or amendment is necessary
to insure that the annual addition to each Participant's
account for any Plan Year does not exceed the limitations of
Section 3.4 or to insure that the discrimination tests of
Section 401(k) of the Code are met for such Plan Year.
- 14 -
22
(e) Except as provided above, a salary reduction agreement
applicable to any given Plan Year, once made, may not be
revoked or amended by the Participant or the Employer.
No amounts may be withdrawn by a Participant from his Salary
Reduction Contribution Account prior to termination of employment with
the Employer unless the participant has either attained age 59 1/2 or is
able to demonstrate financial hardship in the manner set forth hereinbelow
in this Section 3.2.
At any time, a Participant may make a hardship withdrawal,
subject to the restrictions set forth in this Section 3.2 and subject to such
administrative rules as the Plan Administrator shall promulgate relative to
cash funds availability in the Participant's Account. The only amount
available for hardship withdrawal for purposes of this Section 3.2 is the
sum of the balance in the Participant's Salary Reduction Contribution
Account as of December 31, 1988 plus any salary reduction contributions
made after that date. A hardship withdrawal prior to age 59 1/2 may only
be made for one of the following hardship reasons ("hardship"):
(1) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, the
Participant's spouse, or any dependents of the Participant
(as defined in Code Section 152) or necessary for 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 and related educational fees for
the next 12 months of post-secondary education for the
Participant, or the Participant's spouse, children, or
dependents (as defined in Code Section 152); or
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal residence or
foreclosure on the mortgage on that residence.
All withdrawal elections shall be made by a Participant on written
forms supplied by the Plan Administration for that purpose. Upon
termination of employment, a Participant's Salary Reduction Contribution
Account shall be distributed in accordance with Section 5.4.
3.3 Limitations. The Employer may limit, revoke or amend its
agreement to make tax-deferred contributions under Section 3.1 on behalf
of any Participant at any time, but only if it determines that such
limitation, revocation or amendment is necessary under one of the
following circumstances:
(a) in the case of tax-deferred savings contributions, to insure
that the
- 15 -
23
discrimination tests of Section 401(k) of the Code governing
permissible levels of tax-deferred contributions are met for
such Plan Year, or to insure that one of the following tests
is met for such Plan Year.
(1) The Actual Average Percentage of the tax-deferred
contributions of the Highly-Compensated Employees
eligible to participate is not more than 1.25 times the
Actual Average Percentage of the tax-deferred
contributions for all other Employees eligible to
participate; or
(2) The Actual Average Percentage of the tax-deferred
contributions for the Highly-Compensated Employees
eligible to participate is not more than 2.0 times the
Actual Average Percentage of the tax-deferred
contributions for all other Employees eligible to
participate and the Actual Average Percentage of the
tax-deferred contributions for the
Highly-Compensated Employees eligible to
participate does not exceed the Actual Average
Percentage of the tax-deferred contributions for all
other Employees eligible to participate by more than
two (2) percentage points; or
(b) to insure that a Participant's Additions for any calendar year
will not exceed the limitations of Section 3.4; or
(c) to insure deductibility of the Employer's entire contribution
to the Plan for federal income tax purposes.
If a limitation or amendment becomes necessary pursuant to
subparagraphs (a) or (c) above, such limitation or amendment will be first
applied to the Participant who is the Highly-Compensated Employee
electing the highest percentage of tax-deferred savings contributions
pursuant to Section 3.1 until the tests of subparagraphs (a) or (c) are met
or until such Participant's election pursuant to Section 3.1 is reduced to
the same percentage level as the Participant who is the
Highly-Compensated Employee electing the second highest percentage of
tax-deferred savings contributions pursuant to Section 3.1. If further
limitations are required, then both such Participants' percentage elections
shall be reduced until the tests of subparagraphs (a) or (c) are met or until
the two Participants' elections pursuant to Section 3.1 are reduced to the
same percentage level as the Participant who is the Highly-Compensated
Employee electing the third highest percentage of tax-deferred savings
contributions pursuant to Section 3.1, and such limitations or amendments
shall continue to be made in a similar manner from the Participants who
are Highly-Compensated Employees making the highest percentage
elections to the lowest until the tests of subparagraphs (a) or (c) are
satisfied. The Employer shall have the right to include the tax-deferred
savings contributions for purposes of meeting the limitation under this
Section 3.3.
In applying the discrimination tests under Section 401(k) of the
Internal Revenue Code,
- 16 -
24
tax-deferred savings contributions shall be taken into account for a Plan
Year only if such contributions are attributable to compensation received
by the Participant during the Plan Year in question or earned during the
Plan Year in question and received within 2 1/2 months after the end of
the Plan Year. Additionally, the tax-deferred savings contributions must
be allocated to the Participants Tax-Deferred Savings Account within such
Plan Year.
In applying the discrimination tests under this Section, the
employer shall treat tax-deferred contributions under Plans which are
aggregated under Sections 401(a)(4) or 410(b) of the Internal Revenue
Code as made under a single Plan. In addition, if a Highly-Compensated
Employee is eligible under more than one cash or deferral arrangement
maintained by the Employer, the Employee's Actual Average Percentage
is calculated by treating all of the cash or deferral arrangements as one
cash or deferral arrangement.
For purpose of this Section, the family aggregation rules set forth
in the definition of the term "highly-compensated employee" found in
Section 1.1 shall apply. Where the family aggregation rules are
applicable, the family group shall be treated as one Highly-Compensated
Employee and the Actual Average Percentage for the family group shall
be the greater of:
(1) the ratio determined by combining the compensation and
salary reduction contributions of all eligible family members
who are highly-compensated without regard to family
aggregation; and,
(2) the ratio determined by combining the compensation and
salary reduction contributions or all eligible family
members.
For purposes of this Section 3.3, the following meanings shall
attach. The "Actual Average Percentage" for a specified group of
Participants for a Plan Year shall be the average of the ratios (calculated
separately for each Participant in such group) of the amount of Employer
Contributions actually paid over to the Trust on behalf of each such
Participant for each Plan Year to the Participant's Compensation for such
Plan Year. The term "Compensation" shall include all amounts paid by
the Employer to the Participant which are currently includible in the
Participant's gross income. The Employer may, but shall not be required
to, include in the Participant's Compensation the amount of any participant
salary reduction elections under Code Sections 125 and 401(k), or to use
such alternate definition of Compensation as the Internal Revenue Service
may provide by regulation under Code Section 414(s).
3.4 Limitation on Allocations. (a)(1) If the Participant does not
participate in, and has never participated in another qualified Plan
maintained by the Employer or a welfare benefit fund, as defined in
Section 419(e) of the Code maintained by the Employer, or an individual
medical account, as defined in Section 415(l) (2) of the Code, maintained
by the Employer, which provides an annual addition as defined in
subparagraph 3.4(e) (1) the amount of annual additions which may be
credited to the Participant's account for any limitation year
- 17 -
25
will not exceed the lesser of the maximum permissible amount or any
other limitation contained in this Plan. If the Employer contribution that
would otherwise be contributed or allocated to the Participant's account
would cause the annual additions for the limitation year to exceed the
maximum permissible amount, the amount contributed or allocated will be
reduced so that the annual additions for the limitation year will equal the
maximum permissible amount.
(2) Prior to determining the Participant's actual compensation
for the limitation year, the Employer may determine the
maximum permissible amount for a Participant on the basis
of a reasonable estimation of the Participant's compensation
for the limitation year, uniformly determined for all
Participants similarly situated.
(3) As soon as is administratively feasible after the end of the
limitation year, the maximum permissible amount for the
limitation year will be determined on the basis of the
Participant's actual compensation for the limitation year.
(b)(l) This subparagraph 3.4(b)(1) applies if, in addition to this
Plan, the Participant is covered under another qualified
defined contribution Plan maintained by the Employer, a
welfare benefit fund, as defined in Section 419(e) of the
Code maintained by the Employer, or an individual medical
account, as defined in Section 415(l)(2) of the Code,
maintained by the Employer, which provides an annual
addition as defined in subparagraph 3.4(e)(1), during any
limitation year. The annual additions which may be
credited to a Participant's account under this Plan for such
limitation year will not exceed the maximum permissible
amount reduced by the annual additions credited to a
Participant's account under the other Plans and welfare
benefit funds for the same limitation year. If the annual
additions with respect to the Participant under other defined
contribution Plans and welfare benefit funds maintained by
the Employer are less than the maximum permissible
amount and the Employer contribution that would otherwise
be contributed or allocated to the Participant's account
under this Plan would cause the annual additions for the
limitation year to exceed this limitation, the amount
contributed or allocated will be reduced so that the annual
additions under all such Plans and funds for the limitation
year will equal the maximum permissible amount. If the
annual additions with respect to the Participant under such
other defined contribution Plans and welfare benefit funds in
the aggregate are equal to or greater than the maximum
permissible amount, no amount will be contributed or
allocated to the Participant's account under this Plan for the
limitation year.
(2) Prior to determining the Participant's actual compensation
for the limitation year, the Employer may determine the
maximum permissible amount for a Participant in the
manner described in subparagraph 3.4(a) (2).
-18-
26
(3) As soon as is administratively feasible after the end of the
limitation year, the maximum permissible amount for the
limitation year will be determined on the basis of the
Participant's actual compensation for the limitation year.
(4) If, pursuant to subparagraph 3.4(b)(3) or as a result of the
allocation of forfeitures, a Participant's annual additions
under this Plan and such other Plans would result in an
excess amount for a limitation year, the excess amount will
be deemed to consist of the annual additions last allocated,
except that annual additions attributable to a welfare benefit
fund or individual medical account will be deemed to have
been allocated first regardless of the actual allocation date.
(5) If an excess amount was allocated to a Participant on an
allocation date of this Plan which coincides with an
allocation of another Plan, the excess amount attributed to
this Plan will be the product of,
(i) the total excess amount allocated as of such date,
times
(ii) the ratio of (x) the annual additions allocated to the
Participant for the limitation year as of such date
under this Plan to (y) the total annual additions
allocated to the Participant for the limitation year as
of such date under this and all the other qualified
defined contribution Plans.
(6) Any excess amount attributed to this Plan will be disposed
in the manner described in Section 3.6.
(c) If the Participant is covered under another qualified
defined contribution Plan maintained by the
Employer which is not a master or prototype Plan,
annual additions which may be credited to the
Participant's account under this Plan for any
limitation year will be limited in accordance with
subparagraphs 3.4(b)(1) through 3.4(b)(6) as though
the other Plan were a master or prototype Plan.
(d) If the Employer maintains, or at any time
maintained, a qualified defined benefit Plan covering
any Participant in this Plan, the sum of the
Participant's defined benefit Plan fraction and
defined contribution Plan fraction will not exceed 1.0
in any limitation year.
(e) The following definitions shall be applicable to the
provisions of Sections 3.4 and 3.6:
(1) Annual additions: The sum of the following
amounts credited to a Participant's account
for the limitation year:
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27
(i) Employer contributions,
(ii) employee contributions,
(iii) forfeitures, and
(iv) amounts allocated, after March 31, 1984,
to an individual medical account, as defined
in Section 415(1)(2) of the Code, 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, 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 Section
419A(d)(3) of the Code, under a welfare
benefit fund, as defined in Section 419(e) of
the Code, maintained by the Employer are
treated as annual additions to a defined
contribution Plan.
For this purpose, any excess amount applied under Sections 3.6 or
3.4(b)(6) in the limitation year to reduce Employer contributions
will be considered annual additions for such limitation year.
(2) Compensation: A Participant's earned income, wages,
salaries, and fees for professional services and other
amounts received for personal services actually rendered in
the course of employment with the Employer maintaining
the Plan (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums,
tips and bonuses), and excluding the following:
(i) Employer contributions to a Plan of deferred
compensation which are not includible in the
employee's gross income for the taxable year in
which contributed, or Employer contributions under
a simplified employee pension Plan to the extent
such contributions are deductible by the employee,
or any distributions from a Plan of deferred
compensation;
(ii) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock
(or property) held by the employee either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iv) Other amounts which received special tax benefits,
or contributions
- 20 -
28
made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an
annuity described in Section 403(b) of the Internal
Revenue Code (whether or not the amounts are actually
excludable from the gross income of the employee).
For purposes of applying the limitations of this Section 3.4,
compensation for a limitation year is the compensation actually paid or
includible in gross income during such limitation year. Notwithstanding
the preceding sentence, compensation for a Participant in a defined
contribution Plan who is permanently and totally disabled (as defined in
Section 22 (e) (3) of the Internal Revenue Code) is the compensation such
Participant would have received for the limitation year if the Participant
had been paid at the rate of compensation paid immediately before
becoming permanently and totally disabled; such imputed compensation
for the disabled Participant may be taken into account only if the
Participant is not a highly compensated employee (as defined in Section
414(q) of the Code) and contributions made on behalf of such Participant
are nonforfeitable when made.
(3) Defined benefit fraction: A fraction, the numerator of
which is the sum of the Participant's projected annual
benefits under all the defined benefit Plans (whether or not
terminated) maintained by the Employer, and the
denominator of which is the lesser of 125 percent of the
dollar limitation determined for the limitation year under
Sections 415(b) and (d) of the Code or 140 percent of the
highest average compensation, including any adjustments
under Section 415(b) of the Code.
Notwithstanding the above, if the Participant was a Participant as
of the first day of the first limitation year beginning after December 3l,
1986, in one or more defined benefit Plans maintained by the Employer
which were in existence on May 6, 1986, the denominator of this fraction
will not be less than 125 percent of the sum of the annual benefits under
such Plans which the Participant had accrued as of the close of the last
limitation year beginning before January 1, 1987, disregarding any
changes in the terms and conditions of the Plan after May 5, 1986. The
preceding sentence applies only if the defined benefit Plans individually
and in the aggregate satisfied requirements of Section 415 for all limitation
years beginning before January 1, 1987.
(4) Defined contribution dollar limitation: $30,000 or if
greater, one-fourth of the defined benefit dollar limitation
set forth in Section 415(b) (1) of the Code as in effect for
the limitation year.
(5) Defined contribution fraction: A fraction, the numerator of
which is the sum of the annual additions to the Participant's
account under all the defined contribution Plans (whether or
not terminated) maintained by the Employer for the current
and all prior limitation years (including the annual additions
attributable to the Participant's nondeductible employee
contributions to all
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29
defined benefit Plans, whether or not terminated, maintained
by the Employer, and the annual additions attributable to all
welfare benefit funds, as defined in Section 419(e) of the
Code, and individual medical accounts, as defined in Section
415(l)(2) of the Code, maintained by the Employer), and the
denominator of which is the sum of the maximum aggregate
amounts for the current and all prior limitation years of
service with the Employer (regardless of whether a defined
contribution Plan was maintained by the Employer). The
maximum aggregate amount in any limitation determined
under Sections 415(b) and (d) of the Code in effect under
Section 415(c)(1)(A) of the Code or 35 percent of the
Participant's compensation for such year.
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 will 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 (1)
the excess of the sum of the fractions over 1.0 times (2) the
denominator of this fraction, will be permanently subtracted
from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as
of the 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 Section 415 limitation applicable to the first
limitation year beginning on or after January 1, 1987.
The annual addition for any limitation year beginning before
January 1, 1987, shall not be recomputed to treat all
employee contributions as annual additions.
(6) Employer: For purposes of this Section 3.4, Employer
shall mean the Employer that adopts this Plan, and all
members of a controlled group of corporations (as defined
in Section 414(b) of the Code as modified by Section
415(h)), all commonly controlled trades or businesses (as
defined in Section 414(c) as modified by Section 415(h)) or
affiliated service groups (as defined in Section 414(m)) of
which the adopting Employer is a part, and any other entity
required to be aggregated with the Employer pursuant to
regulations under Section 414(o) of the Code.
(7) Excess amount: The excess of the Participant's annual
additions for the limitation year over the maximum
permissible amount.
(8) Highest average compensation: The average compensation
for the three consecutive years of service with the Employer
that produces the highest average. A year of service with
the Employer is the Plan Year as defined in
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Section 1.2 of this Plan.
(9) Limitation year: The Plan Year as defined in Section 1.2 of
this Plan. All qualified Plans maintained by the Employer
must use the same limitation year. If the limitation year is
amended to a different 12-consecutive month period, the
new limitation year must begin on a date within the
limitation year in which the amendment is made.
(10) Master or prototype Plan: A Plan the form of which is the
subject of a favorable opinion letter from the Internal
Revenue Service.
(11) Maximum permissible amount: The maximum annual
addition that may be contributed or allocated to a
Participant's account under the Plan for any limitation year
shall not exceed the lesser of:
(i) the defined contribution dollar limitation, or
(ii) 25 percent of the Participant's compensation for the
limitation year.
The compensation limitation referred to in (ii) shall not apply to
any contribution for medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise treated as an
annual addition under Section 415(l)(1) or 4l9A(d)(2) of the Code.
If a short limitation year is created because of an amendment
changing the limitation year to a different 12-consecutive month period,
the maximum permissible amount will not exceed the defined contribution
dollar limitation multiplied by the following fraction:
Number of months in the short limitation year
12
(12) Projected Annual Benefit: The annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity if
such benefit is expressed in a form other than a straight life
annuity or qualified joint and survivor annuity) to which the
Participant would be entitled under the terms of the Plan
assuming:
(i) the Participant will continue employment until
normal retirement age under the Plan (or current
age, if later), and
(ii) the Participant's compensation for the current
limitation year and all other relevant factors used to
determine benefits under the Plan will remain
constant for all future limitation years.
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31
3.5 Correction of Excess Contributions and Deferrals. (a) If the
salary reduction contributions made on behalf of Plan Participants cause
the Plan to fail the discrimination tests under Section 3.3, then any excess
contributions and any allocable income shall be returned to the affected
Participants no later than 12 months after the close of the Plan Year in
which the excess contribution was made. Any excess contributions to be
distributed shall be reduced by excess deferrals previously distributed.
If a distribution becomes necessary, it will be first applied to the
Participant who is the Highly-Compensated Employee electing the highest
percentage of tax-deferred savings contributions pursuant to Section 3.1
until the tests of subparagraphs (a) or (c) of Section 3.3 are met or until
such Participant's election pursuant to Section 3.1 is reduced to the same
percentage level as the Participant who is the Highly-Compensated
Employee electing the second highest percentage of tax-deferred savings
contributions pursuant to Section 3.1. If further limitations are required,
then both such Participants percentage elections shall be reduced until the
tests of subparagraphs (a) or (c) of Section 3.3 are met or until the two
Participants elections pursuant to Section 3.1 are reduced to the same
percentage level as the Participant who is the Highly-Compensated
Employee electing the third highest percentage of tax-deferred savings
contributions pursuant to Section 3.1, and such distributions shall continue
to be made in a similar manner from the Participants who are
Highly~Compensated Employees making the highest percentage elections
to the lowest until the tests of subparagraphs (a) or (c) of Section 3.3 are
satisfied. (b) If during any taxable year of a Participant, the total amount
of his salary reduction contributions to all qualified cash or deferred
arrangements exceed $7,000, as indexed, then the amounts in excess of
$7,000, as indexed, are to be included in the Participant's gross income
for the taxable year for which such deferral relates. notwithstanding any
provision in this Plan to the contrary, if prior to March 1 following the
close of the Participant's tax- able year, the Participant notifies the Plan
that he requests a return of part or all of his prior Plan Year's tax-deferred
savings contributions which exceed the $7,000 limit, as indexed, (and any
income allocable to such amounts) pursuant to Section 402(g) of the Code
and income tax regulations thereunder, the Trustee may (but is not
required to), return (not later than the first April 15 after the Participant's
taxable year ends) the amount of the Participant's tax-deferred savings
contributions with allocable income, which the Participant requested to be
returned. The Participant's request will be limited solely to tax-deferred
savings contributions deemed made in the immediately prior taxable year.
The Plan Administrator shall establish such rules and regulations as it
deems necessary to carry out the effect of this Section. The Plan
Administrator will apply such rules and regulations uniformly with respect
to each Participant.
3.6 Alternative for Excess Annual Additions. If pursuant to
Section 3.4, there is an excess amount, the excess will be disposed of as
follows:
(a) Any nondeductible voluntary employee contributions, to the
extent they would reduce the excess amount, will be
returned to the Participant;
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32
(b) If, after the application of paragraph (a), an excess amount
still exists, and the Participant is covered by the Plan at the
end of the limitation year, the excess amount in the
Participant's account will be used to reduce Employer
contributions (including any allocation of forfeitures) for
such Participant in the next limitation year, and each
succeeding limitation year if necessary.
(c) If after the application of paragraph (a) an excess amount
still exists, and the Participant is not covered by the Plan at
the end of a limitation year, the excess amount will be held
unallocated in a suspense account. The suspense account
will be applied to reduce future Employer contributions for
all remaining Participants in the next limitation year, and
each succeeding limitation year if necessary.
(d) 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 the trust's investment gains
and losses. If a suspense account is in existence at any time
during a particular limitation year, all amounts in the
suspense account must be allocated and reallocated to
Participants' accounts before any Employer or any
employee contributions may be made to the Plan for that
limitation year. Excess amounts may not be distributed to
Participants or former Participants.
3.7 Mistake of Fact. In the event that Employer shall make an
excess contribution to the trust fund under a mistake of fact, as that term
is defined in both Section 403(c) (2) (A) of the Act and Revenue Ruling
77-200, the Employer may demand repayment of such excess amount at
any time within one (1) year following the time of payment, and the
Trustee shall return such amount to the Employer within the one (1) year
period in the manner and to the extent permitted by Section 403(c) of the
Act.
3.8 Deductibility of Contribution. Any contribution made by
the Employer to the trust fund is conditioned upon the deductibility of the
contribution by the Employer under the Code, and to the extent any such
deduction is disallowed, the Employer may within one (1) year following
a final determination of the disallowance, whether by agreement with the
Internal Revenue Service or by final decision of a court of competent
jurisdiction, demand repayment of such disallowed contribution, and the
Trustee shall return such contribution within one (1) year following the
disallowance, in the manner and to the extent permitted by Section
403(c)(2)(C) of the Act and Revenue Ruling 77-200.
3.9 Limitations on Reversion. A reversion under the
circumstances described in Sections 3.7 and 3.8 shall not be treated as a
forfeiture in violation of Section 411 (a) of the Code, even if a resulting
adjustment is made to the account of a Participant that is partly or entirely
non-forfeitable. The amount which may be returned by the Employer is
the excess of (1) the amount contributed over (2) the amount that would
have been contributed had there not occurred a mistake of fact or a
mistake in determining the deduction. Earnings attributable to
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33
the excess contribution shall not be returned to the Employer; however,
losses attributable thereto shall reduce the amount to be so returned.
Furthermore, if the withdrawal of the amount attributable to the mistaken
contribution causes the balance of an individual account of any Participant
to be reduced to less than the balance which would have been in the
account had the mistaken amount not been contributed, then the amount to
be returned to the Employer shall be limited as to avoid such reduction.
3.10 Top-heavy provisions. If the Plan is or becomes top-heavy
in any Plan Year beginning after December 31, 1983, the provisions of
this Section 3.10 will supersede any conflicting provisions in the Plan:
(a)(i) Key employee: Any employee or former employee
(and the beneficiaries of such employee) who at any
time during the determination period was an officer
of the Employer if such individual's annual
compensation exceeds 50 percent of the dollar
limitation under Section 415(b)(1)(A) of the code, an
owner (or considered an owner under Section 318 of
the Code) of one of the ten largest interests in the
Employer if such individual's compensation exceeds
100 percent of the dollar limitation under Section
415(c)(1)(A) of the Code, a 5-percent owner of the
Employer, or a 1-percent owner of the Employer
who has an annual compensation of more than
$150,000. Annual compensation means
compensation as defined in Section 415(c) (3) of the
Code, but including amounts contributed by the
Employer pursuant to a salary reduction agreement
which are excludable from the employee's gross
income under Section 125, Section 402(a) (8),
Section 402(h) or Section 403(b) of the Code. The
determination period is the Plan Year containing the
determination date and the 4 preceding Plan years.
The determination of who is a key employee will be
made in accordance with Section 416(i) (1) of the
Code and the regulations thereunder.
(ii) Top-heavy Plan: For any Plan Year beginning after
December 31, 1983, this Plan is top-heavy if any of
the following conditions exists:
(a) If the top-heavy ratio for this Plan exceeds 60
percent and this Plan is not part of any
required aggregation group or permissive
aggregation group of Plans.
(b) If this Plan is a part of a required aggregation
group of Plans but not part of a permissive
aggregation group and the top-heavy ratio for
the group of Plans exceeds 60 percent.
(c) If this Plan is a part of a required aggregation
group and part of a
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34
permissive aggregation group of Plans and the
top-heavy ratio for the permissive aggregation
group exceeds 60 percent.
(iii) Top-heavy ratio:
(a) If the Employer maintains one or more
defined contribution Plans (including any
Simplified Employee Pension Plan) and the
Employer has not maintained any defined
benefit Plan which during the 5-year period
ending on the determination date(s) has or has
had accrued benefits, the top-heavy ratio for
this Plan alone or for the required or
permissive aggregation group as appropriate
is a fraction, the numerator of which is the
sum of the account balances of all key
employees as of the determination date(s)
(including any part of any account balance
distributed in the 5-year period ending on the
determination date(s)), and the denominator
of which is the sum of all account balances
(including any part of any account balance
distributed in the 5-year period ending on the
determination date(s)), both computed in
accordance with Section 416 of the Code and
the regulations thereunder. Both the
numerator and denominator of the top-heavy
ratio are increased to reflect any contribution
not actually made as of the determination
date, but which is required to be taken into
account on that date under Section 416 of the
Code and the regulations thereunder.
(b) If the Employer maintains one or more
defined contribution Plans (including any
Simplified Employee Pension Plan) and the
Employer maintains or has maintained one or
more defined benefit Plans which during the
5-year period ending on the determination
date(s) has or has had any accrued benefits,
the top-heavy ratio for any required or
permissive aggregation group as appropriate
is a fraction, the numerator of which is the
sum of account balances under the aggregated
defined contribution Plan or Plans for all key
employees, determined in accordance with
(A) above, and the present value of accrued
benefits under the aggregated defined benefit
Plan or Plans for all key employees as of the
determination date(s), and the denominator of
which is the sum of the account balances
under the aggregated defined contribution
Plan or Plans for all Participants, determined
in accordance with (A) above, and the present
value of accrued benefits under the defined
benefit Plan or Plans for all Participants as of
the determination date(s), all determined in
accordance with Section 416 of the Code and
the regulations
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35
thereunder. The accrued benefits under a
defined benefit Plan in both the numerator
and denominator of the top-heavy ratio are
increased for any distribution of an accrued
benefit made in the five-year period ending
on the determination date.
(c) For purposes of (A) and (B) above the value
of account balances and the present value of
accrued benefits will be determined as of the
most recent valuation date that falls within or
ends with the 12-month period ending on the
determination date, except as provided in
Section 416 of the Code and the regulations
thereunder for the first and second Plan years
of a defined benefit Plan. The account
balances and accrued benefits of a Participant
(1) who is not a key employee but who was a
key employee in a prior year, or (2) who has
not been credited with at least one hour of
service with any employer maintaining the
Plan at any time during the 5-year period
ending on the determination date will be
disregarded. The calculation of the top-heavy
ratio, and the extent to which distributions,
rollovers, and transfers are taken into account
will be made in accordance with Section 416
of the Code and the regulations thereunder.
Deductible employee contributions will not be
taken into account for purposes of computing
the top-heavy ratio. When aggregating Plans
the value of account balances and accrued
benefits will be calculated with reference to
the determination dates that fall within the
same calendar year.
The accrued benefit of a Participant other
than a key employee shall be determined
under (x) the method, if any, that uniformly
applies for accrual purposes under all defined
benefit Plans maintained by the Employer, or
(y) if there is not such method, as if such
benefit accrued not more rapidly than the
slowest accrual rate permitted under the
fractional rule of Section 411(b) (1) (C) of
the Code.
(iv) Permissive aggregation group: The required
aggregation group of Plans plus any other
Plan or Plans of the Employer which, when
considered as a group with the required
aggregation group, would continue to satisfy
the requirements of Sections 401(a) (4) and
410 of the Code.
(v) Required aggregation group: (1) Each
qualified Plan of the Employer in which at
least one key employee participates or
participated at any time during the
determination period
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36
(regardless of whether the Plan has
terminated), and (2) any other qualified Plan
of the Employer which enables a Plan
described in (1) to meet the requirements of
Sections 401(a) (4) or 410 of the Code.
(vi) Determination date: For any Plan Year
subsequent to the first Plan Year, the last day
of the preceding Plan Year. For the first Plan
Year of the Plan, the last day of that year.
(vii) Valuation date: The last day of each Plan
Year and each interim date on which a
valuation of the trust fund is made.
(b)(1) Except as otherwise provided in (3) and (4) below,
the Employer contributions and forfeitures allocated
on behalf of any Participant who is not a key
employee shall not be less than the lesser of three
percent of such Participant's compensation or in the
case where the Employer has no defined benefit Plan
which designates this Plan to satisfy Section 401 of
the Code, the largest percentage of Employer
contributions and forfeitures, as a percentage of the
first $200,000 of the key employee's compensation,
allocated on behalf of any key employee for that
year. The minimum allocation is determined without
regard to any Social Security contribution. This
minimum allocation shall be made even though,
under other Plan provisions, the Participant would
not otherwise be entitled to receive an allocation, or
would have received a lesser allocation for the year
because of (i) the Participant's failure to complete
1,000 hours of service (or any equivalent provided in
the Plan), or (ii) the Participant's failure to make
mandatory employee contributions to the Plan, or
(iii) compensation less than a stated amount.
(2) For purposes of computing the minimum
allocation, compensation shall mean
compensation as defined in Section 1.1 of the
Plan.
(3) The provision in (1) above shall not apply to
any Participant who was not employed by the
Employer on the last day of the Plan Year.
(4) The provision in (1) above shall not apply to
any Participant to the extent the Participant is
covered under any other Plan or Plans of the
Employer and the Employer has provided that
the minimum allocation or benefit
requirement applicable to top-heavy Plans
will be met in the other Plan or Plans.
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37
(5) For purposes of minimum top-heavy
allocations, contributions and forfeitures
equal to 3% of each non-key employee's
compensation will be allocated to the
employee's account when the Plan is
top-heavy.
(c) The minimum allocation required (to the extent
required to be nonforfeitable under Section 416(b))
may not be forfeited under Section 411(a)(3)(B) or
411(a)(3)(D).
(d) The interest of each Participant in his or her account
balance attributable to Employer contributions shall
be non-forfeitable at all times.
3.11 Restoration of Accounts. If the trust shall be obligated to
restore a rehired Participant's account pursuant to Section 5.4(e)(i), such
restoration shall be completely funded no later than the anniversary date of
the Plan Year following the Plan Year in which the rehired Participant's
repayment occurs. The permissible sources for such restoration are:
forfeitures or Employer contributions. For purposes of Section 3.4, the
repayment by the rehired Participant and the restoration the Employer
shall not be treated as part of an annual addition.
3.12 Participants' Voluntary Contributions.
(a) Any Participant hereunder shall have the right to make a
voluntary contribution to the trust for any Plan Year ending
before the Effective Date, the amount of which when
aggregated with all prior voluntary contributions shall not
cause such aggregate to exceed 10% of the Participant's
aggregate compensation earned while a Plan Participant
prior to the Effective Date. On or after the Effective Date,
no Participants shall be allowed to make any further
voluntary contributions hereunder.
(b) All Participants' voluntary contributions and the net
earnings thereon shall be nonforfeitable.
(c) The Plan Administrator shall maintain in the name of each
Participant an employee contribution account reflecting the
amount of the Participant's voluntary contributions and all
earnings thereon. The Plan Administrator in making such
accounts shall observe the following procedure. Any net
earnings or net losses of the trust fund attributable to
Participants' voluntary contributions shall be determined by
the Plan Administrator as of the end of each Plan Year
based on the ratio that the total amount of such employee
contribution accounts bears to the total balances of
Participants' accounts (including the sum of all employee
contribution accounts), as determined by the Plan
Administrator as of the beginning of the Plan Year just
completed. The
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38
amount of any such net earnings or net losses shall be
prorated and credited to the account of each Participant
making such voluntary contributions on the basis of the
ratio that the aggregate amount of each Participant's
employee contribution account bears to the total aggregate
balances of all Participants' employee contribution accounts
as of the beginning of the Plan year just completed.
(d) Any Participant shall have the right to withdraw all or part
of the principal amount of his voluntary contributions from
the fund, at the end of the Plan Year of operation, by giving
the Plan Administrator written notice of his election not less
than thirty (30) days prior to the close of the then current
Plan Year. The Plan Administrator shall thereupon instruct
the Trustee to pay the same in cash to the Participant as
requested as soon as reasonably practicable following the
last day of the Plan Year in question.
(e) The 10% limitation on voluntary contributions hereunder
shall be the maximum amount of Participant's contribution
under all qualified pension and profit sharing Plans of the
Employer.
(f) The Plan Administrator shall not accept deductible
employee contributions which are made for a taxable year
beginning after December 31, 1986. Contributions made
prior to that date will be maintained in a separate account
which will be non-forfeitable at all times. The account will
share in the gains and losses of the trust in the same manner
as described in Section 3.5(c) of the Plan. No part of the
deductible voluntary contribution account will be used to
purchase life insurance. A Participant may withdraw any
part of the deductible voluntary contribution account by
making a written application to the Plan Administrator.
ARTICLE IV - ALLOCATIONS AND VALUATIONS
4.1 Allocation of Employer Contributions Under Section 3.1.
Notwithstanding any provision of Article II hereof to the contrary, as of
each anniversary date there shall be credited to those Participants who are
actually in the service of the Employer on such anniversary date and to
those Participants who have retired or died during the Plan Year in
question and are entitled to receive distribution of Plan benefits under
Sections 5.1, 5.2 or 5.3 hereof that portion of the aggregate contribution
made by the Employer pursuant to Section 3.1, if any, for the Plan Year
ending on such anniversary date which is directly proportional to the ratio
between such Participant's compensation received during the Plan Year,
which is attributable to the portion of the Plan Year that he was a
Participant, and the total such compensation of all Participants entitled to
receive a contribution pursuant to this Section 4.1.
4.2 Participants' Accounts. The Plan Administrator shall create
and maintain adequate
- 31 -
39
records to disclose the interest in the trust of each Participant, former
Participant and beneficiary. Such records shall be in the form of
individual accounts, and credits and charges shall be made to such
accounts in the manner herein described. When appropriate, a Participant
shall have three separate accounts; an Employer contribution account, a
salary reduction contribution account and an employee contribution
account. The maintenance of individual accounts is only for accounting
purposes and a segregation of the assets of the trust fund to each account
shall be not be required. Distributions and withdrawals made from an
account shall be charged to the account as of the date paid. The accounts
of Participants, former Participants and beneficiaries shall be adjusted in
accordance with the following:
(a) The income of the trust fund for each calendar quarter shall
be allocated to the accounts of active Participants, former
Participants and beneficiaries who had unpaid balances in
their accounts on the preceding allocation date in pro-
portion to the balances in such accounts at the beginning of
the then current calendar quarter, but after first reducing
each such account balance by any distributions from the
account during the calendar quarter in question.
(b) The Employer contribution for a Plan Year made pursuant
to a salary reduction agreement entered into with a
Participant under Section 3.2 for such Plan Year shall be
allocated to the Participant's salary reduction contribution
account as of the date such Employer contribution is
actually funded in cash or in kind.
(c) In the case of a such active Participant there shall be
credited that portion of the Employer contribution allocable
to him as provided in Section 4.1 of this article.
(d) In determining the net earnings or net losses a cash basis
rather than an accrual method of accounting may be used by
the Trustee; provided, however, that whichever method of
accounting is selected to be used by the Trustee for the first
year of operation of this trust shall thereafter be consistently
and uniformly applied throughout the remaining life of the
trust.
4.3 Valuation of Trust Fund. The Trustee, as of each
anniversary date (hereinafter called "valuation date") shall determine the
fair market value of the assets comprising the trust fund as it exists on the
valuation date, prior to taking into consideration any contribution made as
of that date. In determining such fair market value, the Trustee shall
value the assets comprising the trust fund at their current fair market value
and shall deduct all expenses for which the Trustee has not yet obtained
reimbursement from the Employer. The Trustee may, as of any other
interim dates selected in the Trustee's sole discretion, determine the fair
market value of the assets comprising the trust fund and report same to
Plan Participants or other interested parties.
4.4 Investment Elections. (a) Each Participant shall have the
right to direct
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40
the Trustee to invest all or any part of his account in one or more
investment funds maintained or selected by the Trustee, which may be
mutual funds registered under the Investment Company Act of 1940, as
amended. Each Participant shall be notified of the availability of such
right by the Plan Administrator. Once during each calendar quarter on a
date of the Participant's choosing, each Participant may direct that his or
her Accounts be invested in the then available funds in such increments as
may be specified by the Participant in question on forms promulgated for
such purposes by the Plan Administrator.
Any specific investment made hereunder on behalf of a Participant
shall be charged to his account and shall, therefore, not be considered in
the general allocation of earnings and adjustments provided for in Sections
4.2 and 4.3 of this Article IV. To the extent that a Participant fails to file
a timed investment election as to his entire account, any remaining balance
in or portion of his account shall be invested in high-grade short-term
money market instruments, or one or more mutual funds which
specifically invest in high-grade short-term money market instruments, or
commercial bank money market accounts or short-term certificates of
deposit, or any combination thereof in the sole discretion of the Trustee.
(b)(1) All Participants actively in the employ of the Employer on
October l9, 1989 ("the Exercise Date") shall have a
one-time investment option, which must be exercised on the
Exercise Date to invest all or a portion of their respective
Employer Contribution Accounts in shares of Employer
Stock, which shares are to be acquired directly from the
Employer. The Plan Administrator shall give all
Participants written notification of this one-time investment
option at least 30 days prior to the Exercise Date.
(2) Once having made the election to invest all or a portion of
his or her Employer Contribution Account in shares of
Employer Stock, each Plan Participant so investing in
Employer Stock shall not have any rights or options to sell
or liquidate the shares of Employer Stock so invested while
a Plan Participant.
(3) Notwithstanding any provision hereof to the contrary, no
loans or hardship withdrawals shall be permitted with
respect to any portion of a Participant's Employer
Contribution Account which is invested in shares of
Employer Stock.
(4) Notwithstanding the Trustee's general authority to vote any
corporate securities held by the Plan, each Participant shall
be entitled to direct the Trustee as to the manner in which
voting rights will be exercised with respect to all corporate
matters as to which shareholder approval is required. Any
shares with respect to which the Trustee does not receive
voting directions shall not be voted.
ARTICLE V - DISTRIBUTION OF BENEFITS
5.1 Distribution Upon Retirement. Every Participant may
terminate his
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employment with the Employer and therefore retire for purposes hereof on
his normal or later retirement date, as the case may be. Upon attainment
of normal retirement age, all amounts credited to the Participant's account
as of the then current anniversary date shall become fully vested
regardless of the period of participation hereunder. Upon the Participant's
normal or later retirement date, as the case may be, the Trustee shall
distribute, at the direction of the Plan Administrator, all amounts credited
to such Participant in accordance with the provisions of Section 5.5.
5.2 Distribution upon Death.
(a) Upon the death of a Participant before retirement or other
termination of his employment, all amounts credited to his
account as of the subsequent anniversary date shall become
fully vested and nonforfeitable. On the anniversary date
coinciding with or next following such death, the Trustee at
the direction of the Plan Administrator shall distribute the
entire value of the deceased Participant's account, in
accordance with the provisions of Section 5.5, to the
Participant's surviving beneficiary, whose identity shall be
determined in accordance with the provisions of Section
5.10 hereof.
(b) The Plan Administrator may require such proper proof of
death and such evidence of the right of any person to
receive payment of the value of the account of the deceased
Participant as the Plan Administrator may deem desirable.
5.3 Distribution in Event of Disability. In the event of a
Participant's total and permanent disability, all amounts credited to his
account as of the subsequent anniversary date shall become fully vested.
On the anniversary date coinciding with or next following the date of total
and permanent disability, the Trustee, at the direction of the Plan
Administrator and in accordance with the provisions of Section 5.5, as
though such Participant had retired, shall distribute to such Participant the
entire amount of his account.
5.4 Distribution Upon Termination of Employment.
(a) As of the January 1, April 1, July 1 or October 1 coinciding
with or next following the termination of a Participant's
employrnent for any reason other than retirement, death, or
total and permanent disability, the Plan Administrator shall
direct the Trustee to cause the entire amount of the former
Participant's account to be paid to the former Participant in
a lump-sum distribution as soon as reasonably practicable
following such allocation date, but in no event later than the
close of the second Plan Year following the Plan Year in
which such termination occurs. Notwithstanding the
preceding sentence, if the former Participant's account
balance exceeds $3,500.00, the Trustee shall not make any
such distribution unless and until the former Participant in
question consents to
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such distribution in writing. To the extent applicable, all
shares of Employer stock held in such Participant's account
shall be converted to cash based upon their fair market
value as determined by the most recent independent
appraisal thereof. At the time such distribution is made, the
Plan Administrator shall provide a written exPlanation to
the recipient of the provisions of Section 402 of the Code
under which such distribution will not be subject to tax if
transferred to an eligible retirement Plan within 60 days
after the date on which the recipient received the
distribution, and if applicable, of the provisions of Section
402(a) (2) and 402(e) of the Code.
(b) All amounts to the credit of each Participant hereunder shall
be totally vested and non-forfeitable at all times.
5.5 Distribution of Benefits.
(a) As of the anniversary date of the Plan Year in which occurs
the death or retirement of a Participant, the Plan
Administrator shall direct the Trustee to distribute to the
Participant or his beneficiary all amounts to which he is
entitled under this Plan in the form of one lump-sum cash
payment. The Plan Administrator upon making such
distribution shall provide a written exPlanation to the
recipient of the provisions of the Internal Revenue Code
under which such distribution will not be subject to tax if
transferred to an individual retirement account within sixty
(60) days after the date on which the recipient received the
distribution, and if applicable, of the provisions of Sections
402 (a) (2) and Section 402(e) of the Code.
Notwithstanding any provision of this Section 5.5 to the
contrary, as to any retired or deceased Plan Participant who
had an account balance greater than zero as of the
anniversary date immediately preceding the Effective Date,
all such Participants or their beneficiaries shall have the
right to select any alternate form of benefit distribution
formerly available to them under this Plan as it existed
immediately prior to the Effective Date.
(b) To the extent applicable, all shares of Employer stock held
in the retired or deceased Participant's account shall be
converted to cash based upon their fair market value as
determined by the most recent independent appraisal
thereof, and such cash amount shall be distributed to the
Participant or his beneficiary in accordance with Section 5.5
(a) above.
5.6 Time of Segregation or Distribution. Notwithstanding any
other provision of this Agreement to the contrary, unless a Participant
elects otherwise, distribution of Plan benefits will begin no later than the
60th day after the latest of the anniversary date of the Plan Year in which:
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(1) the Participant attains age 65 (or normal retirement age, if
earlier);
(2) occurs the 10th anniversary of the year in which the
Participant commenced participation in the Plan; or,
(3) the Participant terminates service with the Employer.
Notwithstanding the foregoing, the failure of a Participant to
consent to a distribution while a benefit is immediately distributable,
within the meaning of Section 5.4(a) of the Plan, shall be deemed to be an
election to defer commencement of payment of any benefit sufficient to
satisfy this section. Notwithstanding the other requirements of this Section
5.6, distribution on behalf of any Participant, including a 5-percent 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 Section 401(a) (9) of the
Internal Revenue Code as in effect prior to amendment by
the Deficit Reduction Act of 1984.
(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.
(f) A distribution upon death will not be covered by this
transitional 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.
(g) For any distribution which commences before January 1,
1984, but continues after December 31, 1983, the
Participant, or the 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 is subsections
(a) and (e) hereof.
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(h) If a designation is revoked any subsequent distribution must
satisfy the requirements of Section 401(a) (9) of the Code
and the proposed regulations thereunder. If a designation is
revoked subsequent to the date distributions are required to
begin, the trust must distribute by the end of the calendar
year following the calendar year in which the revocation
occurs the total amount not yet distributed which would
have been required to have been distributed to satisfy
Section 401(a)(9) of the Code and the proposed regulations
thereunder, but for the Section 242 (b)(2) election. For
calendar years beginning after December 31, 1988, such
distributions must meet the minimum distribution incidental
benefit requirements in Section 1.401(a)(9)-2 of the
proposed regulations. 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). In the case in
which an amount is transferred or rolled over from one Plan
to another Plan, the rules in Q&A J-2 and Q&A J-3 shall
apply.
5.7 Distribution to Minors or Persons under Legal Disability. In
the event that any portion of the trust fund becomes distributable under the
terms hereof to a minor or person under legal disability, the Plan
Administrator may in his discretion make such distribution directly to the
beneficiary, to the legal guardian or legal representative of the beneficiary,
or to the parent of such beneficiary with whom the beneficiary maintains
his residence; and in any event, the payment shall be considered to be in
full compliance with the terms of this Agreement and shall fully discharge
the Trustee, the Employer and the trust fund from all and further liability
on account thereof.
5.8 Hardship. Notwithstanding any provision hereof to the
contrary, pursuant to such rules as the Plan Administrator shall
promulgate pursuant to a non-discriminatory policy, the Plan
Administrator may begin immediate payments to any disabled Participant
or the beneficiary of any deceased Participant before the anniversary date
of then current Plan Year during which the Participant shall become
disabled or have died, and before the account of the Participant in question
shall have been finally adjusted. This provision is intended to take care of
any emergency needs of any such beneficiaries and disabled Participants.
5.9 Loans. The Plan Administrator shall have the authority in
its discretion to make loans to Plan Participants from their respective
accounts on the following terms and conditions:
(a) Loans shall be made available to all Participants on a
reasonably equivalent basis such that:
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(i) Such loans are available to all Plan Participants
without regard to any individual's race, color,
religion, sex, age or national origin;
(ii) In the making of such loans, the Plan Administrator
shall give consideration only to those factors which
would be considered in a normal commercial setting
by an entity in the business of making similar types
of loans. Such factors may include the applicant's
creditworthiness and financial need; and
(iii) The Plan Administrator shall not unreasonably
withhold a loan from any applicant.
(b) Loans shall not be made available to highly compensated
employees (as defined in section 414(g) of the Code) in an
amount greater than the amount made available to other
employees.
(c) Loans must be adequately secured and bear a reasonably
interest rate. For purposes hereof, a loan will be
considered to bear a reasonable rate of interest if such loan
provides the Plan with a return commensurate with the
interest rates charged by persons in the business of lending
money for loans which would be made under similar
circumstances.
(d) No Participant loan shall exceed 50% of the vested portion
of the Participant's account.
(e) No loan to any Participant can be made to the extent that
such loan when added to the outstanding balance of all other
loans to the Participant would exceed the lesser of (a)
$50,000 reduced by the excess (if any) of the highest
outstanding balance of loans during the one year period
ending on the day before the loan is made, over the
outstanding balance of loans from the Plan on the date the
loan is made, or (b) one-half the present value of the
nonforfeitable accrued benefit of the Participant. For
purposes of the above limitation, all loans from all Plans of
the Employer and other members of a group of employers
described in sections 414(b), 414(c), and 414(m) and (o) of
the Code are aggregated; and the value of the Participant's
nonforfeitable accrued benefit shall be determined as of the
most recent anniversary date, adjusted for distributions or
contributions made subsequent to such date and further
adjusted, at the option and discretion of the Plan
Administrator, to reflect investment gain or loss realized
subsequent to such date. Furthermore, any loan shall by its
terms require that repayment (principal and interest) be
amortized in level payments, not less frequently than
quarterly, over a period not exceeding beyond five years
from the date of the loan, unless such loan is used to
acquire a dwelling unit which within a reasonable time
(determined at the time the loan is made) will be used as the
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46
principal residence of the Participant. An assignment or
pledge of any portion of the Participant's interest in the
Plan and a loan, pledge, or assignment with respect to any
insurance contract purchased under the Plan, will be treated
as a loan under this paragraph.
(f) In the event of default, foreclosure on the note and
attachment of security will not occur until a distributable
event occurs in the Plan.
(g) No loans will be made to any shareholder-employee or
owner-employee. For purposes of this requirement, a
shareholder-employee means an employee or officer of an
electing small business (Subchapter S) corporation who
owns (or is considered as owning within the meaning of
Section 318 (a)(1) of the Code), on any day during the
taxable year of such corporation, more than 5% of the
outstanding stock of the corporation.
(h) Subject to the other limitations contained in this Section 5.9,
effective October 1, 1991, no more than four (4) separate
loans may be made to each Participant, each of which shall
be in the minimum original principal balance of $1,000.00.
Said maximum number of loans may consist of no more
than one loan secured by real estate and the balance of such
loans secured by the Participant's vested account balance.
5.10 Beneficiary Designations. (a) Each Participant shall have
the right at any time to designate, and rescind or change any designation
of, a primary and contingent beneficiary or beneficiaries to receive the
benefits or any portion thereof under this Article V, if any, in the event of
his death. The designation of a beneficiary, and any change or revocation
thereof, shall be made on forms provided by the Plan Administrator and
shall not be effective unless and until filed with the Plan Administrator. If
any such Participant fails to designate a beneficiary, or if the designated
beneficiary does not survive him or dies before receiving all amounts
payable in respect of the following order of priority: (i) to his surviving
spouse, or if there be none surviving, (ii) to his surviving issue, per
stirpes, or if there be none surviving, (iii) to his surviving mother and
father in equal parts, or if there be none surviving, (iv) to the estate of the
last to die of the Participant and any designated beneficiaries.
(b) Notwithstanding the provisions of the preceding Subsection
5.10(a) with respect to benefits payable under Section 5.2
hereof in the case of a Participant who dies survived by a
spouse, such benefits shall be paid to such surviving spouse
in one of the forms set forth in Section 5.5. A Participant
may provide for a primary beneficiary other than his
surviving spouse as provided in subsection 5.10(a) only if
the spouse of the Participant consents in writing to such
beneficiary designation, and the spouse's consent
acknowledges the effect of such election is witnessed by the
Plan Administrator or a Notary Public.
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5.11 Withholding of Income Taxes and Reporting and Record
Keeping Requirements.
(a) Withholding and Notification. The Plan Administrator shall
be responsible for instructing the Trustee as to how to
comply with any Federal or State income tax withholding
requirements with respect to any benefit payments
hereunder. The Plan Administrator shall also be
responsible for notifying at the proper time Participants or
their beneficiaries of any rights to elect not to have income
taxes withheld from any benefit payments hereunder.
(b) Reporting and Record Keeping. The Plan Administrator
shall be responsible for preparation of any reports required
by the Code and the Regulations thereunder with respect to
the total amounts of any benefit distributions hereunder and
of accumulated employee contributions, capital gains and
ordinary income relating to designated distributions. The
Plan Administrator shall also be responsible for maintaining
adequate records in order to substantiate all information
required to be reported pursuant to the preceding sentence.
ARTICLE VI - POWERS AND RESPONSIBILITIES OF
THE EMPLOYER
6.1 Appointment of Plan Administrator. The Employer, by
acting through its Board of Directors, shall be empowered to appoint and
remove the Plan Administrator of the Plan from time to time as it deems
necessary for the proper administration of the Plan, to assure that the Plan
is being operated for the exclusive benefit of the Participants and their
beneficiaries in accordance with the terms of this Agreement, the Code
and the Act.
6.2 Appointment of Trustee. The original Trustee has been
appointed in this Plan and has accepted such appointment. The Employer
shall have the power to remove the Trustee, for any or no reason, upon
thirty (30) days written notice, unless a shorter period is agreed to, and to
appoint a successor to a resigned or removed Trustee; and shall have the
power to appoint a Co-Trustee or Co-Trustees with the consent of the
Trustee or Trustees then in office. The appointment of a successor
Trustee or Co-Trustee shall become effective upon the acceptance in
writing of such appointment by the successor Trustee or Co-Trustee. The
successor Trustee or Co-Trustee may be either a corporate trustee or an
individual trustee, and the successor Trustee or Co-Trustee shall have no
responsibility for anything done or omitted to be done by the former
Trustee. Each successor Trustee appointed to and accepting a trusteeship
hereunder shall have all the rights, title, powers, duties, exemptions and
limitations of the original Trustee.
6.3 Appointment of Investment Manager. The Employer may
at its discretion appoint an Investment Manager to manage the assets of
the Plan. In such event, since the Trustee shall not have exclusive
discretion to manage and control the Plan assets, it will not be
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48
liable for any act of such Investment Manager.
6.4 Review of Fiduciaries. The Employer shall periodically
review the performance of any fiduciary or other person to whom any
duties have been delegated or allocated by it under the provisions of this
Plan or pursuant to procedures established hereunder. This requirement
may be satisfied by formal periodic review by the Employer acting
through its Board of Directors, or by a review committee specifically
designated by the Employer, through day to day conduct and evaluation,
or through other appropriate ways.
6.5 Review of Fiduciaries. The Employer shall periodically
review the performance of any fiduciary or other person to whom any
duties have been delegated or allocated by it under the provisions of this
Plan or pursuant to procedures established hereunder. This requirement
may be satisfied by formal periodic review by the Employer acting
through its Board of Directors, or by a review committee specifically
designated by the Employer, through day to day conduct and evaluation,
or through other appropriate ways.
6.6 Funding Policy Procedure. The Employer shall establish
and carry out a funding policy and method, i.e., it shall determine
whether the Plan has a short run need for liquidity (i.e., to pay benefits)
or whether liquidity is a long run goal and investment growth is a more
current need, or shall appoint a qualified person to do so. It or its
delegates shall communicate such needs and goals to the Trustee, who
shall coordinate such Plan needs with its investment policy. Such funding
policy or method shall be consistent with the objectives of this Plan and
with the requirements of Title 1 of the Act.
ARTICLE VII - POWERS, DUTIES AND EXEMPTION OF Plan
ADMINISTRATOR
7.1 Appointment - Tenure in Office. The Plan Administrator
shall consist of the member or members who shall be appointed by the
Employer's Board of Directors, as provided in Article I, Section 1.l
defining the term "Plan Administrator".
Any member of the Plan Administrator may resign by giving notice
in writing to the Employer. The Board of Directors shall have the power
to remove a member of the Plan Administrator for any or no reason. A
member shall cease to be such upon his death or upon being declared
legally incompetent.
7.2 Certification of Employee Data and of Amount of
Contribution. As of each anniversary date, the Employer shall, as soon as
possible, certify to the Plan Administrator the name, date of birth, date of
employment and compensation of each employee who has become a
Participant hereunder within the Plan year in question; and shall also
certify the name and compensation of each employee who was a
Participant on prior anniversary dates and who was such at any time
during the Plan Year in question. As soon as the same is determined, the
Employer shall notify the Plan Administrator and the Trustee of the
amount of the contribution due to be made by it or made by it as of the
anniversary date in question. As soon as possible
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49
after copies of the certifications are received by the Plan Administrator, he
shall compute therefrom the allocation to each Participant out of the
Employer's contribution.
7.3 Member as Participant. A member of the Plan
Administrator who is also a Participant or a beneficiary may receive any
benefit to which he may be entitled as a Participant or beneficiary in the
Plan, so long as such benefit is computed and paid on a basis that is
consistent with the terms of the Plan as applied to all other Participants
and beneficiaries.
7.4 Agents and Counsel. The Plan Administrator may engage
agents to assist it in its duties, and may consult with counsel, who may be
counsel for the Employer, with respect to the meaning or construction of
this Agreement or its obligations or duties hereunder, or with respect to
any action or proceeding or any question of law, and may delegate all or
part of the duties of Sections 7.5 and 7.6 of this article, and shall be fully
protected with respect to any action taken or omitted by it in good faith
pursuant to the advice of such counsel, provided that the Plan
Administrator acts prudently in choosing the person or counsel and in
retaining such person or counsel to which end the Plan Administrator shall
periodically review such person's performance. Acting prudently shall
have the meaning set forth in Section 8.3 below.
7.5 Record Keeping - Access Thereto. The Plan Administrator
shall keep complete records which shall show its actions under this Plan.
The Plan Administrator shall also keep such records for such periods as
may be required under Sections 107 and 209 of the Act and regulations
issued thereunder and under any other Federal law or regulations issued
thereunder. Accordingly, the Plan Administrator shall maintain such
records that upon request by a Participant (which need be granted only
once a year) it may furnish him a statement as to his vested and
non-vested accrued benefit. A similar statement must be supplied
automatically when a vested Participant terminates his participation in the
Plan. The Plan Administrator shall also maintain and retain records on
matters for which disclosure is required by the Act and Section 7.6 of this
Plan in sufficient detail that the information disclosed may be verified, and
it shall keep such records available for examination for a period of not less
than six (6) years after the filing date of documents containing the
disclosed information.
7.6 Disclosure. The Plan Administrator shall prepare and file
such descriptions of the Plan with the Department of Labor or the Internal
Revenue Service and shall prepare and furnish Participants and
beneficiaries receiving benefits under the Plan with such reasonably
comprehensive summary of the Plan, written in such a way so as to be
understandable by the average Participant in such form, at such place and
at such times as may be required by Federal statutes and regulations issued
thereunder. The Plan Administrator shall prepare and file such annual
reports, including financial statements of Plan assets and liabilities, and
schedules, receipts and disbursements and changes in financial position in
such form, at such place and at such times as may be required by Federal
statutes and regulations. The Plan Administrator shall also furnish
annually all Participants and beneficiaries receiving benefits under the Plan
with a copy of the financial statement of Plan assets and liabilities and
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50
schedules of receipts and disbursements and such other material as is
necessary to fairly summarize the latest annual report at such times as may
be required by Federal statutes and regulations.
The Plan Administrator shall also make available in its principal
office copies of the above descriptions of the Plan, annual reports and
copies of this Plan for examination by any Participant.
Upon written request of any Participant or beneficiary receiving
benefits under the Plan, the Plan Administrator shall furnish him a copy of
the latest updated summary Plan description, latest annual report and copy
of this Plan. The Plan Administrator may make a reasonable charge to
cover the cost of furnishing such complete copies. The Plan Administrator
shall engage, if required by Federal regulations, an independent qualified
public accountant to examine and certify or render an opinion that the
above financial statements and schedules are presented fairly in conformity
with generally accepted accounting principles consistently applied.
However, if the Trustee is a bank or similar institution supervised and
subject to periodic examination by a State or Federal agency and if it
prepares and certifies that such statements are accurate and they are made
a part of the annual report, such engagement of, and examination and
opinion by an independent qualified public accountant shall not be
required. If the Trustee is such a bank or similar institution, the Plan
Administrator shall delegate the responsibility for preparation of such
statements to the Trustee and may delegate the responsibility for
preparation of such other forms and reports to the Trustee as the Trustee
shall accept.
7.7 Expenses. The Employer agrees to pay the reasonable
expenses of the Plan Administrator in the administration of this trust,
including reasonable legal and accounting expenses. Should the Employer
for any reason, fail to pay such expenses, the same shall be paid by the
Trustee out of the trust fund.
7.8 Directions to Trustee. The Plan Administrator shall give all
such directions to the Trustee in writing as are called for by the provisions
hereof in connection with any act to be taken by the Trustee under this
Plan, and the Trustee shall be entitled to rely on such directions from the
Plan Administrator and shall make disposition in accordance therewith,
unless the Trustee knows that any such direction constitutes a breach of
the Plan Administrator's fiduciary obligations, in which case the Trustee
must take reasonable steps under the circumstances to remedy such
breach.
7.9 Employee Data. The Plan Administrator shall procure from
the Employer and transmit to the Trustee for its use a complete list of all
eligible employees and Participants and such information pertaining to
their ages, history of employment and their earnings as may be needed by
the Trustee.
7.10 Claims Procedure.
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51
(a) Any claim for benefits under this Plan shall be submitted in
writing by the Participant or his beneficiaries to the
Employer for delivery to the Plan Administrator in
accordance with such rules as he may from time to time
establish. The Plan Administrator shall process all such
claims in the following manner:
(1) Within thirty (30) days of receiving any such claim
for benefits, the Plan Administrator shall inform the
claimant whether such claim is allowed or denied.
(2) If such claim is denied in whole or in part, the Plan
Administrator shall furnish to the claimant a
statement, written in language calculated to be
understood by him without the assistance of legal
counsel, setting forth:
(i) specific reasons for the denial;
(ii) specific references to the Plan provision on
which the denial is based;
(iii) a description of any additional material
necessary for the perfection of the claim; and
(iv) an explanation of the claim review procedure
under the Plan.
(b) Each Participant or beneficiary who has a claim for benefits
under this Plan denied by the Plan Administrator may
request a review of the denial by submitting a written
request for review to the Plan Administrator within ninety
(90) days after receiving notice of the denial from the Plan
Administrator. The Participant or his beneficiaries may
review any pertinent documents and may submit issues and
comments in writing for consideration by the Plan
Administrator.
(c) The Plan Administrator shall render a decision on the claim
for benefits within sixty (60) days after receiving the
request for review. The Plan Administrator's decision shall
be in writing delivered to the claimant and shall set forth
specific reasons for the decision.
7.11 Liability. Indemnification and Insurance. The members of
the Plan Administrator shall be personally liable to make good to the Plan
any losses to it resulting from any breach of any responsibilities,
obligations or duties imposed upon the Plan Administrator of an employee
pension benefit Plan under Title I of the Act. The Employer shall
indemnify each member of the Plan Administrator, each member of the
Board of Directors, and any employee of the Employer to whom a
fiduciary responsibility with respect
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52
to the Plan is allocated or delegated from and against all liabilities, costs
and expenses incurred by such person as a result of an act, omission or
conduct in connection with the performance of his fiduciary duties,
responsibilities and obligations under the Plan and under ERISA, except
with respect to liabilities and claims arising from such person's own
willful misconduct or gross negligence. The Employer may obtain, pay
for and maintain a policy or policies of insurance, the proceeds of which
may be used in satisfying their obligations under this Section.
ARTICLE VIII - POWERS, DUTIES AND EXEMPTIONS OF
TRUSTEE
8.1 Trust Funds - Use of Nominee. The Trustee shall hold the
funds and assets received by the Trustee under this Plan subject to the
terms of this Agreement and upon the uses and trust and for the purposes
herein set forth. The Trustee shall be responsible only for such funds and
assets as shall actually be received by the Trustee as Trustee hereunder.
So long as a Trustee is acting, title to any of the assets of the Plan
may be held or registered in the name of a nominee of the Trustee for
ease of dealing with the same, provided that the books of the trust reflect
actual ownership and the Trustee shall be liable for the acts of its
nominees. The assets so held or registered shall at all times remain in the
possession or under the control of the Trustee.
8.2 Advice of Counsel. The Trustee may consult with legal
counsel, who may be counsel for the Employer, with respect to the
meaning or construction of this Trust Agreement or the Trustee's
obligations or duties hereunder, or with respect to any action or
proceeding or any action or proceeding or any question of law, and shall
be fully protected with respect to any action taken or omitted by the
Trustee in good faith pursuant to the advice of such counsel, provided that
the Trustee acts prudently in choosing the counsel and in retaining him, to
which end the Trustee shall periodically review such counsel's
performance. Acting prudently shall have the meaning set forth in Section
8.3 below.
8.3 Prudent Man Standard. The Trustee, as well as all other
fiduciaries under this Plan, shall discharge his, her or its duties with
respect to this Plan solely in the interest of the Participants and their
beneficiaries and,
(a) For the exclusive purpose of (i) providing benefits to
Participants and their beneficiaries; and (ii) defraying
reasonable expenses of administering this Plan;
(b) Acting prudently, i.e., with the care, skill, prudence and
diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims;
(c) By diversifying the investments of the Plan so as to
minimize the risk of large
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53
losses, unless under the circumstances its is clearly not
prudent to do so; and
(d) In accordance with the terms of this Plan insofar as they are
consistent with Title I of the Act.
8.4 Liability and Indemnification. The Trustee shall be
personally liable to make good to the Plan any losses to the trust resulting
from each breach by it of the responsibilities, obligations and duties
imposed upon fiduciaries by Title I of the Act and to restore to the trust
any profits that have been made through its use of trust assets.
Notwithstanding the foregoing, any individual designated as a Trustee
hereunder shall be indemnified and held harmless by the Employer to the
fullest extent permitted by law against any and all costs, damages,
expenses and liabilities reasonably incurred by or imposed upon such
individual in connection with any claim made against him or in which he
may be involved by reason of his being, or having been, a Trustee
hereunder, to the extent such amounts are not satisfied by insurance
maintained by the Employer.
8.5 Taxes - Expenses - Compensation. The Trustee may deduct
as a charge against the trust fund any taxes, including transfer taxes, paid
by the Trustee which may be imposed upon the trust fund or the income
thereof, or which the Trustee is required to pay upon or with respect to
the interest of any person under this Plan.
The Employer agrees to pay all expenses properly and actually
incurred by the Trustee in the administration of this trust, including
compensation for the Trustee's services as Trustee, and legal expenses,
provided that if the Trustee already receives full time pay from the
Employer, he may not receive such compensation. Should the Employer
for any reason fail to pay such expenses, the same shall be paid out of the
trust fund. The Trustee shall receive for services rendered as Trustee
hereunder such reasonable compensation as the Employer and the Trustee
may from time to time agree upon unless he already receives full time pay
from the Employer.
8.6 Investments.
(a) If pursuant to Section 6.3 the Employer appoints an
Investment Manager to manage (including the power to
acquire and dispose of) Plan assets and to the extent that the
Participants have made investment elections as to their
accounts pursuant to Section 4.4, the Trustee shall not have
exclusive authority and discretion to manage such assets and
shall not be responsible for such investments.
(b) The Trustee in managing and administering the trust fund
shall be and hereby is empowered and authorized in its sole
discretion, subject only to the provisions of Section 4.4 and
subparagraph (a) of this Section:
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54
(i) To invest and reinvest the contributions to the trust
fund and any accretions thereto, whether capital
gains or income or both, and the proceeds of any
sale, pledge, lease or other disposition of any assets
of the trust fund in bonds, notes, mortgages,
commercial papers, preferred stocks, common stocks
or other securities, in any other type of personal
property, including annuities and group annuities, in
real property, and in share of any Common Trust
Fund, collective investment or pooled fund,
maintained by a bank or similar financial institution,
which is supervised by the United States or a state or
agency thereof, even if it is a fiduciary or
party-in-interest under this Plan, or in any other
forms of investment, and shall not be bound as to the
character of any investment by a statute or rule of
law or custom governing the investment of trust
funds, other than the requirements of the Act. In no
event shall the Trustee or Plan Administrator make
distribution to any Participant under the Plan in the
form of a life annuity.
(ii) To vote any and all stock under this trust and to
continue any investment in stocks, bonds, real estate
notes, or other securities, or real or personal
property, which may at any time form a part of the
trust fund, subject to the provisions of Section 7.9(b)
hereof.
(iii) To invest, reinvest, and change investments; to sell,
mortgage, pledge, lease, assign, transfer and convey
any and all of said trust property and estate, whether
real or personal, and any and all interests therein,
for cash or on credit, at public or private sale; to
exchange any trust property for other property; to
grant options to purchase or acquire any trust
property; to sell put or call options on any shares of
common or preferred stock or any bonds, including
convertible bonds, which may be owned as a part of
the trust property; to determine the prices and terms
of sales, exchanges and options; and to execute,
acknowledge and deliver any and all deeds or other
trust instruments of conveyance which may be
required to carry the foregoing powers into effect,
without obligation on the part of the purchaser,
lessee, lender, assignee, or transferee, or anyone to
whom the property may in any way be conveyed to
see to the application of the purchase money loans or
property exchanged, transferred, assigned or
conveyed.
(iv) To allow cash in the Trustee's hands to remain
uninvested and on deposit in the commercial or
savings department of any bank or trust company
supervised by the United States or a state or agency
thereof, even if it is a fiduciary or party-in-interest,
at any time and from time to time in a reasonable
amount; and, as to such amount on deposit, the
Trustee shall have no liability for interest thereon,
except for such
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55
interest as may be paid on such deposit.
(v) To exercise with respect to all investments, all of the
rights, powers and privileges of an owner including,
without limiting the foregoing, the power to give
proxies, pay calls, assessments and other sums
deemed necessary for protection of the trust fund; to
participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations,
mergers and liquidations, and in connection
therewith to deposit securities with and transfer title
to any protective or other committee under such
terms as the Trustee may deem advisable; to exercise
or sell stock subscriptions or conversion rights and
to accept and retain as an investment hereunder any
securities received through the exercise of any of the
foregoing powers. If the Trustee shall pay more
than the par value of any security purchased, the
Trustee shall not be obligated to establish a sinking
fund out of the income of such investments for
repaying to the principal the said amount paid above
par.
(vi) To take any action with respect to conserving or
realizing upon the value of any trust property, and
with respect to foreclosures, reorganizations, or
other changes affecting the trust property; to collect,
pay, contest, compromise, or abandon demands of or
against the trust estate, wherever situated; and to
execute contracts, notes, conveyances, and other
instruments, including instruments containing
covenants and warranties binding upon and creating
a charge against the trust estate, and containing
provisions excluding personal liability.
(vii) To employ agents, including investment counsel, for
advice and to manage the investment of the trust
property, attorneys, auditors, depositories, and
proxies, with or without discretionary powers; all
such parties shall have the right to rely upon and
execute the written instructions of the Trustee, and
shall not be obligated to inquire into the propriety of
the acts or directions of the Trustee; other than as
required under the Employee Retirement Income
Security Act of 1974.
(viii) To compromise any claim existing in favor of, or
made against this trust.
(ix) To engage in any litigation, either for the collection
of monies for other properties due the trust fund, or
in defense of any claim against the trust fund,
provided, however, that the Trustee shall not be
required to engage in or participate in any litigation
unless the Trustee shall have been indemnified to its
satisfaction against all expenses and liabilities to
which the Trustee may become subject.
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56
8.7 Maintaining Accounts - Reports, Audits and Approval
Thereof. The Trustee shall keep full accounts of all receipts and
disbursements and shall render an annual report to the Plan Administrator
within two (2) months after the end of the Plan Year; said report to
contain a complete accounting showing the total assets in the trust as of
the valuation date and the fair market value placed on each assets as of the
date, as well as a statement of purchases, sales, and any investment
charges and all income, receipts, expenses, and disbursements since the
last such report, and to be in such form and to contain such other
information concerning the Plan and the administration thereof by the
Trustee as shall be required in writing by the Plan Administrator, or by
the regulations of the Commissioner of Internal Revenue or the Secretary
of Labor, or both. If the Trustee is a bank or similar institution regulated
and supervised and subject to periodic examination by a State or Federal
agency, it shall transmit and certify that the statements required in any
annual report under Section 103(b) of the Act as accurate to the Plan
Administrator within 120 days after the end of the Plan Year or such other
date as may be prescribed under regulations of the Secretary of Labor.
The approval of the Plan Administrator or Employer or the lack of
written objection from them within ninety (90) days after submission, of
any report or accounting by the Trustee shall be a complete release and
discharge to the Trustee and shall be binding upon all Participants and all
persons claiming in place of or through such Participants, provided that
they do no contain any statement that is a result of a breach of any
fiduciary duty by the Trustee or they do not omit or conceal such breach.
8.8 Tenure in Office - Appointment of Successor. The Trustee
may resign upon giving thirty (30) days' written notice to the Employer.
Upon thirty (30) days' written notice, unless a shorter period is agreed to,
the Employer shall have the power to remove the Trustee for any or no
reason and to appoint a successor to a resigned or removed Trustee.
The appointment of a successor Trustee shall become effective
upon acceptance in writing of such appointment by the successor Trustee.
The successor Trustee may be either a corporate Trustee or an individual
Trustee or individual Trustees, and the successor Trustee or Trustees shall
have no liability for anything done or omitted to be done by the former
Trustee. Every successor Trustee appointed to and accepting a trusteeship
hereunder shall have the rights, title, powers, duties, exemptions and
limitations of the original Trustee.
8.9 Action on Removal or Resignation. The Employer shall
notify the Participants and the Plan Administrator of any change in the
trusteeship.
Upon approval of the Trustee's accounts by the Employer, the
resigning or removed Trustee shall transfer and deliver the assets in hand
under this Plan and trust to the successor Trustee after paying or reserving
such reasonable amount as the Trustee shall deem necessary to provide for
the Trustee's expenses in the settlement of the accounts and the amount of
any compensation due the Trustee and any sums chargeable against the
trust fund for which the Trustee may be liable, but if the sums so reserved
are not sufficient for such purpose, the
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57
Trustee shall be entitled to reimbursement for any deficiency from the
successor Trustee out of assets in the Trustee's hands under this Plan. If
the amount reserved be in excess of the amount actually needed, the
former Trustee shall return such excess to the successor Trustee. Upon
such transfer and delivery, the resigning or removed Trustee shall be
discharged from all further accountability and for all matters embraced in
the settlement of the Trustee's accounts, except as provided in Section 8.4.
8.10 Transfer of Interest. Subject to the provisions of Section
5.4, the Trustee at the direction of the Plan Administrator may transfer
upon a break in service of a Participant the nonforfeitable interest, if any,
of such Participant in his account to another trust forming part of a
pension, profit sharing or stock bonus Plan maintained by such
Participant's new employer and meeting the requirements of Internal
Revenue Code Section 401(a) provided that the Trust to which such
transfers are made permits the transfer to be made, or to the Participant
after advising him of the income tax advantage of "rolling over" such
distribution within sixty (60) days into an Individual Retirement Account
or Annuity as defined in Internal Revenue Code Section 408. With the
consent of the Plan Administrator, the Trustee may accept funds
transferred from such trusts or a "conduit" Individual Retirement Account
for the account of a Participant under this Plan, provided that the trust
from which such funds are transferred permits the transfer to be made
and, in the opinion of counsel for the Employer, the transfer will not
jeopardize the exempt status of the Plan, the Plan Administrator shall
maintain a separate, nonforfeitable account for the amount transferred and
its share of the accretions or losses of the Trust Fund thereafter until such
Participant's interest in his account is completely nonforfeitable, at which
time the two accounts shall be merged. Under no circumstances shall the
Trustee and/or the Plan Administrator accept funds from any trust or Plan
that constitutes or is intended to constitute a pension, profit sharing, stock
bonus or other similar Plan qualified under Code Section 401.
ARTICLE IX - AMENDMENT, TERMINATION AND MERGER OF Plan
9.1 Amendment of Plan. The Employer shall have the right to
amend this Plan in any and all respects at any time and from time to time,
provided, however:
(a) That no amendment shall increase the duties or liabilities of
the Plan Administrator or the Trustee without his written
consent.
(b) That no amendment shall deprive any Participant or
beneficiary of a deceased Participant of any of the benefits
to which he is entitled under this Plan with respect to
contribution previously made, nor shall any amendment
decrease the balance in any Participant's account.
(c) That no amendment shall provide for the use of funds or
assets held under this Plan other than for the benefit of
employees and their beneficiaries or that any funds
contributed to this Plan or funds or assets of this Plan shall
ever revert to
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58
or be used or enjoyed by the Employer.
Any amendment to the Plan shall first be approved by resolution of
the Board, and shall be executed by the Employer and the Trustee.
Notwithstanding the foregoing, any amendment necessary to qualify this
Plan, or maintain its qualification, under Section 401(a) of the Internal
Revenue Code may be made without the further approval of the Board of
Directors signed by the proper officers of the Employer and Trustee,
provided the obligations of the Employer are not increased thereby. Any
amendment shall be effective as of the date specified therein.
9.2 Termination of Plan. It is the expectation of the Employer
to continue this Plan and its contributions indefinitely, but no contractual
obligation to do so is assumed by the Employer and it reserves the right to
terminate the Plan at any time. Such termination shall be approved by
resolution of the Board.
9.3 Full Vesting on Termination of Plan. Upon termination, or
partial termination, of the Plan, or complete discontinuance of
contributions, any unallocated funds shall be allocated to Participants in
the same manner as Employer contributions, and the interest of each
employee who is a Participant in the Plan, retired Participant, or former
Participant in the accumulations in his account, shall be nonforfeitable,
and shall continue to be paid to him if he shall be already retired, or if he
shall not be retired, shall be paid to him on and after the occurrence of
any event which would have resulted in distribution had the Plan remained
in existence, in the same manner and under the same options as provided
in Article V hereof.
9.4 Mergers and Consolidations of Plans. In the event of any
merger or consolidation with, or transfer of assets or liabilities to, another
Plan after September 2, 1974, each Participant in the Plan shall receive a
minimum benefit if the Plan terminated immediately after the merger,
consolidation, or transfer, which is equal to or greater than the benefit the
Participant would have been entitled to receive immediately before the
merger, consolidation or transfer if the Plan in which he was a Participant
had then terminated.
9.5 Effect of Plan Amendments. No amendment to the Plan
shall be effective to the extent that it has the effect of decreasing a
Participant's accrued benefit. Notwithstanding the preceding sentence, a
Participant's account balance may be reduced to the extent permitted under
Section 412 (c) (8) of the Code. For purposes of this paragraph, a Plan
amendment which has the effect of decreasing a Participant's account
balance or eliminating an optional form of benefit, with respect to benefits
attributable to service before the amendment shall be treated as reducing
an accrued benefit. Furthermore, if the vesting schedule of a Plan is
amended, in the case of an employee who is a Participant as of the later of
the date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such employee's
right to his employer-derived accrued benefit will not be less than his
percentage computed under the Plan without regard to such amendment.
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59
ARTICLE X - NON-ALIENATION OF BENEFITS
10.1 Alienation - Pledge. (a) Excepting as to loans to
Participants as provided in Section 5.9, no amount payable to or held
under the Plan on account of any active, former or retired Participant, or
any beneficiary thereof, shall be subject in any manner to anticipation,
assignment (either at law or in equity), alienation, nor shall any such
amount be subject to attachment, garnishment, levy, execution or other
legal or equitable process. For purposes of this section, the terms
"assignments" and "alienation" include (i) any arrangement providing for
the payment to the Employer of Plan benefits which otherwise would be
due the Participant under the Plan, and (ii) any direct or indirect
arrangement (whether revocable or irrevocable) whereby a party acquires
from a Participant or beneficiary a right or interest enforceable against the
Plan in, or to, all or any part of a Plan benefit payment which is, or may
become, payable to the Participant or beneficiary.
(b) Notwithstanding paragraph (a) of this section, once a
Participant or beneficiary begins receiving benefits under
the Plan, the Participant or beneficiary may assign or
alienate the right to future benefit payments provided that
such assignment or alienation is voluntary and revocable;
does not in the aggregate exceed 10% of any benefit
payment and is neither for the purpose, nor has the effect,
of defraying Plan administration costs. For purposes of this
subparagraph, an attachment, garnishment, levy, execution
or other legal or equitable process is not considered a
voluntary assignment or alienation.
(c) Subsection 10.1(a) shall apply to the creation, assignment,
or recognition of a right to any benefit payable with respect
to a Participant pursuant to a domestic relations order,
except that Subsection 10.1(a) shall not apply if the order is
determined to be a qualified domestic relations order within
the meaning of Section 414(p) of the Code.
10.2 Incapacity Following Retirement. If any former or retired
Participant entitled to any payment under the Plan shall be physically or
mentally incapable of receiving or acknowledging receipt of such payment,
the Plan Administrator, upon the 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.
ARTICLE XI - MISCELLANEOUS PROVISIONS
11.1 Employees' Trust. This Plan is created for the exclusive
purpose of providing benefits to the Participants in the Plan and their
beneficiaries and defraying reasonable expenses of administering this Plan,
and shall be interpreted in a manner consistent with its being an
employees' trust, as defined in Section 401(a) of the Code, or any
subsequent
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60
sections of the Code of like intent or purpose. Therefore, under no
circumstances, other than those specified in Sections 3.7 through 3.9,
inclusive, shall any funds contributed to this Plan and trust, any assets of
this Plan and trust, or income of this trust ever revert to or be used or
enjoyed by the Employer, nor shall any such funds, assets or income ever
be used or diverted to purposes other than for the benefit of the employees
of the Employer or their beneficiaries.
11.2 General Undertaking. All parties to this Plan and all
persons claiming any interest whatsoever hereunder agree to perform any
and all acts and execute any and all documents and papers which may be
necessary or desirable for the carrying out of this Plan or any of its
provisions.
11.3 Agreement to Bind Heirs, etc.. This Agreement shall be
binding upon the heirs, executors, administrators, successors and assigns,
as such terms shall apply, or any and all parties hereto, present and
future.
11.4 Plan Not Contract of Employment. This Plan shall not be
construed as creating or changing any contract of employment between the
Employer and its employees, whether Participants hereunder or not; and
the Employer retains the right to deal with its employees, whether
Participants hereunder or not, and to terminate their respective
employment at any time, to the same extent as though this Plan had not
been created.
11.5 Invalidity of Certain Provisions. If any provision of this
Agreement shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof and this
Agreement shall be construed and enforced as if such provisions had not
been included.
11.6 Law Governing. This Plan and trust shall be construed and
enforced according to the laws of the State of Florida other than its laws
respecting choice of law, to the extent not preempted by the Act.
11.7 Construction of Instrument. In any application to any court
for the construction of this instrument, or for the determination of any
asserted interest in or to the trust fund, only the Employer and the Trustee
shall be necessary parties, and no Participant or other person having an
interest in the fund shall be entitled to any notice or process. Any
judgment entered in such action or proceeding shall be conclusive upon all
parties claiming an interest in or under this Plan and Trust Agreement.
11.8 Term of Trust. If the indefinite continuance of this trust
would be in violation of the law, then this trust shall continue for the
maximum period permitted by law and shall then terminate, whereupon
distribution of its assets shall be made as provided for upon termination of
the trust and Plan.
11.9 Service of Legal Process. The Plan Administrator shall be
the agent for service
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61
of all legal process for this Plan and the Trustee named herein.
11.10 Bonding. Every fiduciary, except a bank or an insurance
company, which is specifically exempted by Section 412 of the Act, shall
be bonded as provided by the Act and regulations thereunder.
Notwithstanding anything in this Agreement to the contrary, the cost of
any such bond shall be an expense of and may, at the election of the Plan
Administrator, be paid from the trust fund or by the Employer.
11.11 No Divestment for Cause. No Participant under this Plan
shall be deprived of any of his benefits provided for him for any cause
whatever.
11.12 Payment of Benefits if Claim Not Filed. A Participant
under this Plan shall be paid any benefits due him regardless of whether
or not a claim therefor is filed.
11.13 Service Prior to Plan Adoption. Years of service for the
purpose of determining eligibility to participate in the Plan under Articles
I and II shall include all years of service completed prior to the effective
date of the adoption of this Plan.
11.14 Acceptance. The Trustee hereby accepts this trust and
agrees to hold the trust assets existing on the date of this Agreement and
all additions and accretions thereto subject to all the terms and conditions
of this Plan and Trust Agreement, which shall be interpreted and
construed in accordance with the Act and the Code, and to the extent not
superseded by other Federal law, in accordance with the laws of the State
of Florida, other than its laws respecting choice of laws.
11.15 Investment of Plan Assets in Employer Stock. This Plan is
designed and intended to invest in Employer Stock to the maximum extent
of 75% of Plan assets or to such lesser extent as actually elected by Plan
Participants pursuant to Section 4.4(b).
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62
IN WITNESS WHERE0F, the parties have executed this
Agreement as of the day and year first above written.
Signed, sealed and delivered CPI ACQUISITION, INC. d/b/a
in the presence of: Computer Power, Inc.
/s/ Marion L. Sorrell By: /s/ David M. Hicks
David M. Hicks, President
/s/Caroline W. Chatham Attest:/s/James W. Milligan
As to Employer James W. Milligan,
Secretary
(Corporate Seal)
EMPLOYER
/s/ Brenda S. Bludsworth /s/ W. Robinson Frazier,III
W. Robinson Frazier,III
/s/ Roy Z. Street /s/ David M. Hicks
As to Trustee David M. Hicks
/s/ K.C. Houston
K.C. Houston
TRUSTEE
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63
AMENDMENT TO CPI ACQUISITION, INC.
d/b/a/ COMPUTER POWER, INC.
AMENDED AND RESTATED RETIREMENT SAVINGS Plan TRUST
AGREEMENT
THIS AGREEMENT made this 24th day of February,1992, by and
between CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC., a
Delaware corporation, with principal offices at Jacksonville, Florida
(hereinafter called the "Employer") and K. C. HOUSTON and DAVID
M. HICKS, both of Jacksonville, Florida (hereinafter collectively called
the "Trustee").
WITNESSETH:
WHEREAS, the Employer maintains the CPI Acquisition, Inc.
d/b/a Computer Power, Inc. Retirement Savings Plan for the benefit of the
Employer's eligible employees (hereinafter called the "Plan") under the
provisions of Section 401(a) of the Internal Revenue Code of 1986, as
amended; and
WHEREAS, K. C. Houston and David M. Hicks are currently the
duly appointed and acting trustees of the Trust established under the Plan;
and
WHEREAS, it is contemplated that, pursuant to a Plan of Merger
dated as of December 5, 1991, a subsidiary of ALLTEL Corporation
(hereinafter called "ALLTEL") will be merged into the Employer, with
the Employer as the surviving corporation ("the Merger"), and all shares
of common stock of the Employer (hereinafter called "Employer Stock")
owned by the Plan and by all other stockholders of the Employer will be
converted into shares of ALLTEL common stock, with cash paid in lieu of
any resulting fractional shares; and
WHEREAS, Section 9.1 of the Plan provides that the Employer
reserves the right to amend the Plan at any time; and
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64
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the respective parties hereto agree as
follows:
1. Effective as of the effective time of the Merger, the
definition of "Employer" in Section 1.l of the Plan is amended to provide
as follows:
"Employer" means CPI ACQUISITION, INC. d/b/a
COMPUTER POWER, INC., a Delaware corporation, and the
surviving corporation resulting from any merger or consolidation of
CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC.
with any other corporation. The term "Employer" shall also mean
any other entity which, with the consent of the Board of Directors,
adopts this Plan and joins in the Trust Agreement. Where a group
of Employers has adopted and joined in this Plan and Trust
Agreement and such group constitutes a controlled group of
corporations within the meaning of Section 1563(a) of the Code,
such group shall be treated as one Employer for purposes of
crediting years of service completed by eligible employees under
Article II and Section 5.4.
2. Effective as of the effective time of the Merger, the
definition of "Employer Stock" in Section 1.l of the Plan is amended to
provide as follows:
"Employer Stock" means the common stock, par value
$1.00 per share, of ALLTEL Corporation, a Delaware corporation, as
such common stock is from time to time constituted.
Employer,
Witness: CPI ACQUISITION, INC.
d/b/a COMPUTER POWER,INC.
/s/ Bruce P. Andrews By: /s/ James W. Milligan
Trustee,
/s/ Marion L. Sorrell /s/ K.C. Houston
K. C. Houston
/s/ Myra M. Wilson /s/ David M. Hicks
David M. Hicks
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65
SECOND AMENDMENT TO
CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC.
AMENDED AND RESTATED RETIREMENT SAVINGS Plan
TRUST AGREEMENT
THIS AMENDMENT, made and executed as of the 23rd day of
December, 1992, by and between CPI Acquisition, Inc. d/b/a Computer
Power, Inc., a Delaware corporation with principal offices in Jacksonville,
Duval County, Florida, hereinafter referred to as the Employer; and
David M. Hicks, of Jacksonville, Duval County, Florida, hereinafter
referred to as the Trustee.
WITNESSETH:
WHEREAS, the Employer and W. Robinson Frazier, III, David
M. Hicks and K. C. Houston, as Trustees, did execute the CPI
Acquisition, Inc. d/b/a Computer Power, Inc. Amended and Restated
Retirement Savings Plan Trust Agreement ("the Plan") as of
September 29, 1989; and
WHEREAS, David M. Hicks is currently the sole Trustee of the
Plan; and
WHEREAS, Article IX, Section 9.1, of the Plan provides that the
Plan may be amended in order for it to constitute a qualified Plan under
Section 401(a) of the Internal Revenue Code without the approval of the
Employer's Board of Directors; and
WHEREAS, the Employer and the Trustee are desirous of
amending the Plan in order that it shall constitute a qualified Plan under
Section 401(a) of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the premises, the parties
hereto make the following amendments to the CPI Acquisition, Inc. d/b/a
Computer Power, Inc. Amended and Restated Retirement Savings Plan
Trust Agreement, dated September 29, 1989, effective
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66
commencing with the entire calendar year ending December 31,1989:
1. Article III, Section 3.3, is hereby completely
amended and restated to read as follows:
"3.3 Limitations. The Employer may limit, revoke or
amend its agreement to make tax-deferred contributions under Section 3.1
on behalf of any Participant at any time, but only if it determines that such
limitation, revocation or amendment is necessary under one of the
following circumstances set forth in subparagraphs (a), (b) or (c) herein
below:
"(a) in the case of tax-deferred savings contributions, to
insure that the discrimination tests of Section 401(k) of the Code
governing permissible levels of tax-deferred contributions are met for such
Plan Year, or to insure that one of the following tests is met for such Plan
Year.
"(1) The Actual Average Percentage of the
tax-deferred contributions of the
Highly-Compensated Employees eligible to
participate is not more than 1.25 times the
Actual Average Percentage of the
tax-deferred contributions for all other
Employees eligible to participate; or
"(2) The Actual Average Percentage of the
tax-deferred contributions for the Highly-
Compensated Employees eligible to
participate is not more than 2.0 times the
Actual Average Percentage of the
tax-deferred contributions for all other
Employees eligible to participate and the
Actual Average Percentage of the
tax-deferred contributions for the
Highly-Compensated Employees eligible to
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67
participate does not exceed the Actual
Average Percentage of the tax-deferred
contributions for all other Employees eligible
to participate by more than two (2)
percentage points. The provisions of Code
Section 401(k)(3) and Regulation 1.40l(k)-l(b)
are incorporated herein by reference.
"However, for Plan Years beginning after December 31,
1988, in order to prevent the multiple use of the alternative method
described in (2) above and in Code Section 401(m)(9)(A), any Highly-
Compensated Employee eligible to make elective deferrals pursuant to
Section 3.2 and to make Employee contributions or to receive matching
contributions under any other Plan maintained by the Employer or an
affiliated Employer shall have his actual contribution ratio reduced
pursuant to Regulation 1.401(m)-2, the provisions of which are
incorporated herein by reference.
"(b) to insure that a Participant's Additions for any calendar
year will not exceed the limitations of Section 3.4; or
"(c) to insure deductibility of the Employer's entire
contribution to the Plan for federal income tax purposes.
"If a limitation or amendment becomes necessary pursuant
to subparagraphs (a) or (c) above, such limitation or amendment will be
first applied to the Participant who is the Highly-Compensated Employee
electing the highest percentage of tax-deferred savings contributions
pursuant to Section 3.1 until the tests of subparagraphs (a) or (c) are met
or until such Participant's election pursuant to Section 3.1 is reduced to
the same percentage level as the Participant who is the Highly-
Compensated Employee electing the second highest
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68
percentage of tax-deferred savings contributions pursuant to Section 3.1.
If further limitations are required, then both such Participants' percentage
elections shall be reduced until the tests of subparagraphs (a) or (c) are
met or until the two Participants' elections pursuant to Section 3.1 are
reduced to the same percentage level as the Participant who is the
Highly-Compensated Employee electing the third highest percentage of
tax-deferred savings contributions pursuant to Section 3.1, and such
limitations or amendments shall continue to be made in a similar manner
from the Participants who are Highly-Compensated Employees making the
highest percentage elections to the lowest until the tests of subparagraphs
(a) or (c) are satisfied. The Employer shall have the right to include the
tax-deferred savings contributions for purposes of meeting the limitation
under this Section 3.3.
"In applying the discrimination tests under Section 401(k) of
the Internal Revenue Code, tax-deferred savings contributions shall be
taken into account for a Plan Year only if such contributions are
attributable to compensation received by the Participant during the Plan
Year in question or earned during the Plan Year in question and received
within 2 1/2 months after the end of the Plan Year. Additionally, the
tax-deferred savings contributions must be allocated to the Participants
Tax-Deferred Savings Account within such Plan Year.
"In applying the discrimination tests under this Section, the
employer shall treat tax-deferred contributions under Plans which are
aggregated under Sections 401(a)(4) or 410(b) of the Internal Revenue
Code as made under a single Plan. In addition, if a Highly-Compensated
Employee is eligible under more than one cash or deferral arrangement
maintained by the Employer, the Employee's Actual Average percentage
is calculated by treating all of the cash or deferral arrangements as one
cash or deferral arrangement.
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69
"For purpose of this Section, the family aggregation rules
set forth in the definition of the term "highly-compensated employee"
found in Section 1.1 shall apply. Where the family aggregation rules are
applicable, the family group shall be treated as one Highly-Compensated
Employee and the Actual Average percentage for the family group shall be
the greater of:
"(1) the ratio determined by combining the compensation
and salary reduction contributions of all eligible family members who are
highly-compensated without regard to family aggregation; and
"(2) the ratio determined by combining the compensation
and salary reduction contributions or all eligible family members.
"For purposes of this Section 3.3, the following meanings
shall attach. The "Actual Average Percentage" for a specified group of
Participants for a Plan Year shall be the average of the ratios (calculated
separately for each Participant in such group) of the amount of Employer
Contributions actually paid over to the Trust on behalf of each such
Participant for each Plan Year to the Participant's Compensation for such
Plan Year. The term "Compensation" shall include all amounts paid by
the Employer to the Participant which are currently includible in the
Participant's gross income. The Employer may, but shall not be required
to, include in the Participant's Compensation the amount of any
Participant salary reduction elections under Code Sections 125 and 401(k),
or to use such alternate definition of Compensation as the Internal
Revenue Service may provide by regulation under Code Section 414(s)."
2. Except as hereinabove amended or modified, the remaining
terms, conditions
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70
and provisions of the Plan, as previously amended, shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
amendment the day and year first above written.
Signed, sealed and delivered
in the presence of:
/s/ Marion L. Sorrell CPI ACQUISITION, INC. d/b/a
COMPUTER POWER, INC.
/s/ Dori N. Stephens By: /s/ Bruce P. Andrews
Witnesses as to both parties Bruce P. Andrews, Vice President
and Chief Financial Officer
EMPLOYER
/s/ David M. Hicks
David M. Hicks
TRUSTEE
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71
THIRD
AMENDMENT TO
CPI ACQUISITION, INC.
D/B/A COMPUTER POWER, INC.
AMENDED AND RESTATED SAVINGS PLAN TRUST AGREEMENT
THIS AGREEMENT made this 24th day of December, 1992, by
and between CPI ACQUISITION, INC. d/b/a COMPUTER POWER,
INC., a Delaware corporation, with principal offices at Jacksonville,
Florida (hereinafter called the "Employer") and DAVID M. HICKS, of
Jacksonville, Florida (hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Employer maintains the CPI Acquisition, Inc.
d/b/a Computer Power, Inc. Retirement Savings Plan for the benefit of the
Employer's eligible employees (hereinafter called the "Plan") under the
provisions of Section 401(a) of the Internal Revenue Code of 1986, as
amended; and
WHEREAS, David M. Hicks is currently the duly appointed and
acting trustee of the Trust established under the Plan; and
WHEREAS, Section 9.1 of the Plan provides that the Employer
reserves the right to amend the Plan at any time;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the respective parties hereto agree as
follows:
PART A
Effective as of January 1, 1989, the Plan is hereby amended in the
following respects:
1. The definition of "Normal Retirement Age" in
Section 1.2 of the Plan is amended to provide as follows:
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72
"Normal Retirement Age" means the date on which a participant
attains age sixty-five (65).
2. The third sentence of the definition of "Employer" in
Section 1.2 of the Plan is amended to provide as follows:
For purposes of the Plan except for participation in the Plan of employees,
the term "Employer" shall include each other entity that would be
aggregated with an Employer for a relevant purpose under Section 414 of
the Code.
3. The definition of Compensation in Section 1.2 of the Plan is
amended by adding a new sentence immediately following paragraph (a)
thereof to provide as follows:
Nothwithstanding the foregoing, compensation of a Participant shall
include contributions made to the Plan on behalf of the Participant
pursuant to a salary reduction agreement and elective contributions made
on behalf of the Participant that are not includible in the Participant's
gross income under Section 125 or 402(a)(8) of the Code.
PART B
Effective as of the effective time of the merger of a subsidiary of
ALLTEL Corporation into the Employer, with the Employer as the
surviving corporaton, pursuant to a Plan of Merger dated as of December
5, 1991, as amended, the Plan is hereby amended in the following
respects:
1. The definition of "Eligible Employee" in Section 1.1 of the
Plan is amended to provide as follows:
"Eligible Employee" means any common-law employee of the
Employer, or its corporate successor, except the following:
(i) Directors, unless otherwise employed by the Employer; and
(ii) Employees covered by a collective bargaining agreement
between employee representatives and the Employer in which retirement
benefits were the subject of good faith bargaining between such employee
representatives and the Employer.
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73
2. The second paragraph of the definition of "Leased Employee"
in Section 1.1 of the Plan is amended by deleting the introductory clause
therefrom and substituting the following therefor:
A leased employee, other than an excludable leased employee,
shall be treated as an employee of the Employer for all purposes of the
Plan with respect to the provisions of Sections 401(a)(3), (4), (7), and
(16), and 408(k), 410, 411, 415, and 416 of the Code; provided however,
that no leased employee shall accrue a benefit hereunder. A leased
employee shall be considered an "excludable leased employee" if:
PART C
Effective as of January 1, 1993, Section 8.10 of the Plan is hereby
amended to provide as follows:
8.10 Rollovers. With the consent of the Plan Administrator, the
Trustee may accept an eligible rollover distribution, as defined in
Section 402 of the Code, from an eligible retirement plan, as defined in
Section 402 of the Code. The Plan Administrator shall maintain a
separate, nonforfeitable account for the amount transferred and its share of
the accretions or losses of the Trust Fund.
PART D
Effective as of the effective date of acceptance by NationsBank of
Texas, N.A. of its appointment as successor Trustee, the Plan is hereby
amended in the following respects:
1. The definition of "Trustee" in Section 1.1 of the Plan is
amended to provide as follows:
"Trustee" means NationsBank of Texas, N.A. or any successor
trustee designated, qualified, and acting under the Trust Agreement.
2. Section 1.1 of the Plan is amended by adding a new definition
immediately following the definition of Total and Permanent Disability to
provide as follows:
"Trust Agreement" means the agreement entered into by and
between the Employer
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74
and the Trustee relating to the holding, investment, and reinvestment of
the assets of the plan, together with all amendments thereto, the provisions
of which shall be deemed a part of the Plan and are hereby incorporated
into the Plan.
3. The definition of "Plan" in Section 1.2 of the Plan is amended
to provide as follows:
"Plan" means "Computer Power, Inc. Retirement Savings Plan" as
set forth herein, and as the same may from time to time hereafter be
amended.
4. Subsection 4.4(a) of the Plan is amended to provide as follows:
(a) Except as provided in Subsection 4.4(b), each Participant shall
have the right to direct the investment of his account in one or more of the
investment funds maintained in accordance with the provisions of the Trust
Agreement. Once during each calendar quarter on a date of the
Participant's choosing, each Participant may direct that his account be
invested in the then available investment funds in such increments as may
be specified by the Participant in question on forms promulgated for such
purposes by the Plan Administrator. If a Participant fails to file a timely
investment election for any portion of his account, that portion of his
account shall be invested in the investment fund existing under the Trust
Agreement that invests primarily in short-term, fixed income investments,
or in the absence thereof, the investment fund selected by the Plan
Administrator. The allocation of earnings and adjustments provided for in
Sections 4.2 and 4.3 of this Article IV shall be done taking into account
the provisions of this Section 4.4.
5. Paragraph (4) of Subsection 4.4(b) of the Plan is deleted.
6. Section 6.3 of the Plan is amended to provide as follows:
6.3 Appointment of Investment Manager. An Investment Manager
may be appointed from time to time to manage all or a portion of the
assets of the Plan as provided in the Trust Agreement.
7. Article VIII of the Plan and any other provision of the Plan
integrally related thereto shall be inoperative and the provisions of the
Trust Agreement shall be operative in lieu thereof.
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75
Witness: Employer,
CPI ACQUISITION, INC.
d/b/a COMPUTER POWER, INC.
/s/ Marion L. Sorrell By: /s/ Bruce P. Andrews
Trustee,
/s/ Dori N. Stephens /s/ David M. Hicks
David M. Hicks
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76
FOURTH
AMENDMENT TO
COMPUTER POWER, INC.
RETIREMENT SAVINGS PLAN
WHEREAS, CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC. (hereinafter
called the "Employer") maintains the Computer Power, Inc. Retirement Savings
Plan for the benefit of Employer's eligible employees (hereinafter
called the "Plan") under the provisions of Section 401(a) of the Internal
Revenue Code of 1986, as amended; and
WHEREAS, Section 9.1 of the Plan provides that the Employer reserves
the right to amend the Plan at any time;
NOW THEREFORE, effective as soon as practicable following
receipt of a Private Letter Ruling from the Internal Revenue Service regarding
termination of the CPI Acquisition, Inc. d/b/a Computer Power, Inc.
Employee Stock Ownership Plan, the Plan is hereby amended by the addition of
a new Section 8.11 to provide as follows:
8.11 Transfer of Certain Accounts From ESOP. In the event that,
upon termination of the CPI Acquisition, Inc. d/b/a Computer Power, Inc.
Employee Stock Ownership Plan (the "ESOP"), a participant in the ESOP does
not elect to receive distribution of his account under the ESOP, the Trustee
of the Plan shall accept transfers of such accounts from the trustee of the
ESOP. The trustee shall establish and maintain a separate, nonforfeitable
ESOP Transfer Account for each such transferred account and its share of the
accretions or losses of the Trust Fund. Notwithstanding any other provision
of the Plan to the contrary, no amounts transferred to an ESOP Transfer
Account or any earnings thereon shall be invested in Employer Stock or any other
employer security.
EXECUTED this 22 day of July, 1994.
Witness: Employer,
CPI ACQUISITION, INC.
d/b/a COMPUTER POWER, INC.
/s/ N. Trent Georges By: /s/ Bruce P. Andrews
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77
FIFTH
AMENDMENT TO
COMPUTER POWER, INC.
RETIREMENT SAVINGS PLAN
WHEREAS, CPI ACQUISITION, INC. d/b/a COMPUTER POWER, INC.
(hereinafter called the "Employer") maintains the Computer Power, Inc.
Retirement Savings Plan for the benefit of the Employer's eligible
employees (hereinafter called the "Plan") under the provisions of Section
401(a) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, Section 9.1 of the Plan provides that the Employer
reserves the right to amend the Plan at any time;
NOW THEREFORE, the Plan is hereby amended in the respects
hereinafter set forth.
PART A
Effective as of January 1, 1994, the Plan is amended in the
following respects.
1. Subparagraph (b)(4) of Section 3.4 of the Plan is
amended to provide as follows:
(4) If, as a result of the allocation of forfeitures, a
reasonable error in estimating a Participant's annual compensation, a reasonable
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78
error in determining the amount of elective deferrals (within the meaning of
Section 402 (g) (3) of the Code) that may be made with respect to any individual
under the limits of Section 415 of the Code, or under other limited facts and
circumstances that the Commissioner finds justify the availability of the rules
set forth in Section 3.6, a Participant's annual additions under this Plan and
such other plans would result in an excess amount for a limitation year, the
excess amount shall be deemed an excess amount under the Plan and shall be
disposed of in the manner described in Section 3.6. If, after applying the
provisions of Section 3.6, there is still an excess amount, such excess amount
shall be disposed of in accordance with the terms of such other plans.
2. Subparagraphs (b)(5) and (b)(6) and paragraph (c)
of Section 3.4 of the Plan are deleted.
3. Section 3.6 of the Plan is amended by renumbering
paragraphs (b), (c), and (d) thereof as paragraphs (c), (d), and (e),
respectively; by deleting each reference to "paragraph a" therefrom and
substituting a reference to "paragraph (a) and Paragraph (b)" therefor in each
place such reference occurs; and by adding a new paragraph (b) to provide as
follows:
(b) Any elective deferrals (within the meaning of Section 402(g)(3)
of the Code), to the extent that they would reduce the excess amount, will be
returned to the Participant.
PART B
Effective as soon as practicable following receipt of a
Private Letter Ruling from the Internal Revenue Service regarding termination
of the CPI Acquisition, Inc. d/b/a Computer Power, Inc. Employee Stock Ownership
Plan, the Plan is amended in the following respects.
1. The second sentence of the definition of Account in Section
1.2 of the Plan is amended to provide as follows:
A Participant's account shall consist of his Employer Contribution Account,
his Employee Contribution Account, his Salary Reduction Contribuption Account,
as applicable, and such other accounts as may be established from time to time
to properly reflect his interest in the trust fund.
2. Section 1.2 of the Plan is amended by adding a new
definition immediately following the definition of Employer Stock to provide
as follows:
"ESOP Transfer Account" means the account maintained for a Participant,
if any, in accordance with the provisions of Section 8.11.
3. Section 1.2 of the Plan is amended by adding a new
definition immediately following the definition of Plan Year to provide
as follows:
"Rollover Account" means the account maintained for a Participant,
if any, in accordance with the provisions of Section 8.10.
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79
4. Paragraph (a) of Section 4.4 of the Plan is amended by
deleting each reference to "Participant" therefrom and substituting a reference
to "Participant or former Participant with an undistributed account balance"
therefor in each place such reference occurs.
PART C
Effective on or as soon as practicable after August 1, 1994,
the Plan is amended in the following respects.
1. Paragraph (b)(2) of Section 4.4 of the Plan shall be
amended to provide as follows:
(2) With respect to shares of Employer Stock purchased with
respect to a Participant's Employer Contribution Account pursuant to paragraph
(b) (a) of this Section 4.4, the Participant may direct the sale or liquidation
of those shares in accordance with the provisions of this paragraph (b) (2):
(i) For the remainder of the Plan Year ending December 31, 1994,
a Participant may direct that a portion of the Employer Stock in
which his account is invested pursuant to paragraph (b) (1)
of this Section 4.4 be sold or liquidated, provided that the
total number of shares sold or liquidated shall not exceed one-
third (rounded to the nearest whole share) of the number of
shares originally purchased, as adjusted to reflect the
exchange of CPI Acquisition, Inc. d/b/a Computer Power, Inc.
common stock for ALLTEL Corporation common stock and any stock
splits and stock dividends.
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80
(ii) For the period beginning January 1, 1995 and ending
December 31, 1995, a Participant may direct that a portion of
the Employer Stock in which his account is invested pursuant to
paragraph (b) (a) of this Section 4.4 be sold or liquidated,
provided that the total number of shares sold or liquidated,
when added to any shares sold or liquidated pursuant to subpara-
graph (i) above, by the Participant on or before December 31,
1995 shall not exceed two-thirds (rounded to the nearest whole
share) of the number of shares orignally purchased, as adjusted
to reflect the exchange of CPI Acquisition, Inc. d/b/a Computer
Power, Inc. common stock for ALLTEL Corporation common stock
and any stock splits and stock dividends.
(iii) Beginning January 1, 1996, a Participant may direct
that any or all shares of the Employer Stock in which his
account is invested pursuant to paragraph (b) (1) of this
section 4.4 be sold or liquidated.
Notwithstanding any of the provisions of this paragraph (b)(2), a
Participant's directions to sell or liquidate shares of Employer Stock shall
be subject to the provisions of parapraph (a) of Section 4.4 of the Plan.
2. Paragraph (b)(3) of Section 4.4 of the Plan shall be
amended to provide as follows:
Notwithstanding any provision hereof to the contrary, no loans or
hardship withdrawals shall be permitted with respect to any portion of a
Participant's Employer Contribution Account that is invested in shares of
Employer Stock purchased pursuant to paragraph (b) (1) above. The restriction
provided by this paragraph shall apply only to the extent that shares of
Employer Stock may not be sold or liquidated by the Participant in accordance
with the provisions of paragraph (b) (2) above.
3. The third sentence of paragraph (a) of Section 5.4 of the
Plan is amended to provide as follows:
To the extent a Participant's account is invested in Employer Stock
immediately prior to a distribution, the Participant may elect to receive that
portion of his distribution in whole shares of Employer Stock with any
fractional shares paid in cash.
4. The first sentence of paragraph (a) of Section 5.5 of the
Plan is amended to provide as follows:
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81
As of the anniversary date of the Plan Year in which occurs the death or
retirement of a Participant,the Plan Administrator shall direct the Trustee
to distribute to the Participant or his beneficiary all amounts to which he is
entitled under this Plan in the form of one lump-sum cash payment, unless the
Participant or his beneficiary elects otherwise in accordance with Section
5.5 (b) below.
5. Paragraph (b) of Section 5.5 of the Plan is amended to
provide as follows:
(b) To the extent a retired or deceased Participant's account is
invested in Employer Stock immediately prior to a distribution, the Participant,
or his beneficiary in the case of a deceased Participant, may elect to receive
that portion of the distribution in whole shares of Employer Stock, with any
fractional shares paid in cash.
PART D
Effective as of the close of business following the transfer
of accounts pursuant to Section 8.11 of the Plan, the last sentence of Section
8.11 shall be inoperative.
EXECUTED this 22 day of July, 1994.
Witness: CPI ACQUISITION, INC.
d/b/a COMPUTER POWER, INC.
/s/ N. Trent Georges By: /s/ Bruce P. Andrews
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82
EXHIBIT 4.6
RESTATED TRUST AGREEMENT
FOR
COMPUTER POWER, INC. RETIREMENT SAVINGS PLAN
-83-
TABLE OF CONTENTS
ARTICLE PAGE
I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . 2
1.2 Pronouns and Gender . . . . . . . . . . . . . . . 3
1.3 Headings. . . . . . . . . . . . . . . . . . . . . 3
II POWERS, DUTIES AND IMMUNITIES OF TRUSTEE. . . . . . . . . . 4
2.1 Investment of Trust . . . . . . . . . . . . . . . 4
2.2 Claims Against Trust. . . . . . . . . . . . . . . 7
2.3 Borrowing . . . . . . . . . . . . . . . . . . . . 7
2.4 Voting and Other Rights with Respect
to Securities . . . . . . . . . . . . . . . . . 8
2.5 Registration of and Title to Property . . . . . . 8
2.6 Appointment of Agents, Attorneys,
Accountants, and Other Consultants
and Advisors. . . . . . . . . . . . . . . . . . 9
2.7 Deposit of Funds. . . . . . . . . . . . . . . . . 9
2.8 Consultation with Counsel . . . . . . . . . . . . 10
2.9 Authority of Trustee. . . . . . . . . . . . . . . 10
2.10 Court Action Not Required . . . . . . . . . . . . 10
2.11 Good Faith and Reasonable Prudence. . . . . . . . 11
2.12 Directions to Trustee . . . . . . . . . . . . . . 12
2.13 Payment of Taxes; Indemnity . . . . . . . . . . . 11
2.14 Compensation and Expenses . . . . . . . . . . . . 12
2.15 Investment Funds; Designation of
Investment Manager; Investment in
Master Trust or any Other
Collective Trust. . . . . . . . . . . . . . . . 12
2.16 Records and Reports . . . . . . . . . . . . . . . 16
2.17 Contributions . . . . . . . . . . . . . . . . . . 17
2.18 Indemnification . . . . . . . . . . . . . . . . . 17
III DISPOSITION OF TRUST. . . . . . . . . . . . . . . . . . . . 18
3.1 Disposition Prior to Termination. . . . . . . . . 18
3.2 Disposition Upon Termination. . . . . . . . . . . 18
3.3 Payments by Trustee . . . . . . . . . . . . . . . 18
3.4 No Reversion of Trust . . . . . . . . . . . . . . 19
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84
IV SUCCESSION TO TRUSTEESHIP . . . . . . . . . . . . . . . . . 19
4.1 Resignation of Trustee. . . . . . . . . . . . . . 19
4.2 Removal of Trustee. . . . . . . . . . . . . . . . 20
4.3 Appointment of Successor Trustee. . . . . . . . . 20
V AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . 20
VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 21
6.1 Governing Law . . . . . . . . . . . . . . . . . . 21
6.2 Duration of Trust . . . . . . . . . . . . . . . . 21
6.3 No Rights Against Trustee . . . . . . . . . . . . 21
6.4 No Assignment or Alienation of
Equitable Interest in Trust . . . . . . . . . . 22
6.5 Parties Bound by Agreement. . . . . . . . . . . . 22
6.6 No Guarantees . . . . . . . . . . . . . . . . . . 22
6.7 Effect of Invalidity or
Unenforceability of Provision . . . . . . . . . 22
6.8 Incorporation by Reference. . . . . . . . . . . . 23
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85
RESTATED TRUST AGREEMENT
FOR
COMPUTER POWER, INC. RETIREMENT SAVINGS PLAN
THIS AGREEMENT, made at ,
, as of the 1st day of January, 1993, by and between CPI
Acquisition, Inc. d/b/a Computer Power, Inc., a Delaware corporation
(hereinafter the "Company"), with its principal office in Jacksonville,
Florida, and NationsBank of Texas, N.A., a national banking association
authorized to carry on a trust business (hereinafter the "Trustee"), with
its principal office in , .
W I T N E S S E T H:
WHEREAS, under agreement dated as of
September 29, 1989, there is maintained a trust for the purpose of pro-
viding benefits under the Computer Power, Inc. Retirement Savings Plan
Trust Agreement; and
WHEREAS, it is desired hereby to amend said
agreement and to restate in their entirety the trust provisions of said
agreement as hereinafter set forth;
NOW, THEREFORE, it is agreed by and be-
tween the parties hereto that the trust provisions of said agreement made
and executed as of September 29, 1989, shall be and the same hereby are
amended and restated in their entirety as hereinafter set forth, and all
assets presently held in the trust, and all funds and property hereafter
contributed to it pursuant to the provisions of this Agreement or the
Plan, together with the increments, proceeds, investments, and
reinvestments thereof and the income therefrom, shall hereafter be held,
administered, and distributed by the Trustee, in trust, for the uses and
purposes and upon the terms and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes hereof, each of the
following words and phrases shall have the meanings set forth in this
Article I, unless a different meaning is clearly required by the context.
(a) The "Code" means the Internal Revenue Code
of 1986, as amended from time to time. Reference to a section of the
Code shall include the section and any comparable section or sections of
any future legislation that amends, supplements, or supersedes the
section.
(b) "Company" means CPI Acquisition,Inc. d/b/a
Computer Power, Inc., a Delaware corporation, and its corporate
successors.
(c) "Employer" means the Company, and any
subsidiary of the Company, or any other entity that has adopted the Plan
as an Employer as therein provided and has not withdrawn from the
Plan.
(d) "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended from time to time. Reference
to a section of ERISA shall include the section and any comparable
section or sections of any future legislation that amends, supplements, or
supersedes the section.
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86
(e) "Pension Investment Committee" means the
committee with respect to the Trust appointed by the Board of Directors
of ALLTEL Corporation.
(f) "Plan" means the Computer Power, Inc.
Retirement Savings Plan as in effect on the date of this Agreement (a
copy of which has been furnished to the Trustee) and all amendments
and modifications thereof hereafter made.
(g) "Trust" means the trust heretofore maintained
under trust agreement dated as of September 29, 1989, and currently
maintained under this Agreement and all assets comprised within it.
(h) "Trustee" means NationsBank of Texas, N.A.,
and any successor Trustee named in accordance with this Agreement.
1.2 Pronouns and Gender. The masculine
pronoun, wherever used herein, includes the feminine and the feminine
pronoun, wherever used herein, includes the masculine, in any case so
requiring. Wherever used herein, the singular includes the plural and the
plural includes the singular, in any case so requiring.
1.3 Headings. The headings and subheadings set
forth in this Agreement have been included for convenience of reference
only and are not to be considered in construction of the provisions
hereof.
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87
ARTICLE II
POWERS, DUTIES AND IMMUNITIES OF TRUSTEE
2.1 Investment of Trust. Subject to the provisions
of Section 2.15, the Trustee shall have the following powers, duties, and
responsibilities in the administration of the Trust:
(a) to invest and reinvest all or any part of
the Trust, including both principal and income, in
securities, real estate, and other property as may be
selected by it, irrespective of any limitation prescribed by
law or custom upon the investments of trustees;
(b) to purchase annuities or otherwise
insure the payment of benefits under a contract or
contracts with an insurance company or companies, and to
hold and retain the contract or contracts as part of the
Trust;
(c) to invest and reinvest all or any part of
the Trust under an insurance contract or contracts which
contain provisions relating to a guaranteed rate of return
on the investment;
(d) to sell, lease, exchange, or otherwise
dispose of all or any part of the Trust at the prices, upon
the terms and conditions, and in the manner as it shall
determine, including the right to lease, with or without
option to purchase, for any term, irrespective of the period
of the Trust, including the right to surrender or cancel any
insurance or annuity contract or contracts at any time held
in the Trust;
(e) to exercise, buy, or sell rights of
conversion or subscription;
(f) to enter into or oppose any plan of
consolidation, merger, reorganization, capital
readjustment, or liquidation of any corporation or other
issuer of securities held hereunder (including any plan for
the sale, lease, or mortgage of any of its property or the
adjustment or liquidation of any of its indebtedness) and,
in connection with any plan noted above, to enter into any
security holders' agreement, to deposit securities under the
agreement, and to pay assessments or subscriptions from
the other assets held hereunder;
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(g) to retain in cash, and to keep un-
productive of income, the portion of the Trust as it shall
determine, having regard for the cash requirements of the
Trust;
(h) to establish a separate trust or an
agency or custodial account, with any bank organized
under the national banking laws of the United States or
under the banking laws of any State of the United States
and authorized to carry on a trust business, into which the
Trustee may deposit, and from which it may withdraw, all
or any portion of the assets of the Trust; and
(i) to transfer to and invest all or any part
of the Trust property in the ALLTEL Corporation Master
Trust or in any other collective investment trust for the
investment of tax-qualified plan assets that constitutes an
exempt trust within the meaning of the Code and that is
then maintained by a bank or trust company when acting
as Trustee, co-Trustee, agent for the Trustee, or as an
"Investment Manager" (as defined in Section 2.15) or by a
bank or trust company that is a subsidiary of, or under
common control with, the bank or trust company acting as
Trustee, co-Trustee, agent for the Trustee, or Investment
Manager; and the instrument establishing any collective
investment trust, as amended from time to time, shall
govern any investment therein, which instrument is hereby
made a part of this Agreement as if fully set forth herein.
(j) to transfer to and invest all or any part of the
Trust property in any mutual fund, including if at the direction of
an Investment Manager one or more of such mutual funds which
are maintained, sponsored or advised by the Trustee or one of the
Trustee's affiliates.
(k) with the written consent of the Pension
Investment Committee, to loan any securities, foreign or
domestic, to brokers or dealers and to secure the same in any
manner, and during the term of any such loan to permit the
loaned securities to be transferred into the name of and voted by
the borrower or others.
(l) with the written consent of the Pension
Investment Committee, to purchase enter, sell, hold and generally
deal in any manner in and with contracts for the immediate or
future delivery of financial instruments of any issuer or of any
other property.
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(m) with the written consent of the Pension
Investment Committee, to grand, purchase sell, exercise, permit to
expire, permit to be held in excrow, and otherwise to acquire, dispose
of, hold and generally deal in any manner with and in all forms of
options in any combination.
The term "securities", whenever used in this Agreement, shall be deemed to
refere to any intangible personal property, or part interest therein, including
but without being limited to governmental, corporate or personal obligations,
trust and participation certificates, leaseholds, fee titles, mortages,
preferred and common stocks (including stock of the Company and stock of the
Trustee or any affiliated corporation), certificates of deposit, put and call
options and other optin contracts of any type, foreign or domestic whether or
domestic whether or not traded on any exchange, contracts for
future or immediate receipt or delivery of property,
contracts relating to the lending for property, evidences of indebtedness
of foreign governments, limited partnerships, joint
indebtedness of foreign governments, limited partnerships, joint ventures,
without being limited to the classes of property in which
trustees are authorized to invest trust funds by any law, or any rule of
court of any State and without regard to the proportion any such property
may bear to the entire amount of the Trust assets. Notwithstanding the
foregoing provisions of this Section 2.1, the Trustee shall not acquire or
hold any employer security unless it is a qualifying employer security and
shall not acquire or hold any emplyer real property unless it is qualifying
employer real property;, moreover, the Trustee shall not acquire or hold any
qualifying employer security or qualifying employer real property in
violation of the provisions of Section 407 (a) of ERISA. The terms "employer
security", "qualifying employer security", "employer real property",
"qualifying employer real property" shall have the meanings provided in Section
407 (d) of ERISA. Subject to the provisions of the Plan and the other
provisions of this Agreement, up to 100% of the assets of the Trust may be
invested in qualifying employer securities and or qualifying employer real
property.
2.2 Claims Against Trust. The Trustee is
empowered to compromise and adjust any and all claims, debts, or
obligations in favor of or against the Trust, whether in litigation or not,
upon those terms and conditions as it shall determine, and to reduce the
rate of interest on, to extend or otherwise modify, or to foreclose upon,
default or otherwise enforce any claim, debt or obligation.
2.3 Borrowing. Subject to the provisions of
Section 2.15, the Trustee is empowered to make advances or borrow
money upon those terms and conditions as it deems desirable or proper
for the improvement, protection, preservation, or other best interest of
the Trust. For the repayment of any advance with interest, the Trustee
shall have a lien upon the assets of the Trust, and for any sum so
borrowed may issue its promissory note as Trustee and secure the
repayment thereof by mortgaging or pledging any part or all of the assets
of the Trust.
2.4 Voting and Other Rights with Respect to
Securities. The Trustee is empowered to exercise the voting and any
other rights appurtenant to any securities held under the "ALLTEL Stock
Fund" (as defined in Section 2.15), and, subject to Section 2.15, to
exercise the voting and any other rights appurtenant to any other
securities held under the Trust, either in person or by proxy, and to exe-
cute proxies or powers of attorney to any one or more persons. Subject
to the provisions of Section 2.15, the applicable Investment Manager is
empowered to exercise the voting and any other rights appurtenant to any
securities held under the investment fund with respect to which he has
been appointed Investment Manager,
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either in person or by proxy, and to execute proxies or powers of
attorney to any one or more persons.
2.5 Registration of and Title to Property. The
Trustee is empowered to register or take title to securities or other
property in its own name, or in the name of its nominee without
disclosing the Trust, or to hold the same in bearer form, without
disclosure that the property is held in a fiduciary capacity, and to deposit
property with any depository; except that the Trustee shall be responsible
for the acts of its nominee or any loss which may result from property
held in the above manner instead of in its name as Trustee.
2.6 Appointment of Agents, Attorneys, Ac-
countants, and Other Consultants and Advisors. The Trustee, the
Company, the plan administrator of the Plan, and the Pension Investment
Committee are empowered to employ those agents, attorneys, account-
ants, and other consultants and advisors as they may deem necessary or
proper in connection with their duties hereunder, and to determine and
pay or cause to be paid from the Trust the reasonable compensation and
expenses of those agents, attorneys, accountants, and other consultants
and advisors (including for this purpose any Investment Manager ap-
pointed hereunder). Neither the Trustee, the Company, the plan
administrator of the Plan, nor the Pension Investment Committee shall be
liable for any neglect, omission, or wrongdoing of any agent, attorney,
accountant or other consultant or advisor if reasonable care shall have
been exercised in his selection and retention.
2.7 Deposit of Funds. The Trustee is empowered
to deposit funds, pending investment or distribution thereof, in its own
banking department or
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the banking department of any of its affiliates or in any bank or insured
savings and loan association organized under the national banking laws
of the United States or under the laws of any state; and it is authorized
to accept regulations covering the withdrawal of funds so deposited as it
shall deem proper.
2.8 Consultation with Counsel. The Trustee may
consult with counsel selected by it, who may be of counsel for the
Employer, the plan administrator of the Plan, or the Pension Investment
Committee, as to any matters or questions arising hereunder, and the
opinion of counsel shall be full and complete authority and protection in
respect to any action taken, suffered, or omitted by the Trustee in good
faith and in accordance with the opinion of counsel.
2.9 Authority of Trustee. The Trustee is
authorized to execute and deliver any and all instruments and to perform
any and all acts which may be necessary or proper to enable it to
discharge its duties under this instrument and to carry out the powers and
authority conferred upon it.
2.10 Court Action Not Required. The powers and
authority herein conferred upon the Trustee shall be exercised by it
without the necessity of applying to any court for leave or confirmation.
No person, firm, or corporation dealing with the Trustee shall be
required to ascertain whether the Trustee shall have obtained the ap-
proval of any court or of any person to any action which it may propose
to take hereunder, but every person, firm, or corporation shall be
protected in relying solely upon the deed, transfer, or assurance of the
Trustee.
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2.11 Good Faith and Reasonable Prudence. The
Trustee shall be obligated to exercise good faith and reasonable prudence
in the performance of its duties hereunder.
2.12 Directions to Trustee. The Trustee shall
have no responsibility with respect to any matter or thing contained in
any instrument of any kind affecting, or which might affect, the
provisions of this Agreement unless and until a certified or executed
copy thereof shall be filed with it by the Company, the plan
administrator of the Plan, or the Pension Investment Committee, as
appropriate. Any written direction, approval, or other document signed
in the name of the Company by an authorized officer thereof, in the
name of the plan administrator of the Plan by a duly authorized
individual, or in the name of the Pension Investment Committee by a
member thereof or the Secretary thereto, shall be conclusively deemed to
constitute the written direction, approval, or other document of the
Company, the plan administrator of the Plan, or the Pension Investment
Committee, and the Trustee shall be fully protected in relying thereon.
2.13 Payment of Taxes; Indemnity. The Trustee
is empowered to pay out of the assets of the Trust, as a general charge
thereon, any and all taxes of whatsoever nature assessed on or in respect
thereto; except that if the Company shall notify the Trustee in writing
that in the opinion of its counsel a particular tax is not lawfully assessed,
the Trustee, if so requested by the Company, shall contest the validity of
that tax in any manner deemed appropriate by the Company or its
counsel. The word "taxes", as used herein, shall be deemed to include
any interest or penalties assessed in respect to the taxes. Unless the
Trustee
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shall first have been indemnified to its satisfaction, the Trustee shall not
be required to contest the validity of any tax, to institute, maintain, or
defend against any other action or proceeding, or to incur any other
expense in connection with the Trust, except to the extent that the same
is sufficient therefor.
2.14 Compensation and Expenses. The Trustee
and any Investment Manager hereunder shall be entitled to reasonable
compensation for its services as the Company and the Trustee or the
Pension Investment Committee and the Investment Manager, as
applicable, from time to time shall agree, and the Trustee shall be
entitled to reimbursement for all reasonable expenses incurred by it
in the administration of the Trust or the applicable investment fund,
which shall be paid from the Trust by the Trustee as a general charge
thereon, unless the Company or an Employer, as applicable, elects to
and makes payment of such compensation and expenses.
2.15 Investment Funds; Designation of Investment
Manager; Investment in Master Trust or any Other Collective Trust.
The powers conferred upon the Trustee in Sections 2.1, 2.3, and 2.4
shall be exercised by the Trustee in its sole discretion, subject, however,
to the provisions of this Section 2.15:
(a) The assets of the Trust shall be invested
and reinvested through the investment funds described in
this paragraph (a). The portion of Trust assets to be
invested and reinvested through each investment fund shall
be determined in accordance with applicable provisions of
the Plan and, to the extent provided in the Plan,
investment instructions of participants as communicated to
fiduciaries having investment authority hereunder. Subject
to the foregoing, the Pension Investment Committee shall
direct the Trustee to divide the assets held in the Trust into
two or more investment funds, which shall bear the
designations as the Pension Investment Committee shall
determine, except that any
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investment in qualifying employer securities shall be through an
investment fund which shall be known as the ALLTEL
Corporation Common Stock Fund (hereinafter "ALLTEL Stock
Fund"). The Pension Investment Committee shall designate
which assets held in the Trust shall be allocated to each in-
vestment fund. Any investment fund created hereunder and any
portion of an investment fund with respect to which an Investment
Manager has been appointed shall be so designated on the books
and in the records maintained by the Trustee and shall be
separately accounted for by the Trustee, but no physical
segregation of the property thereof shall be required if the Trustee
is to continue to have custody of the property of the investment
fund. Payment of the cost of the acquisition, sale, or exchange of
any security or other property with respect to an investment fund
shall be charged to that investment fund. An investment fund
other than the ALLTEL Stock Fund may have one or more
Investment Managers. Any reference to the Trust contained in
this Agreement shall be deemed to include any investment fund.
(b) Substantially all of the assets of the
ALLTEL Stock Fund shall be invested by the Trustee in
"Common Stock of the Company" (as hereinafter defined)
and to the extent not invested in Common Stock of the
Company shall be invested in any property that is a
permissible investment as provided in Section 2.1.
"Common Stock of the Company" shall mean the common
stock, par value $1.00 per share, of ALLTEL Cor-
poration, a Delaware corporation, as the common stock is
from time to time constituted. Notwithstanding the
foregoing, the investment of assets in the ALLTEL Stock
Fund shall be subject to any applicable limitations under
ERISA and regulations issued thereunder.
(c) With respect to Sections 2.1 and 2.4,
the Pension Investment Committee may from time to time
appoint and remove an Investment Manager, as herein
provided, with respect to any investment fund, or a
portion of any investment fund, other than the ALLTEL
Stock Fund. The term "Investment Manager" shall have
the same meaning as provided in Section 3(38) of ERISA.
Upon appointment of an Investment Manager in writing
and the written acknowledgment by the Investment
Manager of its status as a fiduciary with respect to all or
any portion of the investment fund with respect to which
the Investment Manager has been appointed, the Trustee
shall be required to follow the written investment
directions of the Investment Manager. Any written
directions of the Investment Manager may be of a
continuing nature, or otherwise, and may be revoked or
superseded by the Investment Manager at any time by
notice in writing to the Trustee. The Pension Investment
Committee
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shall notify the Trustee in writing of any termination of an
Investment Manager.
(d) Notwithstanding the appointment of any
Investment Manager, the Trustee is authorized, in its
discretion, to invest and reinvest amounts of cash forming
part of an investment fund on a short-term basis in United
States obligations, time deposits (including savings ac-
counts and certificates of deposit in its own banking
department or the banking department of any of its
affiliates, if the deposits bear a reasonable rate of interest),
or corporate commercial notes including variable notes and
units of a common trust fund holding any variable note
administered by the Trustee as are then available
(including short term investment funds or money market
funds maintained or advised by the Trustee or an affiliated
company as described in paragraphs (i) and (j) of
Section 2.1 hereof).
(e) The Trustee shall not be liable for any
losses, damages, or expenses of whatsoever kind and
nature which may arise from the failure of the Trustee to
pay for property purchased by an Investment Manager for
the Trust by reason of insufficiency of money, or from
any actions taken by the Trustee in following the
investment directions of the Investment Manager. Except
as otherwise provided in paragraph (d) of this
Section 2.15, the Trustee shall exercise the powers set
forth in this Article II hereof over the assets of an
investment fund for which the Pension Investment
Committee has appointed an Investment Manager only
when, if and in the manner directed in writing by the
Investment Manager and shall not be under any obligation
to invest or otherwise manage any assets of such
investment fund. Any duty of supervision or review of the
acts or omissions of any Investment Manager shall be the
exclusive responsibility of the Pension Investment
Committee and the Trustee shall have no duty to review
any assets held in any such investment fund or to make
suggestions to any Investment Manager or to the Pension
Investment Committee with respect to the exercise or non-
exercise of any power by the Investment Manager.
Additionally, the Trustee shall have no liability for any
loss resulting or arising from the selection or retention of
any Investment Manager.
(f) Except as otherwise provided in
paragraph (a) of this Section 2.15 and in the absence of a
direction from the Pension Investment Committee,
payments and disbursements from the Trust shall be
charged to the Trust as the Trustee deems appropriate.
(g) Notwithstanding the preceding pro-
visions of this Section 2.15, the Pension Investment
Committee may direct the
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Trustee to invest all or part of the Trust property in the ALLTEL
Corporation Master Trust and/or, if agreed to by the Trustee, any
other collective investment trust as provided in paragraph (i) of
Section 2.1, in which event, if applicable, the extent of invest-
ment of the Trust in Common Stock of the Company through the
ALLTEL Stock Fund under the Trust and through the Master
Trust and/or any other collective investment trust shall be
substantially as provided in paragraph (a) of this Section 2.15.
(h) To the extent (if any) and in the manner
prescribed by the Plan, each Plan participant, former
participant, and/or beneficiary may direct the manner in
which contributions allocated to his account shall be
deposited and held by the Trustee. Neither the Trustee,
the Pension Investment Committee, the plan administrator
of the Plan, the Employer, nor any designate of the Em-
ployer shall have any liability for any losses that may
result from either the participant's, former participant's, or
beneficiary's direction of any investment or the failure of a
participant, former participant, or beneficiary to make a
direction. Nor shall the Trustee, the Pension Investment
Committee, the plan administrator of the Plan, the
Employer, or any designate of the Employer have any
liability for any disparity between the performance or rates
of investment return of directed investments and the Trust
in general. To the extent permitted by the Plan
and agreed to by the Trustee, the Trustee or its designate
may accept the investment elections described above
directly from participants, former participants, and
beneficiaries.
2.16 Records and Reports. The Trustee shall keep
records of all receipts, disbursements, and other transactions affecting
the Trust which, together with the assets comprising the Trust and all
evidences thereof, shall be available during the Trustee's usual business
hours for inspection by the Company, the plan administrator of the Plan,
and the Pension Investment Committee or any of their duly authorized
representatives. The Trustee shall render to the Company, the plan
administrator of the Plan, and the Pension Investment Committee
monthly statements of receipts, disbursements, and all transactions
during the preceding month affecting the Trust; and the Trustee shall
further render to the Company, the plan
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97
administrator of the Plan, and the Pension Investment Committee
monthly, or more frequently if requested, a statement of all assets then
held by it hereunder.
2.17 Contributions. The Trustee shall not be
responsible for the collection of any contributions or for the
determination of the amount or frequency of any contribution required by
the Plan or any provision of law.
2.18 Indemnification. To the extent permitted by
law, the Trustee shall not be personally liable for any act done or
omitted to be done in good faith in connection with the Trust. To the
extent permitted by law, the Trustee shall be indemnified and saved
harmless by the Company (to the extent not indemnified or saved harm-
less under any liability insurance or other indemnification arrangement)
from and against any and all liability actually and reasonably incurred by
the Trustee, including expenses, attorneys' fees, judgments, fines, and
amounts paid in settlement, other than amounts paid in settlement not
approved by the Company, to which the Trustee is subjected by reason
of any act done or omitted to be done by the Trustee in good faith in
accordance with any direction to the Trustee or absence of direction to
the Trustee given or not given in accordance with this Agreement.
Notwithstanding the foregoing, however, the Trustee shall not be so
indemnified and saved harmless if such liability to which the Trustee is
subjected arises from the Trustee's own negligence or misconduct. The
Trustee's right to indemnification under this Section 2.18 shall survive
the termination of the Trust or the resignation or removal of the Trustee.
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98
ARTICLE III
DISPOSITION OF TRUST
3.1 Disposition Prior to Termination. Unless and
until the Plan is terminated as therein provided, the Trustee shall apply
the Trust to the payment of Plan benefits and expenses of administering
the Plan to the persons, in the amounts, and at the times as the plan
administrator of the Plan from time to time shall direct in writing and
certify to be payable under the Plan, charging each payment to the Trust.
3.2 Disposition Upon Termination. In the event
of the termination of the Plan as therein provided, all assets remaining in
the Trust, after provision has been made for payment of the expenses of
administration and liquidation in connection with the termination, shall
be disposed of by the Trustee as provided in the Plan. Any residual
assets of the Plan shall be distributable to the Company (or the
Employer(s)), as provided in the Plan, if
(a) all liabilities of the Plan to participants
and their beneficiaries have been satisfied; and
(b) the distribution does not contravene any
provision of law.
3.3 Payments by Trustee. The Trustee shall make
the payments specified in a written direction of the plan administrator in
accordance with the provisions of Sections 3.1 and 3.2 of this Article III
until the same shall be superseded by a further written direction. The
obligation of the Trustee to make any payment hereunder shall in all
events be limited to the net amount of the Trust assets at the time any
payment shall become due.
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99
3.4 No Reversion of Trust. Under no cir-
cumstances or conditions other than those set forth in Section 3.2 of this
Article III or as provided in the Plan with respect to the return of
employer contributions to the Employer under certain circumstances,
shall any part of the Trust ever revert, be paid, or inure to the benefit,
directly or indirectly, of the Company or any other Employer under the
Plan; nor shall any part of the Trust ever be used for or diverted to any
purpose other than for the exclusive benefit of employees, retired or
former employees, and any persons claiming under or through them
pursuant to the Plan and defraying reasonable expenses of administering
the Plan and the Trust.
ARTICLE IV
SUCCESSION TO TRUSTEESHIP
4.1 Resignation of Trustee. Any Trustee acting
hereunder may resign at any time by giving notice in writing to the
Company at least 60 days before the resignation is to become effective,
unless the Company shall accept as adequate a shorter notice.
4.2 Removal of Trustee. The Board of Directors
of ALLTEL Corporation, may, with or without cause, remove any
Trustee acting hereunder by giving notice in writing to the Trustee at
least 30 days before the removal is to become effective, unless the
Trustee shall accept as adequate a shorter notice.
4.3 Appointment of Successor Trustee. If for any
reason a vacancy should occur in the trusteeship, a successor Trustee
shall be appointed by the Board of Directors of ALLTEL Corporation.
Any successor Trustee appointed
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100
hereunder shall execute, acknowledge, and deliver to the Company an
instrument in writing accepting the appointment hereunder. The
successor Trustee thereupon shall become vested with the same title to
the property comprising the Trust, and shall have the same powers,
duties, and immunities with respect thereto, as are hereby vested in the
Trustee. The predecessor Trustee shall execute all instruments and
perform all other acts as the successor Trustee shall reasonably request
to effectuate the provisions hereof. The successor Trustee shall have no
duty to inquire into the administration of the Trust for any period prior
to its appointment.
ARTICLE V
AMENDMENT
Subject to approval of the Board of Directors of
ALLTEL Corporation, the Company may from time to time amend the
provisions of this Agreement in any manner; except that the powers,
duties, and immunities of the Trustee shall not be substantially changed
without its approval; and no amendment shall permit any part of the
Trust to be used for purposes other than the exclusive benefit of
employees, retired or former employees, and their beneficiaries pursuant
to the Plan, except as set forth in Section 3.2 of Article III. Any
amendment shall be by written instrument executed on behalf of the
Company by an authorized officer of the Company and delivered to the
Trustee.
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101
ARTICLE VI
MISCELLANEOUS
6.1 Governing Law. The provisions of this
Agreement shall be subject to, governed by, and construed in accordance
with applicable federal law and, to the extent not preempted thereby, the
laws of the State of Texas.
6.2 Duration of Trust. Unless sooner terminated,
the Trust created by this Agreement shall continue for the maximum
period of time permitted by applicable law.
6.3 No Rights Against Trustee. Neither this
Agreement nor the creation of the Trust as herein provided shall be
construed as creating any legal or equitable rights against the Trustee or
any other person or entity, except those rights as are specifically
provided for in this Agreement. In the event that it shall become neces-
sary or advisable to apply to any court for an interpretation of this
Agreement or for an accounting by the Trustee, only the Trustee and the
Company shall be necessary parties, and no other person shall be entitled
to any notice or service of process therein.
6.4 No Assignment or Alienation of Equitable
Interest in Trust. No equitable interest in the Trust shall be transferable
or assignable, nor shall it be subject to alienation, encumbrance,
garnishment, attachment, anticipation, execution, or levy of any kind,
voluntary or involuntary.
6.5 Parties Bound by Agreement. This Agreement
shall be binding upon the parties hereto and all persons claiming under
or pursuant to the
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102
Plan, and the heirs, executors, administrators, successors, and assigns of
each of them.
6.6 No Guarantees. Neither the Company, any
other Employer under the Plan, the Trustee, nor any other person or
entity guarantees the Trust from loss or depreciation, nor the payment of
any amount that may become due to any person under the Plan or this
Agreement.
6.7 Effect of Invalidity or Unenforceability of
Provision. If any provision of this Agreement is held invalid or
unenforceable, the invalidity or unenforceability shall not affect any
other provisions hereof, and this Agreement shall be construed and
enforced as if the provision had not been included.
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103
6.8 Incorporation by Reference. The provisions of
the Plan are incorporated herein by reference, and the Trustee is bound
by the terms of the Plan to the same extent as if they had been set forth
in full herein.
* * *
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their duly authorized officers
this 24th day of December, 1992.
CPI ACQUISITION, INC. D/B/A
COMPUTER POWER, INC.
By: /s/ James W. Milligan
Title: Secretary
And: /s/ Bruce P. Andrews
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ David Vandermast
Title: Assistant Vice President
And: /s/ R. Carla Thompson
Title: Vice President
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference into this registration statement of our report dated
May 25, 1994 included in the Computer Power, Inc. Retirement Savings Plan's
Annual Report on Form 11-K for the year ended December 31, 1993
and our report dated January 27, 1994 included in ALLTEL Corporation's Annual
Report on Form 10-K for the year ended December 31, 1993; and to all references
to our Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
__________________________
July 29, 1994
105
EXHIBIT 24.1
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Joe T. Ford
Name: Joe T. Ford
106
<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Max E. Bobbitt
Name: Max E. Bobbitt
107
<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ George C. McConnaughey
Name: George C. McConnaughey
108
<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Ben W. Agee
Name: Ben W. Agee
109<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ W.W. Johnson
Name: W.W. Johnson
110<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ John E. Steuri
Name: John E. Steuri
111<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Emon A. Mahony, Jr.
Name: Emon A. Mahony, Jr.
112<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ John P. McConnell
Name: John P. McConnell
113<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Philip F. Searle
Name: Philip F. Searle
114<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
20th day of April, 1994.
Signed: /s/ Carl H. Tiedemann
Name: Carl H. Tiedemann
115
<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Ronald Townsend
Name: Ronald Townsend
116<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ William H. Zimmer, Jr.
Name: William H. Zimmer, Jr.
117<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Tom T. Orsini
Name: Tom T. Orsini
118<PAGE>
CPI Acquisition, Inc.
Retirement Savings Plan
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT: That the
undersigned, a Director or Officer, or both, of ALLTEL
Corporation (the "Corporation"), acting pursuant to authorization of
the Board of Directors of the Corporation, hereby appoints Joe T.
Ford, Max E. Bobbitt, and Francis X. Frantz, or any of them,
attorneys-in-fact and agents for me and in my name and on my
behalf, individually and as a Director or Officer, or both, of the
Corporation, to sign a Registration Statement on Form S-8, and any
amendments (including post effective amendments) and supplements
thereto, of the Corporation to be filed with the Securities and
Exchange Commission pursuant to any applicable Rule under the
Securities Act of 1933, as amended (the "Act"), with respect to
registering the interests of the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan (the "401(k) Plan") and
common stock of the Corporation that is sold or deemed to be sold
to the employee participants under the 401(k) Plan, and generally to
do and perform all things necessary to be done in connection with
the foregoing as fully in all respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand this
21st day of April, 1994.
Signed: /s/ Dennis J. Ferra
Name: Dennis J. Ferra
119
EXHIBIT 24.2
ALLTEL CORPORATION
Resolutions of the Board of Directors
April 21, 1994
Re: SEC Registration of Plan Interests of and Certain
Common Stock Sold or Deemed to be Sold Under
the CPI Acquisition, Inc. d/b/a Computer
Power, Inc. Retirement Savings Plan
WHEREAS, CPI Acquisition, Inc. d/b/a Computer Power,
Inc. ("CPI"), a wholly-owned subsidiary of the Corporation, is
amending its Retirement Savings Plan (the "401(k) Plan") to
provide CPI employee participants with the option of (i) using some
or all of the funds in their accounts in the 401(k) Plan to purchase
common stock of the Corporation and (ii) making a rollover
contribution to the 401(k) Plan of some or all of the common stock
of the Corporation to be distributed from the CPI Acquisition, Inc.
d/b/a Computer Power, Inc. Employee Stock Ownership Plan (the
"ESOP"); and
WHEREAS, the Board of Directors deems it necessary and
appropriate to authorize compliance by the Corporation with
applicable requirements of the Securities Act of 1933, as amended
(the "Act"), the Securities and Exchange Commission (the "SEC"),
and applicable state securities authorities in connection with
registering the interests of the 401(k) Plan and the common stock of
the Corporation that is sold or deemed to be sold to the employee
participants under the 401(k) Plan, including, without limitation, the
common stock of the Corporation that is purchased by the trustee of
the 401(k) Plan in the open market in accordance with instructions
from the employee participants of the 401(k) Plan and the common
stock of the Corporation that is distributed from the ESOP and
rolled over into the 401(k) Plan (collectively, the "Securities").
NOW, THEREFORE, BE IT RESOLVED, that the
Corporation prepare and file with the SEC, at the earliest
practicable date, a Registration Statement on Form S-8, together
with all necessary exhibits thereto, in accordance with the
requirements of the Act and the rules and regulations of the SEC
thereunder, for the registration of the Securities, and that the
appropriate officers of the Corporation be, and each of them hereby
120<PAGE>
is, authorized and directed, for and on behalf of the Corporation
to prepare, execute, and file with the SEC the foregoing registration
statement and any and all amendments and supplements thereto that
those officers shall deem necessary or appropriate, and generally to
execute and deliver any and all documents and to do any and all
acts and things necessary or appropriate, to permit that registration
statement to become effective and thereafter for the continuation of
the effectiveness thereof.
RESOLVED FURTHER, that each officer and director of
the Corporation who may be required to execute the foregoing
Registration Statement or any amendments thereto, be, and each of
them hereby is, authorized and directed to execute a power-of-
attorney authorizing Joe T. Ford, Max E. Bobbitt, and Francis X.
Frantz, or any of them, as the Corporation's true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, to execute, in the name, place, and stead of the
Corporation, the registration statement, any amendments thereto,
and all instruments necessary or appropriate in connection
therewith, and to file any such power-of-attorney with the SEC; and
that the acts of such attorneys, or any such substitutes, be, and they
hereby are, authorized and approved.
RESOLVED FURTHER, that the appropriate officers of
the Corporation be, and each of them hereby is, authorized and
directed, for and on behalf of the Corporation, to take any and all
action necessary or appropriate to effect the registration or
qualification (or exemption therefrom) of the Securities under any
applicable Blue Sky or securities laws of any State of the United
States or any district or territory of the United States and, in
connection therewith, to execute, acknowledge, verify, deliver, file,
or cause to be published any applications, reports, consents to
service of process, and other documents that may be required under
such laws, and to take any and all further actions necessary or
appropriate in order to maintain any such registration, qualification,
or exemption for as long as may be necessary or required by law.
RESOLVED FURTHER, that the officers of the
Corporation, be, and each of them hereby is, authorized and
directed, for and on behalf of the Corporation, to take all such
further actions and to execute, deliver, and file all such further
documents, as they deem necessary or appropriate fully to carry out
the intent and purposes of these resolutions.
121
