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 Identification No.)
incorporation or organization)
One Allied Drive, Little Rock, Arkansas 72203 (501) 661-8000
(Address, including zip code, of
principal executive offices)
_____________________________________
ALLTEL CORPORATION THRIFT PLAN
(Full title of the plan)
______________________________________
FRANCIS X. FRANTZ
Senior Vice President - External Affairs
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 Unit (1) Price (1) Fee
Common Stock,
$1.00 Par Value (2) 1,000,000 $25.6875 $25,687,500 $8,857.82
________________________________________________________________________________
(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 October 28, 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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<PAGE> 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) ALLTEL Corporation Thrift Plan (the "Plan") Annual Report on
Form 11-K for the year ended December 31, 1993;
(c) ALLTEL's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994 and June 30, 1994; and
(d) The description of ALLTEL's Common Stock and the related
eries 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.
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,
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agents and employees, respectively. The Certificate provides
for indemnification to the fullest extent permitted by
Delaware law. Any expansion of the protection afforded
directors, officers, agents or employees by the Delaware
General Corporation Law automatically is extended to ALLTEL's
directors, officers, agents or employees, 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, agents and
employees under some circumstances and mandates
indemnification under certain limited circumstances. The
Delaware General Corporation Law permits a corporation to
indemnify an officer, director, agent or employee 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, agent or employee 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, agent or employee 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, agents and employees, 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange
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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.
(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 November 2, 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,
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Senior Vice President - Accounting and
Administration (principal accounting
officer); Lawrence L. Gellerstedt, III,
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.
By: /s/ Francis X. Frantz
Name: Francis X. Frantz
Title: Attorney-in-Fact
The Plan. Pursuant to the requirements of the
Securities Act of 1933, the ALLTEL Corporation Thrift 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 November 2, 1994.
ALLTEL CORPORATION
THRIFT PLAN
By: SYSTEMATICS INFORMATION
SERVICES, INC.
By: /s/ John E. Steuri
Name: John E. Steuri
Title: Chairman and
Chief Executive 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 Thrift Plan for Employees of
Systematics Inc. dated as of
June 1, 1989, as amended by
an Amendment, dated June 1,
1990, as amended by a Second
Amendment, dated January 27,
1992, as amended by a Third
Amendment, dated January 27,
1992, (amending name to
Thrift Plan for Employees of
Systematics Information
Services, Inc.), as amended
by a Fourth Amendment, dated
July 27, 1992, as amended by
a Fifth Amendment, dated
December 18, 1992, as
amended by a Sixth
Amendment, dated November 1,
1992, as amended by a
Seventh Amendment, dated
October 24, 1994, as amended
by an Eighth Amendment,
dated October 24, 1994
(amending name to ALLTEL
Corporation Thrift Plan) Attached hereto as Exhibit 4.5
4.6 Restated Trust Agreement for
Thrift Plan for
Employees of Systematics
Information Services, Inc.
and Participating
Affiliates, dated as of
December 18, 1992 Attached hereto as Exhibit 4.6
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Arthur Andersen L.L.P. 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
(27) FINANCIAL DATA SCHEDULES
27.1 Financial Data Schedules dated as of
June 30, 1994 Attached hereto as Exhibit 27.1
-8-
Exhibit 4.5
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INC.
As Amended and Restated Effective June 1, 1989
SYSTEMATICS, INC.
LITTLE ROCK, ARKANSAS
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THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INC.
As Amended and Restated Effective June 1, 1989
Effective as of January 1, 1986, the Thrift Plan for
Employees of Systematics, Inc. and the Thrift Trust for
Employees of Systematics, Inc. were adopted by Systematics,
Inc. to encourage savings and enable its eligible employees to
accumulate funds to provide for financial security for the
future.
Effective as of June 1, 1989, Systematics, Inc. is
amending and restating the said plan, as set forth in this
instrument and on and after June 1, 1989, the amended and
restated plan shall form a part of the aforementioned Thrift
Trust for Employees of Systematics, Inc. as adopted effective
as of January 1, 1986 and as in effect on June 1, 1989.
Subject to receipt by Systematics, Inc. of favorable
rulings that the qualified status of the plan and trust under
Sections 401(a) and 401(k) of the Internal Revenue Code of
1986, as now or hereafter amended from time to time, is not
adversely affected by such amendment and restatement, each
person who becomes a Participant hereunder shall be entitled
upon his retirement or termination of service to such benefits
as are specified in the provisions which follow.
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SECTION 1
DEFINITIONS
1.1 - DEFINITIONS
(A) The following words and phrases shall have the
meanings assigned below unless a different meaning is plainly
required by the context:
(1) "Accounting Date" shall mean the
last day of each Plan Year on and after the
Effective Date of the Plan and such other
interim date or dates as may be established by
the Committee during the Plan Year to make the
adjustments described in Section 7.1 hereof.
(2) "Anniversary Date of the Plan" shall
mean any June 1st on and after the Effective
Date of the Plan.
(3) "Beneficiary" shall mean the person
or persons on whose behalf benefits may be
payable under the Plan after a Participant's
death in accordance with the provisions
hereof.
(4) "Break in Service" shall mean a
period of severance of 12 consecutive months
(one full year) or longer that immediately
follows an employee's date of termination of
service and immediately precedes the date, if
any, on which he next performs an Hour of
Service.
(5) "Company" shall mean Systematics,
Inc., an Arkansas corporation, and its
successor or successors.
(6) "Committee" shall mean the
administrative committee appointed by the
Company from time to time to administer the
Plan pursuant to the provisions of
Section 12.1 hereof.
(7) "Compensation" shall mean the sum of:
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(a) the amounts actually paid
to an Employee by the Employer for
services rendered as reported on the
Employee's Federal Income tax withholding
statement (Form W-2) or its subsequent
equivalent for the applicable calendar
year; exclusive however, of any such
amounts that would not be subject to tax
(for the purposes of the Federal
Insurance Contributions Act) under
Section 3101(a) of the Internal Revenue
Code without the dollar limitation of
Section 3121(a)(1) of said Code and
exclusive of relocation pay, any non-cash
compensation, allowances for cost-of-
living, international incentives such as
housing allowances and all other
extraordinary international Incentives;
and
(b) any amounts that would
have been includable in the Employee's
Compensation as described in (a) above
for such calendar year if they had not
received special tax treatment because
they were deferred by the Employee under
the Plan through a Salary Reduction
Agreement pursuant to Section 401(k) of
the Internal Revenue Code or under an
Internal Revenue Code Section 125 plan
maintained by the Employer;
provided, however, the term
"Compensation" shall not include amounts in
excess of the sum of (i) $200,000 and (ii) the
accumulated increments (including the
increment applicable to such given Plan Year),
if any, which have been added to the amount in
(i) above for increases in cost-of-living
pursuant to the provisions of Section
401(a)(17) of the Internal Revenue Code using
the family aggregation rules of Section
414(q)(6) of the Internal Revenue Code, except
that the term "family" shall only include the
spouse of the Participant and any of the
Participant's children who are under age 19 at
the close of the Plan Year.
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1-c
(8) "Controlled Group Member" shall mean:
(a) the Employer;
(b) any corporation or
association that is a member of a
controlled group of corporations (within
the meaning of Section 1563(a) of the
Internal Revenue Code, determined without
regard to Section 1563(a)(4) and Section
1563(e)(3)(C) of said Code, except that,
for the purposes of applying the
limitations on benefits and contributions
that are required under Section 415 of
the Internal Revenue Code and are
described in Section 7.2 hereof, such
meaning shall be determined by
substituting the phrase "more than 50%"
for the phrase "at least 80%" each place
that it appears in Section 1563(a)(1) of
said Code) with respect to which the
Employer is a member;
(c) any trade or business
(whether or not incorporated) that is
under common control with the Employer as
determined in accordance with Section
414(c) of the Internal Revenue Code and
regulations issued thereunder;
(d) any service organization
that is a member of an affiliated service
group (within the meaning of Section
414(m) of the Internal Revenue Code) with
respect to which the Employer is a
member; and
(e) any other entity required
to be aggregated with the Employer
pursuant to regulations under Section
414(o) of the Internal Revenue Code.
(9) "Designated Nonparticipating Employer" shall mean:
(a) any Controlled Group
Member that is not an Employer as defined
herein; and
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(b) any other corporation,
association, proprietorship, partnership,
or other business organization that (i)
is not an Employer and (ii) the Company,
by formal action on its part in the man
ner described in Section 11.7 hereof
designates on the basis of a uniform
policy applied without discrimination as
a "Designated Nonparticipating Employer"
for the purposes of the Plan.
(10) "Effective Date of the Plan" shall
mean June 1, 1989 or such later date as of
which the Plan first became effective with
respect to the particular Employer concerned.
(11) "Employee" shall mean any person on
the payroll of the Employer whose wages from
the Employer are subject to withholding for
the purposes of Federal income taxes and for
the purposes of the Federal Insurance
Contributions Act; exclusive, however, of the
following:
(a) any such person who is
included in a unit of persons employed by
the Employer who are covered by an
agreement which the Secretary of Labor
finds to be a collective bargaining
agreement between employee
representatives and the Employer, if
retirement benefits were the subject of
good faith bargaining between such
employee representatives and the Employer
and such persons are not required by that
agreement to be covered in the Plan; and
(b) any such person who is a
nonresident alien and who receives no
earned income (within the meaning of
Section 911(b) of the Internal Revenue
Code) from the Employer which constitutes
income from sources within the United
States (within the meaning of Section
861(a)(3) of the Internal Revenue Code).
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1-e
"Eligible Employee" shall mean any
Employee who has met the requirements of
Section 2.1 hereof.
(12) "Employer" shall mean, collectively
or distributively as the context may indicate,
the Company and any other corporations,
associations, joint ventures, proprietorships
or partnerships that have adopted and are
participating in the Plan in accordance with
the provisions of Section 2.5 hereof;
provided, however, if the Plan is adopted on
behalf of the Employees of one or more, but
less than all, divisions or facilities of an
employer, the term "Employer" shall apply only
to the division or facilities on behalf of
whose Employees the Plan has been adopted.
(13) "Employer's Contribution" shall mean
the amounts contributed by the Employer to the
Plan, as more fully described in Section 4.1
hereof.
(14) "Employer Contribution Account"
shall mean the balance credited to the
individual account of the Participant to
reflect his interest in the Trust Fund that is
attributable to allocations on his behalf to
the Plan of the Employer's Contribution. The
Participant's Employer Contribution Account
shall be divided into such subaccounts as are
required to reflect his interest in the
various Investment Funds, as described in
Section 5 hereof.
(15) "Hour of Service" shall mean each
hour for which an employee is directly or
indirectly paid, or is entitled to payment, by
the Employer (including any predecessor
business of an Employer conducted as a
corporation, partnership or proprietorship)
for (a) the performance of duties or (b)
reasons other than the performance of duties,
including but not limited to vacation,
holidays, sickness, disability, paid layoff
and similar paid periods of nonworking time.
Such Hours of Service shall be credited to the
employee for the period in which such duties
were performed
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or in which occurred the period
during which no duties were performed. An Hour
of Service also includes each hour, not
credited above, for which backpay,
irrespective of mitigation of damages, has
been either awarded or agreed to by the
Employer. These Hours of Service shall be
credited to the employee for the period to
which the award or agreement pertains. The
number of Hours of Service to be credited to
an employee for any period shall be governed
by Sections 2530.200b-2(b) and 2530.200b-2(c)
of Part 2530 of Subchapter C of Chapter XXV of
Title 29 of the Code of Federal Regulations
(Department of Labor regulations relating to
minimum standards for employee pension benefit
plans).
(16) "Initial Distribution Date" shall
mean the date which is established following
the Participant's termination of service for
any reason pursuant to Section 8.1 hereof for
distribution of the value in his individual
accounts.
(17) "Internal Revenue Code" shall mean
the Internal Revenue Code of 1986, as now or
hereafter amended from time to time.
(18) "Last Date of Commencement of
Service" shall mean:
(a) if the employee's service
has not been previously terminated in
accordance with the provisions hereof,
the date on which he first performs an
Hour of Service for the Employer; or
(b) if the employee's service
has been previously terminated in
accordance with the provisions hereof,
the first day following his last
termination of service on which he
performs an Hour of Service for the
Employer;
provided, however, that the
provisions of Section2.4 hereof shall apply in
determining the Last Date of Commencement of
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1-g
Service of any employee whose
service is terminated and who is subsequently
reemployed.
An Employer may provide, with
respect to all or any specified
nondiscriminatory classification of its
employees, that the Last Date of Commencement
of Service of such employees shall not be
earlier than a specified date, which is later
than the otherwise applicable date described
above and is on or prior to the date as of
which the Plan or, if applicable, the
Superseded Plan, first became effective with
respect to such Employer.
The Last Date of Commencement of
Service of an employee by a predecessor or
acquired business shall not be earlier than
the date of such merger or acquisition unless
the Employer provides by formal action on its
part in the manner described in Section 11.7
hereof that a uniformly applied earlier date
or dates will be used for the purposes of the
Plan.
(19) "Limitation Year" shall mean the
year used for application of the limitations
of Section 415 of the internal Revenue Code,
and, unless the Employer elects a different
Limitation year by formal action on its part
in the manner described in Section 11.7
hereof, shall be the Plan Year.
(20) "Participant" shall mean any person
who has met the requirements of Sections 2.1
and 2.2 hereof and whose individual accounts
have not been subsequently distributed in
full.
"Active Participant" shall mean any
Participant for whom Salary Deferral
Contributions are currently being made to the
Plan.
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(21) "Plan" shall mean the Thrift Plan
for Employees of Systematics, Inc., as amended
and restated effective June 1, 1989, as set
forth in this instrument and as it may
hereafter be amended from time to time.
(22) "Plan Year" shall mean the calendar,
policy or fiscal year on which the records of
the Plan are kept as reported from time to
time by the plan administrator to the Internal
Revenue Service and, unless subsequently
changed in accordance with the rules or
regulations issued by the Internal Revenue
Service or the Department of Labor, shall be
the 12-month period beginning June 1st of each
calendar year.
(23) "Required Beginning Date" shall have
the meaning assigned in Section 401(a)(9) of
the Internal Revenue Code and shall mean:
(a) If the Participant had not
attained the age of 70-1/2 years as of
January 1, 1988 or if he is a 5-percent
owner (within the meaning of Section 416
of the Internal Revenue Code), the later
of:
(i) April 1, 1990; or
(ii) April 1 of the
calendar year that next follows the
calendar year in which he attains or
will attain the age of 70-1/2 years;
and
(b) if the Participant had
attained the age of 70-1/2 years on or
before January 1, 1988 and he is not a 5-
percent owner, the later of:
(i) April 1 of the
calendar year that next follows the
calendar year in which he attains or
will attain the age of 70-1/2 years;
or
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1-i
(ii) April 1 of the
calendar year that next follows the
calendar year in which he retires or
his service is terminated.
(24) "Rollover Contribution" shall mean
the amount of contributions, if any, rolled
over to the Plan by a Participant, as more
fully described in Section 3.7 hereof.
(25) "Rollover Contribution Account" is
described in Section 3.7 hereof and shall mean
the balance credited to the individual account
of the Participant to reflect his interest in
the Trust Fund that is attributable to his
Rollover Contribution, if any, to the Plan.
The Participant's Rollover Contribution
Account shall be divided into such subaccounts
as are required to reflect his interest in the
various Investment Funds, as described in
Section5 hereof.
(26) "Salary Deferral Contributions"
shall mean the contributions made to the Plan
by the Employer on behalf of the Participant
under a Salary Reduction Agreement. "Matched
Salary Deferral Contributions" and "Unmatched
Salary Deferral Contributions" are described
in Section 3.1 hereof.
(27) "Salary Deferral Contribution
Account" shall mean the balance credited to
the individual account of the Participant to
reflect his interest in the Trust Fund that is
attributable to his Salary Deferral
Contributions to the Plan. The Salary
Deferral Contribution Account shall be divided
into such subaccounts as are required to
reflect the Participant's Matched Salary
Deferral Contributions and Unmatched Salary
Deferral Contributions as described in Section
3.1 hereof and his interest in the various
Investment Funds, as described in Section 5
hereof.
(28) "Salary Reduction Agreement" shall
mean an agreement between a Participant and
the Employer under which the Employer reduces
the Participant's Compensation and the
Employer
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contributes the amount of the
reduction to the Plan on behalf of the
Participant as a Salary Deferral Contribution.
(29) "Superseded Plan" shall mean,
collectively or distributively, as the context
may indicate, any qualified Defined
Contribution Plan which was maintained by an
Employer for its eligible employees prior to
the Effective Date of the Plan and which the
Plan represents an amendment and restatement
thereof. References to the Superseded Plan as
of any given date shall refer to the
provisions as set forth under the terms of the
applicable document describing such qualified
plan as amended and in effect from time to
time prior to the Effective Date of the Plan.
(30) "Supplement" shall mean any
Supplement that is attached to and made a part
of the Plan and which describes provisions or
modifications to the Plan which apply only to
those employees of an Employer or Employers
specified in such supplement.
(31) "Total and Permanent Disability"
shall mean disability which, in the opinion of
the Committee, causes a Participant to be
wholly prevented, due to sickness or injury,
so as to be completely unable to engage in any
occupation for wage or profit, and is likely
to be continuous and permanent from a cause
other than specified below:
(a) excessive and habitual use
by the Participant of drugs, intoxicants
or narcotics;
(b) injury or disease
sustained by the Participant while
willfully and illegally participating in
fights, riots, civil insurrections or
while committing a felony;
(c) injury or disease
sustained by the Participant while
serving in any armed forces;
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(d) injury or disease
sustained by the Participant diagnosed or
discovered subsequent to the date his
employment has terminated;
(e) injury or disease
sustained by the Participant while
working for anyone other than the
Employer and arising out of such
employment; or
(f) injury or disease
sustained by the Participant as a result
of an act of war, whether or not such act
arises from a formally declared state of
war.
(32) "Trust" and "Trust Fund" shall mean
the trust fund established pursuant to the
terms of the Trust Agreement.
(33) "Trust Agreement" shall mean the
Thrift Trust for Employees of Systematics,
Inc., as adopted effective June 1, 1986, as
set forth in the agreement of that title to
which the Plan is attached and as it may
thereafter be amended from time to time.
(34) "Trustee" shall mean the corporate
trustee or trustees or the individual trustee
or trustees, as the case may be, appointed
from time to time pursuant to the provisions
of the Trust Agreement to administer the Trust
Fund maintained for the purposes of the Plan.
(35) "Unallocated Limitation Account"
shall mean that portion, if any, of the
Employer's Contribution that is being held
unallocated due to the provisions of Section
7.2 hereof.
(B) The terms "herein," "hereof," "hereunder" and
similar terms refer to this document, including the Trust
Agreement of which this document is a part, unless otherwise
qualified by the context.
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(C) The pronouns "he," "him" and "his" used in the Plan
shall also refer to similar pronouns of the feminine gender
unless otherwise qualified by the context.
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SECTION 2
PARTICIPATION
2.1 - ELIGIBILITY FOR INITIAL PARTICIPATION
(A) Each person who was a participant in the Superseded
Plan, if any, of the Employer as of the day immediately
preceding the Effective Date of the Plan who is credited with
a beginning account balance under the Plan on the Effective
Date of the Plan will become a Participant in the Plan on the
Effective Date of the Plan; provided, however, that any such
Participant whose service had been terminated prior to the
Effective Date of the Plan and who is not an active Employee
of the Employer on the Effective Date of the Plan or on an
approved leave of absence shall be entitled on and after the
Effective Date of the Plan to only those benefits, if any, to
which he is entitled on and after such date under the
provisions of the Superseded Plan as in effect on the date
immediately preceding the Effective Date of the Plan and shall
not be eligible to become an Active Participant in the Plan
unless he subsequently returns to the active service of the
Employer.
(B) Each other Employee in the employment of the
Employer on or after the Effective Date of the Plan will
become an Eligible Employee on the later to occur of the
following dates:
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(1) the date he becomes an Employee as
defined herein; or
(2) the date on which he attains the age
of 21 years;
provided, however, that (i) such date shall not be prior to
the Effective Date of the Plan and (ii) any such Employee
whose service has not been terminated and who is absent from
the active employment of the Employer on such date that he
would otherwise first become an Eligible Employee as described
above will become an Eligible Employee as of the date of his
return to active employment with the Employer.
2.2 - INITIAL PARTICIPATION
(A) Each Eligible Employee may elect to become an
Active Participant in the Plan as of the date on which he is
first eligible by completing and filing a written application
for participation in the Plan with the Committee at least 30
days prior to such date in which he agrees to have Salary
Deferral Contributions made on his behalf to the Plan as
described in Section 3.1(A) hereof. Each Eligible Employee
who does not become an Active Participant in the Plan as of
the date on which he is first eligible may become an Active
Participant in the Plan as of the first day of any subsequent
payroll period by completing and filing such application for
participation in the Plan with the Committee at least 30 days
prior to such date.
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(B) Any election by an Eligible Employee for active
participation in effect under the Superseded Plan immediately
preceding the Effective Date of the Plan shall continue in
effect under the Plan unless subsequently suspended or changed
in accordance with the provisions of Section 3.3 hereof.
2.3 - LEAVE OF ABSENCE AND TERMINATION OF SERVICE
(A) Any absence from the active service of the Employer
by reason of an approved absence granted by the Employer
because of accident, illness, layoff with the right of recall
or military service, or for any other reason on the basis of a
uniform policy applied by the Employer without discrimination,
will be considered a leave of absence for the purposes of the
Plan and will not terminate an employee's service provided he
returns to the active service of the Employer at or prior to
the expiration of his leave or, if not specified therein,
within the period of time which accords with the Employer's
policy with respect to permitted absences.
(B) Absence from the active service of the Employer
because of compulsory engagement in military service will be
considered a leave of absence granted by the Employer and will
not terminate the service of an employee if he returns to the
active service of the Employer within the period of time
during which he has reemployment rights
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under any applicable Federal law or within 90 days from and
after discharge or separation from such compulsory engagement
if no Federal law is applicable. No provision of this section
or in the Plan shall require reemployment of any employee
whose active service with the Employer was terminated by
reason of military service.
(C) If the employee does not return to the active
service of the Employer at or prior to the expiration of his
leave of absence as above defined, his service will be
considered terminated as of the earliest of (i) the date on
which his leave expired, (ii) the first anniversary of the
date on which the leave began or (iii) the date of his
retirement, quit, discharge, resignation or death.
(D) In the event that an employee's service with the
Employer is interrupted because of any absence from the active
service of the Employer which is not deemed a leave of absence
as defined above, his service will be considered terminated as
of the date of his retirement, quit, discharge, resignation or
death or, if his service is interrupted for any other reason,
as of the first anniversary of the date on which he was first
absent from the active service of the Employer.
(E) If the employee's service is terminated while he is
absent from the service of the Employer beginning on or after
June 1, 1985 due to (a) the pregnancy of the employee
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(b) the birth of a child of the employee, (c) the placement of
a child with the employee in connection with the adoption of
such child by such employee or (d) caring for such child
described in (b) or (c) above for a period beginning
immediately following such birth or placement, the period of
such absence that is prior to the second anniversary of the
date the absence began shall be excluded from the period used
in determining a Break in Service.
(F) Transfers of an employee's service among the
Employers and Designated Nonparticipating Employers shall not
be deemed interruptions of his service and shall not
constitute a termination of service for the purposes of the
Plan.
2.4 - PARTICIPATION FOLLOWING REEMPLOYMENT
(A) Each Participant and Eligible Employee whose
service is terminated on or after the Effective Date of the
Plan and who is subsequently reemployed by the Employer as an
Employee and performs an Hour of Service shall be an Eligible
Employee as of the date of reemployment. Each other employee
whose service is terminated and who is subsequently reemployed
by the Employer and performs an Hour of Service shall be an
Eligible Employee on the later of (1) his date of reemployment
or (2) the date on which he attains the age of 21 years. Each
such Eligible Employee
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included above may elect to become an Active Participant as of
the date he first becomes an Eligible Employee following his
date of reemployment or as of the first day of any subsequent
payroll period by completing and filing a written application
for participation in the Plan with the Committee as soon as
practicable following his date of reemployment, or at least 30
days prior to the first day of any subsequent payroll period,
in which he agrees to have the Salary Deferral Contributions
made on his behalf to the Plan as described in Section 3.1
hereof.
(B) Except as provided in Sections 8.4 and 8.5 hereof
with respect to certain required and permissible in-service
withdrawals, respectively, no further distributions shall be
made from the individual accounts on and after the date of
reemployment and prior to the next following Initial
Distribution Date of any Participant described in Section
2.4(A) above who is reemployed prior to having received his
total distribution. Any such previously undistributed
individual account (or accounts) shall be maintained on behalf
of the Participant on and after his date of reemployment and
shall be subject to adjustment on each following Accounting
Date as specified in Sections 7.1 hereof. The Participant
shall always have a 100% vested interest in such undistributed
individual account (or accounts).
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(C) Any such Participant to whom the provisions of this
Section 2.4(B) apply who was not entitled, for any reason, to
an allocation of the Employer's Contribution under the
provisions of Section 7.4 hereof on the Accounting Date (or
Accounting Dates), if applicable, which occurred between the
date of termination of his service and the date of his
reemployment, shall not be entitled to a retroactive
allocation under such section solely because of the provisions
of this Section 2.4.
(D) The rights of any terminated employee of a
Designated Nonparticipating Employer who is reemployed by an
Employer shall be determined in accordance with the provisions
of the Plan in the same manner as though he had been an
Employee of the Employer on the date of termination of his
service; and the rights of any terminated Employee of an
Employer who is reemployed by a Designated Nonparticipating
Employer shall be determined in accordance with the provisions
of the Plan in the same manner as though such Employee had
been reemployed by the Employer and had immediately thereafter
been transferred to such Designated Nonparticipating Employer.
2.5 - RIGHTS OF OTHER EMPLOYERS TO PARTICIPATE IN THE PLAN
(A) Any corporation, association, joint venture,
proprietorship, or partnership may, in the future, adopt the
Plan by formal action on its part in the manner
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described in Section 11.7 hereof provided that the Company, by
formal action on its part in the manner described in Section
11.7 hereof, and the Committee both approve such
participation.
(B) The administrative powers and control of the
Company, as provided in the Plan, shall not be deemed
diminished under the Plan by reason of participation of any
other Employers in the Plan, and such administrative powers
and control specifically granted herein to the Company with
respect to the appointment of the Committee, amendment of the
Plan and other matters shall apply only with respect to the
Company.
(C) The Plan is a single plan with respect to all
Employers unless the Company specifically provides that the
Plan shall be a separate plan with respect to any Employer or
group of Employers. The contributions of any Employer with
respect to which the Plan represents a separate plan for only
that Employer shall be available for allocation on behalf of
Participants who are its employees but shall not be available
for allocation on behalf of Participants who are employees of
any other Employers. The contributions of any Employer that
is a member of a group of Employers with respect to which the
Plan represents a single plan shall be available for
allocation on behalf of any Participants who are employees of
any other Employers that are members of
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such group but shall not be available for allocation on behalf
of any Participants who are employees of any Employers that
are not members of such group.
(D) Any Employer may withdraw at any time without
affecting the other Employers in the Plan by furnishing
written notice to the Committee and the Trustee of its
determination to withdraw. Any such withdrawing Employer
shall furnish the Committee and the Trustee with evidence of
the formal action of its determination to withdraw. Any such
withdrawal may be accompanied by such modifications to the
Plan as such Employer shall deem proper to continue a Defined
Contribution Plan for its Employees separate and distinct from
the Defined Contribution Plan herein set forth. Withdrawal
from the Plan by any Employer shall not affect the continued
operation of the Plan with respect to the other Employers;
provided, however, in the event of the withdrawal of an
Employer that is a member of a group of Employers with respect
to which the Plan represents a single plan and in the event
that provision is made for the continuation of a Defined
Contribution Plan for its Employees separate and distinct from
the Defined Contribution Plan herein set forth, the share, if
any, of the assets of the Trust Fund allocable to such group
of Employers which is transferred on behalf of such
withdrawing Employer to such other Defined Contribution Plan
shall be equal to the
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assets, if any, which would have been allocated on behalf of
the employees of such withdrawing Employer under the
provisions of Section 11.4 hereof if such withdrawing Employer
had terminated its participation in the Plan on the date of
such withdrawal. The Company may in its absolute discretion
terminate any Employer's participation at any time by formal
action on its part in the manner described in Section 11.7
hereof.
2.6 - PARTICIPATION AND BENEFITS FOR PARTICIPANTS TRANSFERRED
TO OR FROM STATUS AS AN EMPLOYEE
It is contemplated that a Participant in the Plan may be
transferred to other employment with the Employer or to a
Designated Nonparticipating Employer so that he will no longer
qualify as an Employee as defined herein, and, conversely,
that a person in the employment of the Employer or a
Designated Nonparticipating Employer may have a change in his
employment status and become an Employee as defined herein.
The service of such a person described above shall not be
considered to be interrupted or terminated by reason of any
such transfer and a termination of service with the Employer
or a Designated Nonparticipating Employer while not qualified
as an Employee shall be treated in the same manner as a
termination of service with an Employer while qualified as an
Employee. In determining eligibility for participation in the
Plan of such an Employee with respect to whom the provisions
of this Section 2.6 are applicable,
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any period of employment, which otherwise would be included in
accordance with the provisions of Section 2.1 hereof, which he
accrued with the Employer or a Designated Nonparticipating
Employer while not qualified as an Employee as defined herein
shall be included; provided, however, that any such person
transferred to the status of an Employee shall not be eligible
to become an Active Participant in the Plan prior to the date
on which he becomes an Eligible Employee as defined herein.
The accounts of any such Participant who has been transferred
from the status of an Employee shall be maintained on his
behalf during the period that he is in the employment of the
Employer or Designated Nonparticipating Employer while not
qualified as an Employee in the same manner as though the
Participant were on an unpaid leave of absence granted by the
Employer during such period and he shall not be eligible to
have Salary Deferral Contributions made on his behalf for any
period subsequent to his date of change in status and while he
is not an Employee as defined herein.
2.7 - PARTICIPATION AND BENEFITS FOR FORMER LEASED EMPLOYEES
In the event that on or after January 1, 1984, the
Employer or a Designated Nonparticipating Employer receives
services from a "leased employee" (within the meaning of
Section 414(n) of the Internal Revenue Code), such "leased
employee" shall not qualify as an Employee as defined herein.
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In the event that any such former "leased employee"
subsequently becomes an Employee as defined herein, unless the
Plan is otherwise excluded by applicable regulations from the
requirements of Section 414(n) of the Internal Revenue Code,
the total period on or after January 1, 1984 that he provided
services to the Employer or Designated Nonparticipating
Employer as a "leased employee" shall be treated under the
Plan in determining his eligibility to become a Participant in
the Plan in the manner described in Section 2.6 above as
though he had been an employee of a Designated
Nonparticipating Employer during such period of service.
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SECTION 3
SALARY DEFERRAL CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS
3.1 - AMOUNT OF SALARY DEFERRAL CONTRIBUTIONS
Subject to Section 3.6 below and to the following
sentence of this paragraph and to such rules of uniform
application as the Committee may adopt, each Eligible
Employee, in order to become and remain an Active Participant
in the Plan, must elect to have the Employer make Salary
Deferral Contributions through payroll deduction on his behalf
pursuant to a Salary Reduction Agreement of any amount that is
in integral percentage increments of not less than 1% nor more
than 10% of his Compensation for the applicable payroll
period. Any such Participant's Salary Deferral Contributions
during the Limitation Year shall not exceed an amount which
would cause his annual addition to exceed the maximum amount
of annual addition which may be made for the Limitation Year
under Section 7.2 hereof and any such Participant's Salary
Deferral Contributions during any calendar year shall not
exceed an amount equal to the sum of (1) $7,000 and (2) the
accumulated increments, if any, as of the last day of such
calendar year which have been added to such figure on or after
January 1, 1988 for increases in cost-of-living pursuant to
the provisions of Section 402(g)(5) of the Internal Revenue
Code. Salary
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Deferral Contributions that are not in excess of 6% of the
Participant's Compensation for the Plan Year are referred to
herein as "Matched Salary Deferral Contributions" and are
matched by the Employer's Contribution for the Plan Year to
the extent specified in Section 4.1 hereof. Salary Deferral
Contributions that are in excess of 6% of the Participant's
Compensation for the Plan Year are referred to herein as
"Unmatched Salary Deferral Contributions" and are not matched
by the Employer's Contribution.
3.2 - INITIAL AUTHORIZATION FOR SALARY DEFERRAL CONTRIBUTIONS
All Salary Reduction Agreements shall be in writing and
Salary Deferral Contributions made pursuant to such agreements
shall be authorized in writing by the Participants and shall
be filed with the Committee. Any such Salary Reduction
Agreement shall continue in effect for as long as the
Participant remains an Employee or until he elects to suspend
or change his rate of Salary Deferral Contributions to the
Plan as provided in Section 3.3 below.
3.3 - RIGHT OF PARTICIPANT TO SUSPEND OR CHANGE HIS RATE OF
SALARY DEFERRAL CONTRIBUTIONS
(A) A Participant may suspend or change his rate of
Salary Deferral Contributions between the minimum and maximum
rates specified in Section 3.1 above as of the end of any
subsequent payroll period that is at least 30 days following
the date the notice of suspension or change is
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received by the Committee. Any such Participant who suspends
his Salary Deferral Contributions will not be considered an
Active Participant in the Plan during such period of
suspension and he may not resume such contributions and active
participation in the Plan until the beginning of a pay period
that is at least six months following the effective date of
such suspension and at least 30 days following the date the
notice of resumption is received by the Committee. Any such
change of rate, suspension or resumption of Salary Deferral
Contributions must be made by the Participant in writing filed
with the Committee.
(B) A Participant whose Salary Deferral Contributions
are suspended during a period of unpaid leave of absence may
elect, upon his return to active employment with the Employer,
to have the Employer resume making Salary Deferral
Contributions on his behalf to the Plan. Any such election
shall be in writing filed with the Committee and shall specify
the percentage of Salary Deferral Contributions to be deducted
from his Compensation.
3.4 - CREDITING AND DEPOSITING SALARY DEFERRAL CONTRIBUTIONS
The Salary Deferral Contributions to the Plan shall be
paid by the Employer to the Trustee as promptly as
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practicable but in no event later than 30 days after the end
of the month in which they are deducted from the Participant's
Compensation and shall be credited to the Participant's Salary
Deferral Contribution Account as of the Accounting Date next
following the date the contributions were deducted in
accordance with Section 7.3 hereof. The Participant's Salary
Deferral Contribution Account shall at all times be 100%
vested and, except as provided in Sections 3.5 and 3.6 below
with respect to the disposition of "excess deferrals" and
"excess contributions", respectively, and in Sections 8.4 and
8.5 hereof with respect to certain required in-service
distributions and permissible in-service withdrawals,
respectively, and in Section 11.4 with respect to termination
or partial termination of the Plan, distribution of such
account shall be made following termination of his service in
accordance with the provisions of Section 8.3 hereof.
3.5 - DISPOSITION OF EXCESS DEFERRALS
(A) In the event that a Participant notifies the Committee in
writing, on or prior to March 1st of a given calendar year (1)
that he has "excess deferrals" included with his Salary
Deferral Contributions under the Plan for the immediately
preceding calendar year and (2) the amount of
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such "excess deferrals" which are to be allocated to the Plan
for such immediately preceding calendar year, the Committee
may, in its sole discretion, authorize the Trustee to make a
lump-sum distribution to the Participant from the Trust Fund
no later than the April 15th following the immediately
preceding calendar year for which the "excess deferrals" are
allocated in an amount equal to the amount of such "excess
deferrals" which were allocated to the Plan by the Participant
for the immediately preceding calendar year, adjusted in
accordance with applicable regulations for any applicable
Trust Fund Investment gains or losses attributable to such
"excess deferrals," including an adjustment for the period
from the end of the immediately preceding calendar year to the
date of distribution to the extent required by applicable
regulations. The Participant's "excess deferrals" to be
distributed in accordance with this Section 3.5 shall be
inclusive of any portion of such "excess deferrals" previously
distributed as an "excess contribution" under Section 3.6(C)
hereof with respect to the same Plan Year. In the event that
any portion of the "excess deferrals" distributed to a
Participant represents Matching Salary Deferral Contributions,
the Employer's Contribution that is attributable to such
portion
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shall be deemed to be "excess aggregate contributions" with
respect to such Participant for the purposes of Section 4.2
hereof. The lump-sum distribution shall be debited from the
Participant's Salary Deferral Contribution Account as of the
date it is distributed.
(B) The term "excess deferrals" as used in this section
shall mean the amount by which (1) the sum of (a) the
Participant's Salary Deferral Contributions under the Plan for
a given calendar year and (b) his elective deferrals under any
other qualified cash or deferred arrangement under Section
401(k) of the Internal Revenue Code, a Simplified Employee
Plan, a Section 501(c)(18) plan or a Section 403(b) annuity
for such calendar year exceeds (2) the sum of (a) $7,000 and
(b) the accumulated increments, if any, as of the last day of
such calendar year which have been added to such figure on or
after January 1, 1988 for increases in cost-of-living pursuant
to the provisions of Section 402(g)(5) of the Internal Revenue
Code.
3.6 - SALARY DEFERRAL CONTRIBUTIONS SUBJECT TO
NONDISCRIMINATION REQUIREMENTS OF SECTION 401(k) OF THE
INTERNAL REVENUE CODE
(A) Any provisions of this section or elsewhere in the
Plan to the contrary notwithstanding, if the Committee
determines that a Participant's Salary Deferral Contributions
under Section 3.1 hereof for any Plan Year would cause the
Plan to fall to meet the nondiscrimination
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requirements of Section 401(k) of the Internal Revenue Code
and the regulations thereunder, then the Committee may, in its
sole discretion, reduce (or suspend, if necessary) the rate of
future Salary Deferral Contributions of those Participants who
are in the group of "highly compensated employees" (within the
meaning of Section 414(q) of the Internal Revenue Code); such
reduction to first apply to the highest rate on a uniform
basis to all such Participants who are contributing the
highest rate, and so on, in descending order from the highest
rate.
(B) The Committee shall establish such rules and give
such directions to the Trustee as shall be appropriate to
carry out the above provisions of this section.
(C) In the event that the amounts of Salary Deferral
Contributions allocated to the group of Eligible Employees who
are "highly compensated employees" for any Plan Year, when
expressed as a percentage of each Eligible Employee's "414(s)
compensation" (i.e., uniform definition of compensation for
all Eligible Employees that is determined by the Committee for
the Plan Year and that meets the requirements of Section
414(s) of the Internal Revenue Code) for such Plan Year,
result in an "average deferral percentage" (within the meaning
of Section 401(k) of the Internal Revenue Code and the
regulations thereto) for such group that is in excess of the
permissible "average deferral
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percentage" for such group under Section 401(k) of the
Internal Revenue Code when applying the discrimination tests
described in Section 401(k) of the Internal Revenue Code and
the regulations thereto, including the test to determine
prohibited multiple use of the alternative test described in
the regulations under Section 401(m) of the Internal Revenue
Code in the case of a plan that is subject to both Section
401(k) and 401(m) of the Internal Revenue Code, the amounts of
Salary Deferral Contributions that caused the excess shall be
deemed to be "excess contributions" for such Plan Year.
"Excess contributions," adjusted in accordance with applicable
regulations for any applicable Trust Fund investment gains or
losses thereto, including an adjustment for the period from
the end of the immediately preceding Plan Year to the date of
distribution to the extent required by applicable regulations,
shall be distributed to the applicable Participants in the
group of Eligible Employees who are "highly compensated
employees" to the extent possible by two and one-half months
following the Plan Year in which such "excess contributions"
occurred, but in no event later than the close of the Plan
Year following the Plan Year in which such "excess
contributions" occurred. To determine the portion of the
"excess contributions" to be distributed to each such
Participant in the group of Eligible Employees who are "highly
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compensated employees," the Salary Deferral Contributions
allocated to such Participant for the Plan Year in which the
"excess contributions" occurred shall be reduced until the
"average deferral percentage" for the group of Eligible
Employees who are "highly compensated employees" does not
exceed the permissible "average deferral percentage" for such
group under Section 401(k) of the Internal Revenue Code; such
reduction to first apply to the highest rate on a uniform
basis to all such Participants who are in the group of
Eligible Employees who are "highly compensated employees" and
who are contributing the highest rate, and so on, in
descending order from the highest rate. The portion of the
"excess contributions" applicable to each such Participant in
the group of Eligible Employees who are "highly compensated
employees," adjusted in accordance with applicable regulations
for any applicable Trust Fund investment gains or losses,
shall be distributed to the Participant in a lump-sum cash
amount. The family aggregation rules set forth in regulations
issued pursuant to Sections 401(k) and 414(q) of the Internal
Revenue Code shall apply in determining the actual deferral
percentage and the amount of "excess contributions" to be
distributed to any Participant who is treated as a "highly
compensated employee" as a result of family aggregation. In
the event
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that any portion of the "excess contributions" for any Plan
Year that are distributed to a Participant represent Matched
Salary Deferral Contributions, the Employer's Matching
Contribution that is attributable to such portion shall be
deemed to be "excess aggregate contributions" with respect to
such Participant for such Plan Year for the purposes of
Section 4.2 hereof.
3.7 - ROLLOVER CONTRIBUTIONS
(A) Tone of Rollovers Permitted Under Plan: The
Committee, in its sole discretion, may authorize the Trustee
to accept a cash Rollover Contribution from an Employee who
has received a "qualifying rollover distribution" (within the
meaning of Section 402(d)(5) of the Internal Revenue Code)
from another qualified plan and such Rollover Contribution may
be a rollover directly from such other qualified plan or
through the conduit of an Individual Retirement Account
established under Section 408 of the Internal Revenue Code,
subject to applicable laws and regulations governing such tax-
free rollovers. For purposes of the rollover of all or any
part of a qualifying rollover distribution, the amount, date
of authorization, etc., shall be in accordance with the
provisions of Section 402(a)(5) of the Internal Revenue Code,
and other applicable laws and regulations, and the Committee
may require whatever evidence or information from the Employee
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as it may deem necessary to comply with said laws and
regulations.
(B) Application to Committee: The Employee shall make
application for the rollover in writing to the Committee on
forms approved and designated by the Committee.
(C) Acceptance by Committee: Contributions under
Sections 3.7(A) above so accepted as a rollover to the Plan
shall be commingled with the assets of the Trust Fund and
shall be managed according to the terms of the Trust
Agreement; provided, however, that, unless the date of
acceptance of the Rollover Contribution coincides with an
Accounting Date, the Trustee shall hold any such Rollover
Contribution in a separate account in the Trust Fund until the
next following Accounting Date. Prior to the commingling of
any such Rollover Contribution with the other assets of the
Trust Fund, the Trustee, in its sole discretion, may hold the
Rollover Contribution either in an interest bearing account or
in cash separately in the Trust Fund without liability for
interest for a limited period pending investment if it is
deemed necessary or desirable.
(D) Separate Account: The Committee shall establish
and maintain (or cause to be maintained) a separate ac
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count, called the "Rollover Contribution Account," for each
Employee for whom such a Rollover Contribution is accepted,
and the Employee shall be credited immediately with a fully
(100%) vested interest in the amount represented by the
Rollover Contribution so accepted. The Rollover Contribution
Account will reflect the Employee's interest in the funds
credited on his behalf under the Plan as a result of his
Rollover Contributions. An Employee need not be a Participant
in order to make a Rollover Contribution to the Plan and any
Employee who makes a Rollover Contribution prior to the date
on which he becomes a Participant shall become a Participant
as of the date the Rollover Contribution is accepted but his
benefits under the Plan prior to the date on which he becomes
an active Participant shall be limited to the funds credited
to his Rollover Contribution Account.
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SECTION 4
EMPLOYER'S CONTRIBUTION
4.1 - AMOUNT OF EMPLOYER'S CONTRIBUTION
(A) Subject to Section 4.2 below and to the right
reserved by the Employer to modify, amend or terminate the
Plan, as provided in Sections 11.3 and 11.4 hereof, each
Employer or group of Employers with respect to which the Plan
represents a single plan may, in its sole discretion, make a
contribution each Plan Year to the Trustee in an amount as
determined in Section 4.1(B) below.
(B) Subject to Section 4.1(A) above, each Employer's
(or group of Employers') contribution for each Plan Year shall
be an amount determined as follows:
(1) Regular Matching Contribution: An amount
equal to the amount required to match 25% of the Matched
Salary Deferral Contributions that are made during the Plan
Year on behalf of each Participant who is entitled to share in
the Employer's Contribution for such Plan Year in accordance
with Section 7.4 hereof.
(2) Discretionary Matching Contribution: In
addition to the regular Employer's Contribution specified
above, each Employer may make a discretionary matching con
tribution for any Plan Year in an amount which in the sole
opinion of the board of directors of such Employer shall be
appropriate for such Plan Year and which it shall announce
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in writing to the Participants. Provided, however, that the
regular Employer's Contribution plus any discretionary
contribution for any Plan Year shall not exceed the maximum
amount of contribution permitted by law as a tax-deductible
expense (for the applicable fiscal year) as provided in
Section 404 of the Internal Revenue Code, or any other
applicable provision of the Internal Revenue Code.
Notwithstanding the foregoing, no matching contribution shall
be made any Highly Compensated Employee to the extent that
such matching contribution would cause a violation of the
nondiscrimination requirements of Internal Revenue Code
Section 401(m).
(C) The Employer's Contribution for the Plan Year shall
be deemed to have been made no later than the Accounting Date
for which such contributions are required under the Plan,
irrespective of when such contribution is actually paid over
to the Trust Fund for such Plan Year, but in no event shall
such contribution be paid over to the Trust Fund later than
the due date (including extensions thereon) for filing the
Employer's tax return for the fiscal year that ends with or
next follows the end of the Plan Year in which such Accounting
Date occurs.
(D) The Employer's Contribution determined under (B)
above shall be reduced, if necessary, by any amount
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credited to the Unallocated Limitation Account due to the
limitations under Section 7.2 hereof.
4.2 - NONDISCRIMINATION REQUIREMENTS OF SECTION 401(m) OF THE
INTERNAL REVENUE CODE
(A) Any provisions of Sections 3.1 and 4.1 or elsewhere
in the Plan to the contrary notwithstanding, if the Committee
determines that the Employer's Contribution to be allocated
under Section 7.4 hereof for any Plan Year would cause the
Plan to fail to meet the nondiscrimination requirements of
Section 401(m) of the Internal Revenue Code and the
regulations thereunder, then the Employer may, in its sole
discretion, reduce the amount of the Employer's Contribution
for the Plan Year on behalf of those Participants who are in
the group of "highly compensated employees" (within the
meaning of Section 414(q) of the Internal Revenue Code); such
reduction to first apply to the highest rate being matched, on
a uniform basis to all such Participants who are contributing
the highest rate, and so on, in descending order from the
highest rate.
(B) The Committee shall establish such rules and give
such directions to the Trustee as shall be appropriate to
carry out the above provisions of this section.
(C) In the event that the amounts of the Employer's
Contribution for the group of Participants who are "highly
compensated employees" for any Plan Year, when expressed as a
percentage of each Eligible Employee's "414(s)
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compensation" as defined in Section 3.6 hereof for such Plan
Year, result in an "average contribution percentage" (within
the meaning of Section 401(m) of the Internal Revenue Code and
the regulations thereto) for such group that is in excess of
the permissible "average contribution percentage" for such
group under Section 401(m) of the Internal Revenue Code when
applying the discrimination test described in Section 401(m)
of the Internal Revenue Code and the regulations thereto,
including the test to determine prohibited multiple use of the
alternative test described in the regulations under Section
401(m) in the case of a plan that is subject to both Section
401(k) and Section 401(m) of the Internal Revenue Coded the
amount of the Employer's Contribution that caused the excess
shall be deemed to be "excess aggregate contributions" for
such Plan Year. "Excess aggregate contributions," adjusted in
accordance with applicable regulations for any applicable
Trust Fund investment gains or losses thereto, including an
adjustment for the period from the end of the immediately
preceding Plan Year to the date of distribution to the extent
required by applicable regulations, shall be distributed to
such Participant to the extent possible by two and one-half
months following the close of the Plan Year in which such
"excess aggregate contributions" occurred but in no event
later than the close of the Plan Year following
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the Plan Year in which such "excess aggregate contributions"
occurred. To determine the portion of the "excess aggregate
contributions" to be distributed to each Participant who is in
the group of "highly compensated employees," the Employer's
Contribution allocated to such Participant for the Plan Year
in which the "excess aggregate contributions" occurred shall
be reduced until the "average contribution percentage" for the
group of Eligible Employees who are "highly compensated
employees" does not exceed the permissible "average
contribution percentage" for such group under Section 401(m)
of the Internal Revenue Code; such reduction to first apply to
the highest rate being matched on a uniform basis to all such
Participants who are contributing the highest rate, and so on,
in descending order from the highest rate. The portion of the
"excess aggregate contributions" applicable to each such
Participant that is to be distributed to the Participant,
adjusted in accordance with applicable regulations for any
applicable Trust Fund investment gains or losses allocated to
such portion, shall be distributed to the Participant in a
lump-sum cash amount. The family aggregation rules set forth
in regulations issued pursuant to Section 401(m) and 414(q) of
the Internal Revenue Code shall apply in determining the
actual contribution percentage and the amount of "excess
aggregate contributions" to
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be distributed to any Participant who is treated as a "highly
compensated employee" as a result of family aggregation.
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SECTION 5
INVESTMENT OF CONTRIBUTIONS
5.1 - INVESTMENT FUNDS
(A) The Trust Fund shall be divided into separate
"Investment Funds" for the investment of the contributions
made hereunder, as determined by the Committee from time to
time.
(B) The value of the assets held in the Trust Fund in
each of the Investment Funds as of each Accounting Date shall
be determined on the basis of the fair market value of the
assets of such fund as of such date as appraised by the
Trustee. Each such Investment Fund shall be segregated from
and completely independent of the other Investment Funds and
the valuation procedures described in Section 7.1 hereof,
shall apply separately with respect to each such fund.
5.2 - DESIGNATION BY PARTICIPANT OF FUND OR FUNDS
(A) Each Participant in the Plan shall elect
(separately with respect to each applicable type of
contribution as of his date of initial participation in the
Plan to have his future Salary Deferral Contributions and the
Employer's Contribution, if any, invested among the Investment
Funds in any increments of 10%.
(B) Each Participant who makes a Rollover Contribution
to the Plan in accordance with Section 3.7 hereof
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shall elect as of the date on which the Rollover Contribution
is made to have his Rollover Contribution invested among the
Investment Funds in any increments of 10%.
(C) In the event that a Participant fails to make an
election under (A) or (B) above, he shall be deemed to have
elected (only with respect to the applicable section for which
an election was not made), to have 100% invested in the
Investment Fund with the least amount of risk to principal, as
determined by the Committee.
5.3 - CHANGE OF INVESTMENT DESIGNATION
As of each Accounting Date subsequent to the Effective
Date of the Plan, a Participant may change his designation of
the manner of investment with respect to future Salary
Deferral Contributions and the Employer's Contribution to any
other manner permitted under Section 5.2(A) above by filing a
written application for the change (on a form provided by the
Committee for this purpose) at least 30 days prior to such
date.
5.4 - TRANSFERS AMONG INVESTMENT FUND
(A) As of each Accounting Date subsequent to the
Effective Date of the Plan, a Participant may elect to
redistribute the funds credited among his Investment Fund
subaccounts in his Salary Deferral Contribution Account,
Employer Contribution Account, and if applicable, his Rollover
Contribution Account, in increments of 10%, by
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filing a written application directing the redistribution (on
a form provided by the Committee for this purpose) at least 30
days prior to such date.
(B) The Committee shall authorize the Trustee to make
the necessary transfers among the Investment Funds to reflect
the elections of the Participants under Sections 5.4(A) above;
provided, however, the date of any actual transfer among
Investment Funds may be deferred until a date after the
applicable Account Date that is deemed administrative
practicable by the Trustee.
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SECTION 6
INDIVIDUAL ACCOUNTS
6.1 - ESTABLISHING AND MAINTAINING PARTICIPANT'S ACCOUNTS
(A) The Committee shall establish and maintain (or
cause to be established and maintained) for each Participant
with respect to each Employer by which the Participant is or
has been employed, two separate accounts, called the "Salary
Deferral Contribution Account," and the "Employer Contribution
Account, respectively, to reflect his interest in the funds
credited on his behalf under the Plan as a result of his
Salary Deferral Contributions and his interest in the funds,
if any, credited on his behalf under the Plan as a result of
the allocations on his behalf of the Employer's Contribution.
The Participant's Salary Deferral Contribution Account shall
contain such subaccounts as are required to reflect the amount
of Matched Salary Deferral Contributions and Unmatched Salary
Deferral Contributions and the Salary Deferral Contribution
Account and Employer Contribution Account shall consist of
such subaccounts as are required to reflect the Participant's
interest in the various Investment Funds in accordance with
his directions as specified in Section 5 hereof.
(B) In addition to the two separate accounts described
in Section 5.1(A) above, the Committee shall establish and
maintain (or cause to be established and
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maintained), for each applicable Participant, the Rollover
Contribution Account described in Section 3.7 hereof on behalf
of those Participants for whom a Rollover Contribution is
accepted.
(C) The Salary Deferral Contribution Account, Employer
Contribution Account and Rollover Contribution Account (if
applicable) of each Participant in the Plan on June 1, 1989
who was a Participant in the Superseded Plan of the Company as
of May 31, 1989 shall be credited, respectively, under the
Plan as of June 1, 1989 with an amount equal to the net credit
balance in his corresponding accounts under the Superseded
Plan of the Company as of May 31, 1989.
(D) Each such account (and subaccount) maintained on
behalf of each Participant shall be credited or debited to the
extent required by the provisions of the Plan. All entries on
such individual accounts shall be conclusive and binding upon
all parties unless patently erroneous. Monies derived from
these accounts shall be held, administered, invested and
disbursed in accordance with the Plan and Trust Agreement.
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SECTION 7
ACCOUNTING
7.1 - VALUATION OF ACCOUNTS
(A) As of each Accounting Date of each Plan Year,
beginning with the first such date following the Effective
Date of the Plan, the sum of the balances credited to the
investment subaccounts of all Participants, (that is, the sum
of the balances credited to the Salary Deferral Contribution
Accounts, the Employer Contribution Accounts and the Rollover
Contribution Accounts, after debiting such accounts with the
amounts of any distributions or withdrawals from such accounts
since the last preceding Accounting Date, and after crediting
the Salary Deferral Contributions since the last preceding
Accounting Date, but prior to crediting the Employer's
Contribution since the last preceding Accounting Date) shall
be compared with the then value of the applicable Investment
Fund as reported by the Trustee to the Committee, after
debiting all distributions and withdrawals paid out of such
Investment Fund since the last preceding Accounting Date,
excluding from such value (1) any amount which represents the
Employer's Contribution since the last preceding Accounting
Date and (2) any amounts credited to the Unallocated
Limitation Account. On the basis of such comparison, the sum
of the balances credited to the Participant's investment
subaccounts will
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be adjusted to equal the value of the applicable Investment
Fund as described in Section 7.1(B) below. Earmarked
investments and the earmarked investment subaccounts described
in Section 8.5 hereof shall be excluded in valuing the
accounts in the Trust Fund for the purposes of this section.
(B) The difference between (1) the value of the In
vestment Fund (after adjustment of the Investment fund as
described in Section 7.1(A) above) and (2) the sum of the
balances credited to the Participants' investment subaccounts
will be apportioned to the Participants' investment
subaccounts in proportion to the balances credited to the
respective subaccounts before such apportionment. On the
basis of the comparison described in Section 7.1(A) above, the
sum of such balances credited to the subaccounts will be
adjusted to equal the value of the applicable Investment Fund
by apportioning to the Participants' subaccounts the
difference between the sum of such balances credited to the
subaccounts and such value of the applicable Investment Fund,
in proportion to the balances credited to the respective
subaccounts before such apportionment. The amounts of such
differences which are so apportioned to each Participant shall
be credited or debited, as the case
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may be, to the subaccounts of such Participants before such
apportionment to determine the adjustment to the individual
subaccounts of each Participant and the subaccounts so
adjusted, increased by the amount, if any, credited in
accordance with the provisions of Section 7.4 hereof, shall be
the balances credited to such subaccounts of the Participants
until the next following Accounting Date or until being
adjusted for any debits or credits pursuant to Sections 7.3,
8.3, 8.4 or 8.5 hereof.
(C) The value of each Investment Fund as of each
Accounting Date will be determined on the basis of the fair
market value of the assets of such Investment Fund as
appraised by the Trustee.
7.2 - MAXIMUM ANNUAL ADDITION ON BEHALF OF ANY PARTICIPANT
DURING ANY LIMITATION YEAR
(A) The term "annual addition" as used herein means for
any Limitation Year beginning on or after June 1, 1987, the
sum of:
(1) the amount of the Salary Deferral
Contributions and the Employer's Contribution,
if any, allocated on behalf of the Participant
for the Limitation Year under Section 7.3 and
7.4 below; and
(2) any employee contributions, employer
contributions and forfeitures allocated on
behalf of the Participant under all other
Defined Contribution Plans of the Controlled
Group Members.
(B) Any provisions herein to the contrary
notwithstanding, in no event shall the annual addition of a
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Participant during any Limitation Year exceed (1) the maximum
limitation for Defined Contribution Plans as specified in
Section 415(c) of the Internal Revenue Code, or (2) if the
Participant has been a participant in both a Defined Benefit
Plan and a Defined Contribution Plan maintained by the
Employer, the maximum limitation in the case of a Defined
Benefit Plan and a Defined Contribution Plan for the same
employee as specified in Section 415(e) of the Internal
Revenue Code. In determining the maximum annual addition that
may be allocated on behalf of any Participant during any
Limitation Year, all Defined Contribution Plans, whether or
not terminated, of all Controlled Group Members are to be
treated as one Defined Contribution Plan, and all Defined
Benefit Plans, whether or not terminated, of all Controlled
Group Members are to be treated as one Defined Benefit Plan.
The proportion of the maximum annual addition applicable to
all such Defined Contribution Plans of such Controlled Group
Members during any Limitation Year shall be determined on a
pro rata basis depending upon the amount of the annual
addition that would have otherwise been allocated on his
behalf under each such Defined Contribution Plan during such
Limitation Year if the restriction of this Section 7.2 did not
apply. The
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term "IRC 415 Compensation" shall have the meaning assigned in
Section 415 of the Internal Revenue Code and regulations
issued with respect thereto.
(1) Maximum Annual Addition Due to
Restrictions of Section 415(c) of the Internal
Revenue Code: Subject to the provisions of
Section 7.2(B)(2) below, the total annual
addition (the total applicable to all such
Defined Contribution Plans of the Controlled
Group Members) which may be allocated on
behalf of a Participant during any Limitation
Year shall not exceed an amount equal to the
smaller of:
(a) $30,000 or (for Limitation
Years beginning on and after June 1,
1987), if greater, one-fourth of the
Defined Benefit Plan dollar limit in
effect as of the last day of such
Limitation Year under Section
415(B)(1)(A) of the Internal Revenue
Code; provided, however, if a short
Limitation Years is created because of a
change in the 12-month period used as the
Limitation Year, such applicable amount
shall be multiplied by a fraction, the
numerator of which is the number of
months in the short Limitation Year and
the denominator of which is 12;
or
(b) an amount equal to 25% of
the IRC 415 Compensation which the
Participant received from the Controlled
Group Members during such Limitation
Year.
(2) Maximum Annual Addition Due to
Restrictions of Section 415(e) of the Internal
Revenue Code: The total annual addition (the
total applicable to all Defined Contribution
Plans of the Controlled Group Members) which
may be allocated during any Limitation Year on
behalf of a Participant in both a Defined
Contribution Plan and a Defined Benefit Plan
to which the provisions of this Section 7.2(B)
apply shall
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not exceed an amount which would
cause the sum of his "Defined Contribution
Plan Fraction" and "Defined Benefit Plan
Fraction" as of the end of such Limitation
Year to exceed 1.00; provided, however, this
restriction shall not apply to the annual
addition during a given Limitation Year if the
Defined Benefit Plan contains a provision
which limits the benefit under the Defined
Benefit Plan for such year to an amount which
would not cause the sum of his Defined
Contribution Plan Fraction and Defined Benefit
Plan Fraction to exceed 1.00.
The term "Defined Contribution Plan Fraction," which shall
have the meaning assigned in Section 415 of the Internal
Revenue Code and the regulations issued thereto, is a
fraction, the numerator of which is the sum of the actual
annual additions (the total applicable to all Defined
Contribution Plans of the Controlled Group Members) to the
Participant's accounts in the Limitation Year and for all
prior Limitation Years and the denominator of which is the sum
of the Lesser of (a) 1.25 multiplied by the dollar limitation
in effect under Section 415(c) of the Internal Revenue Code
(as modified by the provisions of Section 415(D) for such
Limitation Year and for all prior Limitation Years of such
Participant's employment with the Controlled Group Members
(assuming for this purpose that Sections 415(C) and 415(D) had
been in effect during such prior years) and (b) 1.4 multiplied
by 25% of the Participant's IRC 415 Compensation for such
Limitation Year and for all prior Limitation Years of such
Participant's
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employment with the Controlled Group Members. The term
"Defined Benefit Plan Fraction," which shall have the meaning
assigned in Section 415 of the Internal Revenue Code and the
regulations issued thereto, is a fraction, the numerator of
which is the Participant's projected annual benefit
(determined as of the end of the Limitation Year) under all
Defined Benefit Plans of the Controlled Group Members and the
denominator of which is the lesser of (a) 1.25 multiplied by
the dollar limitation in effect under Section 415(c) of the
Internal Revenue Code (as modified by the provisions of
Section 415(d) of such Limitation Year or (b) 1.4 multiplied
by the compensation limitation for such Limitation Year. The
terms "Defined Contribution Plan" and "Defined Benefit Plan"
shall have the meanings assigned in Section 414(i) and Section
414(j), respectively of the Internal Revenue Code.
(C) The above limitations are intended to comply with
the provisions of Section 415 of the Internal Revenue Code so
that the maximum benefits provided by plans of the Controlled
Group Members shall be exactly equal to the maximum amounts
allowed under Section 415 of the Internal Revenue Code and the
regulations issued thereunder. If there is any discrepancy
between the provisions of this Section 7.2 and the provisions
of Section 415 of the Internal Revenue Code and the
regulations issued there
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under, such discrepancy shall be resolved so as to give full
effect to the provisions of Section 415 of the Internal
Revenue Code.
(D) In the event that the Participant's annual addition
under the Defined Contribution Plans for any Limitation Year
is restricted as a result of the above provisions of this
section, that portion or all of the annual addition allocable
to the Participant under the Plan for such Limitation Year
which is required to reduce the amount of the annual addition
to the amount permitted under Section 7.2(B) above shall be
eliminated to the extent necessary to reduce the amount of
annual addition to the permissible amount by holding
unallocated in a special account, called the "Unallocated
Limitation Account," that portion or all of the Participant's
allocable share of the Employer's Contribution for the Plan
Year and, if necessary, reallocating a portion of his Salary
Deferral Contributions to the Unallocated Limitation Account,
for subsequent allocation under Section 7.4 hereof as part of
the Employer's Contribution for the next succeeding Plan Year
(or, if necessary, Plan Years). The Unallocated Limitation
Account shall not be adjusted for gains or losses as of any
Accounting Date.
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7.3 - CREDITING OF SALARY DEFERRAL CONTRIBUTIONS
The Salary Deferral Contributions made on behalf of each
Participant shall be credited to his Salary Deferral
Contribution Account as soon as practicable after they are
deducted from his Compensation and turned over to the Trustee,
but in no event later than the next following Accounting Date.
7.4 - ALLOCATION AND CREDITING OF EMPLOYER'S CONTRIBUTION
(A) As of the last Accounting Date of each Plan Year,
after making the credits or debits to the Participant's
accounts required by Section 7.1 above, an amount equal to the
Employer's Contribution for the Plan Year shall be allocated
and credited to the Employer Contribution Accounts of those
Participants in the Plan who are entitled to share in the
allocation in accordance with Section 7.4(B) below, in the
proportion which the Matched Salary Deferral Contributions
made on behalf of such Participant during the current Plan
year, exclusive of any Matched Salary Deferral Contributions
made during the current Plan Year that were subsequently
withdrawn during the current Plan Year under Section 8.5
hereof, bear to the aggregate Matched Salary Deferral
Contributions made during the current Plan Year, exclusive of
any Matched Salary Deferral Contributions made during the
current Plan Year that were subsequently withdrawn during the
current Plan Year
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under Section 8.5 hereof, for all such Participants who are
sharing in such allocation of the Employer's Contribution for
such Plan Year.
(B) Those Active Participants in the Plan at any time
during the current Plan Year who either (1) are in the active
service of the Employer on the last Accounting Date of the
Plan Year (i.e., whose service has not terminated prior to the
last business day of the Plan Year just ended) or (2) are not
in active service because of termination of service during the
current Plan Year either (aa) due to death or Total and
Permanent Disability or (bb) on or after having attained the
age of 65 years shall be entitled to share in the Employer's
Contributions, if any, for such Plan Year.
7.5 - EFFECTIVE DATE OF ENTRIES
Each adjustment provided for by Sections 7.1 to 7.4,
inclusive, shall be considered as having been made on the
dates specified in such sections, regardless of the dates of
actual entries or receipt by the Trustee of contributions for
such year.
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SECTION 8
DISTRIBUTIONS
8.1 - INITIAL DISTRIBUTION DATE
(A) Upon the "normal retirement" (i.e., termination of
employment for a reason other than death on or after attaining
the age of 65 years), or termination of service for any other
reason of a Participant, his Initial Distribution Date shall
be as of the date of termination of his service; provided,
however, if his service is terminated by reason of his normal
retirement, death or Total and Permanent Disability, he (or
his Beneficiary, if his service was terminated due to his
death) shall share in the allocation of the Employer's
Contribution for the Plan Year in which he retired or
terminated his service.
(B) Distribution of the Participant's individual
accounts shall be made, subject to the provisions of Section
8.3 below, as soon as administratively practicable after his
Initial Distribution Date.
8.2 - DETERMINATION OF VESTED INTEREST IN THE PARTICIPANT'S
INDIVIDUAL ACCOUNTS AS OF INITIAL DISTRIBUTION DATE
(A) As of each Participant's Initial Distribution Date,
he shall be entitled to 100% of the net credit balance in his
subaccounts in his Salary Deferral Contribution Account as of
such date (adjusted to reflect any Salary Deferral
Contributions made since the last Accounting Date), 100% of
the net credit balance in his
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Employer Contribution Account and 100% of the net credit
balance in the Rollover Contribution Account, if any, which is
being maintained on his behalf as of such date. The
Participant shall be credited immediately with a 100% interest
in the amount of any Employer Contributions allocated on his
behalf subsequent to his Initial Distribution Date in
accordance with Section 7.4 hereof.
(B) Any provisions in the Plan to the contrary
notwithstanding, in the event the Plan is terminated or
partially terminated or contributions to the Trust are
completely discontinued, the balance credited to the account
of each affected Participant shall be 100% vested and shall be
nonforfeitable, and distribution of the assets in the Trust
Fund (after deduction of any and all amounts necessary or
proper to pay the expenses of distribution and other expenses
and liquidation costs of the Plan and Trust) shall be made in
accordance with Section 12.4 hereof.
8.3 - METHOD OF DISTRIBUTION
(A) On and after each Participant's Initial
Distribution Date, after all adjustments to his accounts
required as of that date shall have been made, distribution of
his subaccounts as determined under Section 8.2 above shall be
made, subject to the provisions of Sections 8.3(8) through
8.3(F) below, as soon after such date as is administratively
practicable, to or for the benefit of the
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Participant, or, in the event of his death either before, at
or after his Initial Distribution Date, to or for the benefit
of his Beneficiary, by any one of the following methods as
elected by the Participant or, if applicable, his Beneficiary:
(1) by payment in a series of cash
installments in approximately equal amounts,
spread over a fixed period of years not to
exceed the period described In Section 8.3(B)
or 8.3(D) below, whichever is applicable; or
(2) by payment in cash of a single-sum
amount; or
(3) a combination of (1) and (2) above.
Any distribution to the Participant that commences prior to
his attainment of the age of 65 years shall require the
written consent of the Participant within 90 days of the date
of any such distribution if the amount to be distributed (when
added to all prior in-service withdrawals under Sections 8.4
and 8.5 hereof since the Participant's Last Date of
Commencement of Service) exceeds $3,500 and any distribution
to the Participant shall commence no later than 60 days after
the end of the Plan Year following the later of (a) the 65th
anniversary of the Participant's date of birth or (b) the date
of termination of his service, unless the Participant elects a
later distribution date (which, shall not extend beyond his
Required Beginning Date).
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(B) Notwithstanding any other provisions of this
section to the contrary, any form of distribution that is
initially payable to the Participant must provide that the
entire interest of the Participant will be expected to be
distributed to the Participant and his Beneficiaries over one
or a combination of the following periods:
(1) the life of the Participant;
(2) the lives of the Participant and his
designated Beneficiary;
(3) a period certain not extending
beyond the life expectancy of the Participant;
or
(4) a period certain not extending
beyond the joint life and last survivor
expectancy of the Participant and his
designated Beneficiary.
(C) The life expectancy of the Participant or the joint
life and last survivor expectancy of the Participant and his
Beneficiary used for the purpose of this paragraph shall not
exceed the period computed by use of the expected return
multiples in Section 1.72-9 of the U.S. Code of Regulations
(using the return multiples for males for both the Participant
and Beneficiary if the return multiples in such section are
different for males and females). No recalculation will be
made of the amount to be distributed each year to take into
account the Participant's then life expectancy or the joint
and last survivor life expectancy of the Participant and his
designated Beneficiary.
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(D) Except to the extent otherwise permissible under
Section 401(a)(9) of the Internal Revenue Code and regulations
issued pursuant thereto, which regulations are herein
specifically incorporated by reference, the distribution of
any benefit which is not initially payable to the Participant
must:
(1) commence not later than the
Participant's Required Beginning Date;
provided, however, if the Beneficiary is not
the Participant's spouse, distribution must
commence not later than one year after the
date of the Participant's death or, if the
Participant's surviving spouse was his
Beneficiary and such surviving spouse dies
prior to the commencement of benefit payments,
distribution must commence not later than one
year after the date of such surviving spouse's
death; and
(2) be expected to distribute the
benefit for a period not extending beyond one
or a combination of the following periods:
(i) the life of his Beneficiary; or
(ii) a period certain not
extending beyond the life expectancy of
the Beneficiary;
provided, however, if the Participant has no designated
Beneficiary or if the designated Beneficiary is not a living
person, such benefit must be distributed in its entirety to
the Beneficiary not later than the fifth anniversary of the
date of (i) the Participant's death or (ii) the death of the
Participant's spouse, whichever death
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is the later to occur; and provided further, however, any
amount payable to a child of the Participant shall be treated
for the purposes of this Section 8.3(D) as if it had been
payable to the surviving spouse of the Participant if such
amount that is payable to the child will become payable to
such surviving spouse upon such child's reaching majority (or
upon the occurrence of such other designated event permitted
under regulations issued with respect to Section 401(a) (9) of
the Internal Revenue Code).
(E) If the Participant elects and is receiving
distribution in a series of cash installments under Section
8.3(A) above, he may subsequently elect a different method
that satisfies the requirements of this Section 8.3. If he
dies after distribution of his benefits has commenced, payment
of his remaining interest, if any, shall be distributed, to
the extent required by Section 401(a) (9) of the Internal
Revenue Code and regulations issued with respect thereto, at
least as rapidly as provided under the method of payment in
effect prior to his death. The Committee shall have the
authority to accelerate payments under any form of payment
elected by the Participant (or, if applicable, the
Beneficiary) if it determines that such acceleration is
necessary to preserve the tax exempt status of the Plan and
Trust.
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(F) In the event of termination of employment of any
Participant, the Committee in its discretion may authorize
payments with respect to the account of such Participant prior
to such Participant's Initial Distribution Date, but such
payments shall be considered as advances against the account
of such Participant, and full settlement of the same shall be
predicated upon the balance in such account on such Initial
Distribution Date, determined as herein before provided.
8.4 - DISTRIBUTIONS WHILE IN SERVICE AFTER AGE 70-1/2
Any provisions of Section 8.1 or 8.3 above to the
contrary notwithstanding, distribution shall be made to each
Participant, regardless of whether or not his service has been
terminated, on a date not later than his Required Beginning
Date in the same manner as though he had retired on his
Required Beginning Date. If any such Participant continues in
service after his distribution has commenced, he shall be
treated under the Plan in the same manner as though he had
retired and had immediately thereafter been reemployed, except
that distribution of his individual accounts shall continue to
be made on and after his Required Beginning Date in accordance
with the regulation issued pursuant to Section 401(a) (9) of
the Internal Revenue Code.
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8.5 - WITHDRAWALS WHILE STILL EMPLOYED
A Participant may, while still employed by the Employer,
make certain withdrawals from his accounts, subject to the
following restrictions:
(1) Withdrawals may be made only as of an
Accounting Date after all adjustments have been
made to the accounts as described In Section 7.1
hereof.
(2) All withdrawals are subject to the Participant
having filed a written application with the
Committee at least 30 days prior to the date on
which the withdrawal is to be made.
(3) All withdrawals shall be in the form of a lump-
sum cash payment and the amounts withdrawn shall be
debited from the Participant's account as of the
date the payment is made.
(4) A Participant may make a withdrawal from his
Salary Deferral Contribution Account and/or
Employer Contribution Account only in the event
that he furnishes satisfactory evidence to the
Committee that the withdrawal is to alleviate his
financial hardship and is for one of the following
reasons:
(a) medical expenses described in
Section 213(d) of the Internal Revenue Code
incurred by the Participant, the Participant's
spouse, or any dependents of the Participant
(as defined in Section 152 of said Code);
(b) purchase (excluding mortgage
payments) of a principal residence for the
Participant;
(c) payment of tuition for the next
semester or quarter of postsecondary education
for the Participant, his spouse, children, or
his dependents (as defined In Section 152 of
the Internal Revenue Code);
(d) the need to prevent the eviction of
the Participant from his principal residence
or foreclosure on the mortgage of the
Participant's principal residence; or
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(e) any other reason that is deemed a
safe harbor reason for a hardship withdrawal
by rulings or regulations issued by the
Internal Revenue Service pursuant to Section
401(k) of the Internal Revenue Code.
(5) For the purpose of (4) above, financial
hardship shall mean an immediate and heavy
financial need that cannot be met from other
resources of the Participant. A distribution will
be deemed to be necessary to satisfy an immediate
and heavy financial need of the Participant if all
of the following requirements are satisfied:
(a) the distribution is not in excess of
the amount of the immediate and heavy
financial need of the Participant;
(b) the Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available under all of the plans
maintained by the Employer;
(c) the Participant's Salary Deferral
Contributions under the Plan and his employee
elective contributions and employee
contributions, other than mandatory employee
contributions to a Defined Benefit Plan, under
all other Employer maintained qualified and
nonqualified plans of deferred compensation,
except health or welfare benefit plans, are
suspended for 12 months after receipt of the
hardship distribution; and
(d) the Participant's Salary Deferral
Contributions for the Participant's taxable
year immediately following the taxable year of
the hardship distribution may not exceed the
applicable limit under Section 402(g) of the
Internal Revenue Code for such next taxable
year less the amount of his Salary Deferral
Contributions for the taxable year of the
hardship distribution.
(6) The amount that a Participant may withdraw
from his Salary Deferral Contribution Account on
and after January 1, 1989 shall not exceed the
excess, if any, of (a) the sum of (i) the net
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credit balance in his Salary Deferral
Contribution Account as of December 31, 1988 and
(ii) the aggregate of his Salary Deferral
Contributions to the Plan on and after January 1,
1989 over (b) the withdrawals on and after January
1, 1989 from his Salary Deferral Contribution
Account.
(7) The amount that a Participant may withdraw
from his Employer Contribution Account shall not
exceed the net credit balance in such account as of
the effective date of the withdrawal.
(8) The Committee shall establish such rules and
give such directions to the Trustee as shall be
appropriate to effectuate the withdrawal in
accordance with the terms hereof.
(9) In the event that a Participant has an
outstanding loan at the time of his withdrawal, the
amount of the withdrawal may not exceed the excess
of (a) the amount which he would otherwise be
entitled to withdraw over (b) the amount of any
outstanding loan.
In the event that the actual date of payment of the
amount of the withdrawal from a Participant's accounts does
not coincide with an Accounting Date, the amounts credited to
his subaccounts in the applicable Investment Fund or Funds
shall be adjusted, on the basis of a policy established with
respect to each Investment Fund by the Committee (which policy
may be changed with respect to each such fund from time to
time for application in the future), based upon the latest
data available to the Committee immediately prior to its
authorization of such payment, to reflect investment gains or
losses in the funds credited to his subaccounts in the
applicable Investment Fund or Funds since the last Accounting
Date.
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8.6 - LOANS TO PARTICIPANTS
(A) Any Participant or Beneficiary of a deceased
Participant who is a party-in-interest (as defined in Section
3(14) of the Employee Retirement Income Security Act of 1974)
may make a written application to the Committee for a loan
from his accounts under the Plan prior to distribution of his
accounts subject to certain restrictions. The Committee may
establish such rules and regulations with respect to the
amount of such loans and interest rates as it shall deem
appropriate; provided, however, that:
(1) the maximum total permissible amount
of any loan (when added to the outstanding
balance of all other loans from any other
qualified plans maintained by the Controlled
Group Members) shall not exceed the smallest
of the following amounts:
(a) $50,000 reduced, however,
by the highest outstanding loan balance
of the Participant (or Beneficiary)
during the 12-month period immediately
preceding the date on which the loan is
to be made; or
(b) 50% of the vested portion
of the net credit balance in the
Participant's (or Beneficiary's)
individual accounts as of the last
Accounting Date;
(2) the loan is to be repaid (not less
frequently than quarterly) over a period not
exceeding five (5) years or such longer period
set by the Committee if the loan is for the
reason specified in (4)(b) below and, with
respect to Participants in active service,
through payroll deduction;
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(3) only one loan may be outstanding to
a Participant (or Beneficiary) at any time;
provided, however, a Participant (or
Beneficiary) may add to an existing loan to
pay post-secondary educational expenses
provided that (i) such addition does not cause
the total amount of the loan to exceed the
maximum specified in (1) above that is
applicable to the Participant at the date that
such addition becomes effective and (ii) the
repayment period for such addition is not
longer than the period remaining for the
repayment of the principal of the original
loan as provided in (2) above;
(4) loans will be available only for one
of the following reasons:
(a) nonreimburseable medical
expenses described in Section 213(d) of
the Internal Revenue Code incurred by the
Participant (or, if applicable, the
Beneficiary), his spouse or dependent
children;
(b) purchase of a principal
residence for the Participant (or, if
applicable, the Beneficiary);
(c) payment of tuition, books
and room and board for postsecondary
education for the Participant (or, if
applicable, the Beneficiary), his spouse
or dependent children;
(d) preservation or renovation
of the principal residence of the
Participant (or, if applicable, the
Beneficiary); or
(e) to alleviate extreme
financial hardship of the Participant
(or, if applicable, the Beneficiary), in
cases where he has no other assets
reasonably available as a source of funds
that could be used to discharge such
hardship, where the Committee shall have
the sole discretion, in a consistent and
uniform, nondiscriminatory manner, to
determine whether an
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extreme financial hardship
exists for this purpose;
(5) the Participant (or Beneficiary)
must consent in writing filed with the
Committee within 90 days of the date on which
the loan is to be effective to the possible
reduction in his accounts under the Plan in
the event of default on the loan;
(6) the rate of interest applicable to
the loan will be the rate of interest in
effect on the date the loan application is
approved by the Committee;
(7) the rate of interest in effect from
time to time will be the rate set by the
Committee from time to time taking into
consideration interest rates currently being
charged by commercial lenders for loans made
under similar circumstances; provided,
however, the Committee shall not discriminate
among Participants in the matter of interest
rates; but loans granted at different times
may bear different interest rates if the
Committee determines that the difference in
rates is justified and necessary to reflect
current economic conditions;
(8) the original rate of Interest
applicable to the loan will be fixed
throughout the period of the loan; provided,
however, the rate of interest in effect at the
date of any add-on loan described in (3) above
shall apply to both the outstanding principal
on the original loan and to the additional
amount of the loan;
(9) each loan shall require execution of
a "Loan Agreement", in the form specified for
such purpose by the Committee from time to
time. Each such Loan Agreement shall, among
other things, provide for the repayment of
such loan in substantially level payments over
the term of the loan; provided, however, that
any such Loan Agreement shall not preclude the
repayment in full, prior to the end of the
commitment period but no acceleration or
partial repayment will be allowed;
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(10) a 90-day waiting period for a new
loan shall be required following the repayment
of any loan prior to the end of the commitment
period;
(11) loan repayments must continue during
any unpaid leave of absence through direct
cash payment;
(12) all loans shall be fully secured by
up to 50% of the vested amount credited to the
Participant's accounts immediately following
the date on which the loan is made; and
(13) in the event of a default, the
Committee will liquidate the outstanding loan
balance out of the vested interest of the
Participant that was pledged as security for
the loan as of the date of default or, if
later, as of the date that the Participant's
benefits under the Plan become immediately
distributable.
Any loan will mature at the time provided for any
distribution, and no distribution shall be made to any
Participant or Beneficiary unless and until all unpaid loans
to such Participant (or Beneficiary), together with interest,
have been paid in full or liquidated out of the interest of
the Participant.
(B) Any loans under the provisions of this section
shall, subject to the provisions above, be available to all
eligible Participants and Beneficiaries on a reasonably
equivalent basis and shall not be made available to
Participants and Beneficiaries of Participants who are highly
compensated employees, in amounts greater than the amounts
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available to other Participants and Beneficiaries with similar
credit balances in their accounts.
(C) The amount available for a loan shall be based upon
the net credit balance in the Participant's accounts as of the
last preceding Accounting Date, adjusted, on the basis of a
policy established with respect to each Investment Fund by the
Committee (which policy may be changed with respect to each
such fund from time to time for application in the future),
based upon the latest data available to the Committee
immediately prior to its authorization of such loan, to
reflect investment gains or losses in the funds credited to
his subaccounts in the applicable Investment Fund or Funds
since the last preceding Accounting Date.
(D) The Committee, in its sole discretion, may direct
that all future loans to the Participants under the Plan will
be treated as individual investments of the respective
Participants. In the event the Committee so directs, the
amount of the loan shall be an earmarked investment of the
Trust Fund and shall be debited from the Participant's vested
individual accounts and transferred to an earmarked investment
subaccount in such individual accounts. The total amount of
such amount to be transferred to the earmarked investment
subaccount shall be equal to the amount of the loan.
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(E) The amount of any loan repayment (principal and
interest) by a Participant shall be credited to the earmarked
investment subaccount of his respective accounts in proportion
to the amount of funds that were transferred from each of such
accounts to the earmarked investment fund. The excess of such
repayment to such earmarked investment subaccounts of such
accounts over the amount of his outstanding loan shall
immediately thereafter be transferred from such earmarked
investment subaccounts of such accounts to the respective
accounts.
8.7 - SPOUSAL CONSENT REQUIREMENT AND WAIVER
Any provisions herein to the contrary notwithstanding,
if the consent of the spouse of the Participant is required
under the provisions hereof for any specified action that is
required hereunder, such consent must be in writing and
witnessed by a Plan representative or a notary public and must
acknowledge the specific Beneficiary or form of payment, if
applicable, and acknowledge the effect of such consent;
provided, however, that such spousal consent for any such
specified action that is required hereunder shall, unless
otherwise required by the Committee or by applicable law, be
waived for the purposes of the Plan if:
(1) such spouse has previously consented to such
specified action in accordance with the provisions
above and such previous consent (a) permits changes
with respect to such specified
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action without any requirement of further
consent by such spouse and (b) acknowledges the
effect of such consent by the spouse;
or
(2) it Is established to the satisfaction of the
Committee that such consent may not be obtained
because there is no spouse, because the spouse
cannot be located or because of such other
circumstances as the Secretary of the Treasury or
his delegate may prescribe by regulations as
reasons for waiving the spousal consent
requirement.
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SECTION 9
SPECIAL PROVISIONS APPLICABLE IF PLAN
IS TOP-HEAVY
9.1 - APPLICABILITY OF TOP-HEAVY PLAN PROVISIONS
The provisions of this Section 9 shall apply if the Plan
becomes a "top-heavy plan" within the meaning of Section
416(g) of the Internal Revenue Code with respect to any Plan
Year that ends after the Effective Date of the Plan.
9.2 - DETERMINATION OF PLAN YEARS IN WHICH PLAN IS TOP-HEAVY
(A) The Plan shall be "top-heavy" with respect to an
applicable Plan Year if:
(1) either (a) any Participant, former
Participant or Beneficiary is a "key employee"
within the meaning of Sections 416(i) (1) and
416(i) (5) of the Internal Revenue Code (such
Participants, former Participants and
Beneficiaries are hereinafter referred to in
this Section 9 as "Key Employees,") or (b) the
Plan enables any other plan which is included
in the Aggregation Group (as defined below)
and which has a participant who is a Key
Employee, to meet the requirements of Section
401(a) (4) or Section 410 of the Internal
Revenue Code;
and
(2) the ratio (determined in accordance
with Section 416 of the Internal Revenue Code)
as of the last day of the preceding Plan Year
or, in the case of the first Plan Year, the
last day of such first Plan Year (such day,
whether applicable to the first Plan Year or
to subsequent Plan Years, is hereinafter
referred to in this Section 9 as the
"Determination Date") of:
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(a) the sum of (i) the
aggregate of the individual accounts of
all Key Employees under all Defined
Contribution Plans included in such
Aggregation Group plus (ii) the present
value of the cumulative accrued benefits
for all Key Employees under all Defined
Benefit Plans included in the Aggregation
Group; to
(b) a similar sum determined
for all Participants, former Participants
and Beneficiaries excluding any such
Participant or former Participant (or his
Beneficiary) who was a Key Employee for
any prior Plan Year but who is not
currently a Key Employee and also
excluding any Participant or former
Participant who has not at any time
during the five-year period ending on the
Determination Date performed services for
any employer maintaining a plan included
in the Aggregation Group, under all
Defined Benefit Plans and Defined
Contribution Plans included in such
Aggregation Group;
is greater than 60%.
(B) For the purposes of this Section 9, the Aggregation
Group shall mean the Plan plus all other Defined Benefit Plans
and Defined Contribution Plans, if any, maintained by the
Controlled Group Members; provided, however, that any plan of
any such Controlled Group Member that (i) does not have any
participant who is a Key Employee and (ii) does not enable any
other plan, which is included in the Aggregation Group and
which has a participant who is a Key Employee, to meet the
requirements of Section 401(a) (4) or Section 410 of the
Internal Revenue Code, shall be
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included in the Aggregation Group only if such plan, together
with the other plans included in the Aggregation Group,
satisfy the requirements of Section 401(a)(4) and 410 of the
Internal Revenue Code.
(C) Unless required otherwise under Section 416 of the
Internal Revenue Code and regulations issued thereunder, the
value of a Participant's (or Beneficiary's) individual account
under the Plan as of the Determination Date shall be equal to
the sum of:
(a) the net credit balance in his
Individual accounts as of the last Accounting
Date; plus
(b) any contributions actually made
after such Accounting Date but on or prior to
the Determination Date or, in the case of the
Determination Date applicable to the first
Plan Year, any contributions made after the
Determination Date that are allocated as of a
date within such first Plan Year; plus
(c) the aggregate distributions made on
his behalf during the five-year period ending
on the Determination Date.
(D) The aggregate of the individual accounts under the
other Defined Contribution Plans included in such Aggregation
Group and the present value of the cumulative accrued benefits
under the other Defined Benefit Plans included in the
Aggregation Group shall be determined separately for each such
plan in accordance with Section 416 of the Internal Revenue
Code and regulations issued with respect thereto as of the
"determination date" that is
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applicable to each such separate plan and that falls within
the same calendar year that the Determination Date applicable
to the Plan falls.
9.3 - MINIMUM CONTRIBUTIONS FOR TOP-HEAVY PLAN YEAR
(A) The Employer's Contribution during any Plan Year in
which the Plan is top-heavy on behalf of an Eligible Employee
to whom the provisions of this Section 9.3 are applicable,
shall not be less than an amount equal to the excess, if any,
of (1) either: (a) if the Plan is not part of the Aggregation
group with one or more Defined Benefit Plans, the lesser of
(i) 3% of his IRC 415 Compensation (as defined in Section 7.2
hereof) from the Employer during the Plan Year and (ii) the
highest percentage of IRC 415 Compensation (not in excess of
$200,000) which is allocated under Section 7.3 or 7.4 hereof
to a Key Employee for such Plan Year, or (b) if the Plan is
part of the Aggregation Group with one or more Defined Benefit
Plans, 5% of his IRC 415 Compensation; over (2) the amounts,
if any, of employer contributions and forfeitures (other than
elective deferrals and matching employer contributions)
allocated on his behalf under the Plan and all other Defined
Contribution Plans included in the Aggregation Group for such
Plan Year; provided, however, if the Plan is included in the
Aggregation Group with one or more Defined Benefit Plans, the
minimum contribution described in this Section 9.3 shall
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9-e
not be required with respect to any Eligible Employee if such
Defined Benefit Plan provides for a benefit to be payable on
his behalf that is at least equal to that amount which is
actuarially equivalent (based on the interest and mortality
assumptions specified in the Defined Benefit Plan for
determining actuarially equivalent monthly retirement incomes)
to the excess, if any, of (i) a monthly retirement income
payable to the eligible Employee for life (with no ancillary
benefits) commencing at his normal retirement age in an amount
equal to the product of (aa) 2% of his "IRC 416 Final Average
Monthly Compensation" multiplied by (bb) his number of years
of service, not in excess of 10 years, which were accrued
during those Plan Years in which the Plan was top-heavy over
(ii) the monthly retirement income payable to the Eligible
Employee for life (with no ancillary benefits) commencing at
his normal retirement age in the amount which can be provided
on an actuarially equivalent basis (based upon the interest
and mortality assumptions specified in the Defined Benefit
Plan for determining actuarially equivalent monthly retirement
Incomes) by the amounts, if any, attributable to employer
contributions and forfeitures that are credited to his account
under the Defined Contribution Plans included in the
Aggregation Group. For the purposes of this paragraph, an
Eligible Employee's
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"IRC 416 Final Average Monthly Compensation" shall be equal to
his average monthly rate of IRC 415 Compensation for the five
consecutive calendar years, which are prior to the January 1st
immediately following (i) the Eligible Employee's retirement
or termination of service or (ii) the close of the last Plan
Year in which the Plan is top-heavy, whichever is earlier,
during which he received the highest aggregate compensation.
Such average monthly rate of compensation will be determined
by dividing the total of such compensation that he received
during such five-consecutive-calendar-year period by the
product of 12 times the number of calendar years during which
he received such compensation during such five-calendar-year
period. In the event that the eligible Employee does not
receive both such compensation and service during a calendar
year or calendar years, such calendar year or calendar years
during which he did not receive both such compensation and
service shall be ignored and excluded in determining the five
consecutive calendar years during which he received the
highest aggregate compensation.
(B) For any Plan Year that a minimum allocation is
determined on behalf of an Eligible Employee under the above
provisions of this section, the Employer shall make a
contribution (or an additional contribution) for such Plan
Year on behalf of such Eligible Employee in an amount equal
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to the difference between the amounts, if any, allocated under
Section 7.4 hereof on behalf of such Eligible Employee and the
minimum allocation determined on his behalf under the above
provisions of this section. Such contribution (or additional
contribution) shall be credited to an Employer Contribution
Account for the Eligible Employee as of the last Accounting
Date of such Plan Year.
(C) The provisions of this Section 9.3 shall apply to
all Eligible Employees "non-Key Employees" (i.e., Eligible
Employees who are not Key Employees and who are in the active
service of the Employer on the last Accounting Date of the
Plan Year).
9.4 - ADJUSTMENT TO MAXIMUM ANNUAL ADDITION FOR TOP-HEAVY PLAN
YEAR
Any provision of Section 7.2 hereof to the contrary
notwithstanding, the total annual addition which may be
allocated during any Plan Year that the Plan is top-heavy on
behalf of a Participant hereunder who is a Participant in both
a Defined Contribution Plan and a Defined Benefit Plan, which
are included in the Aggregation Group, shall not exceed an
amount which would cause the sum of his "IRC 416 Adjusted
Defined Contribution Plan Fraction" (where such fraction shall
be determined in the manner described in Section 415(e) of the
Internal Revenue Code but substituting "1.0" for "1.25" in
paragraph (3)(B) of said Section 415(e) as prescribed in
Section 416(h) of said Code) and
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his "IRC 416 Adjusted Defined Benefit Plan Fraction" (where
such fraction shall be determined in the manner described in
Section 415(e) of the Internal Revenue Code but substituting
"1.0" for "1.25" in paragraph (2)(B) of said Section 415(e) as
prescribed In Section 416(h) of said Code) to exceed 1.00;
provided, however, this restriction shall not apply to the
annual addition during a given Limitation Year if the Defined
Benefit Plan contains a provision which limits the benefit
under the Defined Benefit Plan for such year to an amount
which would not cause the sum of his IRC 416 adjusted Defined
Contribution Plan Fraction and his IRC 416 adjusted Defined
Benefit Plan Fraction to exceed 1.00.
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SECTION 10
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
10.1 - PARTICIPANTS TO FURNISH REQUIRED
(A) Each Participant and his Beneficiary will furnish
to the Committee such information as the Committee considers
necessary or desirable for purposes of administering the Plan,
and the provisions of the Plan respecting any payments
thereunder are conditional upon the Participant's or
Beneficiary's furnishing promptly such true, full and complete
information as the Committee may request.
(B) Each Participant will submit proof of his age and
proof of the age of each Beneficiary designated or selected by
him to the Committee at such time as is required by the
Committee. The Committee will, if such proof of age is not
submitted as required, use as conclusive evidence thereof,
such information as is deemed by it to be reliable, regardless
of the source of such information. Any adjustment required by
reason of lack of proof or the misstatement of the age of
persons entitled to benefits hereunder, by the Participant or
otherwise, will be in such manner as the Committee deems
equitable.
(C) Any notice or information which, according to the
terms of the Plan or the rules of the Committee, must
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be filed with the Committee, shall be deemed so filed at the
time that it is actually received by the Committee.
(D) The Employer, the Committee, and any person or
persons involved in the administration of the Plan shall be
entitled to rely upon any certification, statement, or
representation made or evidence furnished by an Employee,
Participant or Beneficiary with respect to his age or other
facts required to be determined under any of the provisions of
the Plan, and shall not be liable on account of the payment of
any monies or the doing of any act or failure to act in
reliance thereon. Any such certification, statement,
representation, or evidence, upon being duly made or
furnished, shall be conclusively binding upon the person
furnishing same; but it shall not be binding upon the
Employer, the Committee, or any other person or persons
involved in the administration of the Plan, and nothing herein
contained shall be construed to prevent any of such parties
from contesting any such certification, statement,
representation, or evidence or to relieve the Employee,
Participant, or Beneficiary from the duty of submitting
satisfactory proof of any such fact.
10.2 - BENEFICIARIES
Each Participant may, on a form provided for that
purpose, signed and filed with the Committee, designate a
Beneficiary to receive the benefit, if any, which may be
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payable under the Plan in the event of his death, and each
designation may be revoked by such Participant by signing and
filing with the Committee a new designation of Beneficiary
form. If a deceased Participant who had a spouse at the date
of his death either failed to designate a Beneficiary in the
manner above prescribed or if his designated Beneficiary
predeceases him, he shall be deemed to have designated his
spouse as his Beneficiary. If a deceased Participant is
survived by a spouse and he had designated a person other than
his spouse as his Beneficiary and such spouse has not
consented to such specific other person being designated as
the Beneficiary, the Participant shall be deemed to have
revoked his prior designation and to have designated his
spouse as his Beneficiary to receive the death benefit. If a
deceased Participant who did not have a spouse at the date of
his death either failed to name a Beneficiary in the manner
above prescribed or if his Beneficiary predeceases him, the
death benefit, if any, which may be payable under the Plan
with respect to such deceased Participant may be paid to any
one or more of the persons comprising the group consisting of
the Participant's descendants, the Participant's parents or
the Participant's heirs-at-law, and the Committee may direct
the payment of the entire benefit to any member of such group
or the
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apportionment of such benefit among any two or more of them in
such shares as the Committee, in its sole discretion, shall
determine; or to the estate of the deceased Participant, or in
the event the Committee does not so direct any of such
payments, the Committee may elect to have a court of
applicable jurisdiction determine to whom a payment or
payments shall be paid. Any payment made to any person
pursuant to the power and discretion conferred upon the
Committee by the provisions of this Section 10.2 shall operate
as a complete discharge of all obligations under the Plan with
respect to such deceased Participant and shall not be subject
to review by anyone but shall be final, binding and conclusive
on all persons ever interested hereunder.
10.3 - CONTINGENT BENEFICIARIES
In the event of the death of a Beneficiary who survives
the Participant and in the event that, at the Beneficiary's
death, there is a balance credited to the individual account
(or accounts) of the Participant, the amount represented by
such credit balance shall be payable to a person (or persons)
designated by the Participant (in the manner provided In
Section 10.2 above) to receive the remaining funds payable in
the event of such contingency or, if no person was so named,
then to a person designated by the Beneficiary (in the manner
provided in Section 10.2
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above) of the deceased Participant to receive the remaining
death benefits, if any, payable in the event of such
contingency; provided, however, that if no person so
designated be living upon the occurrence of such contingency,
then the remaining funds shall be payable to the estate of
such deceased Beneficiary.
10.4 - PARTICIPANTS' RIGHTS IN TRUST FUND
No Participant or other person shall have any interest
in or any right in, to or under the Trust Fund, or any part of
the assets thereof, except as and to the extent expressly
provided in the Plan.
10.5 - BENEFITS NOT ASSIGNABLE
Subject to the last sentence of this section and to
Section 8.6 hereof, no benefits, rights or accounts shall
exist under the Plan which are subject in any manner to
voluntary or involuntary anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any
attempt so to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be null and void;
nor shall any such benefit, right or account under the Plan be
in any manner liable for or subject to the debts,
contracts,liabilities, engagements, torts or other obligations
of the person entitled to such benefit, right or account; nor
shall any benefit, right or account under the Plan constitute
an asset in case of the
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bankruptcy, receivership or divorce of any person entitled
under the Plan; and any such benefit, right or account under
the Plan shall be payable only directly to the Participant or
Beneficiary, as the case may be. Where a qualified domestic
relations order as described in Sections 401(a) (13) and
414(p) of the Internal Revenue Code has been received by the
Committee, the terms and benefits of the Plan will be
considered to have been modified with respect to the affected
Participant to the extent such order requires benefits to be
paid to specified individuals other than the Participant. Any
provisions of the Plan to the contrary notwithstanding, the
Committee shall direct the distribution to an alternate payee
under a qualified domestic relations order as of the earliest
date requested in the order.
10.6 - BENEFITS PAYABLE TO MINORS AND INCOMPETENTS
(A) Whenever any person entitled to payments under the
Plan shall be a minor or under other legal disability or in
the sole judgment of the Committee shall otherwise be unable
to apply such payments to his own best interest and advantage
(as in the case of illness, whether mental or physical or
where the person not under legal disability Is unable to
preserve his estate for his own best interest), the Committee
may in the exercise of its discretion direct all or any
portion of such payments to be made in any one
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or more of the following ways unless claim shall have been
made therefor by an existing and duly appointed guardian,
tutor, conservator, committee or other duly appointed legal
representative, in which event payment shall be made to such
representative:
(1) directly to such person unless such
person shall be an infant or shall have been
legally adjudicated incompetent at the time of
the payment;
(2) to the spouse, child, parent or
other blood relative to be expended on behalf
of the person entitled or on behalf of those
dependents as to whom the person entitled has
the duty of support; or
(3) to a recognized charity or
governmental institution to be expended for
the benefit of the person entitled or for the
benefit of those dependents as to whom the
person entitled has the duty of support.
(B) The decision of the Committee will, in each case,
be final and binding upon all persons and the Committee shall
not be obliged to see to the proper application or expenditure
of any payments so made. Any payment made pursuant to the
power herein conferred upon the Committee shall operate as a
complete discharge of the obligations of the Trustee and of
the Committee.
10.7 - CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the Plan will not
be construed as conferring any legal rights upon any
Participant to the continuation of his employment with the
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Employer, nor will the Plan interfere with the right of the
Employer to discipline, lay off or discharge any Participant.
The adoption and maintenance of the Plan shall not be deemed
to constitute a contract between the Employer and any employee
or to be a consideration for, inducement to, or condition of
employment of any person.
10.8 - NOTIFICATION OF MAILING ADDRESS
(A) Each Participant and other person entitled to
benefits hereunder shall file with the Committee from time to
time, in writing, his post office address and each change of
post office address, and any check representing payment
hereunder and any communication addressed to a Participant or
a Beneficiary hereunder at his last address filed with the
Committee (or, if no such address has been filed, then at his
last address as indicated on the records of the Employer)
shall be binding on such person for all purposes of the Plan,
and neither the Committee nor the Trustee shall be obliged to
search for or ascertain the location of any such person.
(B) If the Committee, for any reason, is in doubt as to
whether payments are being received by the person entitled
thereto, it may by registered mail addressed to the person
concerned at his address last known to the Committee, notify
such person that all unmailed and future
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payments shall be henceforth withheld until he provides the
Committee with evidence of his continued life and his proper
mailing address or his Beneficiary provides the Committee with
evidence of his death. In the event that (i) such
notification is mailed to such person and his designated
Beneficiary, (ii) the Committee is not furnished with evidence
of such person's continued life and proper mailing address or
with evidence of his death within three years of the date such
notification was mailed and (iii) the Committee is unable to
find any person to whom payment is due under the provisions of
the Plan within three years of the date such notification was
mailed, all retirement income and other benefit payments due
shall be forfeited at the end of such three-year period
following the date such notification was mailed; provided,
however, if claim for any forfeited benefit is subsequently
made by any such person to whom payment is due under the Plan
prior to the distribution of the assets upon termination of
the Plan, such forfeited benefits due such person shall be
reinstated. If the Plan is terminated prior to the end of
such three-year period, the Committee may direct the transfer
of any such person's unclaimed benefit to an Individual
Retirement Account on behalf of such person.
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10.9 - WRITTEN COMMUNICATIONS REQUIRED
Any notice, request, instruction, or other communication
to be given or made hereunder shall be in writing and either
personally delivered to the addressee or deposited in the
United States mail fully postpaid and properly addressed to
such addressee at the last address for notice shown on the
Committee's records.
10.10 - BENEFITS PAYABLE AT OFFICE OF TRUSTEE
All benefits hereunder, and installments thereof, shall
be payable at the office of the Trustee.
10.11 - APPEAL TO COMMITTEE
(A) A Participant or Beneficiary who feels he is being
denied any benefit or right provided under the Plan must file
a written claim with the Committee. All such claims shall be
submitted on a form provided by the Committee which shall be
signed by the claimant and shall be considered filed on the
date the claim is received by the Committee.
(B) Upon the receipt of such a claim and in the event
claim is denied, the Committee shall, within a reasonable
period of time, provide such claimant a written statement
which shall be delivered or mailed to the claimant by
certified or registered mail to his last known address, which
statement shall contain the following:
(1) the specific reason or reasons for
the denial of benefits;
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(2) a specific reference to the
pertinent provisions of the Plan upon which
the denial is based;
(3) a description of any additional
material or Information which is necessary;
and
(4) an explanation of the review
procedure provided below;
provided, however, in the event that special circumstances
require an extension of time for processing the claim, the
Committee shall provide such claimant with such written
statement described above not later than 180 days after
receipt of the claimant's claim, but, in such event, the
Committee shall furnish the claimant, within 90 days after its
receipt of such claim, written notification of the extension
explaining the circumstances requiring such extension and the
date that It is anticipated that such written statement will
be furnished.
(C) Within 90 days after receipt of a notice of a
denial of benefits as provided above, the claimant or his
authorized representative may request, in writing, to appear
before the Committee for a review of his claim. In conducting
its review, the Committee shall consider any written statement
or other evidence presented by the claimant or his authorized
representative in support of his claim. The Committee shall
give the claimant and his authorized representative reasonable
access to all pertinent documents necessary for the
preparation of his claim.
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(D) Within 60 days after receipt by the Committee of a
written application for review of his claim, the Committee
shall notify the claimant of its decision by delivery or by
certified or registered mail to his last known address;
provided, however, in the event of special circumstances which
require an extension of time for processing such application,
the Committee shall notify the claimant of its decision not
later than 120 days after receipt of such application, but in
such event, the Committee shall furnish the claimant, within
60 days after its receipt of such application, written
notification of the extension explaining the circumstances
requiring such extension and the date that it is anticipated
that its decision will be furnished. The decision of the
Committee shall be in writing and shall include the specific
reasons for the decision presented in a manner calculated to
be understood by the claimant and shall contain references to
all relevant Plan provisions on which the decision was based.
The decision of the Committee shall be final and conclusive.
As in all cases, including but not limited to the
determination of eligibility for and the amount of benefits
under the Plan, the Committee shall have full discretion In
interpreting the provisions of the Plan and the decision of
the Committee shall be final and conclusive.
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SECTION 11
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
11.1 - EMPLOYER'S CONTRIBUTION IRREVOCABLE
The Employer shall have no right, title or Interest in
the Trust Fund or in any part thereof, and no contributions
made thereto shall revert to the Employer, except as provided
in Paragraph 2 of Article III of the Trust Agreement.
11.2 - ABSENCE OF RESPONSIBILITY
Subject to any applicable provisions of law, neither the
Employer nor any of the officers, employees, agents nor any
members of its board of directors or other governing board nor
any partner or sole proprietor, guarantees in any manner the
payment of benefits hereunder.
11.3 - AMENDMENT OF PLAN
(A) The Plan may be amended from time to time in any
respect whatever by formal action of the Company specifying
such amendment, subject only to the following limitations:
(1) Under no condition shall such
amendment result in or permit the return or
repayment to any Employer of any property held
or acquired by the Trustee hereunder or the
proceeds thereof or result in or permit the
distribution of any such property for the
benefit of anyone other than the Participants
and their Beneficiaries, except to the extent
provided by Section 11.6 hereof with respect
to expenses of administration.
(2) Under no condition shall such
amendment change the duties or
responsibilities of
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the Trustee hereunder without its
written consent.
(B) Except as may be necessary to comply with any laws
or regulations of the United States or of any state to qualify
this as a tax-exempt plan and trust, no amendment may be made
which would result in a slower rate of vesting under the Plan
for any Participant who has completed at least three years of
service as of the effective date of such amendment or, if
later, as of the date such amendment is adopted, unless such
amendment provides that each such Participant may elect,
within a reasonable period of time after such applicable date,
to retain the rate of vesting in effect under the Plan prior
to such amendment in lieu of the new rate of vesting. The
period during which the election described in the preceding
sentence may be made shall begin no later than the date the
Plan amendment is adopted and shall end no earlier than 60
days after (i) the date the amendment is adopted, (ii) the
effective date of such amendment or (iii) the date the
Participant is notified in writing of the amendment by the
Committee, whichever is the latest date to occur.
(C) Subject to the foregoing limitations, any amendment
may be made retroactively which, in the judgment of the
Committee, is necessary or advisable provided that such
retroactive amendment does not deprive a Participant, without
his consent, of a right to receive benefits hereunder
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which have already vested and matured in such Participant,
except such modification or amendment as shall be necessary to
comply with any laws or regulations of the United States or of
any state to qualify this as a tax-exempt plan and trust.
(D) The participation in the Plan of Employers other
than the Company shall not limit the power of the Company
under the foregoing provisions; provided, however, that the
Company shall deliver a copy of each amendment to the Plan to
each other Employer within 30 days of such amendment. The
provisions of the Plan and any amendments to the Plan by the
Company shall be binding upon all other Employers unless such
other Employer modifies the provisions of the Plan as it
pertains only to its own employees by the adoption, by formal
action on its part in the manner described in Section 11.7
hereof, of a Supplement to the Plan specifying such
modifications which shall pertain only to its employees; and
each Employer shall have the right to withdraw from the Plan
by formal action on its part, in the manner described in
Section 11.7 hereof, specifying its determination to withdraw.
Any such withdrawing Employer shall furnish the Committee and
the Trustee with evidence of the formal action of its
determination to withdraw.
(E) Any such withdrawal may be accompanied by such
modifications to the Plan as such Employer shall deem
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proper to continue a Defined Contribution Plan for its
employees separate and distinct from the Defined Contribution
Plan herein set forth. A withdrawal by any Employer without
any provision for the continuation of a plan for its employees
shall constitute a termination of the Plan with respect to
that Employer. Withdrawal from the Plan by any Employer shall
not affect the continued operation of the Plan with respect to
the other Employers; provided, however, in the event of the
withdrawal of an Employer which is in a group of Employers
with respect to which the Plan constitutes a single plan and
in the event that provision is made for the continuation of a
Defined Contribution Plan for its Employees separate and
distinct from the Defined Contribution Plan herein set forth,
the share of the assets of the Trust Fund allocable to such
group of Employers which is transferred to such other Defined
Contribution Plan shall be determined by the Committee but
shall be subject to the provisions of Section 11.5 hereof.
(F) Any Supplement to the Plan adopted by an Employer
or Employers shall apply only to the employees of the Employer
or Employers adopting such Supplement and shall not affect the
continued operation of the Plan with respect to any other
Employers.
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11.4 - TERMINATION OF PLAN
(A) The Plan may be terminated by the Employers at any
time by (1) formal action in the manner described in Section
11.7 hereof, on the part of each Employer then a party to the
Plan specifying (a) that the Plan is being terminated and (b)
the date as of which the termination is to be effective and
(2) notifying the Committee and the Trustee of such
termination. Any successor business to an Employer may
provide for continuation of the Plan by formal action on its
part in the manner described in Section 11.7 hereof. The Plan
may be terminated in the manner described above with respect
to one, but less than all, of the Employers theretofore
parties hereto and the Plan continued for the remaining
Employer or Employers. The Plan shall automatically terminate
as to a particular Employer only upon adjudication by a court
of competent jurisdiction that such Employer is bankrupt or
insolvent (whether such proceedings be voluntary or
involuntary), upon dissolution of such Employer or upon its
liquidation, merger or consolidation without provisions being
made by its successor, if any, for the continuation of the
Plan.
(B) Upon termination of the Plan in accordance with the
provisions of Section 11.4(A) above, the Committee
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shall determine the share of the value of the assets of the
Trust Fund which is attributable to each Employer (or group of
Employers) with respect to which the Plan represents a single
plan as described in Section 2.5 hereof. Subject to the
distribution rules in Section 8.3 hereof and to any
restrictions that may apply under Section 401(k) of the
Internal Revenue Code in the event the Employer establishes a
successor plan, the Committee shall then determine whether
distribution on behalf of the Participants and Beneficiaries
entitled to benefits under the Plan shall be by payment in
cash or by the maintenance of another or substituted trust
fund. As soon as practicable after receipt by the Employer of
notification from the Internal Revenue Service evidencing its
approval of the proposed distribution of assets upon
termination of the Plan and after payment of all expenses and
costs, the Committee shall direct the Trustee to distribute,
in the manner of distribution determined by the Committee, the
amount then standing to the credit of the account of each
applicable Participant or Beneficiary.
11.5 - MERGER OF PLAN
In the case of the merger or consolidation of the Plan
with, or the transfer of assets or liabilities to, another
qualified plan, each Participant must be entitled to receive a
benefit, upon termination of such other
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qualified plan after such merger, consolidation or transfer,
which is at least equal to the benefit which he would have
been entitled to receive immediately before the merger,
consolidation or transfer if the Plan had been terminated at
that time.
11.6 - EXPENSES OF ADMINISTRATION
The Employer may pay all expenses incurred in the
administration of the Plan, including expenses and fees of the
Trustee, but it shall not be obligated to do so, and any such
expenses not so paid by the Employer shall be paid from the
Trust Fund to the extent permissible by applicable law and
regulations.
11.7 - FORMAL ACTION BY EMPLOYER
Any formal action herein permitted or required to be
taken by an Employer shall be:
(a) if and when a partnership, by written
instrument executed by one or more of its general
partners or by written instrument executed by a
person or group of persons who has been authorized
by written instrument executed by one or more
general partners as having authority to take such
action;
(b) if and when a proprietorship, by written
instrument executed by the proprietor or by written
instrument executed by a person or group of persons
who has been authorized by written instrument
executed by the proprietor as having authority to
take such action;
(c) if and when a corporation, by resolution of
its board of directors or other governing board, or
by written instrument executed by a person or group
of persons who has been authorized by resolution of
Its board of directors or other
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governing board as having authority to take
such action; or
(d) if and when a joint venture, by formal action
on the part of the joint venturers In the manner
described above.
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SECTION 12
ADMINISTRATION
12.1 - ADMINISTRATION BY COMMITTEE
The Plan will be administered by an administrative
committee (herein referred to as the "Committee"), consisting
of (a) a chairman and at least one additional member or (b) a
single individual, each of whom will be appointed by formal
action of the Company. Each member may, but need not, be a
director, proprietor, partner, officer or employee of any
Employer, and each such member shall be appointed by formal
action of the Company to serve until his successor shall be
appointed in like manner. Any member of the Committee may
resign by delivering his written resignation to the Company
and to the other members, if any, of the Committee. The
Company, by formal action on its part, may remove any member
of the Committee by so notifying the member and other
Committee members, if any, In writing. Vacancies on the
Committee shall be filled by formal action of the Company.
The Committee shall be the administrator of the Plan. The
committee serving under the Superseded Plan of the Company as
of May 31, 1989 shall continue to serve under the Plan on
June 1, 1989.
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12.2 - OFFICERS AND EMPLOYEES OF COMMITTEE
The Committee may appoint a secretary who may, but need
not, be a member of the Committee and may employ such agents,
clerical and other services, legal counsel, accountants and
actuaries as may be required for the purpose of administering
the Plan. Any person or firm so employed may be a person or
firm then, theretofore or thereafter serving the Employer in
any capacity. The Committee and any individual member of the
Committee and any agent thereof shall be fully protected when
acting in a prudent manner and relying in good faith upon the
advice of the following professional consultants or advisors
employed by the Employer or the Committee: any attorney
insofar as legal matters are concerned, any certified public
accountant insofar as accounting matters are concerned, and
any enrolled actuary insofar as actuarial matters are
concerned.
12.3 - ACTION BY COMMITTEE
(A) A majority of the members of the Committee shall
constitute a quorum for the transaction of business and shall
have full power to act hereunder. The Committee may act
either at a meeting at which a quorum is present or by a
writing subscribed by at least a majority of the members of
the Committee then serving. Any written memorandum signed by
the secretary or any member of the Committee who
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has been authorized to act on behalf of the Committee shall
have the same force and effect as a formal resolution adopted
In open meeting. Minutes of all meetings of the Committee and
a record of any action taken by the Committee shall be kept in
written form by the secretary appointed by the Committee or,
if no secretary has been appointed by the Committee, by an
individual member of the Committee. The Committee shall give
to the Trustee any order, direction, consent or advice
required under the terms of the Trust Agreement, and the
Trustee shall be entitled to rely on any instrument delivered
to it and signed by the secretary or any authorized member of
the Committee as evidencing the action of the Committee.
(B) A member of the Committee may not vote or decide
upon any matter relating solely to himself or vote in any case
in which his individual right or claim to any benefit under
the Plan is particularly involved. If, in any case in which
any Committee member is so disqualified to act, the remaining
members cannot agree or if there is only one individual member
of the Committee, the Company, by formal action on Its part,
will appoint a temporary substitute member to exercise all of
the powers of a qualified member concerning the matter in
which the disqualified member is not qualified to act.
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12.4 - RULES AND REGULATIONS OF COMMITTEE
The Committee shall have the authority to make such
rules and regulations and to take such action as may be
necessary to carry out the provisions of the Plan and will,
subject to the provisions of the Plan, decide any questions
arising in the administration, interpretation and application
of the Plan, which decisions shall be conclusive and binding
on all parties. The Committee may allocate or delegate any
part of its authority and duties as it deems expedient.
12.5 - POWERS OF COMMITTEE
(A) In order to effectuate the purposes of the Plan,
the Committee shall have the following powers:
(1) to make all determinations and
computations concerning the benefits, credits
and debits to which any Participant, or other
Beneficiary, is entitled under the Plan;
(2) to determine all questions relating
to the eligibility of employees to become
Participants and to determine the amount of
Compensation of each Participant;
(3) to make rules and regulations for
the administration of the Plan which are not
inconsistent with the terms and provisions
hereof and to fix the taxable year of the
Trust as required for tax return purposes and
advise the Trustee thereof in writing;
(4) to construe the Plan and to make
equitable adjustments for any mistakes or
errors made in the administration of the Plan;
(5) to determine and resolve in its sole
discretion all questions relating to the ad
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12-e
ministration of the Plan and Trust
(a) when differences of opinion arise between
the Employer, the Trustee, a Participant, or
any of them and (b) whenever it is deemed
advisable to determine such questions in order
to promote the uniform and nondiscriminatory
administration of the Plan for the greatest
benefit of all parties concerned;
(6) to authorize and direct the Trustee
to pay from the Trust Fund all costs and
expenses Incurred by the Committee in the
administration of the Plan;
(7) to determine whether a Participant's
termination Is a result of Total and Permanent
Disability, and for this purpose it shall
require proof in such form as it may desire,
including the certificate of a duly licensed
physician; and
(8) to appoint, in Its discretion, in
accordance with the provisions of the Trust
Agreement, one or more Investment Managers to
manage, including the power to acquire or
dispose of, all or any portion of the assets
of the Plan and Trust Fund.
(B) The foregoing list of express powers is not
intended to be either complete or conclusive, and the
Committee shall, in addition, have such powers as it may
reasonably determine to be necessary or appropriate in the
performance of its powers and duties under the Plan.
12.6 - DUTIES OF COMMITTEE
(A) The Committee shall, as a part of its general duty
to supervise and administer the Plan:
(1) establish and maintain, or cause to
be maintained, the individual accounts
described in Section 6.1 hereof and direct the
maintenance of such other records and the
preparation of such forms as are
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12-f
required for the efficient
administration of the Plan;
(2) give the Trustee specific directions
in writing with respect to:
(a) the making of distribution
payments, giving the names of the payees,
the amounts to be paid and the time or
times when payments shall be made; and
(b) the making of any other
payments which the Trustee is not by the
terms of the Trust Agreement authorized
to make without a direction in writing by
the Committee;
(3) prepare an annual report for the
Employer, as of the last day of each Plan
Year, in such form as may be required by the
Employer;
(4) maintain records of the age and
amount of Compensation, Hours of Service and
Vesting Service of each Employee;
(5) comply with all applicable lawful
reporting and disclosure requirements of the
Employee Retirement Income Security Act of
1974; and
(6) comply (or transfer responsibility
for compliance to the Trustee) with all
applicable Federal income tax withholding
requirements for distribution payments imposed
by the Internal Revenue Code.
(B) The foregoing list of express duties is not
intended to be either complete or conclusive, and the
Committee shall, in addition, exercise such other powers and
perform such other duties as it may deem necessary, desirable,
advisable or proper for the supervision and administration of
the Plan.
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12-g
12.7 - INDEMNIFICATION OF MEMBERS OF COMMITTEE
To the extent not covered by insurance or if there is a
failure to provide full insurance coverage for any reason and
to the extent permissible under corporate by-laws and other
applicable laws and regulations, the Company agrees to hold
harmless and indemnify the members of the Committee against
any and all claims and causes of action by or on behalf of any
and all parties whomsoever, and all losses therefrom,
including, without limitation, costs of defense and attorneys'
fees, based upon or arising out of any act or omission
relating to or In connection with the Plan and Trust Agreement
other than losses resulting from any such person's fraud or
willful misconduct.
12.8 - PLAN FIDUCIARIES
(A) The Trustee is the named fiduciary hereunder with
respect to the powers, duties and responsibilities of
investment of the Trust Fund and the Committee is the named
fiduciary hereunder with respect to the other powers, duties
and responsibilities of the administration of the Plan.
Certain powers, duties and responsibilities of each of said
fiduciaries are specifically delegated to others under the
provisions of the Plan and Trust Agreement and other powers,
duties and responsibilities of any fiduciaries may be
delegated by written agreement to others to
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12-h
the extent permitted under the provisions of the Plan and
Trust Agreement.
(B) The powers and duties of each fiduciary hereunder,
whether or not a named fiduciary, shall be limited to those
specifically delegated to each of them under the terms of the
Plan and Trust Agreement. It is intended that the provisions
of the Plan and Trust Agreement allocate to each fiduciary the
individual responsibilities for the prudent execution of the
functions assigned to each fiduciary. None of the allocated
responsibilities or any other responsibilities shall be shared
by two or more fiduciaries unless such sharing shall be
provided by a specific provision in the Plan or the Trust
Agreement. Whenever one fiduciary is required by the Plan or
the Trust Agreement to follow the directions of another
fiduciary, the two fiduciaries shall not be deemed to have
been assigned a share of any responsibility, but the
responsibility of the fiduciary giving the directions shall be
deemed to be his sole responsibility and the responsibility of
the fiduciary receiving those directions shall be to follow
same insofar as such instructions on their face are proper
under applicable law. Any fiduciary may employ one or more
persons to render advice with respect to any responsibility
such fiduciary has under the Plan or Trust Agreement.
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12-i
(C) Each fiduciary may, but need not, be a director,
officer or Employee of the Employer. Nothing in the Plan
shall be construed to prohibit and fiduciary from:
(1) serving in more than one fiduciary
capacity with respect to the Plan and Trust
Agreement;
(2) receiving any benefit to which he
may be entitled as a Participant or
Beneficiary in the Plan, so long as the
benefit is computed and paid on a basis which
is consistent with the terms of the Plan as
applied to all other Participants and
Beneficiaries; or
(3) receiving any reasonable
compensation for services rendered, or for the
reimbursement of expenses properly and
actually incurred in the performance of his
duties with respect to the Plan, except that
no person so serving who already receives full-
time pay from the Employer shall receive
compensation from the Plan, except for
reimbursement of expenses properly and
actually incurred.
(D) Each fiduciary shall be bonded as required by
applicable law or statute of the United States, or of any
state having appropriate jurisdiction, unless such bond may
under such law or statute be waived by the parties to the
Trust Agreement. The Employer shall pay the cost of bonding
any fiduciary who is an Employee of the Employer.
12.9 - APPLICABLE LAW
The Plan will, unless superseded by federal law, be
construed and enforced according to the laws of the State of
Arkansas, and all provisions of the Plan will, unless
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12-j
superseded by federal law, be administered according to the
laws of the said state.
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<PAGE>
13-a
SECTION 13
TRUST FUND
13.1 - PURPOSE OF TRUST FUND
A Trust Fund has been created and will be maintained for
the purposes of the Plan, and the monies thereof will be
invested in accordance with the terms of the agreement and
declaration of trust which forms a part of the Plan. All
contributions will be paid into the Trust Fund, and all
benefits under the Plan will be paid from the Trust Fund.
13.2 - BENEFITS SUPPORTED ONLY BY TRUST FUND
Any person having any claim under the Plan will look
solely to the assets of the Trust Fund for satisfaction.
13.3 - TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS
The Trust Fund will be used and applied only in
accordance with the provisions of the Plan, to provide the
benefits thereof, and no part of the corpus or income of the
Trust Fund will be used for, or diverted to, purposes other
than the exclusive benefit of Participants and other persons
thereunder entitled to benefits, except to the extent provided
in Section 11.6 hereof with respect to expenses of
administration.
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IN WITNESS WHEREOF, SYSTEMATICS, INC. has caused this
instrument to be executed by its duly authorized officers on
this 12th day of September, 1990, effective as of June 1,
1989.
(CORPORATE SEAL)
ATTEST: SYSTEMATICS, INC.
/s/Paul Stanfield By: /s/ John E. Steuri
Secretary Title: President
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<PAGE>
AMENDMENT ONE
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INC.
(As Amended and Restated Effective June 1, 1989)
WHEREAS, effective as of June 1, 1989,
the Thrift Plan for Employees of Systematics, Inc. was amended
and restated in its entirety;
WHEREAS, by the terms of Section 10.3
of the amended an restated
plan (hereinafter referred to as the "Plan"), the Plan may be
amended;
WHEREAS, it is deemed necessary to
amend the Plan in order to reflect the change in the Plan Year
and in order to make changes and clarifications in the loan
provisions;
NOW, THEREFORE, the Plan is hereby
amended effective as of June 1, 1990, as follows:
1. A new paragraph shall be added to
Section 1.1A(8) of the Plan and such new paragraph shall read
as follows:
"In the event that Compensation under the Plan is
determined based on a period of time that contains fewer than
12 calendar months, the above $200,000 ( as adjusted to reflect such
cost-of-living increases) limit for that period of time shall be
multiplied by the fraction in which the numerator is the number of
full months in such period of time and the denominator is 12."
2. Section 1.1(A)(22) of the Plan
shall be deleted in its entirety and the following
section inserted in lieu thereof:
"(22) "Plan Year" shall mean the calendar,
policy or fiscal year on which the records of
the Plan are kept as reported from time to by the
plan administrator to the Internal Revenue Service.
For periods of time prior to June 1, 1990, the Plan
Year shall mean the 12-month period beginning June
1st of each calendar year. For periods of time
subsequent to May 31, 1990, the Plan Year shall
mean:
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(a) a short Plan Year consisting of the seven-month
period beginning June 1, 1990 and ending
December 31, 1990; and
(b) unless subsequently changed in accordance with
the rules or regulations issued by the Internal
Revenue Service or the Department of Labor, the
12-month period beginning January 1, 1991 and
January 1st of each subsequent calendar year."
3. A new Paragraph (C) shall be added to Section 5.1 of the Plan
and such new paragraph shall read as follows:
"(C) A `Loan Investment Fund' shall be maintained in the
Trust Fund for their investment of loans to the Participants (and
Beneficiaries) under Section 8.6 hereof which were made prior to
January 1, 1991. The assets held in the Loan Investment Fund as of
December 31, 1990, shall be equal to the value of the notes and
security agreements evidencing the outstanding loans under
the Plan as of December 31, 1990 together with interest and
principal payments thereon. The Loan Investment Fund shall consist of
investments in loans to the Participants (and Beneficiaries) which
were made prior to January 1, 1991 and a cash account which shall
be invested in interest bearing securities. An amount equal to the
value of the Loan Investment Fund as of December 31, 1990
shall be allocated to all Active Participants in the
Plan who are entitled to an allocation of the Employer's Contribution
under Section 7.4(B) hereof for the Plan Year ending December 31,
1990 in accordance with the provisions of Section 7.4(A) hereof."
4. Section 5.3 of the Plan shall be deleted in its entirety and the
following section in lieu thereof:
"(A) Subject to the provisions of Section 5.3(B)
below, as of each Accounting Date subsequent to the
Effective Date of the Plan, a Participant may change
his designation of the manner of investment with
respect to future Salary Deferral Contributions and
the Employer's Contribution to any other manner
permitted under Section 5.2(A) above by filing a
written application for the change (on a form
provided by the Committee for this purpose) at least
30 days prior to such date.
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<PAGE>
(B) No designation shall be permitted as to the
manner of investment of the allocation of the amount
equal to the value of the Loan Investment Fund
described in Section 5.1(C) above and such amount
shall be invested on and after December 31, 1990
solely in the Loan Investment Fund."
5. A new Paragraph (C) shall be added to Section 5.4 of the Plan
and such new paragraph shall read as follows:
"(C) Notwithstanding the above provisions of this
Section 5.4, there shall be no transfers or
redistribution of funds in the Loan Investment
Fund."
6. Item (7) in the first paragraph of Section 8.5 of the Plan shall
be deleted in its entirety and the following item inserted in lieu thereof:
"(7) The amount that a Participant may withdraw from
his Employer Contribution Account shall not exceed
the excess, if any, of (a) the net credit balance in
such account as of the effective date of the
withdrawal over (b) the portion of such account that
is invested in the Loan Investment Fund."
IN WITNESS WHEREOF, SYSTEMATICS, INC. has caused this
instrument to be executed by its duly authorized officers on
this 21st day of December, 1990, effective as of June 1, 1990.
(CORPORATE SEAL)
ATTEST: SYSTEMATICS, INC.
/s/ Paul Stanfield By: /s/ John E. Steuri
Secretary Title: CEO and President
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<PAGE>
SECOND AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INC.
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of
Systematics, Inc. (the "Plan") was established by Systematics,
Inc. (the "Company"), effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated,
effective as of June 1, 1989; and
WHEREAS, pursuant to Section 11.3 of the Plan,
the Company has reserved the right to amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan
is hereby amended, as set forth below:
1. Section 1.1A(18) of the Plan is amended,
effective with respect to active employees of the Employer or
a Designated Nonparticipating Employer, by the addition of a
paragraph at the end thereof to provide as follows:
The Last Date of Commencement of Service of an
employee shall not be later than the later of
January 1, 1986 or the first day of the first period
(if any) for which such employee is credited with
"Vesting Years of Service" under the provisions of
the ALLTEL Corporation Pension Plan; provided,
however, there shall be no duplication of Vesting
Service under the Plan by reason of any restoration
of, crediting of, or granting of service in respect
of any single period or otherwise.
2. Section 7.4(B) of the Plan is amended,
effective for Plan Years beginning on and after January 1,
1991, to provide as follows:
(B) Those Active Participants in the Plan at any
time during the current Plan Year who either (1) are
in the active service of the Employer on the last
Accounting Date of the Plan Year (i.e., whose
service has not terminated prior to the last
business day of the Plan Year just ended), (2) are
not in active service because of termination of
service during the current Plan Year either (aa) due
to death or Total and Permanent Disability or (bb)
on or after having attained the age of 65 years, or
(3) became ineligible by reason of transfer of
employment to a Controlled Group Member that is not
an Employer and who would be
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<PAGE>
Eligible Employees after such transfer of employment
but for the fact that their employer is not an
Employer (provided they remain Eligible Employees
but for the fact that their employer is not an
Employer or would otherwise be eligible for an
allocation of the Employer's Contribution as a
former Eligible Employee by reason of termination of
service on or after the age of 65 years, Total and
Permanent Disability or death) shall be entitled to
share in the Employer's Contributions, if any, for
such Plan Year. (A Participant described in
clause (3) above shall be ineligible to share in
further allocations of the Employer's Contribution
after the Plan Year in which transfer of employment
occurs unless he again becomes an Eligible Employee
and an Active Participant.)
IN WITNESS WHEREOF, the Company, by its duly authorized
officers, has caused this instrument to be executed on this
27th day of January, 1992.
(CORPORATE SEAL) SYSTEMATICS FINANCIAL SERVICES,
INC.
/s/ Paul Stanfield By: /s/ Roger W. Owens
Secretary Title: President
Systematics Financial Services, Inc.
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<PAGE>
THIRD AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INC.
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of
Systematics, Inc. (the "Plan") was established by Systematics,
Inc. (the "Company"), effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated,
effective as of June 1, 1989; and
WHEREAS, pursuant to Section 11.3 of the Plan,
the Company has reserved the right to amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan
is hereby amended, as set forth below:
1. Effective as of the date of execution
hereof, Section 1.1A(5) of the Plan is amended to provide as
follows:
(6) "Company" shall mean Systematics Information
Services, Inc. a Delaware corporation, and its
successor or successors.
2. Effective as of the date of execution
hereof, Section 1.1A(21) of the Plan is amended to provide as
follows:
(23) "Plan" shall mean the Thrift Plan for
Employees of Systematics Information Services, Inc.
and Participating Affiliates, as amended and
restated effective June 1, 1989, as set forth in
this instrument and as it may hereafter be amended
from time to time.
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<PAGE>
IN WITNESS WHEREOF, the Company, by its duly authorized
officers, has caused this instrument to be executed on this
27th day of January, 1992.
(CORPORATE SEAL) SYSTEMATICS FINANCIAL SERVICES,
INC.
/s/ Paul Stanfield By: /s/ Roger W. Owens
Secretary Title: President
Systematics Financial Services, Inc.
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<PAGE>
FOURTH AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS, INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates
(formerly known as the Thrift Plan for Employees of
Systematics, Inc.) (the "Plan") was established by
Systematics, Inc. (now Systematics Financial Services, Inc.)
(the "Company"), effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated, effective as
of June 1, 1989; and
WHEREAS, pursuant to Section 11.3 of the Plan, the
Company has reserved the right to amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan is hereby
amended, effective as of June 1, 1989, as set forth below:
1. A new Section 1.1(A)(36) is added to the Plan to
provide as follows:
(36) "Highly Compensated Employee" shall mean
an Employee or former Employee who is a highly
compensated active employee or highly
compensated former employee as defined
hereunder.
(a) A "highly compensated
active employee" includes any Employee
who performs services for an Employer
during the determination year and who
(i) was a five percent owner at any time
during the determination year or the
look back year, (ii) received
compensation from an Employer during the
look back year in excess of $75,000
(subject to adjustment annually at the
same time and in the same manner as
under Section 415(d) of the Code), (iii)
was in the top paid group of employees
for the Plan Year and received
compensation from an Employer during the
look back year in excess of $50,000
(subject to adjustment annually at the
same time and in the same manner as
under Section 415(d) of the Code), (iv)
was an officer of an Employer during the
look back year and received compensation
during that year in excess of 50 percent
of the dollar limitation in effect for
that year under Section 415(b)(1)(A) of
the Code or, if no officer received
compensation in excess of that amount
for the
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<PAGE>
look back year or the
determination year, received the
greatest compensation for the look back
year of any officer, or (v) was one of
the 100 employees paid the greatest
compensation by an Employer for the
determination year and would be
described in (ii), (iii), or (iv) above
if the term "determination year" were
substituted for "look back year".
(b) A "highly compensated
former employee" includes any Employee
who separated from service with the
Employer (or is deemed to have separated
from service with the Employer) prior to
the determination year, performed no
services for an 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 date the
Employee attains age 55.
(c) For purposes of this
Section 1.1(A)(36), "compensation" shall
mean compensation within the meaning of
Section 415(c)(3 of the Internal Revenue
Code and includes elective or salary
reduction contributions to a cafeteria
plan, cash or deferred arrangement or
tax-sheltered annuity.
The determination of who is a Highly
Compensated Employee hereunder, including
determinations as to the number and identity
of employees in the top paid group, the 100
employees receiving the greatest compensation
from an Employer, the number of employees
treated as officers, and the compensation
considered, shall be made in accordance with
the provisions of Section 414(q) of the Code
and regulations issued thereunder. For
purposes of this definition, the following
terms have the following meanings:
(d) The "determination year"
shall mean the Plan Year.
(e) The "look back year"
shall mean the 12-month period
immediately preceding the determination
year.
2. Each reference in the Plan to the term "highly
compensated employees" shall be deleted from the Plan and a
reference to the term "Highly Compensated Employees" (without
the quotation marks) shall be substituted therefor in each
place such term occurs.
3. Section 3.6(C) of the Plan is amended by adding the
following sentence as the next-to-last sentence thereof:
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<PAGE>
For purposes of the family aggregation rules, a
"family member" of a Highly Compensated Employee
shall include the spouse of the Highly Compensated
Employee and the lineal ascendants and descendants
and their spouses of the Highly Compensated
Employee.
4. Section 4.2(C) of the Plan is amended by adding the
following sentence as the last sentence thereof:
For purposes of the family aggregation rules, a
"family member" of a Highly Compensated Employee
shall include the spouse of the Highly Compensated
Employee and the lineal ascendants and descendants
and their spouses of the Highly Compensated
Employee.
IN WITNESS WHEREOF, the Company, by its duly authorized
officers, has caused this instrument to be executed on this
27th day of July, 1992.
(CORPORATE SEAL) SYSTEMATICS FINANCIAL
SERVICES,
INC.
ATTEST:
/s/ Paul Stanfield By: /s/ John E. Steuri
Secretary Title: Chairman and CEO
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FIFTH AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates
(formerly known as the Thrift Plan for Employees of
Systematics, Inc.) (the "Plan") was established by
Systematics, Inc. (now Systematics Financial Services, Inc.),
effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated, effective
as of June 1, 1989; and
WHEREAS, Systematics Information Services, Inc. (the
"Company") has assumed sponsorship of the Plan; and
WHEREAS, pursuant to Section 11.3 of the Plan, the
Company may amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan is
hereby amended, effective as of the effective date of
acceptance by NationsBank of Texas, N.A. of its appointment as
successor Trustee, as set forth below:
1. Section 1.1(A)(33) of the Plan is amended to
provide as follows:
(33) "Trust Agreement" shall mean the agreement
entered into by and between the Company 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.
2. Section 1.1(B) of the Plan is amended to provide as
follows:
(B) The terms "herein," "hereof," "hereunder" and
similar terms refer to this document, including
the Trust Agreement where appropriate, unless
otherwise qualified by the context.
3. Section 5.1(A) of the Plan is amended to provide as
follows:
(A) The Trust Fund shall be divided into separate
"Investment Funds" for the investment of contributions
made hereunder, as provided in the Trust Agreement.
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4. Section 11.1 of the Plan is amended to provide as
follows:
11.1 - EMPLOYER'S CONTRIBUTION IRREVOCABLE
The Employer shall have no right, title or
interest in the Trust Fund or in any part thereof, and no
contributions made thereto shall revert to the Employer,
except that all contributions to the Plan are made
subject to deductibility and continued qualification of
the Plan, and, any provisions of the Plan and Trust
Agreement to the contrary notwithstanding, the Committee
may direct the Trustee to return contributions which have
been made by the Employer to that Employer in the
following events by delivering to the Trustee, within the
time limit, if any, specified below, written notification
thereof specifying the circumstances which warrant the
return of contributions to the Employer:
(a) In the event that the office of the District
Director of Internal Revenue, upon initial
application of the Employer for approval of the
Plan and after an opportunity has been given the
Employer to make any changes in the Plan and Trust
Agreement which may be suggested by such office
for approval of the Plan and Trust Agreement,
rules that the Plan and Trust Agreement as they
pertain to such Employer fail to qualify as tax
exempt under Sections 401 and 501 of the Internal
Revenue Code, then the Plan and Trust Agreement
shall become null and void and the then market
value of the contributions made by the Employer to
the Trust prior to the date of such initial
determination as to qualification shall be
returned by the Trustee within one year of the
date of denial of qualification.
(b) In the event that the Plan is amended and
such amendment is conditioned upon obtaining
approval of the Internal Revenue Service that the
qualified status of the Plan will not be adversely
affected by such amendment and the office of the
District Director of Internal Revenue, upon
initial application for approval of such
amendment, and after an opportunity has been given
to make any additional changes in the Plan (as
amended) which may be suggested by such office for
approval of the Plan (as amended), rules that the
Plan (as amended) will not be qualified as tax
exempt under Sections 401 and 501 of the Internal
Revenue Code, then such amendment shall become
null and void and the provisions of the Plan as in
effect immediately prior to the amendment shall
continue as if the amendment had never been
adopted, and that portion, if any, of the
contributions made by the Employer to fund
additional benefits provided by the amendment,
less the net losses, if any, of the Trust Fund
attributable to such portion, shall be returned to
the Employer within one year of the date of denial
of qualification.
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<PAGE>
(c) In the event that a contribution made by the
Employer is disallowed as a tax-deductible expense
under Section 404 of the Internal Revenue Code,
then such contribution, to the extent the
deduction is disallowed, less the net losses, if
any, of the Trust Fund attributable thereto, shall
be returned to the Employer within one year after
the disallowance of deduction.
(d) In the event that the contribution of the
Employer is made by mistake of fact, such
contribution, less the net losses, if any, of the
Trust Fund attributable thereto, shall be returned
to the Employer within one year after payment of
the contribution.
5. Section 12.5(A)(7) of the Plan is amended by deleting
the semicolon and the word "and" from the end thereof and
substituting a period therefor.
6. Section 12.5(A)(8) of the Plan is deleted in its
entirety.
IN WITNESS WHEREOF, the Company, by its duly authorized
officers, has caused this instrument to be executed on this
18th day of December, 1992.
(CORPORATE SEAL) SYSTEMATICS INFORMATION
SERVICES,
INC.
ATTEST:
/s/ Paul Stanfield By: /s/ John E. Steuri
Secretary Title: Chairman and CEO
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<PAGE>
SIXTH AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates
(formerly known as the Thrift Plan for Employees of
Systematics, Inc.) (the "Plan") was established by
Systematics, Inc. (now Systematics Financial Services, Inc.),
effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated, effective
as of June 1, 1989; and
WHEREAS, pursuant to Section 11.3 of the Plan, the
Company has reserved the right to amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan is
hereby amended, effective as November 1, 1992, as set forth
below:
1. Subsection 5.3(A) of the Plan shall be deleted in
its entirety and the following subsection inserted in lieu
thereof:
"(A) Subject to the provisions of
Section 5.3(B) below, a Participant may change his designation
of investment with respect to future Salary Deferral Contributions
and the Employer's Contribution with such frequency, at
such times, in such manner and within such advance notice period
as the Committee shall specify.
2. Subsection 5.4(A) of the Plan shall be deleted in its
entirety and the following subsection inserted in lieu
thereof:
"(A) Subject to the provisions of Section
5.4(C) below, a Participant may elect to redistribute the
funds credited among his Investment Fund subaccounts in his
Salary Deferral Contribution Account, Employer Contribution
Account and, if applicable, his Rollover Contribution Account
, with such frequency, at such times, in such manner and
within such advance notice period as the Committee shall
specify.
IN WITNESS WHEREOF, SYSTEMATICS, INC. has caused this
instrument to be executed by its duly authorized officers,
effective as of November 1, 1992.
(CORPORATE SEAL) SYSTEMATICS INFORMATION
SERVICES,
INC.
ATTEST:
/s/ Paul Stanfield By: /s/ John E. Steuri
Secretary Title: Chairman and Chief
Executive Officer
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SEVENTH AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
(As Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates
(formerly known as the Thrift Plan for Employees of
Systematics, Inc.) (the "Plan") was established by
Systematics, Inc. (now Systematics Financial Services, Inc.)
(the "Company"), effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated, effective as
of June 1, 1989; and
WHEREAS, pursuant to Section 11.3 of the Plan, the
Company has reserved the right to amend the Plan;
NOW, THEREFORE, BE IT RESOLVED, that the Plan is hereby
amended, effective as of October 31, 1994, by adding a new
paragraph (E) to Section 3.7 of the Plan to provide as
follows:
(E) Merger of Certain Rollover Contribution
Accounts: The provisions of this paragraph (E)
shall apply notwithstanding any other provision of
the Plan except Section 10.3. At the discretion of
the Committee, effective as of any one or more
Accounting Dates occurring on or after October 31,
1994, a portion of the Profit Sharing Plan for
Employees of Systematics Information Services Inc.
and Participating Affiliates (the "Profit Sharing
Plan") constituting some or all of the rollover
contribution accounts in the Profit Sharing Plan may
be merged into and made a part of the Plan and the
assets representing such rollover contribution
accounts shall be transferred from the trustee of
the Profit Sharing Plan to the Trustee. As of the
close of business on the Accounting Date on which
any such transfer is to occur, a Rollover
Contribution Account shall be established in the
name of each person for whom a rollover contribution
account was transferred to the Plan from the Profit
Sharing Plan and credited with the portion of the
transferred assets credited to his rollover
contribution account under the Profit Sharing Plan
immediately prior to the transfer. On and after the
effective date of any such merger, the provisions of
the Plan shall govern with respect to the
transferred rollover contribution accounts to the
extent not inconsistent with any provision of the
Profit Sharing Plan that may not be eliminated under
Section 411(d)(6) of the Internal Revenue Code;
provided that, if the assets of a transferred
rollover contribution account include an outstanding
participant loan, such outstanding loan shall
continue to be administered in accordance with its
terms and the applicable provisions of the Profit
Sharing Plan in effect at the time the loan was
granted.
IN WITNESS WHEREOF, the Company, by its duly authorized
officers, has caused this instrument to be executed on this
24th day of October, 1994.
(CORPORATE SEAL) SYSTEMATICS FINANCIAL SERVICES,
INC.
ATTEST:
/S/ Paul Stanfield By:/S/ John E. Steuri
Secretary Title: Chairman and Chief Executive Officer
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EIGHTH AMENDMENT
TO
THRIFT PLAN FOR EMPLOYEES OF
SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
(AS Amended and Restated Effective June 1, 1989)
WHEREAS, the Thrift Plan for Employees of
Systematics Information Services, Inc. and Participating
Affiliates (formerly known as the Thrift Plan for Employees of
Systematics, Inc.) (the "Plan") was established by
Systematics, Inc. (now Systematics Financial Services, Inc.)
effective as of January 1, 1986; and
WHEREAS, the Plan was amended and restated,
effective as of June 1, 1989; and
WHEREAS, Systematics Information Services, Inc. (the
"Company") has assumed sponsorship of the Plan; and
WHEREAS, pursuant to Section 11.3 of the Plan, the
Company may amend the Plan;
NOW, THEREFORE, effective as of October 26, 1994,
Section 1.1(A)(21) of the Plan is hereby amended to provide as
follows:
(21) "Plan" shall mean the ALLTEL Corporation Thrift
Plan, as amended and restated effective June 1,
1989, as set forth in this instrument and as it may
hereafter be amended from time to time.
IN WITNESS WHEREOF, the Company by its duly
authorized officers has caused this instrument to be executed
on the 24th day of October, 1994, to be effective as provided
herein.
(CORPORATE SEAL) SYSTEMATICS INFORMATION
SERVICES, INC.
ATTEST:
/S/ PaulStanfield By: John E. Steuri
Secretary Title: Chairman and Chief Executive Officer
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<PAGE>
RESTATED TRUST AGREEMENT
FOR
THRIFT PLAN TRUST FOR
EMPLOYEES OF SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
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TABLE OF CONTENTS
ARTICLE PAGE
I DEFINITIONS 2
1.1 Definitions 2
1.2 Pronouns and Gender 3
1.3 Headings 4
II POWERS, DUTIES AND IMMUNITIES OF TRUSTEE 4
2.1 Investment of Trust 4
2.2 Claims Against Trust 7
2.3 Borrowing 8
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 11
2.13 Payment of Taxes; Indemnity 12
2.14 Compensation and Expenses 12
2.15 Investment Funds; Designation of
Investment Manager; Investment in
Master Trust or any Other
Collective Trust 13
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 19
3.4 No Reversion of Trust 19
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 21
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VI MISCELLANEOUS 21
6.1 Governing Law 21
6.2 Duration of Trust 21
6.3 No Rights Against Trustee 22
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 of
Unenforceability of Provision 23
6.8 Incorporation by Reference 23
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RESTATED TRUST AGREEMENT
FOR
THRIFT PLAN TRUST FOR
EMPLOYEES OF SYSTEMATICS INFORMATION SERVICES, INC.
AND PARTICIPATING AFFILIATES
THIS AGREEMENT, made at ,
, as of the 1st day of January, 1993, by and between
Systematics Information Services, Inc., a Delaware corporation
(hereinafter the "Company"), with its principal office in
Little Rock, Arkansas, 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 trust agreement dated
December 12, 1985, there is maintained a trust for the purpose
of providing benefits under the Thrift Plan for Employees of
Systematics Information Services, Inc. and Participating
Affiliates (hereinafter the "Plan"); and
WHEREAS, it is desired hereby to amend the
trust agreement and to restate in their entirety the
provisions of the trust agreement as so amended;
NOW, THEREFORE, it is agreed by and between the
parties hereto that the trust agreement dated
December 12, 1985, shall be and the same hereby is amended and
restated in its entirety, 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
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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 Systematics Information
Services, 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
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and any comparable section or sections of any future legis-
lation that amends, supplements, or supersedes the section.
(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 Thrift Plan for Employees
of Systematics Information Services, Inc. and Participating
Affiliates as in effect on the date of this Agreement (copies
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 December 12, 1985, and
currently maintained under this Agreement, which trust is
called the Thrift Plan Trust for Employees of Systematics,
Inc. and Participating Affiliates, 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.
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<PAGE>
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.
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 fol-
lowing powers, duties, and responsibilities in the adminis-
tration 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 other
wise 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 insur-
ance or annuity contract or contracts at any time
held in the Trust;
(e) to exercise, buy, or sell rights of
conversion or subscription;
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<PAGE>
(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;
(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 in
vestment 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.
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<PAGE>
(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.
(m) with the written consent of the Pension
Investment Committee, to grant, purchase sell, exercise,
permit to expire, permit to be held in escrow, and other
wise 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 refer 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, mortgages,
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 option
contracts of any type, foreign 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 or ownership
in foreign corporations or other enterprises, or indebtedness
of foreign governments, limited partnerships, joint ventures,
insurance contracts, and any other evidences of indebtedness
or ownership, without being limited to the classes of property
in which
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<PAGE>
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 employer 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", and "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.
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<PAGE>
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, preser-
vation, 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 execute 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, 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
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<PAGE>
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, accountants, 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 appointed 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
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<PAGE>
distribution thereof, in its own banking department or 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
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<PAGE>
ascertain whether the Trustee shall have obtained the approval
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.
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 here-
under.
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.
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<PAGE>
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 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 th
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 June 29, 1994 included in the
ALLTEL Corporation Thrift 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 LLP
November 1, 1994
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Exhibit 24.1
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed: /S/ Joe T. Ford
Name: Joe T. Ford
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Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed: /S/ Max E. Bobbitt
Name: Max E. Bobbitt
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Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ Dennis J. Ferra
Name: Dennis J. Ferra
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Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed: /S/ Tom T. Orsini
Name: Tom T. Orsini
-171-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ Lawrence L. Gellerstedt, III
Name: Lawrence L. Gellerstedt, III
-172-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ W.W. Johnson
Name: W.W. Johnson
-173-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ Emon A. Mahoney, Jr.
Name: Emon A. Mahoney, Jr.
-174-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ George C. McConnaughey
Name: George C. McConnaughey
-175-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed: /S/ John P. McConnell
Name: John P. McConnell
-176-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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/ Philip F. Searle
Name: Philip F. Searle
-177-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ John E. Steuri
Name: John E. Steuri
-178-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ Carl H. Tiedemann
Name: Carl H. Tiedemann
-179-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed: /S/ Ronald Townsend
Name: Ronald Townsend
-180-
<PAGE>
Thrift 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, with respect to registering the
interests of the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating Affiliates (or as
such plan may be amended to the ALLTEL Corporation Thrift Plan)
(the "Plan") and the common stock of the Corporation that is sold
or deemed to be sold to the employee participants under the 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 24th
day of October, 1994.
Signed:/S/ William H. Zimmer, Jr.
Name: William H. Zimmer, Jr.
-181-
<PAGE>
Exhibit 24.2
ALLTEL CORPORATION
Resolutions of the Board of Directors
October 24, 1994
Re: SEC Registration of Plan Interests and Certain
Common Stock Sold or Deemed to be Sold Under
the Thrift Plan for Employees of Systematics
Information Services, Inc. and Participating
Affiliates, as may be renamed to the ALLTEL
Corporation Thrift Plan
WHEREAS, it is contemplated that participants of the Thrift
Plan for Employees of Systematics Information Services, Inc.
and Participating Affiliates (the "Systematics Thrift Plan")
will have the option to direct that all or a portion of
their accounts in the Systematics Thrift Plan be invested in an
employer stock fund thereunder containing common stock of
the Corporation;
WHEREAS, it is contemplated that on or before the date that
the Registration Statement on Form S-8 is filed with the
Securities and Exchange Commission (the "SEC") (as further
described below), the name of the Systematics Thrift Plan
may be amended to the "ALLTEL Corporation Thrift Plan" (the
Systematics Thrift Plan in its own name or as amended to the
ALLTEL Corporation Thrift Plan shall be hereinafter referred
to as the "Plan"); 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 SEC, and applicable state
securities authorities in connection with registering the
interests of the Plan and the common stock of the Corporation
that is sold or deemed to be sold to the employee participants
under the Plan, including, without limitation, the common stock
of the Corporation that is purchased by the trustee of the Plan
in the open market in accordance with instructions from the
employee participants of the 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 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.
-182-
<PAGE>
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.
-183-
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
SECOND QUARTER REPORT TO SHAREHOLDERS AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH REPORT.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> JUN-30-1994
<CASH> 30,839
<SECURITIES> 0
<RECEIVABLES> 466,195
<ALLOWANCES> 0
<INVENTORY> 69,621
<CURRENT-ASSETS> 612,127
<PP&E> 4,451,586
<DEPRECIATION> 1,677,306
<TOTAL-ASSETS> 4,418,415
<CURRENT-LIABILITIES> 622,644
<BONDS> 1,714,057
<COMMON> 187,851
8,046
9,358
<OTHER-SE> 1,368,164
<TOTAL-LIABILITY-AND-EQUITY> 4,418,415
<SALES> 0
<TOTAL-REVENUES> 1,443,971
<CGS> 211,253
<TOTAL-COSTS> 1,131,786
<OTHER-EXPENSES> 4,340
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 65,995
<INCOME-PRETAX> 241,850
<INCOME-TAX> 93,777
<INCOME-CONTINUING> 147,446
<DISCONTINUED> 0
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<CHANGES> 0
<NET-INCOME> 147,446
<EPS-PRIMARY> .78
<EPS-DILUTED> .78
</TABLE>
